Jltj^'i' (Snrn^ll Haui ^rljonl Jlibrarg Cornell University Library KF 1524.B81 1917 Brandenburg on bankruptcy 3 1924 019 293 905 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/cu31924019293905 BRANDENBURG ON BANKRUPTCY )•■ FOURTH EDITION By WILLIAM H. OPPENHEIMER CHICAGO CALLAGHAN AND COMPANY 1917 (,^5zy Copyright 1917 By CALLAGHAN & COMPANY PREFACE TO FOURTH EDITION Fourteen years have elapsed since the publication of the last edition of this work. Since that time the Bankruptcy Act has been amended by acts of Congress passed in 1906 and 1910. The amendments of 1910 particularly made a number of drastic changes in the Act. Many of the rules announced by earlier decisions are, therefore, obsolete. Since the last edition also, many of the uncertainties arising from conflicts among the various state and federal courts have been clarified by the authoritative decisions of the Supreme Court of the United States. For the first time since the passage of the Act, therefore, it is now possible to state with practical certainty the various principles arising in the application of the Act. The former edition has been practically rewritten and re- classified. It is not a mere annotation of the Bankruptcy Act but is, in fact, a complete treatise on the Law of Bankruptcy. Considerably over 100 unofficial forms carefully prepared and based, in most cases, upon forms used in oases passed upon by the courts, have been added to the present edition. These supplemental forms together with the official forms which have also been included will be sufficient, it is believed, to present a complete guide to the bankruptcy practitioner on practically every proposition likely to arise. In the appendix will be found the Acts of 1898 and 1867 together with the General Orders adopted by the Supreme Court of the United States. Under the various sections of the Act of 1898 and the General Orders, references have been incorporated showing where these provisions are treated in the work. Credit is cordially given to Mr. T. Otto Streissguth for his work in connection with the preparation of the present edition. William H. Oppehthbimeb. St. Paul, Minn,, February, 1917. CONTENTS CHAPTEE I HISTORY AMD .GENERAL NATURE i 1. History — ^In general , 1 §2. Bankruptcy and insolvent laws 2 § 3. Object 2 § 4. English history . 5 § 5. History in United States , 6 § 6. Constitutionality of act -.. 8 § 7. State and federal laws ^ 9 CHAPTEK II CREATION OP COURTS OP BANKRUPTCY AND THEIR JURISDICTION § 8. Creation of courts of bankruptcy and •Sta!tittoTy powers 15 § 9. Jurisdiction — In general 19 § 10. In law and equity 26 § 11. In rem or personam 28 § 12. -Perritorial jurisdiction 28 § 13. AneiUary jurisdiction 30 § 14. Place of business, residenceor domicile 32 § 15. — Distinction -between ■"'residence '" and ' 'domicile ' ' '3'5 § 16. — Length of, required 36 § 17. — Alien or nonresident 38 § 18. General powers ; 38 § 19. Judgment of state court 40 § 20. Receivers in state courts. '. 40 § 21. Commencement of proceedings 41 § 22. Want of sufficient jurisdiction, When raised 41 § 23. Collateral attack of decisions. 42 I 24. EeDpiening estate 43 I 25. Court always open — Term 43 § 26. Expedition in hearing 43 ? 27. Transfer of eases 44 '§ 28. Judge; qustlification, duty and conduct '. 47 -CHAP.TEK III CLERKS MARSHALS ATTORNilT GENERAL §.29. Clerks ; duties 48 I 30. Duties in general 49 § 31. To collect fees .* 50 [V] vi Contents , Page § 32. Inability or pauper affidavit 51 § 33. Custody of papers 52 § 34. Compensation of clerk 53 § 35. Marshal's fees 54 § 36. Attorney general — Statistics of bankruptcy proceedings for congress 57 CHAPTER IV ACTS OP BANKRUPTCY INSOLVENCY § 37. Acts of bankruptcy, defined 58 § 38. Classes 59 § 39. Estoppel 60 § 40. Insolvency 60 § 41. When partnership insolvent 63 § 42. Transfers or concealment with intent to defraud 63 § 43. Transfers with intent to prefer ' 67 § 44. Transfers or conveyances not acts of bankruptcy 71 § 45. — Conveyances of partnership property 71 § 46. — Conveyances to relatives 72 § 47. — Chattel mortgages 72 §48. — Mortgages 73 % 49. — Pledge -73 § 50. — Sales 74 § 51. Preference through legal proceedings 75 § 52. Assignment for benefit of creditors; receiver or trusteeship 81 § 53. Admitting in writing inability to pay debts and willingness to be adjudged bankrupt on that ground 90 § 54. Time for filing petition 93 § 55. Defense of solvency 96 § 56. Testimony on denial of insolvency 97 § 57. Practice in case of defense on the ground of solvency 98 CHAPTEE V VTHO MAY BECOME BANKRUPTS A. VOLUNTARY BANKRUPTS § 58. In general 101 § 59. Aliens 103 § 60. Corporations 103 § 61. Farmers 104 § 62. Indians 104 § 63. Infants 104 § 64. Insane persons 105 I 65. Married women 105 B. INVOLUNTARY BANKRUPTS § 66. Historical 105 § 67. Amount of assets and liabilities 106 § 68. Burden of proof 106 § 69. Aliens , 107 § 70. Banks and bankers 107 Contents vii Page § 71. Corporations, prior to amendment of 1910 108 § 72. — In general 108 § 73. — Trading corporations Ill § 74. — Mercantile corporations 112 § 75. — Manufacturing corporations 113 § 76. — Mining corporations 115 § 77. — Printers and publishers 115 § 78. —Railroads 115 § 79. Corporations subsequent to amendment of 1910 116 § 80. — In general 116 § 81. -^ Quasi-public corporations 116 § 82. — Business conducted through agent 117 § 83. — Pendency of proceedings to dissolve 117 § 84. — Admission of insolvency. 118 § 85. — Consent adjudication 118 § 86. ExecutorK and administrators 119 I 87. Indians 119 § 88. Infants 119 § 89. Indorsers 120 § 90. Insane persons ; 120 § 91. Married women 120 § 92. Unincorporated companies 121 § 93. Exempt occupations 121 § 94. — In general 121 § 95. — Farmers and tillers of the soil 123 § 96. — Wage-earners 125 C. BANKRTTPTCT OP PAfiTNEBSHIP AND MEMBEES THEBEOP § 97. Jurisdiction in general •■■'■• 126 § 98. What is a partnership 126 § 99. Creditor cannot compel institution of proceedings 128 § 100. Good faith of petitioner 128 § 101. Adjudication by consent. , 128 § 102. Period during which partnership may be a,djudicated 128 § 103. Death or insanity of partner 130 § 104. What partners may be adjudged involuntary bankrupts 131 §105. —In general 131 § 106. — Nominal and dormant partners 131 i 107. What partners may not be adjudged 132 § 108. Proceedings against solvent partner 132 § 109.. Exempted occupations 132 CHAPTER VI PARTIES, PLEADINGS AND PROCESS A. VOLUNTABT PROCEEDINGS § 110. Who may file a voluntary petition 136 § 111. Petition to be based on provable debt. 136 § 112. Filing must be voluntary 136 § 113. Pendency of previous voluntary or involuntary petition 137 § 114. Joint petitions , 138 Page §JI15. Allegations of the petition • ^^ %ia.6. Withdrawal of the petition -•• '^^ B. INVOLUNTAKT PEOCEEDINeS "§ 117. Nature -at -petseee&inga • "^^® "§118. AgaiMBt Whom eoftnneneed ^^^ § 119. Who may file petition '^^^ ^120. — Good faith of petitioner 1^^ § 121. — CompgUing creditors to ■become pi^itioners 1*'' § 122. — Nmnber df creditors and amount of claims ^^^ § 1-23. —Creditors Of ^hat date included ^^ § 124. — Relatives and employees ^^^ § 125. — Stockholders and directors as creditors ^^^ ^ 126. — Corporation acting as purchasing agent. ^^ ■§ 127. — -Stockhciiaer's or director's 'UabiUty ^^ § 128. — AssigHee or trustee ^^ § 129. — Married women •'•^^ § 130. — •Obligee in bond and surety ^45 § 131. —Partner ^*5 § 132. — -Claims counted 1*^ §133. — TJnliquiaated claims 147 § 134. — "Secured, priority and lien creditors 1*7 § 135. — Preferred creditors 14^ § 136. — ^-Creditors participating in aCt Of bankruptcy 150 §137. Intervening petitioners 151 § 138. — Eight to intervene 151 § 139. — ^ Time •«£ interseoitiDn ,. • • 153 § 140. — Manner of intervention ' 154 '% 141. — Status of interveners 15'4 § 142. — Intervening creditors counted 154 -§ 143. Withdrawal of -petitioners : 154 ^ 144. P-rocess 135 1 145. — Porm of 155 § 146. — By whom issued 155 § 147. —When ■issued 156 % 148. — Personal service 156 § 149. — Service by publication 158 % 150. Notice to creditors 159 1 151. — In general 159 ^ 152. — Creditors named in answer 160 ^ 153. Form ef petition 160 § 154. Allegations of petition 161 § 155. — In general 161 § 156. — Residence or place of business of debtor 162 § 157. — Nature of petitioner 's claim 163 § 158. — Number and amount X)f -claims 163 § 159. — Business or occupation of debtor 164 '§ 160. — Act of bankruptcy 165 ■I 161. — When multifarious 166 <% 162. — Waiver of defects 167 § 163. Piling of petition. 167 § 164. Amendment of petition 169 Contents IX • Page i 165. By whom allowed and form of application 169 i 166. — Requires special showing 169 i 167. — Time of filing 169 i 168. — Objections to 170 1 169. — When allowed 170 i 170. — When denied 174 i 171. — Effect of amendment 175 i 172. — Amended petition not treated as original 175 i 173. — Demurrer or answer to amended pleading 176 i 174. Appearance and plea , 176 i 175. — Who may defend 176 i 176. — Bringing in additional parties 177 ! 177. — Mode of appearance personally 178 > 178. — Time for appearance 179 ! 179. — Voluntary appearance 181 i 180. — Demurrer .' 182 \ 181. — Plea or answer 182 i 182. — Replication 185 \ 183. Verification of pleadings 185 ) 184. — Verification necessary 185 j 185. — Corporations 186 5 186. — By agent, attorney or partner 186 \ 187. — Defects and objections 187 I 188. — Verification of answer 188 C. PROCEEDINGS BY OR AGAINST PARTNERSHIPS AND MEMBERS THEREOF § 189. Voluntary petition by partnership or members 188 § 190. — Form and allegations 188 g 191. — Necessity of separate petitions 189 1 192. — Necessary parties 189 1 193. Proceedings against firm by member thereof 190 5 194. Adjudication of individual partners 191 5 195. Involuntary petition against firm or members 192 5 196. — In general 192 1 197. — Partnership creditors 193 CHAPTER VII PROVISIONAL SEIZURE OP PROPERTT — ^RECEIVERSHIPS 1 198. Jurisdiction of bankruptcy court prior to adjudication 195 1 199. Rights and duties of marshal 196 I 200. Appointment of receiver 196 5 201. — When proper 196 ; 202. — Property subject to seizure 198 i 203. — Application, notice and hearing 200 \ 204. — Bond of petitioners '. . 201 ; 205. — Forthcoming bond of alleged bankrupt 201 j 206. — Appeal and review 202 \ 207. — Collateral attack 202 5 208. Interference with bankrupt's property 202 i 209. — Before appointment of receiver 202 X Contents Page § 210. — After appointment of receiver 203 § 211. Powers, duties, rights and liabilities of receiver 204 § 212. —Outside of district 204 § 213. — Title to property 204 § 214. — Contracts and leases 205 § 215. — Participation in examination of bankrupt 206 § 216. — Adjustment and compromise of claims against bankrupt 206 § 217. — Claims against receiver « 206 § 218. — Payments, loans and deposits 206 § 219. — Employment of attorney 207 § 220. — Receiver's sales 208 § 221. — Surrender of property to receiver ■. 210 § 222. — Surrender of bankrupt's books 210 § 223. — Surrender of property to third persons 210 § 224. Expenses and compensation of receiver and marshal -211 § 225. — Jurisdiction to determine 211 § 226. — Care and preservation of the estate 211 § 227. — Continuation of bankrupt's business 213 § 228. — Examination of books ". 214 % 229. —Discretion of court 214 § 230. — EfCect Of dismissal 214 § 231. — When compensation vfithheld 215 § 232. — Extra compensation 215 I 233. — Notice of application 215 § 234. Contempt of receiver 215 § 235. Accounts of receiver 216 § 236. Actions by receiver 216 § 237. Actions against receiver 217 § 238. Removal and discharge of receiver 218 § 239. — Right of removal and discharge ' 218 § 240. — Effect of dismissal of proceedings 219 § 241. — Effect of appointment of trustee 219 § 242. Ancillary receivers 220 CHAPTER VIII HEARING ON PETITION — DISMISSAL OR ADJUDICATION JURY TRIALS, EVIDENCE i 243. An equitable proceeding 222 i 244. Venue 222 i 245. Adjournment of hearing 222 i 246. Proceedings in case of several petitions 223 1 247. — Order and place of hearing 223 ! 248. — Consolidation of proceedings . . .' 224 i 249. Voluntary and involuntary proceedings 224 I 250. Issues to be tried 224 i 251. Defenses 225 \ 252. Conduct of trial 226 i 253. — Reference 226 i 254. — Burden and quantum of proof 226 i 255. — Evidence 229 i 256. — Witnesses 230 Contents xi Pago i 257. — Questions of law and fact 230 i 258. — Instructions 230 i 259. — Directing verdict 230 S 260. — Kehearing 231 i 261. Jury trials 231 5 262. — Decision of issue -with or witliout jury 231 I 263. — Questions submitted 232 S 264. — On insufficient petition 234 S 265. — On intervening petition 234 § 266. — Jury not in attendance 234 I 267. — Waiver of right 235 5 268. —Verdicts 236 § 269. Action on voluntary petition 236 § 270. Partnership cases 237 § 271. — Nature of proceedings 237 § 272. —Proof of partnership 238 § 273. — Partnership as question of law or fact 238 § 274. —Defenses 238 § 275. — Consent and default adjudications -= 238 § 276. — Separate adjudication of firm and membeis , 239 § 277. Adjudication or dismissal on failure to pleai 239 § 278. Dismissal after hearing 240 § 279. — Grounds of dismissal 240 I 280. — Voluntary abandonment 242 § 281. — Dismissal after adjudication , 242 § 282. — Hearing upon motion ; 242 § 283. — Eight to contest 243 § 284. — Amendment of order of dismissal 243 § 285. — Reinstatement of petition , 243 § 286. Notice of dismissal before and after hearing 243 § 287. Notice of adjudication 245 § 288. Date of adjudication 245 § 289. Effect of adjudication 245 § 290. — In general 245 § 291. — Parties bound 246 § 292. — As evidence of bankruptcy 246 § 293. — Title to property 246 § 294. — Contracts and claims 247 § 295. — Partnerships and corporations 247 g 296. — Collateral attack 248 g 297. Setting aside adjudication 249 § 298. — Who may apply 249 § 299. — Who may oppose application 249 I 300. — When set aside 249 § 301. —When not set aside 250 i 302, —Proceedings for vacating , 251 CHAPTER IX LIABILITY FOE WRONGFUL INSTITUTION OF PROCEEDINGS OB SEIZURE OF PROPERTY § 303. Malicious prosecution 253 5 304. Libel 253 xii Contents Page § 305. LiabUity of marshal 254 § 306. Eecovery of costs independent of bond 254 § 307. Liability under bonds 254 § 308. —Practice 256 CHAPTER X REFEREES IN BANKRUPTCY AND THEIR JURISDICTION § 309. Creation and nature of ofBce 259 § 310. Number and districts of referees 260 § 311. Appointment of referees 260 § 312. —Who may appoint : 260 § 313. — Appointment in case of vacancy 261 § 314. — Notice of appointment ' 261 § 315. Qualifications of referee 261 § 316. Tenure of office 262 § 817. Oath of oflSce 263 § 318. Referees ' bonds 263 § 319. Removal of referee 264 § 320. Reference before adjudication 265 § 321. Reference after adjudication 266 § 322. Order of reference 267 § 323. Transfer from one referee to another 267 § 324. Jurisdiction of referees 268 § 325. — In general 268 f 326. — Consent will not confer jurisdiction 270 § 327. — Territorial limits 270 § 328. — Dismissal of petition 270 § 329. — Seizure and release of property 270 § 330. — Adverse claimants 271 § 331. — Surrender of preference and collection of assets 272 § 332. — Sale and appraisal of property 272 § 333. — Injunctions 273 § 334. — Discharges and compositions 275 § 335. — Administration of oaths 276 § 336. — Costs and fees 276 § 337. — Examinations and depositions 276 § 338. — Waiver of objections 276 § 339. Duties of referees 277 § 340. — Presiding at first meeting of creditors 277 § 341. — Declaration of dividends 277 § 342. — Notices 278 § 343. — Examination and amendments of schedules and lists 279 § 344. — Preparation and filing of schedules 279 § 345. — Furnishing information 280 § 346. — Accounts of receivers and trustees 280 § 347. Use of mails by referee 280 § 348. Orders of referees 281 § 349. Records of referees 281 § 350. — Preparation and preservation 281 § 351. — Records as evidence 282 § 352. Semi-annual reports 283 Contents xiii Page § 353. Conclusiveness of findings. . . .^ . , 283 § 354. Beyiew of orders and findings >.'. 285 § 355./ — Eight of review 285 § 356. —Practice : 286 § 357. — Time for applying for review 287 § 358. — Scope of review 289 S 359. — Action on petition 289 § 360. — Eeview by referee ;...... 290 § 361. — Effect of appeal : 290 § 363. Certification of hypothetical questions. .;...::..... 290 § 363. Fees for filing petition and claims 290 § 364. Expenses of referee 291 § 365. — In general ; 291 § 366. — Stenographic and clerical help. 1 292 § 367. — Account of expenses and manner of payment 293 § 368. — Exceptions to charges 293 § 369. Compensation in pauper cases 293 § 370. Commissions on disbursements .' 293 § 371. Extra compensation 295 § 372. Compensation when case transferred 296 § 373. Compensation when reference revoked. 296 § 374. Eeview of allowance of fees. .'\'. 296 § 375. Compensation of special master . . '.'. . .- 297 § 376. OfCenses by referees 297 CHAPTEE XI DEATH OR INSANITY 01" THE BANKRUPT § 377. Death of bankrupt. 298 § 378. —In general 298 § 379. — Disposition of estate among creditors 300 § 380. — Proceeds of insurance. 300 § 381. ^-Statutory allowance to widow and children , ., 300 § 382. — Eights of next of kin 302 § 383. Insanity of bankrupt 302 § 384. — Insanity prior to filing of petition 302 § 385. — Insanity after commission of act of bankruptcy v . . 302 § 386. — Guardian ad litem : 302 § 387. — Examination as to sanity 303 § 388. —Burden of proof 303 §389. —Eights of wife 304 § 390. — Effect upon receivership 304 § 391. Death or insanity of partner 304 § 392. Dissolution of corporation 305 CHAPTEE XII EIGHTS AND DUTIES OP BANKBUPT § 393. Attendance a:t meetings : 306 § 394. Compliance with orders 307 I 395. Disclosure of assets 307 § 396; Examination of claims . . 307 xiv Contents Page § 397. Schedules 308 § 398. — Piling 308 § 399. — Partnership cases 309 § 400. — Form and contents in general 309 § 401. — Verification 310 § 402. — /Assets to be listed 310 § 403. — Creditors and claims listed ^ 310 § 404. — Claims for exemptions 311 § 405. — Errors and omissions in schedules 311 § 406. — Amendment 312 § 407. — Effect of including claim 314 § 408. — False oath to schedule 314 § 409. — Schedules as evidence. 314 § 410. — Relation of schedule to composition proceedings 315 § 411. Examination of bankrupt 315 § 412. Payment of money to creditors by bankrupt 315 § 413. Surrender of property to trustee 316 § 414. Duty to join in application for license 316 § 415. Production of books and papers 316 § 416. Duty to disclose combination to safe 316 § 417. Duty to assist receiver 317 § 418. Waiver of protest on notes 317 § 419. Eight to reclaim property 317 CHAPTER XIII AERBST, DETENTION AND EXTRADITION OP BANKSTTPT § 421. Bankrupt 's exemption from arrest 318 § 422. — When exempt 818 § 423. — Exemption applies to bankrupt only 319 § 424. — When not exempt 319 § 425. — Period during which exemption continues 321 § 426. — Scope of inquiry into state court proceedings 322 § 427. — Manner of procuring release 322 § 428. Detention of bankrupt for examination — ^Writ of ne exeat 324 § 429. — Release upon bond 326 § 430. Extradition of bankrupt 326 § 431. — Power to extradite 326 § 432. — Manner of , extraditing 327 CHAPTER XIV MEETINGS OP CREDITORS § 433. First meeting 329 § 434. — Nature and purpose 329 § 435. — Time and place of meeting 330 § 436. — Notice ! ! 330 § 437. — Adjournments 33]^ § 438. — Judge or referee to preside 332 § 439. — Bankrupt's attendance 333 f 440, — Allowance or disallowance of claims, .,,,,,.,,.,.,..,..,.., 333 Contents xv Page § 441. — Appointment of trustee 333 § 442. Subsequent meetings 333 § 443. —When caUed 333 § 444. —Notice 335 § 445. — Dividend and final meetings 335 § 446. Duties of creditors at meetings 335 § 447. Voting at creditors' meetings • 336 § 448. —In general 336 f 449. — Individual and partnership creditors 336 § 450. — Assigned claims 337 § 451. — Secured, priority and preferred creditors 337 § 452. — Belation of creditor and bankrupt as affecting vote 339 § 453. — Fraudulent voting 339 § 454. — Voting by attorney or proxy 339 § 455. — Change of vote 342 § 456. — Objections to claim and effect thereof 342 § 457. Majority in number and amount required 344 CHAPTEH XV APPIDAVITS, EXAMINATIONS AND EVIDENCE § 458. Oaths and affirmations 347 § 459. — Who may administer 347 § 460. — Administration of oath by counsel 347 § 461. — Affirmations 348 § 462. — Form of oath 348 § 463. Certificate of acknowledgment 348 § 464. Who may be examined 349 § 465. — In general 349 § 466. — Trustee, assignee or receiver 349 i 467. — Wife of bankrupt 350 § 468. — Officers of bankrupt corporation 351 § 469. — Creditors and third persons ^ 351 § 470. General rules applying to all examinations 352 § 471. — Who may apply for examination 352 § 472. — Time and manner of making examination 354 § 473. — Order for examination and subpoenas 354 § 474. — Before whom examination held 355 § 475. — Penalty for refusal to appear 355 i 476. — Eight to counsel 355 1 477. — Scope of examination 356 § 478. — Conduct of examination 357 § 479. — Eevenue law establishes rule of evidence 357 § 480. — Privileged communications 358 § 481. — Weight of evidence 358 § 482. — Variance 358 § 483. Examination of bankrupt 358 § 484. — Propriety 358 § 485. — Notice to bankrupt and creditors 359 § 486. — Attendance of imprisoned bankrupt 359 § 487. — Period during which examination may be had 360 xvi Contents Page § 488. — Length of examination .-....•. 361 § 489. -^ Adjournments and second examinations '■ 361 § 490. — Scope of examination • • • 363 § 491. — Manner of examination 364 § 492. — Admissibility of evidence ..;..;.... 364 § 493. — Answers compulsory 365 § 494. — Incriminating evidence ; 365 § 495. — Weight of evidence; ; , 368 § 496. — Effect of incomplete examination 369 § 497. Depositions ...;.:;... 369 § 498. — Federal law governs 369 § 499. —Notice ' ' 369 § 500. — Grounds for taking depositions 370 § 501. — Manner of taking depositions ' 370 § 502. — Original exhibits as part of deposition 371 § 503. Production of books and papers 371 § 504. Powers and duties of examiners, masters and referees 374 § 505. Exemption of witness from service of process 376 § 506. £^ees and compensation 376 CHAPTER XVI PROVABLE DEBTS § 507. General tests of provability 379 § 508. Advances 380 § 509. Alimony or annuities in lieu thereof 381 § 510; Assigned claims 381 § 511. Claims of assignee for creditors and receivers 382 § 512. Attorney's fees '. 383 § 513. Claims of banks 385 § 514. Bonds and recognizances 385 § 515. Claims by and against brokers,. 387 § 516. Commercial paper ; 387 § 517. —In general 387 § 518. — Liability of bankrupt as indorser or surety 390 § 519. — Claims of sureties, guarantors and persons secondarily liable 392 § 520. Composition as affecting provability 393 § 521. Contracts — ^In general 393 § 522. — Illegal contracts 395 §523. — Ultra vires contracts .■ 396 § 524. — Contracts for services ..." 397 § 525. — Sales of personalty ' 399 § 526. — Sales of real property 400 § 527. — Subscriptions 400 § 528. Claims for conversion 400 § 529. Costs and fees 401 § 530. Claims of creditors of third persons 402 § 531. Equitable demands 403 § 532. Executors and administrators 403 § 533. Fines, bonuses, penalties and forfeitures 4O3 § 534. Claims for fraud and deceit 404 Contents xvii Page § 535. Praud of creditor or preference as affecting provability. . , , ., 404 § 536. Olaims of husband or wife of bankrupt 406 S 537. Insurance 409 S 538. Interest 409 § 539. Joint obligations 410 § 540. Judgments 410 § 541. — In general , 410 § 542. — Seduction, support, bastardy, etc 412 § 543. — Judgment recovered after petition filed 412 § 544. — Judgment against trustee 413 §545. Claims of landlord 413 § 546. — Kent and damages for breach of lease 413 § 547. — Eepairs ; , 416 § 548. — Taxes and water rent 416 § 549. Claims barred by statute of limitations ,...,.., 416 § 550. Claim of mortgagee 419 § 551. Mutual debts and credits , :■■■ ■ 419 § 552. Partnership eases 420 § 553. — Individual debts not allowable out of firm assets 420 § 554. — rirm debts '.'. 420 § 555. — Joint and individual debts 422 § 556. — Firm debts provable against individual estate 424 § 557. — Firm debts not provable against individual estate 425 § 558. — Effect of proving firm debt against individual estate .,,.... 426 § 559. — Claims of partners ., 426 § 560. — Marshalling of assets 428 § 561. Patents and royalties 428 § 562. Secured claims 428 § 563. Liability of bankrupt as stockholder or director 429 I 564. Liability of bankrupt corporation to holders of its stocks and bonds 429 § 565. Trade certificates ,..!.,... 430 § 566. Debts due the United States or a state 430 § 567. — In general 430 § 568. — Pines, bonuses, penalties and forfeitures 431 §569.- — Taxes 431 § 570. Unliquidated claims 431 § 571. Usurious contracts , 434 CHAPTER XVII SET-OFFS AND COUNTERCLAIMS § 572. Mutual debts and credits — General rules 436 § 573. Claims between estate and creditor — In general , 438 § 574. Claim must be provable , , ,, 439 §575. — In general , , , ,..t 439 § 576. — Claims barred by limitations , .-. , 440 § 577. — Taxable costs 440 § 578. Debts and credits must be in same right. . ... ,,,..,,., , 440 § 579. Claims must not be purchased in view of bankruptcy ,. ,i. ..,..,,. *.. 441 §. 580. Claims need not be of same nature , j ,.;,..,....,.... , 442 §581. Joint and separate debts. . .,,..,....,. ,,,., , .., . . . . ,. 443 §. 5^2. Set-off between banker and depositor .,..,, t ... , ,...,....,„..... 444 xviii Contents Page § 583. Set-off by a married woman 445 § 584. Secured and preferred creditors 445 § 585. Set-off against usurious note 447 § 586. Foreign attachment 447 § 587. Waiver of set-off 447 § 588. Estoppel to plead set-off 448 § 589. Time and place of set-off 448 CHAPTEE XVIII PROOF AND ALLOWANCE OP CLAIMS § 592. Proof and allowance distinguished 450 § 593. Right to prove claim and necessity therefor 451 i 594. By whom proof made 451 § 595. — Agent, officer, partner or attorney 451 § 596. -^Assignee or receiver 452 § 597. — Indorsers, sureties and persons secondarily liable 453 § 598. ,— Pledgor 455 § 599. — Proof previously filed by another 455 § 600. Filing proof of claim 455 § 601. — Necessity of filing 455 § 602. — Filing instruihent upon which claim founded 455 § 603. —Place of filing 456 § 604. — Duty of court to receive proofs 456 § 605. —Effect of filing 456 § 606. Time for making proof 457 § 607. Manner of making proof 460 § 608. — In general 460 § 609. — Statement of consideration , 461 § 610. — Assigned claims 462 § 611. — Open accounts 462 § 612. — Priority claims 468 § 613. — Instruments in writing 463 § 614. Verification of proof of claim 464 § 615. Amendment of proof 464 § 616. — In general 464 § 617. — Period during which amendment may be allowed 466 § 618. Surrender of preferences 467 § 619. — What must be surrendered 467 § 620. — Surrender of preference given vrithin four months 469 § 621. — Surrender prior to amendment of 1903 470 § 622. — To whom surrendered 472 § 623. — Surrender after discharge of trustee 473 § 624. — Involuntary surrender of preference 473 § 625. — All debts affected by non-surrender 474 I 626. — Surrender in case of new credit 475 § 627. — Effect of surrender 475 i 628. Proof of claim of one bankrupt estate against another 476 § 629. Secured claims 476 § 630. — What are secured claims 476 § 631. — Right to prove claim and manner of proof 477 § 632. — Allowance for voting purposes 480 Contents xix Page § 633. —Double proof 480 § 634. — Security on property of third person 480 § 635. — Application of credits and marshalling of assets 481 § 636. — Determination of value of securities 482 § 637. — Sale of securities 483 § 638. — Purchase of security by creditor 484 § 639. — Effect of proving claim as secured or unsecured 484 § 640. Allowance and rejection of claims 485 § 641. — Discretion of referee 485 § 642. — Bankrupt 'a attorney cannot appear for creditor 486 § 643. —Bight to jury trial 486 § 644. — Prima facie case 486 § 645. — Examination of ' claimant and witnesses 487 § 646. — Admissibility of evidence and order of proof 487 § 647. — Competency of witnesses 488 § 648. — Adjudication of bankruptcy as res adjudicata 488 § 649. — Judgment of state court as res adjudicata 489 § 650. — Appeal and review 489 § 651. Objections to claims 489 § 652. — Jurisdiction of referee 489 § 653. —Who may object 489 § 655. — Time of making 490 § 656. — Manner of making objection? 491 §657. — Time of hearing ' 491 § 658. — Proof in case of objections ' 491 § 659. — Costs in case of objections 492 § 660. Postponement of hearing on claims 1 492 § 661. Withdrawal of claim 493 § 662. Be-examination of claims 494 § 663. — Who may petition '. 494 § 664. — Time for asking reconsideration 495 § 665. — Consolidation of proceedings 496 § 666. — Mode of procuring re-examination 496 § 667. — Answer to petition 496 § 668. — Conduct of hearing and relief awarded 496 § 669. — Costs and expenses 498 § 670. Effect of proving claim 498 § 671. —In general ■ 498 § 672. — Effect on collateral proceedings 500 § 673. — Bight to oppose discharge 501 § 674. Effect of failure of proof 501 CHAPTEB XIX TETTSTEES; THEIE QrALIPICATIONS, APPOINTMENT AND COMPENSATION § 675. Official or general trustee * 503 § 676. Ancillary, trustee 503 § 677. Trustee in partnership cases 503 § 678. When appointment of trustee unnecessary 504 § 679. Election of trustee ". 504 § 680. — Time of election 504 S 681. —Votes counted 505 XX Contents Page § 682. Approval or disapproval , of ereditprs, ' eioice 505 § 683. Appointment by judge or referee 505 § 684. Notice of appointment and acceptance of trust — 506 § 685. Qualifications of trustee.. , , 506 § 686. —In general , 506 §687. — Trustee held qualified 508 § 688. — Trustee held not qualified 509 § 689. — Corporation as trustee 509 § 690. Bond of trustee... , 510 § 691. — In general , 510 § 692. — Fixing amount • 510 § 693. —Sureties , 510 § 694. — Failure to give bond 511 § 695. —.Liability on bond 511 I 696. Additional trustees 512 § 697. Vacancy in of&ce of trustee 512 § 698. —In. . general , 512 § 699. — Eesignation and abandonment of office 513 § 700. — Removal fon cause , 513 § 701. — Effect of death or removal upon pending actions 514 § 702. Compensation of trustees , 514 § 703. — Where no assets disclosed ,. 514 § 704. —Fees -. 515 § 705. — .Expenses 515 § 706. — Commissions . in general. 515 § 707. — Commissions for continuing business 517 § 708, — Commissions where composition confirmed 518 § 709. — -Extra compensation ,,,.,., 518 § 710. — Apportionment between several trustees 518 § 711. — Withholding compensation , , 519 i 712. — Procedure to procure, compensation. 519 CHAPTER XX POWERS AND DUTIES OF TEtTSTEES IN GENERAL , § 713. An officer of the court ; ; ; 520 § 714. Fiduciary relation to bankrupt and creditors 521 § 715. -^ In general . : ;;..;: ■....;: 521 § 716. — Creditors must act through trustee 521 § 717. Majority must concur where three trustees appointed 522 § 718. General powers of trustee of bankrupt corporation 522 § 719. Duty to file decree of adjudication 522 § 720. Preparation of inventory 523 § 721. Accounts and reports 523 § 722. Arbitration and compromise of claims 524 § 723. Duty to furnish information 524 § 724. Duty to collect and reduce estate to money , 524 § 725. Performance of contracts of bankrupt 527 § 726. Redemption of property 527 § 727. Sale of property 503 § 728. Deposit and payment of money 528 § 729. Attachment of funds in trustee's. hands. . , , , _ _ 530 Contents xxi Page § 730. Liability for interest 530 § 731. Payment of taxes 530 § 732. Duty with respect to bankrupt's exemptions 531 § 733. Payment of dividends 531 § 734. Employment of attorney 531 § 735. Enforcement of stockholder 's liability 532 § 736.- Liability of trustee and sureties 533 § 737. — In general 533 § 738. Actions against trustee and sureties 534 § 739. Actions by trustee 535 1 740.- Compensation of trustee 535 CHAPTER XXI PROPERTY OP BANKRUPT AND TITLE THERETO § 741. Title vests in trustee by operation of law 538 § 742. When title passes to trustee 539 § 743. Title vests as of date of adjudication 539 § 744. Nature of trustee's title 540 § 745. — Derived from bankruptcy act 540 § 746. — Purpose for which title vests 540 § 747. — Title prior to amendment of 1910 540 § 748. — Title subsequent to amendment of 1910 542 § 749. Extent of trustee 's title 544 § 750. — tinder act of 1867 544 § 751. — Property acquired prior to filing of petition 545 § 752. — Property acquired between filing petition and adjudication 548 § 753. — Property acquired after adjudication. 548 § 754. — Property transferred after filing of petition 549 § 755. Estoppel of trustee to assert title ^ 549 § 756. Injunction against trustee 550 § 757. Title on setting aside composition or discharge 550 § 758. By what law title determined 550 § 759. Title in ease of confusion of goods 551 § 760. Failure to take possession or abandonment 551 § 761. Intermeddling with estate 553 § 762. Taxation of property of estate , '. 553 § 763. Title by adverse possession , 554 § 764. Brokers, factors and their customers 554 § 765. Choses in action 555 S 766. Commercial paper 556 § 767. Concealed assets 557 § 768. Conditional sale or bailment 557 § 769. — In general 557 i 770. — What constitutes a sale 559 § 771. — Waiver of conditions 562 I 772. — Eesaje by bankrupt 562 I 773. — Assumption of contract by trustee 562 § 774. — Necessity of recording 563 § 775. —Effect of record 566 § 776. Contracts of bankrupt. 566 S 777. Corporate records 568 •gyii Contents Page § 778. Crops 568 § 779. Equitable titles 569 § 780. Exempt property 569 § 781. Fixtures 569 § 782. Property fraudulently transferred 570 § 783. — Statutory provisions 570 § 784. — Transfers must be subsequent to act 572 § 785. — Wliat constitutes a transfer 572 § 786. — Eights of trustee in general 573 § 787. — Validity of transfers determined by local law 573 § 788. — Transfer need not be within four months 574 § 789. — Intent of bankrupt 574 § 790. — Participation of transferee in fraud 575 § 791. — Insolvency 575 i 792. — Adequacy of consideration not decisive 575 § 793. — Preference not necessarily fraudulent 575 § 794. — Transfers held invalid 576 § 795. — Sales out of due course 578 § 796. — Want of record or delivery 579 § 797. — Conveyance to relatives 580 § 798. — Conveyance by partners . .• 582 § 799. — Transfer of exempt property 583 § 800. — Trust for benefit of third persons ' 583 § 801. —Gifts 584 § 802. — Bona fide transfers for a valid consideration 584 § 803. — Substitution of securities 586 § 804. — Evidence of fraudulent intent 586 § 806. Future contingent interests 587 § 807. Good will 588 § 808. Property of husband and wife 588 § 809. — In general 588 § 810. — Joint estate 590 § 811. — Dower ' 590 § 812. —Curtesy 591 § 813. — Gifts 592 § 814. Fire insurance policies 592 § 815. Life insurance policies 594 § 816. ^ Cash surrender value as affecting riglits of trustee 594 § 817. — Exempt policies 597 § 818. — Power to change beneficiary not an asset 598 § 819. — Policies payable to wife 593 § 820. — Policies for creditors ' benefit 600 § 821. — Dividends 600 § 822. — Unearned premiums 600 § 823. — Proceeds upon death of bankrupt 601 § 824. — Policy on life of third person 601 § 825. Eights arising out of relation of landlord and tenant 601 § 826. — Lease not terminated by bankruptcy 601 § 827. — Trustee 's election 602 § 828. — Distraint for rent and forfeiture of lease f 604 § 829. — Bankrupt 's liability not released 60i § 830. — Trustee or receiver as trespasser 605 Contents xxiii Pago § 831. — Injunction against landlord 605 § 832. — rixturea 605 § 833. — Eecoveiy of payments •. 605 § 834. — Bankruptcy of lessor 605 § 835. Legacies — wills — inheritance 606 § 836. Property in partnership cases 607 § 837. — Partnership property 607 § 838. — Individual property 609 § 839. — Conversion of joint estate into separate estate and vice versa 610 § 840. — Title and rights of trustee 611 § 841. Patents and copyrights 613 § 842. Payments and deposits 614 § 843. Personal privileges, licenses and memberships 617 § 844. Property purchased prior to bankruptcy 619 § 845. Bents and profits 621 § 846. — In case of mortgage 621 § 847. — In case of fraudulent conveyance 622 i 848. — In case of general assignment 622 I 849. — Building and loan associations 622 § 850. Property sold prior to bankruptcy 623 § 851. Stocks, bonds and other securities 623 § 852. Property held in trust by bankrupt 623 § 853. Property held in trust for bankrupt 626 § 854. Claims against the United States G27 § 855. Wages 629 CHAPTER XXII LIENS § 856. Valid liens recognized 631 § 857. Comparison of acts of 1898 and 1867 632 § 858. Nature and validity of liens determined by state law 632 § 859. Eights of trustee in general 633 § 860. Trustee to enforce creditors ' rights 635 § 861. Trustee is proper party to attack liens 636 § 862. Lien claimants are not represented by trustee 637 § 863. Bona fide purchasers 637 § 864. Liens after bankruptcy 638 § 865. Liens upon exempt property 640 § 866. Liens void for "want of record or other reasons" — In general 640 § 867. Effect of record 641 § 868. The four-month period 641 § 869. — Fraudulent conveyances and incumbrances 641 I 870. — Liens by legal proceedings 644 § 871. Eelease and abandonnfent of liens 645 § 872. Redemption by trustee .' 645 § 873. Subrogation of creditors 646 § 874. T'ormal discharge of lien 646 § 875. Enforcement of lienor's or mortgagee's rights 647 S 876. — In general 647 § 877. — Costs and fees 649 { 878. Liens through legal proceedings - 650 xxiy CaNTENTs Page § 879. — Statutory provisions 650 § 880. — Comparison of Acts of 1867 and 1898 651 § 881. — Constitutionality of provisions 651 §882. — Conflict between subdivisions "c" and "i" of section 67 652 § 883. — Provisions apply to voluntary and involuntary cases 654 § 884. — Liens affected in general 654 § 885. — Insolvency 655 § 886. — Active participation of debtor 655 § 887. — Creation of preference 656 § 888. — Lien acquired by state 656 § 889. — Lien acquired in foreign country 656 § 890. —Attachments 656 § 891. —Creditors' suits 658 § 892. — Garnishments 659 § 893. — Judgment and execution liens 659 § 894. — Eeplevitt 663 § 895. — Sale under attachment or execution 663 § 896. — Preservation of lien for estate 664 § 897. — Eeimbursement of creditors for costs . . , ^ 666 § 898. Assignments for creditors and receiverships 666 § 899. Assignments of money or wages 669 § 900. Attorney's lien 670 § 901. Banker's lien 670 § 902. Chattel mortgages and trust deeds 670 § 903. — Bights of trustee 670 § 904. — Validity in general 671 § 905. — Change of possession 675 § 906. — Mortgage of after acquired property 676 § 907. — Recital of mortgage in note 678 § 908. Equitable assignments and liens 678 § 909. — In general 678 § 910. — Parol assignments 679 § 911. Factor 's lien 680 § 912. Landlord's lien 680 § 913. Livery stable keeper's lien 682 § 914. Materialman's or mechanic's lien ; , 682 § 915. Mortgage liens 684 § 916. Liens held by officers of bankrupt corporation. . . .' 689 § 917. Pawnbroker 's lien 689 § 918. Pledges and warehouse receipts 689 § 919. Lien for taxes 694 § 920. Lien on trust fund or property devised to bankrupt 694 § 921. Vendor 's lien 694 § 922. — In general 694 § 923. — Beclamation ^. _ . 695 § 924. — Stoppage in transitu 695 CHAPTER XXIII PREFERENCES § 925. Nature and elements of preferences in general , 698 § 926. As of what date determined , 702 Contents xxv Page § 927. Transferee must have been a creditor 702 § 928. Immaterial -whether voluntary or involuntary 704 § 929. Intent to prefer 705 § 930. Creditor's intent 706 § 931. Insolvency 706 § 932. — As of what time determined 706 § 933. — How determined 706 § 934. — Insolvency of partnership 707 § 935. — Question of fact ,,. 707 § 936. — Evidence 708 § 937. — Conclusiveness of adjudication 708 § 938. Depletion of bankrupt 's estate 708 § 939. — In general 708 i 940. — "Where right of set-ofE exists 709 § 941. Advantage over other creditors 709 § 942. — Creditors of the same class 709 § 943. — Exchange of property or securities 711 § 944. — Transfers for present consideration 712 § 945. Within four months 713 § 946. —In general 713 § 947. — Computation of time 714 § 948. — Date of transfer 715 § 949. Preference from procuring or suffering a judgment 719 § 950. Foreign attachment 722 § 951. Transfer of property. ' 722 § 952. — In general 722 § 953. — Creditor must receive property 723 § 954. — Indirect transfer to creditor 723 § 955. — Assignments 724 § 956. — Deposit of money 725 § 957. — Transfer of exempt property 725 § 958. — Transfer by partnership or members 726 § 959. — Payment of money 726 § 960. — Payment by bankrupt or agent to himself 729 § 961. — Performance of labor /. . . .4v. . 729 § 962. — Eeclamation by vendor 729 § 963. — Eestoration of stolen money 729 § 964. — Eetention of fund held in trust 730 § 965. — Stoppage in transitu ; 730 § 966. — Taking possession under a contract of purchase 730 § 967. Reasonable cause ^o believe a preference would be effected 730 § 968. — In general 730 § 969. — As of what date determined 731 § 970. — What constitutes 732 § 971. — Knowledge or belief in insolvency 734 § 972. — Knowledge of agent or attorney '. 735 § 973. — Transactions out of the usual course 737 § 974. — Absconding of debtor. 738 §975. — Payment under compromise..... ; ~ 738 §976. —Question of fact... :...: 738 §977. —Evidence .' : . . . : , 739 § 978. Effect of preference .■.,., . ! .... .,..,......,,,,,., 739 xxvi Contents Page § 979. — In general 739 § 980. — Fraudulent preforcuccj voidable, not void 740 § 981. — Bona fide purchasers 740 ' § 981%. Injunction against transferee 740 § 982. Set-ofta against preferential transfers 741 § 983. Payments to attorney in contemplatiott of bankruptcy 743 § 984. Actions affecting preferences 747 CHAPTEK XXIV exemptions' § 985. Jurisdiction over exempt property 749 § 986. Title to exempt property 751 § 987. Right determined as of date of petition 753 § 988. State law governs 753 § 989. Statutes liberally construed 755 § 990. Constitutionality and effect of exemptions laws 755 § 991. Bankrupt should claim exemptions 757 § 992. — In general 757 § 993. — Amendment of schedules 758 § 994. Setting apart and appraisement 759 § 995. Property exempt in general 762 § 996. Exemptions granted by federal law&> 762 § 997. Exemptions as head of family 762 § 998. Burial lots 764 i 999. Growing crops ., 764 § 1000. Homestead exemptions 764 § 1001. — Nature and extent of right. 764 § 1002. — Abandonment 767 § 1003. — In property mortgaged or transferred 768 § 1004. —Wife's right 769 1 1005. — Ee-allotment 769 § 1006. Indian allotments 770 § 1007b Insurance policies 770 § 1008. Exemptions in partnership property 770 § 1009. — Firm exemptions 770 § 1010. — Individual exemptions out of firm property 771 § 1011. Pension money 773 § 1012. Personal property 773 § 1013. Waiver of exemptions 775 § 1014. Successive exemptions 773 § 1015. Denial of right of exemption 779 § 1016. — Assignment for creditors 779 § 1017. — Concealment and fraudulent transfer of property 779 S 1018. — Engaging in illegal business 7gl § 1019. — Failure to give security 7g]^ 1 1020. — Fraud '.'."."..! 781 § 1021. — Purchase of property with non-exempt funds 78i ^ § 1022. — Purchase money borrowed from wife 782 § 1023. — Purchase of property with embezzled funds 782 § 1024. — Purchase price not paid 7go § 1025. — As against claims for wages 703 Contents xxvii Page § 1026. Deductions 783 § 1027. — In general 783 § 1028. — Costs and expenses of pioceedings 784 § 1029. Liens on exempt property 784 §1030. —How created 784 § 1031. — Acquisition within four months 785 § 1032. — Acquisition after bankruptcy 785 § 1033. — On exempt and non-exempt property 786 S 1034. — Lien not waived by proof of claim 786 i 1035. — Eemedies of lien-holders 786 § 1036. Sales of exempt property 788 § 1037. Fraudulent transfers of exempt property 791 § 1038. Taxes on exempt property 791 CHAPTEE XXV SUITS BY AND AGAINST BANKRUPT §1039. Jurisdiction over applications to stay proceedings 793 § 1040. —In general 793 § 1041. — Jurisdiction of referees 794 § 1042. Stay compulsory — ^Voluntary and involuntary proceedings 795 § 1043. Bankruptcy proceedings are in rem 796 § 1044. State courts not to administer bankrupt 's estate 797 § 1045. Nature and effect of stay 798 § 1046. Adjudication not per se a stay or injunction 798 § 1047. Class of suits stayed 799 § 1048. —In general 799 § 1049. —Alimony ' 801 § 1049%. — Suits, to administer assignments 802 § 1050. —Attachment suits 802 § 1051. — Breach of promise and seduction 803 § 1052. — Contempt proceedings 803 § 1053. — Conversion 804 § 1054. — Costs 804 § 1055. —Creditor's suits 804 § 1056. —Ejectment 805 § 1057. — Proceedings on judgments 806 § 1058. — Proceedings to enforce liens 808 § 1059. — Mechanic's liens 810 § 1060. — Proceedings to remove official 810 § 1061. — Receivership proceedings 811 § 1062. — Replevin 811 § 1063. — Action for services 812 § 1064. — Stockholder's suit 812 i 1065. — Action to compel delivery of stock 812 § 1066. — Action by trustee of another estate 812 § 1067. — Unlawful detainer and distress for rent. 812 § 1068. — Action for wrongful death 813 § 1069. Period during which stay may be had 813 § 1070. Application for stay 813 § 1071. — Form of application and notice thereof 813 $ 1072. — "Wiere made , 814 xxviii Contents Page § 1073. Form of restraining order 815 § 1074. Ground of stay must be pleaded 815 § 1075. Review of stay 815 § 1076. Dissolution of stay 816 § 1077. Permission to sue 816 § 1078. Eevival of right to sue after- bankruptcy 817 §1079. Defense of suits pending against bankrupt 817 1 1080. —Eight and duty of trustee to defend 817 § 1081. — Necessary parties ' ; ; 818 §1082. — Manner of becoming, a party 818 § 1083. — Effect of trustee 'a appearance. , 819 § 1084. — What trustee may plead. . ; 819 § 1085. — Costs •••:■•:: 820 § 1086. — EemoVal of cause 820 § 1087. Judgments after, bankruptcy :. 820 § 1088. Intervention of trustee as plaintiff in creditors ' suit 820 § 1089. Intervention of receiver 821 § 1090. Trustee to prosecute suits • • • • • ■ • • 821 § 1091. Actions by bankrupt after bankruptcy 823 CHAPTER XXVI SUITS BY AND AGAINST TRUSTEES § 1092. Jurisdiction under section 23a 826 § 1093. — In general 826 § 1094. — Comparison of Acts of 1898 and 1867 828 § 1095. Jurisdiction under section 23b 830 § 1096. — In general '. ; 830 § 1097. — Different constructions 833 § 1098. — Supreme court decision — Bardes v. Bank. 834 § 1099. — Decisions prior to Bardes v. Bank favoring jurisdiction 836 § 1100. — Early decisions against jurisdiction 837 § 1101. — Consent of defendant 838 § 1102. — Decisions under Act of 1867 840 § 1103. Ancillary jurisdiction 840 § 1104. State courts 841 § 1105. — Jurisdiction under Acts of 1867 and 1898 compared 841 § 1106. — Illustrative cases 843 § 1107. — When state courts do not have jurisdiction 845 § 1108. — Rule governing state courts 846 § 1109. — Acts of state Courts which bind federal courts 846 § 1110. Courts of District of Columbia 847 § 1111. Trustee 's rights of action 847 § 1112. — In general g^.^ § 1113. — Trustee represents creditors as well as bankrupt 849 § 1114. — Title to bankrupt 's choses in action 850 § 1115. — As to fraudulent conveyances ; 85q § 1116. — As to preferences 853 § 1117. — Contest of administrator 's account 854 § 1118. — Accounting from assignee 854 § 1119. — Eights as to property in custody of law 854 §1120. — Rights as to collateral 855 Contents xxix Page 1 1121. — Action for ecmspiracy 855 § 1122. — Liability of corporate officers 855 § 1123. — Assignment of trustee's right of action 856 § 1124. — Form of suit 856 § 1125. — Stockholder 'a liability 856 § 1126. — Usurious contracts 859 §'.1127. — Form of proceeding — ^At law or in equity 860 § 1128. Conditions precedent to trustee 's right of action 861 § 1129. — Demand 861 § 1130. — Tender of purchase price : . . . . 861 § 1131. — Judgment at law 862 § 1132. — Suit against receiver '. .' 862 § 1133. — Proof of claims 862 § 1134. — Order of court .862 § 1135. Notice of pendency of action 862 § 1136. Defenses ; 863 §1137. — Former adjudication ....:.... 863 § 1138. — Collateral attack on adjudication 863 § 1139. — Limitations 863 § 1140. Abatement of proceedings 865 § 1141. — Death or removal of trustee , 865 § 1142. — Death or insanity of bankrupt 865 § 1143. Parties plaintiff 865 § 1144. Parties defendant 866 § 1145. Intervention by creditors 867 § 1146. Possession of property pending suit. 867 § 1147. Injunction and sequestration pending suit 868 § 1148. Stay of proceedings 868 § 1149. Process 868 § 1150. Rules of practice in general 868 § 1151. Petition or complaint 869 § 1152. —Caption ■ 869 § 1153. — Allegations in general 869 § 1154. — Multifariousness 871 § 1155. — Prayer for judgment : 872 § 1156. —Variance '. 872 § 1157. Demurrer or plea , . 872 § 1158. Answer ■ • : 872 § 1159. Cross-bill ■■ • • 872 § 1160. Jury trial 873 § 1161. Burden of proof 873 § 1162. Evidence ■ 874 § 1163. instructions 874 § 1164. Verdict • • • -875 1 ,1165. Judgment or decree— Amount of recovery 875 § 1166. Costs and attorney's fees • 876 CHAPTER XXVII StrMMAKT PKOOEEDINGS § 1167. -Summary jurisdiction 878 f 1168; — Ib- general ■> ii-.-.m.-.n" ■■•■^•- ••••'••••• • ■ 878 XXX Contents Page § 1169. — Determination of existence of adverse claim 881 § 1170. — What constitutes an adverse claim 882 § 1171. — Possession obtained after bankruptcy 884 § 1172. — Consent of adverse claimant 885 § 1173. — Ancillary jurisdiction 886 § 1174. — Jurisdiction of referee 887 §1175. Compelling completion of contract by summary proceedings 887 § 1176. Determining title to land 888 § 1177. Compelling surrender of property 888 § 1178. — In possession or control of bankrupt 888 § 1179. — In possession or control of third persons 891 § 1180. — The application or'petition 893 § 1181. —Demurrer 894 § 1182. —Notice of hearing 895 § 1183. — Reference 895 § 1184. — Evidence and jury trials 895 § 1185. — Findings of referee and order of court 895 CHAPTER XXVIII ARBITRATION AND COMPBOMISB § 1186. Eights and duties of trustee 897 § 1187. When compromise granted 897 § 1188. Compounding claims 898 § 1189. Plan of settlement not authorized 899 § 1190. Application for compromise or arbitration 899 § 1191. — In general 899 § 1192. — To whom addressed 900 § 1193. Selection of arbitrators 900 § 1194. Findings of arbitrators 900 CHAPTER XXIX COMPOSITIONS ( § 1195. Statute strictly construed 903 § 1196. Offer of composition 903 § 1197. — Procedure in general 903 § 1198. — Petition for composition 904 § 1199. — The statements or schedules 905 § 1200. Composition meetings 905 § 1201. — Necessity of meeting 905 § 1202. — Voting at meeting 906 § 1203. Eights of secured creditors 907 § 1204. Eights of litigating creditors 908 S 120.>. Rights of minority creditors 908 § 1206. Partnership romijositious ; . 908 § 1207. Consideration 909 § 1208. — Nature ., 909 § 1209. — Amount 9IO § 1210. — Deposit 91I § 1211. Confirmation of compositions 912 §1212. — Time of application .., 912 ConteittS xxxi Page § 1213. — Hearing and objections 913 § 1214. — Power of referee 913 § 1215. — When confirmed in general 913 § 1216. — Best interests of creditors 915 § 1217. — Acts in bar of confirmation 917 § 1218. — Bad faith 918 § 1219. — Frauds and omissions 920 § 1220. — Order or decree of confirmation 920 § 1221. Performance of composition 920 § 1222. — In general ~ 920 § 1223. — Distribution of consideration 921 § 1224. — Proof of claims 921 § 1225. —Eight of set-ofE 922 § 1226. — Failure to perform 922 § 1227. Appointment of trustee 922 § 1228. Effect of composition 923 § 1229. — Conclusiveness 923 § 1230. — Effect on bankruptcy proceedings 923 § 1231. — Effect on bankrupt's debts 924 § 1232. — Effect on secured creditors ; 925 § 1233. — Effect on co-debtors and partners 925 § 1234. — Effect on bankrupt's property 925 § 1235. — Effect on liens and attachments 926 § 1236. — Subsequent litigation 926 § 1237. Composition must be pleaded 927 § 1238. Effect of failure to confirm composition. , 927 § 1239. Certified copy of order as evidence 927 § 1240. Appeal and review 927 § 1241. Setting aside compositions 928 § 1242. — Comparison of Acts 928 § 1243. — Grounds for setting aside 929 i 1244. — Parties in interest 930 § 1245. — Limitations 930 § 1246. — Petition to set aside 930 § 1247. — Notice of hearing 931 § 1248. — Eestoration or deposit of consideration 931 § 1249. — Jury trial 931 § 1250. — Burden and "quantum of proof 931 § 1251. — Effect of setting aside 932 1 1252. — Order setting aside as evidence 932 CHAPTER XXX APPRAISAL AND SALE OP PROPEETT § 1253. Jurisdiction and power to sell 934 § 1254. — Ancillary jurisdiction 934 § 1255. — State court has no power over sales 934 § 1256. — Power of referee , 935 § 1257. Liquidation without sale 935 § 1258. Sale pending composition proceedings 935 § 1259. Beceiver 's sales 935 § 1260. What may be sold or assigned 935 xxxii Contents Page § 1261. —In general 935 § 1262. — Exempt property. 935 § 1263. — Good-will .'. 936 § 1264. — Interest in real estate " 936 § 1265. — Incumbered property 936 § 1266. — Leases 937 § 1267. — Liquor license 937 § 1268. — Property in possession of adverse claimant 937 § 1269. — Trustee's right of action 937 § 1270. Sale free of liens 938 § 1271. —In general ,.....• 938 § 1272. — Sale free from dower 940 . § 1273. — Order to sell. 940 § 1274. — Eecovery of proceeds 940 § 1275. Procedure governing sales 941 § 1276. — In general , 941 § 1277. —Order of sale 942 § 1278. — Notice of sale — Private sales '. 942 § 1279. — Appraisement 944 § 1280. — Time of sale 945 § 1281. —Place of sale 945 § 1282. — Sales in parcels and in bulk 945 § 1283. — Auctioneer 946 § 1284. — Bids and acceptance thereof 946 § 1285. Confirmation and setting aside of sale 947 § 1286. — Necessity of confirmation 947 § 1287. — Notice to creditors 948 § 1288. — Parties entitled to be heard 948 § 1289. — Manner of making objections 948 § 1290. — Grounds for setting aside sale 949 § 1291. — Appeal and review 951 § 1292. Resale of property by trustee 951 § 1293. Trustee to make conveyance 951 § 1294. Bankrupt to execute necessary papers 952 § 1295. Eights, duties and liabilities of purchaser , 952 § 1296. — Performance of contract 952 § 1297. — Application of liens to purchase price , 952 § 1298. — Title of purchaser -. 952 § 1299. — Payment of taxes and water-rents 953 § 1300. — Eecovery of deficiency 954 § 1301. — Eesale by purchaser , 954 § 1302. — Eemoval of fixtures — Indemnity , 954 § 1303. Distribution of proceeds of sale 955 § 1304. — As between creditors 955 § 1305. — Interest , 955 § 1306. — Deduction of payments by bankrupt 955 § 1307. — Expenses, fees and costs 956 § 1308. Effect of sale 957 § 1309. — In case of liens , 957 § 1310. — Dower of bankrupt's wife , 957 § 1311. — Leases 953 Contents xxxiii CHAPTEB XXXI EXPENSES OF PBOCEEDINOS Page § 1312. Accountants ^ 959 § 1313. Appraiser 's fees ! 960 § 1314. Attorney 's fees 960 § 1315. —In general 960 § 1316. — Eeasonableneas 961 § 1317. — For services actually rendered 962 § 1318. — Attorney for bankrupt in voluntary cases 962 § 1319. — Attorney for bankrupt in involuntary cases 963 § 1320. — Attorney representing bankrupt and creditors 966 § 1321. — Attorney for petitioning creditors 966 § 1322. — Attorney for other than petitioning creditors 968 § 1323. — Attorney for trustee 969 § 1324. — Attorney for receiver 971 § 1325. — Attorney for general assignee 972 § 1326. — Procedure to obtain allowance 972 § 1327. Auctioneer 's fees 973 § 1328. Bankrupt's living expenses 973 § 1329. Brokers ' commissions 974 § 1330. Compensation and expenses of officers of the court 974 § 1331. Costs of obtaining composition 975 § 1332. Expense of contest of claims 975 § 1333. Expense of continuing business 976 § 1334. Expense of procuring or preventing a discharge 976 § 1335. Costs upon dismissal of -petition for adjudication 977 § 1336. Costs in obtaining exemptions 977 § 1337. Costs to petitioning creditors. .' 977 § 1338. Expenses of creditors in recovering assets 977 § 1339. Filing fees 977 § 1340. Eent - 978 § 1341. Stenographers 978 § 1342. Witness fees 978 § 1343. Funds available for payment of expenses 978 § 1344. Beport and approval of expenses — ^Notice 979 CHAPTEE XXXII DEBTS ENTITLED TO PEIOEITY 1 1345. Jurisdiction to determine priorities. 982 § 1346. Order of priority • ■ • 982 § 1347. — In general 982 § 1348. — In case of incumbered property 983 § 1349. Taxes ^^^ § 1350. — Right to priority 986 § 1351. —What are taxes 988 § 1352. — Who may claim priority • 989 § 1353. — Taxes on exempt property .• 990 § 1354. — Taxes on firm property 990 § 1355. Care and preservation of property 990 xxxiv Contents Pago § 1356. —In general 990 § 1357. — Prior to filing petition 991 § 1358. — Eeceivership 993 § 1359. — Property recovered for estate by creditor 993 § 1360. Piling fees in involuntary eases 994 §.1361. Costs of administration ' 994 §1362. —In general 994 § 1363. — Debts of assignee 995 §1364. —Auctioneer's fees 995 § 1365. — Operation of bankrupt's business 995 § 1366. — Eent subsequent to bankruptcy 995 § 1367. — Witness fees and mileage. 996 § 1368. Attorney or counsel fees 997 § 1369. Wages and labor claims 998 § 1370. — In general 998 § 1371. — Breach of contract of employment 1001 § 1372. — Wages subsequent to bankruptcy 1001 § 1373. — Application of payments 1002 §1374. — Priority under state laws 1002 § 1375. — Wages assigned or in judgment 1002 § 1376. Debts entitled to priority under state or federal laws 1003 § 1377. — In general 1003 § 1378. — Debts assumed by bankrupt 1005 § 1379. — Claim of cestui que trust 1005 § 1380. — Claims on checks or orders 1005 § 1381. — Costs and fees 1006 § 1382. — Claims of bank depositors .• 1006 §1383. — Claims of other depositors 1007 § 1384. — Equitable liens 1008 § 1385. — Claim of creditor making false representations 1008 § l.^Se. —Judgments ■ 1008 § 1387. — Claims barred by limitations 1009 § 1388. — Maritime liens 1009 § 1389. — Mechanic's liens 1009 § 1390. — Miscellaneous liens 1010 § 1391. — Mortgages 1011 § 1392. — Claims for rent 1011 § 1393. — Priority between residents and non-residents. 1013 § 1394. — Debts due state or municipality or its officers 1013 §1395. — Claims of stockholders. 1014 § 1396. — Claims based on ultra vires contracts 1014 § 1397. — Claims of United States ' , 1015 § 1398. — Unrecorded liens 1016 § 1399. — Claims of unpaid vendor 1017 § 1400. — Claims of bankrupt's wife 1017 § 1401. — Claims against community property 1017 § 1402. Waiver of priority 1018 § 1403. Marshalling of assets 1018 § 1404. Priority in proceeds of property fraudulently transferred 1019 § 1405. Procedure to obtain priority 1019 Contents xxxv chapter xxxiii MSTBIBUTION AND CLOSING OP ESTATE Page § 1406. Dividends 1022 § 1407. — In general 1022 § 1408. — Declaration and payment 1023 § 1409. — Time of declaring 1024 § 1410. — Notice 1025 § 1411. —Who entitled to 1025 § 1412. — Who not entitled to 1027 § 1413. — Dividends in case of single creditor 1028 § 1414. — Dividends in case of foreign bankrupt 1028 § 1415. — Suspension of payment 1029 §1416. — Claimant's right to collect limited 1029 § 1417. — Reduction of dividend due to laches 1029 § 1418. —Interest 1030 § 1419. — Setting aside and recovery of dividend by trustee : 1030 § 1420. — Dividends unaffected by subsequent allowances 1031 § 1421. — Unclaimed dividends 1032 § 1422. — Attachment or garnishment of dividends 1032 § 1423. Disposition of property upon setting aside composition or discharge. . . .1032 § 1424. Exceptions to scheme of distribution 1033 § 1425. Filing and settlement of accounts 1033 § 1426. Payment of liens out of Vfrong fund. . ." 1034 § 1427. Reopening the estate 1034 § 1428. —In general 1034 § 1429. — Who may petition 1034 f 1430. — Limitations and laches 1035 f 1431. — Form and sufficiency of petition 1035 S 1432. —Receiver 1036 § 1433. Distribution of individual and firm property. . . . : 1036 § 1434. — In general ^ 1036 § 1435. — Absence of firm assets and solvent partner , 1039 § 1436. — Assumption of firm assets and debts by partner 1039 § 1437. — Claims for taxes 1040 § 1438. — Claims of the United States 1040 i 1439. — Subrogation of creditors of partner '. 1041 § 1440. — Claims between estates — Marshalling of assets 1041 § 1441. — Claim of partner against bankrupt partner 1043 CHAPTER XXXIV THE DISCHARGE OP THE BANKRUPT Part I THE EIGHT TO A DISCHARGE § 1442. Nature of right and congressional control thereof 1045 § 1443. Who is entitled to discharge 1046 § 1444. Discharge of partnership 10*^ § 1445, Discharge of partner , 1"^^ xxxvi Contents Page § 1446. Application for discharge 1048 § 1447. —Form 1048 § 1448. —Piling 1048 § 1449. — Time for making 1048 § 1450. — Notice to creditors 1051 § 1451. — Withdrawal 1052 § 1452. —Dismissal 1052 § 1453. — EfEeet of failure to apply.. 1052 i 1454. Who may oppose discharge 1053 § 1455. Specification of .objeotions 1055 § 1456. —Necessity 1055 § 1457. — Objections by partnership 1056 §1458. — Time of filing specifications 1056 § 1459. —With whom filed 1057 § 1460. —Form and sufaeiency 1057 § 1461. — Plea to specifications 1061 § 1462. — Amendment 1061 § 1463. — Signature and verification 1062 i 1464. Hearing on application 1063 § 1465. —Motion for hearing 1063 § 1466. — Powers and duties of referee or special master 1063 §1467. — Attendance of bankrupt 1064 § 1468. — Appearance of creditors : 1064 § 1469. —Jury trial 1065 § 1470. — Reconsideration of claims , 1065 § 1471, — Presumptions and burden of proof. 1065 § 1472. .^T Admissibility of evidence , 1067 § 1473. — Examination of witnesses j .1068 § 1474. — Conclusiveness of findings or report 1069 § 1475. — Eehearing .1069 § 1476. Adjournment of hearing— Stay of discharge 1069 § 1477. Grounds for refusing discharge 1071 § 1478. —In general 1071 § 1479. — Discretion of court , 1073 § 1480. — Statute not retroactive 1073 § 1481. — Irregularity of proceedings 1074 § 1482. — Laches .1075 § 1483. ^- Failure to pay costs 1075 § 1484. — Buying off opposition to discharge 1075 § 1485. — Fraud in preventing proof of claim 1076 § 1486. — Insanity 1076 § 1487. — Larceny and embezzlement 1076 § 1488. — False oath 1076 § 1489. — Books of account and records 1079 § 1490. Failure to keep books after passage of act 1080 § 1491. Intent to conceal financial condition 1081 § 1492. Concealment and destruction of books 1084 § 1493. Books held proper 1086 § 1494. Books held improper 1087 § 1495. Obtaining property on credit 1088 § 1496. — Transfer, destruction or concealment of assets 1093 § 1497. Fraudulent conveyances . . . . ; ;;..... .- . ...... .'; ..... .1100 Contents xxxvii Page ) 1498. — Preferential transfers 1102 i 1499. General fi^signments 1102 i 1500. • Effect of advice of counsel 1102 \ 1501. Omission of non-dischargeable debts 1103 i 1502. — Former discharge 1103 i 1503. — Contumacy 1105 i 1504. — Ees adjudieata 1106 i 1505. Befusal of discharge— Effect 1106 i 1506. Application for rehearing 1106 i 1507. Amendment of decree 1107 i 1508. Eevocation and impeachment of discharge 1107 i 1509. — Jurisdiction ". . .1107 i 1510. — Grounds , 1107 i 1511. — "Who may apply , 1111 i 1512. — Time for applying 1111 i 1513. — The application 1112 \ 1514. — Deposit to cover fees 1113 i 1515. — Beference 1113 ) 1516. — Notice ; 1113 \ 1517. — Burden of proof 1114 1 1518. — Admissibility of evidence 1114 \ 1519. — E^S'iiiiiiation of bankrupt 1114 i 1520. — Effect of revocation 1114 CHAPTEE XXXV THE DISCHARGE OP THE BANKRUPT Part II THE EPPECT OP A DISCHARGE § 1521. In general 1116 § 1522. Discharge is personal 1117 § 1523. Effect upon bankruptcy proceedings. 1117 § 1524. Collateral attack 1118 § 1525. Order granting discharge as res adjudicata. 1118 § 1526. Effect of foreign discharge 1119 § 1527. Effect upon property or wages of bankrupt 1119 § 1528. — In general ■ 1119 § 1529. — Contracts 1120 § 1530. —Leases ■ • • -1120 § 1531. — Good-will of bankrupt 1120 § 1532. —Liens ^ , 1120 § 1533. Effect upon stockholders' or directors' liability 1122 § 1534. Effect upon suits against bankrupt 1123 § 1535. Effect upon contempt proceedings 1124 § 1536. Eelease from arrest 1124 § 1537. Discovery of assets after discharge 1124 § 1538. Eevival of debt after discharge 1124 § 1539. Effect of discharge upon bankrupt 's co-debtors.. . , 1126 §^1540. .— In. general. : /. , , ....,,.,,,,.,,,,,...,.. ........... 1126: xxxviii Contents Page i 1541. — Indoraers ~ 1127 § 1542. — Guarantors 1127 § 1543. — Sureties on bonds 1128 § 1544. Discharge of partnership or members 1129 § 1545. Debts affected by discharge 1131 § 1546. —In general 1131 § 1547. —Effect of proof of claim 1132 § 1548. —^Determination of character of debt 1133 § 1549. — Form of action 1134 § 1550. — Debts created or judgments recovered after bankruptcy 1134 § 1551. — Debts and taxes due the government 1135 § 1552. ' — Alimony and support 1136 § 1553. — Attorney's claim '. 1137 § 1554. — Bonds and recognizances » .- 1137 § 1555. — Costs 1138 § 1556. — Executory contracts — Covenants 1139 § 1557. — Eraud, embezzlement, misappropriation and defalcation 1140 § 1558. —Fines 1144 § 1559. — Obtaining property by false pretenses or false representations 1144 § 1560. — Wilful and malicious injury to person or property. . -. 1146 § 1561. — Seduction and criminal conversation .1143 § 1562. — Debts barred by limitations 1149 § 1564. — Rent 1149 § 1565. — Stockholder's liability 1150 § 1566. — Liability as surety 1150 § 1567. — Liability to surety 1150 § 1568. — Unliquidated damages 1151 § 1569. — Unproved and unscheduled claims 1151 § 1570. — Warehouse charges 1154 § 1571. —Wife's debts 1154 § 1572. Waiver of discharge 1155 § 1573. Discharge must be pleaded 1155 § 1574. Discharge not pleadable 1156 § 1575. Replication to plea of discharge 1156 § 1576. Proof of discharge 1157 CHAPTER XXXVI CONTEMPTS § 1577. Nature and classes of contempt 1158 § 1578. Jurisdiction over contempts 1160 § 1579. Lawful order necessary 1161 § 1580. Violation of referee 's orders 1161 § 1581. Failure to turn over property 1162 1 1582. — In general 1162 § 1583. — Ability to comply 1164 § 1584. Interference with the estate 1167 1 1585. Disobedience of injunction 1168 § 1586. Failure to file schedules 1168 § 1587. Failure to produce books and records 1168 § 1588. Failure to aid trustee. . . . ., 1169 § 1589. Assault upon officer 1169 Contents xxxix Page i 1590. FaUure of bankrupt to appear for examination 1169 . ? 1591. Contempt of trustee 1169 1 1592. Contempt of receivers 1169 5 1593. Contempt of purchaser at sale 1169 I 1594. Contempt of attorneys 1170 § 1595. Contempt of witnesses 1170 1 1596. Insanity as a defense 1173 § 1597. Advice of counsel 1173 § 1598. Eight to purge contempt 1173 § 1599. Practice in contempt proceedings 1174 i 1600. — Powers and duties of referee and judge 1174 § 1601. — Proceedings against several bankrupts 1176 i 1602. — The application ' 1176 § 1603. — The hearing 1176 1 1604. — The order of the court 1177 § 1605. — Review of order of commitment ^178 1 1606. Punishment for contempt J179 § 1607. Discharge from imprisonment 1181 1 1608. Pardon of contempts 1181 CHAPTER XXXVII CRIMES AND OFrENSBS i 1609. Jurisdiction over ofEenses 1183 1 1610. Exemption from prosecution 1184 § 1611. Concealment of assets 1184 § 1612. False oath or account , 1188 § 1613. Subornation of perjury 1190 1 1614. Advice of counsel as a defense 1190 1 1615. Presentment of false claim 1191 \ 1616. Receiving property from bankrupt 1191 j 1617. Buying off opposition to discharge 1191 1 1618. Extortion 1191 i 1619. Conspiracy 1192 i 1620. OfCenses by referees 1192 i 1621. Offenses by trustee ,. : 1193 I 1622. Limitations upon prosecutions 1194 \ 1623. Evidence before grand jury 1194 ( 1624. Indictment or information 1194 i 1625. Disqualification of judge 1196 i 1626. Jury trials 1197 i 1627. Presumptions and burden of proof 1197 i 1628. Evidence at the trial 1197 i 1629. Penalties 1199 i 1630. Habeas Corpus ^ 1199 CHAPTER XXXVIII APPELLATE JUBISDICTION i 1631. Modes of appeal provided exclusive 1200 i 1632. Petition to revise and appeal in same case 1201 xl CojSTTENTS Page § 1633. Appeals in bankruptcy proceedings proper ^ § 1634. —In general ^^^ § 1635. — From whose decisions § 1636. —Appealable eases ^^°^ § 1637. —Parties to the appeal -'•^^^ §1638. —Scope of review ^^''^ § 1639. Controversies arising in bankruptcy proceedings l^iU § 1640. —In general ^^^^ § 1641. — Appealable eases ^^^^ § 1642. — Scope of review ^^^^ § 1643. Writs of error to circuit court of appeals 1216 § 1644. Mandamus 1217 § 1645. Time for appeal 1217 § 1646. Procedure in taking appeals 1220 § 1647. Appeal bonds 1223 § 1648. Effect of appeal to circuit court of appeals 1223 § 1649. Eehearing in circuit court of appeals 1224 § 1650. Eevisioa of bankruptcy proceedings 1224 § 1651. —In general 1224 § 1652. — What may be reviewed 1225 § 1653. — What may not be reviewed 1229 § 1654. — Time for presenting petition 1232 § 1655. —Practice 1233 § 1656. — Dismissal, affirmance or reversal 1235 § 1657. The Supreme Court of the United States 1236 § 1658. — Statutory provisions as to appeals generally 1236 § 1659. — What constitutes matter or amount in controversy 1238 § 1660. — Appeals from the highest court of a state 1239 § 1661. — Appeals in bankruptcy proceedings proper 1241 § 1662. — Controversies arising in bankruptcy proceedings 1243 § 1663. — Appeals from courts not in organized circuits 1245 § 1664. — Appeals from District of Columbia 1245 § 1665. — Certification of cases and certiorari 1245 § 1666. — Practice in taking appeals 1247 § 1667. — Time of appeal 1249 § 1668. —Effect of appeal 1249 LAW OF BANKRUPTCY CHAPTER I HiSTOKY AND GeNEBAL NaTUEE i 1. History — ^In general. § 2. Bankruptcy and insolvent laws. I 3. Object. § 4. English history. i 5. History in United States. i 6. Constitutionality of act. I 7. State and federal laws. §1. History— In general. In early times systems of bankruptcy laws were unknown, individual creditors being allowed to pursue the remedies af- forded by the laws of the community. These were usually drastic so far as the debtor was concerned. Under some his body might be cut to pieces and divided among his creditors.^ Under others the debtor might be imprisoned or he and his family sold into slavery.^ The growth of commerce and the development of popular rights has, however, led to a gradual development of systems of bankruptcy until, with hardly an exception, they now form a part of the administrative systems of all civilized nations. Great Britain, Germany, Eussia, France, Italy, Norway, Sweden, Spain, Mexico, Belgium, Denmark, Tur- key, and many other nations, have responded to the needs of their people and wisely provided laws governing bankruptcy. The systems in vogue in the several nations show much diver- sity, varying from that which is found in Eussia — ^where the right 1 — 'Roman Law of the Twelve Tables. 2 — See Wew Testament, Matthew, c. 18. 1 Brandenbwg — 1 2 Beandenbueg on Bankbuptcy [§ 1 of the debtor to resume business is dependent upon the good will of his creditors, and where a single dissatisfied creditor can, upon making a paltry monthly payment, keep the bankrupt a prisoner until the debt is paid— to the highly advanced system which prevails in England and the United States. § 2. Bankruptcy and insolvent laws. Bankruptcy is an ancient English word which has come down to us at least from the time of Elizabeth, bearing all the way a meaning co-extensive with insolvency, and it was especially equivalent to that word when the constitution was adopted.^ There is no substantial difference between a strictly bankrupt law and an insolvent law except possibly theoretically, and that is in the circumstance that the former affords relief upon the application of the creditor, and the latter upon the application of the debtor. In the general character of the remedy there is no difference, however much the modes by which the remedy may be administered may vary. But, even in the respect named, there is no difference in this iilstanee. The present law is both a bankrupt law and an insolvent law by definition, for it affords relief upon the application of either the debtor or creditor imder the heads of voluntary and involuntary bankruptcy.* Hence a bankrupt law may contain those regulations which are generally found in insolvent laws, and an insolvent law may contain those which are common to a bankrupt law.^ §3. Object. Every business transaction involving the giving of credit necessarily implies two classes — a debtor and a creditor. Bank- 3 — Kunzler v. Kohaus, 5 Hill 320. itors, and a provision for priorities or 4 — Martin v. Berry, 37 Cal. 222. In other matters not permissible in the Klein's Case, 1 How. 277n, the constitu- absence of such statute. A provision for tionality of the act of 1841, so far as the discharge of the debtor from the the same contained the features of an unpaid balances of his debts is not insolvency law, was attacked; the act essential to make it an insolvency law." was sustained and all practical distinc- In re Weedman Stave Co., 199 Fed. 948, tion between insolvency and bankruptcy 29 A. B. E. 460. laws obliterated. 5 — Sturges v. Crowinshield, 4 Wheat. "The elements of an insolvency law 196; Hanover Nat. Bank v. Moyses, 186 are insolvency, surrender of property, its TJ. S. 181, 8 A. B. R. 1; Grunsfeld Bros. administration by a receiver or trustee, v. Brownell, 12 N. M. 192, 11 A. B. K. distribution of the assets among cred- 599. § 3] HiSTOBY AND GeNEEAL NaTUBE 3 ruptcy laws are not designed for one but for both classes, and are beneficial to all but the dishonest debtor.® The policy and aim of bankrupt laws are to compel an equal distribution of the assets of the bankrupt among all his creditors. Hence, when a merchant or trader, by any of the tests of insolvency, has shown his inability to meet his engagements, one creditor cannot, by collusion with him, or by a race of diligence, obtain a preference to the injury of others.'' In the absence of a bankruptcy law, the least suspicion of the insolvency of a debtor, his inability -to meet financial obligations or the like, naturally cause the zealous creditor to institute attachment proceedings and perhaps cause liquidation of his debtor, who, left to his own 'resources and given reasonable time, would be able to avoid a suspension and perhaps ruin. The sole gainer through the absence of such a law, outside of the dishonest debtor, is he who is first on the ground with his attachment process and whose lien operates to defeat other creditors with equally just claims, but who are perhaps more merciful and less anxious to cause the creditor's liquidation. In addition to the value of a bankruptcy law in conducing to a better business understanding between the debtor and creditor, it acts as a preventive and check to overtrading, by largely preventing the giving of preferences by the insolvent. In this connection Cadwalader, J., said: "In this respect its operation will be gradual, but must be highly beneficial. When relations and friends of a debtor, and when capitalists, who without affec- tion or friendship would make profit from his embarrassments, learn that they cannot be secured by a preference out of the wreck of his affairs, they will not furnish him the means of overtrading. So long as he could, by securing advances and accommodations, obtain them, the temptation to attempt to retrieve his losses, by doubling his investments was, before the enactment of the bankrupt law, irresistible; and the system of business was that of mere gambling adventure. But when a debtor who suffers losses knows that he cannot prefer his rela- tions and friendsj and when capitalists know that they cannot, without risk, assist him to the injury of other creditors, he will stop his business in season, to give a fair dividend to all his 6— In re Coin, 171 Fed. 568, 22 A. B. 7— Shawhan v. Wherritt, 7 How. 627, B. 761, 13 U ed, 847, Bbandenbueg on Bankbuptcy [§3 creditors, and thus make a fair settlement with them in the court of bankruptcy, or, much oftener, out of it. Then, in the course of time, few judicial bankruptcies will occur." ^ The purpose of a bankrupt law is to place within the posses- sion of the creditor that to which he may be entitled, within the shortest reasonable time, and at the same time, if the bankrupt has made a fair and honest surrender, and complied with the requisites made of him, to give him a speedy release, and let him begin anew to provide an honest living for himself and those dependent upon him and again become a useful and active member of society,^ the cardinal principle being to grant to 8— In re Woods, 7 N. B. E. 126. 9— In re Witkowski, 10 N. B. E. 209, Fed. Cas. No. 17920. The proceeding contemplated by the bankruptcy act is not a mere personal action against the bankrupt for the col- lection of debts, but its purpose is to im- pound all of his non-exempt property, to distribute it' equitably among his creditors, and to release him from further liability, being both a proceeding in personam and in rem. Hills v. F. D. McKinniss Co., 188 Fed. 1012, 26 A. B. E. 329. The equal and equitable distribution of the estates of insolvents and their dis- charge from the obligations of their debts are the ends sought by proceed- ings in bankruptcy. In re Forbes, 128 Fed. 137, 11 A. B. E. 787. The policy of aU national bankruptcy acts is primarily to secure an equal and speedy distribution of the property of the bankrupt among his creditors. A further object is to relieve the honest debtor from legal proceedings for his debts, and to enable him to have a fresh start in business life; but the distribution of the property is the principal object to be at- tained — ^the discharge of the debtor is incidental and subordinate. In re Swof- ford Bros. Dry Goods Co., 180 Fed. 549, 25 A. B. E. 282. ;,',' Bankruptcy proceedings are prima- rily designed for the protection of the creditors and have for their principal ob- ject the payment of the debts of the bankrupt, and to this end the distribu- tion of his assets ratably amongst his creditors under equitable principles. Secondarily, though not necessarily, such acts usually contemplate the relief and discharge of the debtor upon full dis- closure of his property and compliance with the law. The court in bankrupwy simply marshals the assets of the debtor and distributes them, having regard to preferences created by law. All other proceedings, such as the dissolution of attachments, the barring of nonpresented claims, and the like, are mere incidents, which may or may not be found in a bankruptcy act, and which, if not found, in no sense affect its construction as a bankruptcy act." Continental Building & Loan Ass 'n v. Superior Court, 163 Cal. 579, 28 A. B. E. 873. In Hardie vi Swofford Bros. Dry Goods Co., 165 Fed. 588, 21 A. B. E. 457, 461 (rev'g 143 Fed. 607, 16 A. B. E. 313), the court says that: "the release of the honest, unfortunate, and insolvent debtor from the burden of his debts and his restoration to business activity, in the interest of his family, and the general public, are the main, if not the most im- portant, objects of the law." For statements of the objects and pur- poses of the bankruptcy act similar to the above, see McDonald v. Tefft-Weller Co., 128 Fed. 381, 11 A. B. E. 800; Bar- ton Bros. V. Texas Produce Co., 136 Fed. 355, 14 A. B. E. 502; In re Blount, 142 Fed. 263, 16 A. B. E. 97; In re Harr, 143 § 4] HiSTOEY AND GeNEEAL NaTUBE 5 creditors those rights which would have been theirs if bank- ruptcy had not suspended, and to save to the bankrupt and his family every right which would have been theirs as against creditors enforcing their claims by ordinary judicial process.^" A bankrupt or insolvent law, viewed as operating on the rights of creditors, is a system of remedy. It takes out of the hands of the creditors the ordinary remedial processes, and suspends the ordinary rights which by law belong to creditors, and substitutes in their place a new and comprehensive remedy designed for. the common benefit of all. The rights with which the trustee is clothed as the representative of creditors are to render tiiis great and common remedy effectual.^^ §4. English history. As the idea of a National bankruptcy system may be said to have become a part of the Federal constitution by a process of evolution from the English statutory law, it is interesting to note as a matter of history that the earliest statute on the subject of bankruptcy is found in 34 and 35 Henry VIII (chapter 4), which was primarily provided as a protection against the Lom- bards and fraudulent traders, who, like the dishonest debtors of to-day, incurred obligations and liabilities and then surrepti- tiously removed themselves beyond the jurisdiction, without having been first discharged therefrom. It was without limit as to the persons who could become recipients of its provisions, the restriction as to traders first appearing in the statute of Elizabeth, while the right of a trader to become a voluntary bankrupt first appears in the statute of 6 George IV (chapter 16). ^2 Among the earliest laws affecting insolvents, we find applicants for relief referred to as "persons craftily obtaining into their hands great substance of other men's goods, who suddenly flee to parts unknown or keep their houses, not mind- ing to pay or restore to their creditors their debts and duties, but at their own will and pleasure consume the substance Ted. 421, 16 A. E. E. 213; Stevens v. 10— In re Cohn, 171 Ted. 568, 22 A. Nave-MeCord Mercantile Co., 150 Fed. B. E. 761. 71, 17 A. B. E. 609; Hurley v. Devlin, 11 — Curtis, J., in Betton v. Valentine, 151 Fed. 919, 18 A. B. E. 627; In re 1 Curt. 176. Tindal, 155 Fed. 456, 18 A. B. E. 773; 12— Kunzler v. Kohaus, 5 Hill 322. New Eiver Coal Land Co. v. Euffner Bros., 165 Fed. 881, 21 A. B. E. 474. 6 Bbandenbueg on Bankeuptcy [§ 4 obtained by credit of other men, for their own pleasure and deli- cate living against all reason, equity and good conscience."^* While these early bankruptcy laws went upon the hypothesis that one guilty of bankruptcy was a criminal," this view cer- tainly does not now prevail, and in fact did not at the time of Lord Loughborough, who remarked, with reference to bank- rupts, "the law, upon the act of bankruptcy being committed, vests his property upon a just consideration; not as a forfeiture; not on a supposition of a crime committed; not as a penalty." ^^ § 5. HisJ»ry in United States. The oppressor's hand resting heavily upon our forefathers in the old world, and causing them to migrate to new and untried fields, naturally inclined them to incorporate liberal and wise provisions for the protection of all classes in the federal con- stitution. Among them is one evidently suggested by the English bankruptcy statutes, and it is found in section 8 of article 1 of that instrument, which authorizes congress "to establish . . . uniform laws on the subject of bankruptcy throughout the United States." This section, together with section 10 of the same article, providing that "no state shall . . . pass any laws impairing the obligation of contracts," are most important factors in the legal and commercial world. Pursuant to the authority contained in section 8, congress has on four different occasions enacted laws providing a uniform system of bankruptcy. All of these acts, excepting the present one, for evident reasons failed of their purpose and early expired. The first was the act of April 4, 1800,^* and was limited to five years; but it was repealed by the act of December 19, 1803.^'' The fact that it was intended chiefly for the protection of creditors, the sparseness of the settlements, the scarcity of federal courts, and the difficulty and slowness of travel, con- tributed mainly to its failure. The distance between places where courts were held, by reason of the method of locomotion, made ready relief almost impossible and soon brought about a 13—34 and 35 Henry VIII, Cha^p. 4. 16—2 Stat. L. 19. 14 — 3 Pars, on Contracts, 425. 17 — 2 Stat. L. 248. 15— Sill V. Worswick, 1 H. Bl. 665; In re De Forrest, 9 N. B. E. 278, Fed. Gas, No, 3745, § 5] BilSTOEY AND GrENEEAL NaTTJEE 7 demand for tlie repeal of the law. Under this act only involun- tary proceedings were permitted. The second act was approved August 19, 1841,^* but like its predecessor was short lived, being repealed March 3, 1843.^9 In addition to some of the causes that contributed to the failure of the prior law, this one was framed so as to greatly favor the debtor; it also became the subject of political contention, and under the combined influence naturally failed. Under this act voluntary proceedings were provided for. The next bankruptcy law was approved March 2, 1867,2" and after an existence of eleven years was repealed by the act of June 7, 1878, to take effect September 1, 1878." The law was several times amended, the most important modification being that madt by the act of June 22, 1874.22 While this law of 1867 had many imperfections, its provisions were more equitable as between creditor and debtor; but the expenses attending litigation and its administration, together with the lack of uniform rules and regulations governing assignees and registers, more than all else, contributed to its failure and induced its repeal. The law now in force in the United States was enacted on July 1, 1898, and amended in various respects on February 5, 1903, June 15, 1906, and June 25, 1910. The amend- ments made on the latter date are not retroactive,23 though they apply to every bankruptcy the petition in which was filed after their passage.2* Eeference to these former acts and the decisions thereunder are frequently valuable for, in interpretating the present act and general orders, reference may be had to the interpretation placed on similar language in previous acts and general orders.2° 18 — 5 Stat. L. 440. under a conditional sale contract made be- 19 — 5 Stat. L. 614. fore its passage. In re Schneider, 203 20—14 Stat. L. 517. Ted. 589, 29 A. B. E. 469. 21—20 Stat. L.'99. 25— In re Levin, 23 A. B. E. 845; 22—18 Stat. L. 178. Audubon v. Shufeldt, 181 U. 8. 575, 45 23 — In re New Amsterdam Motor Co., L. ed. 1009, 5 A. B. E. 829; Eiscock v. 180 Fed. 943, 24 A. B. E. 757; In ro Mertens, 205 U. S. 202, 51 L. ed. 771, United States Restaurant & Eealty Co., 17 A. B. E. 484; Tork Mfg. Co. v. Cassell, 187 Fed. 118, 25 A. B. E. 915. 201 V. S. 344, 15 A. B. E. 633, 50 L. ed. 24— Holt V. Henley, 193 Fed. 1020, 27 782; First Nat. Bank v. Title & Trust A. B. E. 578, aflf'g 190 Fed. 871, 27 A. Co., 198 U. S. 280, 49 L. ed. 1051, 14 B. E. 178. Amendment of 1910 to sec- A. B. E. 102. tiou 47a does not affect rights vested 8 Beandenbukg on Bankbuptcy [§ 6 § 6. Constitutionality of act. Congress is given plenary power over the ' ' subject of bank- ruptcy," as that subject was recognized in the jurisprudence of England and America in 1787,2« under one limitation only, that the law passed upon that subject shall be uniform throughout the United States," and this power carries with it a right to establish the details of the system if it shall think proper.^^ In this connection a system of bankruptcy national in its character to be uniform in its operation must of necessity be unique in its method of administration, and when one of its provisions involv- ing the very policy of the law is deemed inconsistent with the general law, the special provision must control.^^ In dealing with the phrase, "subject of bankruptcy," the courts have refused to make any refined distinction between "bankruptcy" and "insolvency" laws,^" hence the bankruptcy act is not unconstitutional because dealing with persons other than traders ^^ or with voluntary bankruptcy.*^ The constitu- tionality of the bankruptcy law has been frequently attacked on the ground that by adopting the various state exemption laws ** or dower rights,** or making a distinction between natural and artificial persons, and between classes of artificial persons,*^ it lacked uniformity. But the courts have almost invariably held that the uniformity required is geographical and not personal in the 'sense of being alike applicable to all members of the com- munity, no limitation being placed upon congress as to the 26— Singer v. Nat. Bedstead Mfg. Co., U. S. 152, 27 A. B. R. 873, rev'g 174 Fed. 65 N. J. Eq. 290, 11 A. B. E. 276. 385, 23 A. B. E. 340. 27— In re Silverman, 4 N. B. E. 173, 30 — Hanover Nat. Bank v. Moyses, 186 Fed. Cas. No. 12855; In re Duerson, 13 TJ. S. 181, 46 L. ed. 1113, 8 A. B. B. 1. N. B. E. 183, Fed. Cas. No. 4117; Singer 31— Hanover Nat. Bank v. Moyses, 186 V. Nat. Bedstead Mfg. Co., 65 N. J. Eq. U. S. 181, 46 L. ed. 1113, 8 A. B. E. 1. 290, 11 A. B. E. 276. 32— Hanover Nat. Bank v. Moyses, 186 28— Six Penny Savings Bank v. Stuy- TJ. S. 181, 46 L. ed. 1113, 8 A. B. E. 1. vesant Bank, 10 N. B. E. 399, Fed. Cas. 33— In re Beckerford, 4 N. B. E. 203, No. 12919; In re Deckert, 10 N. B. E. 1 Dill. 45, Fed. Cas. No. 1209; In re 1, Fed. Cas. No. 3728. Deckert, 2 Hughes 183; Hanover Nat. 29— Hills v. F. D. MeKinniss Co., 188 Bank v. Moyses, 46 L. ed. 1113, 186 TJ. Fed. 1012, 26 A. B. E. 329; In re Edes, S. 181, 8 A. B. E. 1. 135 Fed. 395, 14 A. B. E. 382. Bank- 34^Thomas v. Woods, 173 Fed. 585, ruptey aet held to supersede Eevised 23 A. B. E. 132. Statutes giving priority to claims of the 35 — ^Leidigh Carriage Co. v. Stengel, United States. Guarantee Title & Trust 1 N. B. N. 387, 95 Fed. 637, 2 A. B. B. Co. V. Title Guaranty & Surety Co., 224 383. § 7] HiSTOEY AND Gbneeal Nature 9 classification of persons who are to be affected by sucb laws, and that the constitution contemplated uniformity of administration only,^« and so far as the distribution of the assets are concerned, the law is uniform.*'' The recognition of the local law in the matter of exemptions, dower, priority of payments and the like, is not an attempt by congress to unlawfully delegate its legisla- tive power, and the act is not for that reason void,*^ nor does it violate the fifth amendment because in voluntary proceedings it deprives creditors of their property without due process of law in failing to provide for notice.*® The retrospective effect of the bankrupt law, by impairing the obhgation of contracts, does not render it unconstitutional as the inhibition to the impairment of contracts does not apply to the federal government.*" While it is perhaps true that con- gress cannot impose upon state courts any duties in connection with the enforcement of bankrupt laws,*^ still state, as well as federal courts, are bound to respect the rights acquired under such laws,*^ and all state courts having jurisdiction of bank- ruptcy or insolvency cases are obliged to enforce the laws d I that subject enacted by congress.** § 7. State and federal laws. When congress exercises its constitutional power to establish unifcrrm laws on the subject of bankruptcy, the law passed under such power is paramount and exclusive of all state insolvent 36 — Hanover Nat. Bank v. Moyaes, 186 39 — Hanover Nat. Bank v. Moyses, 186 U. S. 181, 46 L. ed. 1113, 8 A. B. E. 1; U. S. 181, 46 L. ed. 1113, 8 A. B. E. 1. In re Jordan, 8 N. B. B. 180, Ted. Gas. 40 — Hanover Nat. Bank v. Moyses, 186 No. 7514 J Thomas v. Woods, 170 Fed. U. S. 181, 46 L. ed. 1113, 8 A. B. E. 1; 764, 23 A. B. E. 132. Singer v. Nat. In re T. H. Thompson Milling Co., 144 Bedstead Mfg. Co., 65 N. J. Eq. 290, 11 Fed. 314, 16 A. B. E. 454; In re Jordan, A. B. E. 276. 8 N. B. E. 180, Fed. Cas. No. 7514; In "Congress can pass any law on the re Smith, 14 N. B. E. 295, 2 Woods 458, subject of bankruptcy . . . which Fed. Cas. No. 12996; In re Everett, 9 it sees fit to pass, however, lacking in N. B. E. 90, Fed. Cas. No. 4579. uniformity in its operation upon differ- 41 — Goodall v. Tuttle, 7 N. B. E. 193, ent classes of persons and kinds of prop- 3 Biss. 219, Fed. Cas. No. 5533 ; Singer erty," Id. v. Nat. Bedstead Mfg. Co., 65 N. J. Eq. 37—111 re Beckerford, 4 N. B. E. 203, 290, 11 A. B. B. 276. 1 Dill. 45, Fed. Cas. No. 1209. 42— Hall v. Chicago, B. & Q. E. Co., 38— Hanover Nat. Bank v. Moyses, 186 88 Neb. 20, 25 A. B. E. 53. tJ. 8. 181, 46 L. ed. 1113, 8 A. B. E. 1; 43— Singer v. Nat. Bedstead Mfg. Co., In re Eahrer, 35 L. ed. 572, 576, 140 U. 65 N. J. Eq. 290, 11 A. B. E. 276. S. 545, 560. 10 Beandenbueg on Bankruptcy [§7 laws inconsistent tlierewitli,** and tlie state laws relating to the subject-matter are suspended or superseded during the existence of the federal law,*^ even as between citizens of the same state,*^ Mfg. Co. V. Hamilton, 172 Mass. 178; 1 A. B. B. 39; In re Bruss-Eitter Co., 90 Fed. 651, X A. B. E. 58; In re Ander- son, 110 Fed. 141, 6 A. B. E. 555; In re Mason Sash, Door & Lumber Co., 112 Ted. 323, 7 A. B. E. 66; In re Storek Lumber Co., 114 Fed. 360, 8 A. B. E. 86; Carling v. Seymour Lumber Co., 8 A. B. E. 29; Littlefield v. Gray, 8 A. B. E. 409; In re Eiehard, 2 A. B. E. 506; see Han- over Nat. Bank v. Moyses, 46 L. ed. 1118, 186 U. S. 181, 8 A. B. E. 1; Herron Co. V. Superior Court, 8 A. B. E. 492; Perry V. Langley, 1 N. B. E. 559; Griswold v. Pratt, 9 Mete. 16; In re Eeynolds, 9 N. B. E. 50, Fed. Cas. No. 11723; Thom- hiU et al. v. Bank, 5 N. B. E. 367, 1 Woods 1, Fed. Cas. No. 13992; Shry- roek et al. v. Bashore, 13 N. B. E. 481; In re HaU Co., 121 Fed. 992, 10 A. B. E. 88; Singer v. Nat. Bedstead Mfg. Co., 65 N. J. Eq. 290, 11 A. B. E. 276; Potts V. Smith Mfg. Co., 25 Pa. Super. Ct. 206, 12 A. B. E. 392; In re Allison Lumber Co., 187 Fed. 643, 14 A. B. E. 78; In re Keith-Cara Co., 203 Fed. 585, 29 A. B. E. 466. California act known as "The Building and Loan Commissioners Act" while in certain features a bankruptcy act, con- tains provisions entirely foreign to the federal act, or to the legal concept of bankruptcy. If the investigation which the state court is authorized to conduct results in a finding of bankruptcy or in- solvency, within the meaning of the fed- eral act, then, under such finding or judg- ment, by force of the federal act itself, the jurisdiction of the state court is suspended. But if the corporation is found to be neither a bankrupt nor in- solvent within the meaning of the federal act, then the power of the state court to proceed cannot be questioned. Continental Building & Loan Ags 'n v. Superior Court, 163 Cal. 579, 28 A. B. E. 873. 46 — Kassard v. Kroner, 4 N. B. E. 569. 44 — Sturgis v. CrownsMeld, 4 Wheat. 122, 4 L. ed. 529; Parmenter Mfg. Co. v. Hamilton, 1 N. B. N. 8, 1 A. B. E. 39; In re Bruss-Eitter Co. 1 N. B. N. 39, 1 A. B. E. 58, 90 Fed. 651; In re Eouse, Hazard & Co., 1 N. B. N. 75, 91 Fed. 96, 1 A. B. E. 234, 1 N. B. N. 231, 91 Fed. 514; Blake v. Francis-Valentine Co., 1 N. B. N. 47, 1 A. B. E. 872, 89 Fed. 691; In re Curtis, 1 N. B. N. 168, 1 A. B. E. 440, 91 Fed. 787; In re Sievers, 1 N. B. N. 68, 1 A. B. E. 117, 91 Fed. 866; s. c. as Davis v. Bohle, 1 N. B. N. 216, 1 A. B. E. 412, 92 Fed. 325; In re Eth- eridge Furn. Co., 1 N. B. N. 139, 1 A. B. E. 112, 92 Fed. 829; In re MeKee, 1 N. B. N. 139, 1 A. B. E. 311; In re Eennie, 1 N. B. N. 335, 2 A. B. E. 182; In re Dept. Store, 1 N. B. N. 300; In re FeUerath, 1 N. B. N. 292, 2 A. B. E. 40, 95 Fed. 121; In re Langley, 1 N. B. E. 155; VanNostrand v. Barr, 2 N. B. E. 154; Thornhm v. Bk., 5 N. B. E. 367, 1 Woods 1, Fed. Cas. No. 13992; In re Merchants' Ins. Co., 6 N. B. E. 43, 3 Biss. 162, Fed. Cas. No. 9441 ; In re Ind. Ins. Co., 6 N. B. E. 260, Holmes 103, Fed. Cas. No. 1017; In re Safe Dep. & Sav. Inst., 7 N. B. E. 392, Fed Cas. No. 12211; In re Citizens' Sav. Bk., 9 N. B. E. 152, Fed. Cas. No. 2735; Schryoek v. Baahore, 13 N. B. E. 481, Fed. Cas. No. 12820; contra, Sedgwick v. Place, 1. N. B. E. 204, 34 Conn. 552, Fed. Cas. No, 12622; Maltbie v. Hotehkiss, 5 N. B. E 485; Chandler v. Siddle, 10 N. B,.E. 236, Fed. Cas. No. 2594; In re HaU Co., 121 Fed. 992, 10 A. B. E. 88; Singer v. Nat. Bedstead Mfg. Co., 65 N. J. Eq. 290, 11 A. B. E. 276; Potts v. Smith Mfg. Co., 25 Pa. Super. Ct. 206, 12 A. B. E. 392; In re Pickens Mfg. Co., 158 Fed. 894, 20 A. B. E. 202; Martin v. Globe Bank & Trust Co., 198 Fed. 841, 27 A. B. E. 545. 45 — Sturgis v. Crowninshield, 4 L. ed. 529, 4 Wheat. 122; Ogden v. Saunders, 12 Wheat. 213, 6 L. ed. 606; Parmenter I 7] HiSTOEY AND GeKEEAL NaTUEE 11 but can in no sense be said to be repealed by it,*'' tbe same being true of territorial laws of like nature.** Hence an insolvent law may be amended, repealed or^ enacted by a state during the existence of the bankrupt law, and such amendment, repeal and enactment, will be valid legislative acts, though the operation of these acts in so far as they conflict with the federal law are suspended while it continues in force. When the bankrupt law is repealed, the insolvent laws of the states again become opera- tive without re-enactment; and if amended during the existence of the bankrupt law, they will become operative in their amended form.*^ It is only, however, to the extent that congress has legislated upon the subject that the statutes of the several states are sus- pended by its legislation. As stated by Chief Justice Marshall ®" with reference to the power given congress: "This establish- ment of uniformity is perhaps incompatible with state legislation on that part of the subject to which the act of congress may extend. ... It does not appear to be a violent construction of the Constitution, and is certainly a convenient one, to consider the power of the states as exiisting over such cases as the laws of the Union may not reach; but', be this as it may, the power granted to congress may be exercised or declined, as the wisdom of that body shall decide. If, in the opinion of congress uniform laws concerning bankruptcies ought not to be established, it does not follow that partial laws may not exist, or that state legislation on the subject must cease. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states." If, there- fore, the bankruptcy law excepts from its operation either in express terms or by necessary implication a class of cases, it must be considered that it was the intention of congress not to interfere in that class of cases with the laws of the several states in reference thereto. The state laws will remain operative in all cases which are not within the provisions of the bankruptcy law. 47— Lavender v. Gosnell, 12 N. B. R. Fed. 807, 2 A. E. E. 592; In re Wor- 282; In re Everett, 9 N. B. E. 90, Fed. caster Co., 102 Fed. 808, 4 A. B. E. 496; Cas. No. 4579; In re MeKee, 1 N. B. N. Ex p. Fames, 2 Story, 322, Fed. Cas. No. 139, 1 A. B. E. 311. 4237; see Butler v. Gorley, 36 L. ed. 981, 48— In re Eenie, 1 N. B. N. 335, 2 146 U. 8. 303, 314. A. B. E. 182. 50 — Sturgis v. Crownmshield, 4 Wheat. 49— In re Wright, 1 N. B. N. 428, 95 122, 4 L. ed. 529. 12 Bbandenbueg on Bankbuptcy [§ 7 Therefore, any class of persons or corporations not covered by the bankruptcy law are subject to the laws of the several states governing insolvency and the states are authorized to legislate with reference thereto. In such cases there is no conflict of jurisdiction between the state and federal law but each statute is operative within its own jurisdiction and may be enforced without in any respect infringing upon the jurisdiction of the other.^^ To whatever extent congress has undertaken to pro- vide remedies and prescribe procedure, its authority being unquestionably paramount, state statutes designed for the same or similar purposes must give way.®^ This rule relates merely to the administration of the state laws in proceedings in the state courts, and does not prevent the enforcement in the federal bankruptcy proceedings of any general priorities recognized by the state laws, where such priorities are conferred by the state statutes as substantive rights of priority not in conflict with the express priorities declared by the bankruptcy act itself or other- wise in conflict with its provisions.^^ The present "system of bankruptcy" does not pretend to cover the whole field of either voluntary or involuntary bank- ruptcy and insolvency,^* and in so far as state insolvency laws deal with cases over which the federal bankruptcy courts have no jurisdiction they remain in full operation.^^ The bankrupt law does not suspend an ordinary law for the collection of debts,^® or for the arrest of fraudiTlent or absconding debtors,^'' or to prevent fraudulent assignments in trust for creditors and other fraudulent conveyances,^® or laws relating to the insolvent estates of persons under legal disability, as lunatics or spend- 51 — Herron v. Superior Court, 68 Pac. Cal. 279, 8 A. B. E. 492 (ease decided (Cal.) 814, 8 A. B. E. 492; In re Win- prior to amendments 1903 and 1910) ; Old teruitz, 4 B. E. 127; Clarke v. Eay, 1 Town Bank v. MoCormick, 10 A. B. E. Har. J. 318; In re Shepardson, 36 Conn. 767; Eandolph v. Scruggs, 190 U. S. 533, 23; In re Geery, 43 Conn. 289; see Simp- 47 L. ed. 1165, 10 A. B. E. 1; Singer v. son V. Bank, 56 N. H. 466; Steelman v. Nat. Bedstead Mfg. Co., 65 N. J. Eq. 290, Mattix, 36 N. J. Law 344; Martin v. 11 A. B. E. 276. Berry, 37 Cal, 208. 56— Chandler v. Siddle, 10 N. B. E. 52— In re McKee, 1 N. B. N. 139, 1 236, 3 Dill. 477, Fed. Cas. No. 2594. A. B. E. 311. 57— In re Scott, 1 N. B. N. 265, 1 A. 53— In re Standard Oak Veneer Co., B. R. 650; McCoUough v. Goodhart, 1 N. 173 Fed. 103, 22 A. B. E. 883. B. N. 512, 3 A. B. E. 85; Ex parte Craw- 54— Singer v. Nat. Bedstead Mfg. Co., ford, 154 Fed. 769, 18 A. B. E. 618. 65 N. J. Eq. 290, 11 A. B. E. 276. 58— Ebersole v. Adams, 13 N. B. E. 55 — Herron Co. v. Superior Court, 136 141. § 7] HisTOEY AND Genbeal Natubb 13 thrifts,^^ or a law merely protecting the debtor from imprison- ment,®" or a law to prevent debtors in contbmplation of insol- vency from preferring one or more creditors,®^ or statutes pre- scribing the conditions upon which foreign corporations may enter the state for purposes of business.®^ Laws relating to general assignments, and not constituting general insolvency laws, are not suspended,®* and an assignment made thereunder is voidable only in case bankruptcy proceedings should be begun.®* The bankruptcy act has not supersede^ the right and power of a court of equity to take charge of the property of an insolvent corporation for the protection of stockholders and creditors, marshal the same, recognize and enforce valid liens and priorities, and equitably distribute the surplus proceeds among its creditors.®^ In the absence of a federal bankruptcy law, each state has full authority to enact insolvent laws binding persons and property within its jurisdiction, provided it does not impair the obligation of existi"ng contracts.®® A state law discharging the person or the property of the debtor, and thereby terminating the legal obligation of the debt, cannot constitutionally be made to apply to debts contracted prior to the passage of the law; but the law may be made to apply to such future contracts as can be con- sidered as having been made in reference to the law.®'' Statutes of this class must be construed to be parts of all contracts made when they are in existence, and therefore cannot be held to impair their obligation.®* In fact, the inhibition of the constitu- ' 59— Mayer v. Hellman, 23 L. ed. 377, 66— Brown v. Smart, 145 TT. S. 454, 36 91 U. S. (1 Otto) 496; Hawkins v. L. ed. 773 ; Hanover Nat. Bank v. Moyses, Learned, 54 N. H. 333. 186 U. S. 181, 46 L. ed. 1113, 8 A, B. 60— Sullivan v. Heiskell, Crabbe, U. E. 1; Baldwin v. Hale, 1 Wall. 223, 17 S. Dist. Ct. 525. L ed. 531; Sturges v. Crowninshield, 4 61— Grunsfeld Bros. v. Brownell, 12 Wheat. 122, 4 L. ed. 529, 122, 32 L. ed. N. M. 192, 11 A. B. K. 599. 491; Denny v. Bennett, 128 U. S. 489, 62 — Statute giving local creditors pri- 497; In re Eeynolds, 9 N. B. E. 52, Fed. ority. In re Standard Oak Veneer Co., Gas. ISTo. 11723. 173 Fed. 103, 22 A. B. E. 883. 67— Ogden v. Saunders, 12 Wheat. 213, "63— Eandolph v. Scruggs, 10 A. B. E. 6 L. ed. 606; Baldwin v. Hale, 1 Wall. 1; In re Pattee, 143 Fed. 994, 16 A. B. 223, 17 L. ed. 531. E. 450 (common-law assignment). 68 — Denny v. Bennett, 32 L. ed. 491, 64^Eandolph v. Scruggs, 190 U. S. 128 IT. S. 489. 533, 47 L. ed. 1165, 10 A. B. E. 1. 65— In re Ellsworth Co., 173 Fed. 699, 23 A. B. E. 284. 14 Bbandenbubg qw Bankeuptcy [§ 7 tion is wholly prospective. The states may legislate as to contracts thereafter made as they may see fit. It is only those in existence when the hostile law is passed that are protected from its effects.®^ A state cannot, however, by such a law, discharge one of its own citizens from his contracts with citizens of other states ■"* though made after the passage of such a law unless they voluntarily become parties to the proceedings in insolvency. While this is true, each state has the power by general law, so long as it does not impair the obligation of any contract, to regulate the conveyance and disposition of all property, real or personal, within its limits and jurisdiction. Accordingly a discharge under a state insolvency law has no extra-territorial force or effect.''^ Legal notice cannot be given, and as a result there can be no obligation to appear, and, of course, there can be no legal default, and so a discharge under a foreign bankrupt law cannot be pleaded as a bar to an action on a contract made in this country. '^^ Proceedings instituted under state insolvency laws prior to the passage of the national bankruptcy law are not affected by it,''* though the mere fact that a state court has taken possession of the property of an insolvent, thereby first gaining jurisdiction, cannot be allowed to defeat the proper execution of the latter law.''* 69— Eawarda v. Kearzey, 96 TT. S. (6 223, 17 L. ed. 531; Ogden v. Saunders, Otto), 595, 603, 24 L. ed. 793, 797; Denny 12 Wheat. 213, 6 L. ed. 606. V. Bennett, 32 L. ed. 491, 494, 128 U. S. 72— McMillan v. McNeill, 4 Wheat. 489, 495. 209, 4 L. ed. 552. 70 — Sturges v. Crowninshield, 4 Wheat. 73 — See last paragraph of act, also 122, 4 L. ed. 529; Baldwin v. Hale, 1 Longis v. Creditors, 20 La. Ann. 15; Wall. 223, 17 L. ed. 531; Gilman v. Lock- Martin v. Berry, 37 Cal. 208, where the •wood, 4 Wall. 409, 18 L. ed. 432; Boyle same is held to be the effect of the act V. Zaeharie, 6 Pet. 635, 8 L. ed. 527; of 1867; Muslin v. Creditors, 3 N. B. E. Clay V. Smith, 3 Pet. 411, 7 L. ed. 723; 126. Denny v. Bennett, 128 U. S. 489, 32 L. 74— Geo. M. West Co. v. Lea Bros., 174 ed 491. U. S. 590, 43 L. ed. 1098, 1 N. B. N. 409, 71— Denny v. Bennett, 32 L. ed. 491, 2 A. B. E. 483; In re Safe Dep. & Ins., 128 U. S. 489; Baldwin v. Hale, 1 Wall. 7 N. B. B. 392, Fed. Cas. No. 12211. CHAPTER II Creation op Courts of Kankeuptcy and Their Jurisdiction § 8. Creation of courts of bankruptcy and statutory powers. § 9. Jurisdiction — In general. § 10. In law and equity. § 11. In rem or personam. § 12. Territorial jurisdiction. § 13. Ancillary jurisdiction. § 14. Place of business, residence or domicile. 1 15. — Distinction between "residence" and "domicile." § 16. — Length of, required. § 17. — Alien or nonresident. § 18. General powers. § 19. Judgment of state court. § 20. Eeceivers in state courts. § 21. Commencement of proceedings. 1 22. Want of sufficient jurisdiction, when raised. § 23. Collateral attack of decisions. § 24. Beopening estate. § 25. Court always open — Term. § 26. Expedition in hearing. § 27. Transfer of cases. § 28. Judge; qualification, duty and conduct. § 8. Creation of courts of bankruptcy and statutory powers. Courts of bankruptcy are creatures of statute and exercise sucb powers as are expressly or impliedly conferred upon them by statutory enactment,^ Under the Bankruptcy Act of 1898, "courts of bankruptcy" are defined to "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, "^ and these courts are expressly "made courts of bankruptcy,"^ and are* invested, 1— In re Williams, 120 Fed. 38, 9 A. 2— Act 1898, § 1, aubd. 8, and § 2. B. E. 741; In re Elmira Steel Co., 109 3— Act 1898, §2. Fed. 456, 5 A. B. E. 484; Brumley v. 4— Act 1898, §2. Jones, 141 Fed. 318, 15 A. B. E. 578; In re Steele, 161 Fed. 886, 20 A. B. E. 446; In re Morris, Fed. Cas. No. 9825. 15 16 Beandenbueg ON Bankkxjptct [§8 within their respective territorial Kmits as now established, or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings, in vacation in chambers and during their respective terms, as they are now or may be hereafter held, to (1) To adjudicate bankrupt. — ^Adjudge persons bankrupt who have had their principal place of business, resided or had their domicile within their respective territorial jurisdictions for the preceding six months, or the greater portion thereof, or who do not have their principal place of business, reside, or have their domicile within the United States, but have property within their jurisdictions, or who have been adjudged bankrupts by courts of competent jurisdiction without the United States and have property within their jurisdictions; (2) Allowance of claims. — Allow claims, disallow claims, reconsider allowed or disallowed claims, and allow or disallow them against bankrupt estates; (3) Appoint receivers or marshal. — 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) Trial of offenses. — ^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) Temporary transaction of business. — Authorize the busi- ness of bankrupts to be conducted for limited periods by receivers, the marshals, or trustees, if necessary in the best interests of the estates; and allow such officers additional com- pensation for such services,^ as provided in section 48 of this act. 5 — Subdivision 5 of section 2 was ditional compensation for such servieesj amended by the act of February 5, 1903, but not at a greater rate than in the act by the addition at the end thereof of allowed trustees for similar services," as the words "and allow such oflScers ad- found in the text. The amendment of § 8] Courts of Bankbuptoy 17 (6) Substitution of parties. — ^Bring in and substitute addi- tional persons or parties in proceedings in bankruptcy when necessary for the complete determination of a matter in con- troversy; (7) To collect and distribute assets. — Cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided; (8) To close estates. — Close estates, whenever it appears that they have been fully administered, by approving the final accounts and discharging the trustees, and reopen them when- ever it appears they were closed before being fully administered; (9) To confirm or reject compositions. — Confirm or reject compositions between debtors and their creditors, and set aside compositions and reinstate the cases; (10) To consider referee's findings. — Consider and confirm, modify or overrule, or return, with instructions for further pro- ceedings, records and findings certified to them by referees; (11) To determine exemptions. — Determine all claims of bank- rupts to their exemptions; (12) To grant discharges, etc. — Discharge or refuse to dis- charge bankrupts and set aside discharges and reinstate the cases; (13) To enforce orders. — ^Enforce obedience by bankrupts, officers, and other persons to all lawful orders, by fine or imprisonment or fine and imprisonment; (14) To extradite bankrupts. — ^Extradite bankrupts from their respective districts to other districts; (15) To make orders. — Make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this act; (16) To punish contempts. — ^Punish persons for contempts committed before referees; (17) To appoint or remove trustees. — Pursuant to the recom- mendation of creditors, or when they neglect to recommend the appointment of trustees, appoint trustees,- and upon complaints 1910 struck out the words "but not at a the phrase "as provided in section 4Jl greater rate than in this act allowed of this act. ' ' See c. — , § — . trustees for similar services," and added Brandenburg — 2 18 Beandenbueg on Banketjptcy [§8 of creditors, remove trustees for cause upon hearings and after notices to them; (18) To taix costs.— Tax costs, whenever, they are allowed by law, and render judgments 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 bank- ruptcy; ® (19) To trajisfer cases. — Transfer cases to other courts of bankruptcy; and (20) Ancillary jurisdiction. — ^Exercise ancillary jurisdiction over persons or property within their respective territorial limits in aid of a receiver or trustee appointed in any bankruptcy pro- ceedings pending in any other court of bankruptcy.'' Unspecified powers, — 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 enu- merated.® 6 — By the amendment of 1910 the word "and" in clause "nineteen" was stricken. The use of the word "nine- teen" is apparently a clerical error and should be "eighteen." 7 — Added by amendment of 1910. 8— Act of 1867. See. 1. Be it enacted . . . That the several District Courts of the United States be, and they hereby are, constituted courts of bankruptcy, and they shall have original jurisdiction in their respective districts in all mat- ters and proceedings in bankruptcy, and they are hereby authorized to hear and adjudicate upon the same according to the provisions of this act. The said courts shall be always open for the trans- action of business under this act, and the powers and jurisdiction hereby granted and conferred shall be exercised as well in vacation as in term time, and a judge sitting at chambers shall have the same powers and jurisdiction, including the power of keeping order and of punishing any contempt of his authority, as when sitting in court. And the jurisdiction hereby conferred shall extend to all cases and controversies arising between the bankrupt and any creditor or creditors who shall claim any debt or demand under the bankruptcy; to the collection of all the assets of the bankrupt; to the as- certainment and liquidation of the Hens and other speeifle claims thereon; to the adjustment of the various priorities and conflicting interests of all parties and to the marshalling and disposition of the different funds and assets, so as to secure the rights of all parties and due distribution of the assets among all the creditors; and to all acts, matters, and things to be done under and in virtue of, the bankruptcy, until the flual distribu- tion and settlement of the estate of the bankrupt, and the close of the proceed- ings in bankruptcy. The said courts shall have full authority to compel obedience to all orders and decrees passed by them in bankruptcy, by process of con- tempt and other remedial process, to the same extent that the circuit courts now have in any suit pending therein in equity. Said courts may sit, for the transaction of business in bankruptcy, at any place in the district, of which place and the time of. holding court, §9] Courts of Bankkuptcy 19 § 9. Jurisdiction — In general. A district court of the United States, as a court of bankruptcy, is a court of record, and, although its jurisdiction is limited,® it is not an inferior court in such a sense that all facts essential to its jurisdiction must affirmatively appear on the face of its record in order to sustain its judgment,^" and its judgments are therefore supported by the same presumptions whioh are, indulged in favor of the judgments of all superior courts of general jurisdiction.^^ Its jurisdiction is absolute, paramount they shall have given notice, as well as at the places designated by law for hold- ing such courts. Sec. 49. And he it further enacted, That aU the jurisdiction, power, and au- thority conferred upon and vested in the District Court of the United States by this act in cases of bankruptcy are here- by conferred upon and vested in the Su- preme Court of the District of Columbia, and in and upon the supreme courts of the several territories of the United States, when the bankrupt resides in the said District of Columbia or in either of the said territories. And in those ju- dicial districts which are not within any organized circuit of the United States, the power and jurisdiction of a circuit court in bankruptcy may be exercised by the district judge. 9 — ^In re Columbia Eeal Estate Co., 101 Fed 965, 4 A. B. E. 411; In re Williams, 120 Fed. 38, 9 A. B. E. 741; Taft Co. v. Century Sav. Bank, 141 Fed. 369, 15 A. B. E. 594; In re Billing, 145 Fed. 395, 17 A. B. E. 80; Edelstein v. United States, 149 Fed. 636, 17 A. B. E. 649; In re First Nat. Bank of BeUe Fourehe, 152 Fed. 64, 18 A. B. E. 265. "The bankruptcy court is one of limited jurisdiction, having jurisdiction only of proceedings which look to the al- lowance of provable claims, and to the discharge of the bankrupt from his debts on the one hand, and to the collection and distribution of his assets among his creditors on the other. A proceeding which has no relevancy to one or the other of these ends must be without the juris- diction of the bankruptcy court. " In re Walker, 176 Fed. 455, 23 A. B. E. 805. Court has no jurisdiction to order sale of exempt property though bankrupt con- sents. In re Eising, 27 A. B. E. 519. An independent controversy between two creditors about the ownership of money that is not a part of the fund for distribution, growing out of a transac- tion that took place prior to bankruptcy, is not within the jurisdiction of the bank- ruptcy court. In re Girard GFlazed Kid Co., 136 Fed. 511, 14 A. B. E. 485. Court has no jurisdiction of the plaim of a solvent partner against his bankrupt co-partner for reimbursement of the amount expended by him in liquidating the firm debts, over and above his share in the deficiency in firm assets, since claim is not provable. In re Walker, 176 Fed. 455, 23 A. B. E. 805. But see In re Marion Contract & Con-: struetion Co., 166 Fed. 618, 22 A. B. E. 81, wherein it is stated that inasmuch as bankruptcy courts are vested exclusively with all jurisdiction in bankruptcy pro- ceedings they can hardly be called courts of "limited jurisdiction." 10 — In re Columbia Eeal Estate Co., 101 Fed. 965, 4 A. B. E. 411; In re Billing, 145 Fed. 395, 17 A. B. E. 80; Edelstein v. United States, 149 Fed. 636, 17 A. B. E.' 649. 11— In re Billing, 145 Fed. 395, 17 A. B. E. 80; Edelstein v. United States, 149 Fed. 636, 17 A. B. E. 649; KUgore v. Barr, 75 S. E. 762, 28 A. B. E. 860. Possess every attribute of finality and estoppel of such courts. In re First Nat. 20 Bbandenbueg on Bankruptcy [§9 and exclusive to adjudicate the question of bankruptcy, to settle and liquidate the estate of the bankrupt and as to all matters and questions arising in bankruptcy proceedings touching the persons and property of the bankrupts, their relations to their creditors, and the rights of creditors in and to the bankrupt's estate,^2 f roj^i ^j^e commencement of the proceedings ^^ to their close." Such proceedings include, among others, all matters of administration, such as the allowance, rejection and reconsidera- tion of claims, the reduction of the estates to money, and its dis- tribution, the determination of the preferences and priorities to be accorded to claims presented for allowance and payment in due course, and the supervision and control of the trustees and others who are employed to assist them.^^ Bank of Belle Fourche, 152 Fed. 64, 18 A. B. E. 265. 12— Bank of Dillon v. Murehisdn, 213 Fed. 147, 31 A. B. E. 740; Hall v. Kin- sell, 2 N. B. N. E. 745, 102 Fed. 301; In re GutwiUig, 1 K. B. N. 40, 1 A. B. E. 78, 90 Fed. 475; s. o. 1 N. B. N. 554, 92 Fed. 337, 1 A; B. E. 388; In re Bruss Eitter Co., 1 N. B. N. 39, 1 A. B. E. 58, 90 Fed. 651; In re Etheridge Furn. Co., 1 N. B. N. 139, 1 A. B. R. 112, 92 Fed. 329; In re Huddleston, 1 N. B. N. 214, 1 A. B. E. 572; Carpenter Bros. V. O'Connor, 1 N. B. N. 132, 1 A. B. R. 381; Keegan v. King, 3 A. B. E. 79, 96 Fed. 758; Allen v. Montgomery, 10 N. B. E, 503 ; In re Archenbrown, 11 N. B. E. 149, Fed. Cas. No. 504; In re Barrow, 1 N. B. R. 125, Fed. Cas. No. 1057; Walker v. Seigel & Bott, 12 N. B. E. 394, Fed. Cas. No. 17085; In re Charles F. Sievers, 91 Fed. 366, 1 A. B. E. 117; Lea Bros. & Co. v. West Co., 91 Fed. 237, 1 A. B. R. 261 ; Matter of The Lengert Wagon Co., 110 Fed. 927, 6 A. B. R. 535; In re Watts, 190 V. S. 1, 47 L. ed. 933, 10 A. B. E.> 113; In re Knight, 125 Fed. 35, 11 A. B. R. 1; In re Granite City Bank of Dell Rapids, 137 Fed. 818, 14 A. B. R. 404; In re Marion Contract & Construction Co., 166 Fed. 618, 22 A. B. R. 81; Moore Bros. v. Cowan, 173 Ala. 536, 26 A. B. R. 902; U. 8. Fidelity & Guaranty Co. v. Bray, 225 U. S. 205, 28 A. B. E. 207; Martin v. Globe Bank & Trust Co., 193 Fed. 841, 27 A. B. E. 545; In re Wentworth Lunch Co., 191 Fed. 821, 27 A. B. R. 515; In re Heintz, 201 Fed. 338, 29A. B. R. 19. Bankruptcy jurisdiction, when properly invoked, supersedes prior proceedings in a state court for winding up a corpora- tion as to which the jurisdiction is not concurrent. In re Standard Fuller's Earth Co., 186 Fed. 578, 26 A. B. R. 562. The bankruptcy court cannot, when properly applied to, refuse to take juris- diction because a proceeding to the same end is pending in a state court, but, per contra, it may stay all action in the state court. In re Benwood Brew. Co., 202 Fed. 326, 29 A. B. R. 759. 13— In re Carow, 4 N. B. R. 178, Fed. Cas. No. 2426. 14 — Bueknam v. Dunn, 16 N. B. R. 470, 2 Hask. 215, Fed. Cas. No. 2096; Penny V. Taylor, 10 N. B. E. 200, Fed. Cas. No. 10957. After dismissal of the petition, the court has no jurisdiction to hear and de- termine the status of the account between a creditor and the bankrupt. In re Sig. H. Rosenblatt & Co., 193 Fed. 638, 28 A. B. E. 401. 15 — United States Fidelity & Guaranty Co. V. Bray, 56 L. ed. 1055, 225 U. S. 205, 28 A. B. R. 207; Martin v. Globe Bank & Trust Co., 193 Fed. 841, 27 A. B. R. 545; In re United Wireless Telegraph Co., 192 Fed. 238, 27 A. B. R. 1. 9] COUETS OF BaNKEUPTCY 21 In this connection the "estate" of the bankrupt "is to be con- strued as covering all property in the possession of the debtor at the time proceedings in bankmptcy are commenced, to which the trustee may fairly make a pretension of claims. ' ' ^« But this exclusive jurisdiction is limited to the bankruptcy proceedings and does not extend to suits at law or in equity affecting the bankrupt's estate." Possession of the property by the bankrupt at the time of the institution of the bankruptcy proceedings, and hence possession of the property by the bankruptcy court," or 16 — In re New England Piano Co., 122 Fed. 937, 9 A. B. E. 767. 17 — Frank v. VoUkommer, 205 U. S. 521, 17 A. B. B. 806, aff'g 107 App. Div. (N. Y.) 594, 14 A. B. E. 695; Skilton v. Codington, 185 N. Y. 80, 15 A. B. E. 810; In re Spitzer, 130 Fed. 879, 12 A. B. E. 346; In re Platteville Foundry & Ma- chine Co., 147 Fed. 828, 17 A. B. E. 291. 18— Chicago Title & Trust Co. v. Na- tional Storage Co., 174 111. App. 365, 31 A. B. E. 410; Johnston v. Spencer, 195 Fed. 215, 27 A. B. E. 800; Bardes v. First Nat. Bank of Hawarden, 178 V. S. 524, 44 L. ed. 1175, 4 A. B. E. 163; In re Eochford, 124 Fed. 182, 10 A. B. E. 608. The court of bankruptcy has jurisdic- tion to determine by summary proceed- ings after reasonable notice to the claim- ants all controversies between the trustee and adverse claimants over liens upon and title and possession of (1) property in the possession of the bankrupt when the petition was filed; (2) property held by third parties for him; (3) property law- fully seized by the marshal as bankrupt's under clause 3 of section 2 of the act, , and (4) property claimed by the trustee which has been lawfully reduced to actual possession by the ofScers of the court. These controversies relative to the property of the bankrupt are within the court's jurisdiction under section 2 of the act, and are not controversies at law or in equity as distinguished from pro- ceedings in bankruptcy within the mean- ing of section 23. A plenary suit may be maintained in the bankruptcy court tp determine the controversies above speci- fied which it has jurisdiction to determine by summary proceedings. Clay v. Waters, 178 Fed. 385, 24 A. B. E. 293. The district court has no jurisdiction of suit in equity between third persons involving the question of title to the property of the bankrupt which is not in the possession of the trustee, or a part of the fund for distribution among gen- eral creditors of the bankrupt. Brum- ley V. Jones, 141 Fed. 318, 15 A. B. E. 578. Bankruptcy court cannot summarily determine adverse claims to property not in its possession, whether claimant claims title or only a lien. First Nat. Bank of Chicago v. Chicago Title & Trust Co., 198 U. S. 280, 49 L. ed. 1051, 14 A. B. E. 102, rev'g 125 Fed.. 169, ll A. B. E. 79. "While a summary proceeding to col- lect property belonging to the estate of the bankrupt which is in the possession of a stranger who resides outside of the territorial limits of the court of original jurisdiction is ancillary in character, nevertheless it presents a completely dis- tinct and separable controversy, and, therefore, one which must be determined by the court within whose jurisdiction the property is located and the re- spondent resides." In re Heintz, 201 Fed. 338, 29 A. B. E. 19. See Hinds v. Moore, 14 A. B. E. 1, rev'g 129 Fed. 922, 12 A. B. E. 136, holding bankruptcy court has no juris- diction to require party to whom referee voluntarily surrendered property to show cause why he should not- pay the value of 22 Bbandenbtjeg on Bankruptcy [§9 consent of the defendant,^^ is essential to the jurisdiction of the bankniptcy court to determine suits by the trustee to reach property in the hands of adverse claimants except suits for the recovery of property fraudulently or preferentially trans- ferred.^" Having possession of the property the bankruptcy court has exclusive jurisdiction to hear and determine all ques- tions respecting the "title, possession or control," ^^ and parties who claim such liens may appear and be heard without first the property to the bankrupt's estate; and also In re Zehner, 193 Fed. 787, 27 A. B. E. 536, holding that the rule that liens are not affected by the bankruptcy act does not extend to remedy for en- forcing lienholder's rights. 19 — Johnston v. Spencer, 195 Fed. 215, 27 A. B. E. 800; In re MaeDougall, 23 A. B. E. 762 ; Bardes v. First Nat. Bank of Hawarden, 178 TJ. S. 524, 44 L. ed. 1175, 4 A. B. E. 163; In re Hutchinson & Wibnoth, 158 Fed. 74, 19 A. B. E. 313; In re Eochford, 124 Fed. 182, 10 A. B. E. 608.- Where property is voluntarily sur- rendered to receiver or trustee, the court may pass upon the validity of the claim to the property. In re Kolin, 134 Fed. 557, 13 A. B. E. 531. 20— Act 1898, §23b, as amended by acts of 1903 and 1910. See post, c. XXVI, §1095. 21 — Murphy v. Hofman Co., 53 L. ed. 327, 211 TJ. S. 562, 21 A. B. E. 487, aff 'g 187 N. Y. 548 ; 'Whitney v. Wenman, 198 TJ. S. 539, 49 L. ed. 1157, 14 A. B. E. 45; Cleminshaw v. International Shirt & Collar Co., 165 Fed. 797, 21 A. B. E. 616; In re Eose Shoe Mfg. Co., 168 Fed. 39, 21 A. B. E. 725; In re Beede, 138 Fed. 441, 14 A. B. E. 697; In re Noel, 137 Fed. 694, 14 A. B. E. 715. District court has exclusive jurisdic- tion, either plenary or summary, where property has been seized by receiver or marshal and is in its possession. Le- Master v. Spender, 203 Fed. 210, 29 A. B. E. 264. The bankruptcy court has exclusive jurisdiction to determine by plenary action or summary proceedings all ad- verse or conflicting claims with reference to the property in the actual or construc- tive possession of the bankrupt at the date of the filing of the petition. Smith V. Berman, 8 Ga. App. 262, 24 A. B. E. 849. See, also. Coder v. Arts, 213 U. S. 223, 53 L. ed. 772, 22 A. B. E. 1, affi'g 152 Fed. 943, 18 A. B. E. 513. Test of jurisdiction is whether property is or has been in possession of the bank- ruptcy court. If it is in the possession of the court, claimants can be cited into the bankruptcy court to determine the validity of any liens or claims asserted against it. If it has been in such pos- session and has been wrongfully with- drawn therefrom, suits may be brought in the bankruptcy court to recover it. Plant V. Gorham Mfg. Co., 159 Fed. 754, 20 A. B. E. 269. Surrender of property by receiver without authority of court does not oust jurisdiction. Whitney v. Wenman, 198 U. S. 539, 49 L. ed. 1157, 14 A. B. E. 45. Jurisdiction cannot be destroyed or im- paired by the unauthorized surrender of possession of the property by officers of the court, or through the seizure thereof by an adverse claimant. In re Schermer- horn, 145 Fed. 341, 16 A. B. E. 507. Sale hy trustee: — ^A court of bank- ruptcy has jurisdiction over proceedings brought before it, both in the nature of plenary and summary actions, to try the title to property of the bankrupt once in the possession of the court and sold by the trustee without authority. In re Monsarrat, 25 A. B. E. 815. §9] CouETS OP Bankbuptcy 23 resorting to tlie state court for their establishment.^^ This jurisdiction to collect and distribute estates and determine con- troversies in relation thereto depends, fil-st, on whether the con- troversy has reference to property actually in the possession of the bankruptcy court or belonging to the bankrupt estate; second, whether it arises in the bankruptcy proceedings and the property becomes therefore subject to distribution; or third, whether by the nature of the controversy power is conferred on the court to determine conflicting liens and apportion assets.^^ The bankruptcy court has jurisdiction to determine the validity of Kens upon property in its possession,^* but a lien claimant never having appeared in the bankruptcy court nor assented to its jurisdiction may have the validity of his lien determined in a state court of competent jurisdiction though of course lio action by the latter court can divest or interfere with the posses- sion of the property by the bankruptcy court.^^ It is true that the supreme court once said that the filing of a petition in bankruptcy "is a caveat to all the world and in 22— In re Byrne, 2 N. B. N. E. 246, 3 A. B. R. 268, 97 Ted. 762. 23— In re KeUogg, 113 Fed. 120, 7 A. B. E. 623. Where the property is in the possession of bankruptcy court, its jurisdiction to determine the distribution thereof is ex- clusive. United States Fidelity & Guaranty Co. v. Bray, 56 L. ed. 1055, 225 IT. S. 205, 28 A. B.,E. 207. 24— In re Noel, 187 Fed. 694, 14 A. B. E. 715, Validity of liens may be determined in plenary suit in bankruptcy court where the property on which the liens are as- serted is within the actual or constructive possession of the trustee. Goodnough Mercantile & Stock Co. v. Galloway, 156 Fed. 504, 19 A. B. E. 244. Bankruptcy court has plenary jurisdic- tion to determine the existence and ex- tent of liens. Cleminshaw v. Interna- tional Shirt & Collar CO., 165 Fed. 797, 21 A. B. E. 616. 25 — In re Platteville Foundry & Ma- chine Co., 147 Fed. 828, X7 A. B. E. 291; Frank v. Vollkommer, 51 L. ed. 911, 205 U. S. 521, 17 A. B. E. 806, afE'g 107 App. Div. (N. Y.) 594, 14 A. B. E. 695; In re United Wireless Telegraph Co., 192 Fed. 2^8, 27 A. B. E. 1; Matter olKanter v. Cohen, 121 Fed. 984, 9 A. B. E. 372. See Thomas v. Woods, 173 Fed. 585, 23 A. B. E. 132. Possession cannot be disturbed. Murphy v. John Hofman Co., 53 L. ed. 327, 211 U. S. 562, 21 A, B. E. 487, afe'g 187 N. Y. 548. In a recent ease where application was made to a bankruptcy court for leave to a mortgagee to foreclose his mortgage in a state court, the bankruptcy court, in denying the application,, said: "The jurisdiction of the state, court to sell the property of the bankrupt, even after ad- judication, is concurrent with that of the federal court and the latter '6 jurisdic- tion is only exclusive by reason of its custody of the res." In re Zehner, 193 Fed. 787, 27 A. B. E. 536. But see In re Oxley & White, 182 Fed. 1019, 25 A. B. E. 65^6, holding that mortr gage sale under order of state court may be enjoined by bankruptcy court. 24 Beandenbxjeg on Bankbuptcy [§ 9 effect an attachment and injunction," ^s that the adjudication in bankruptcy puts the property of the bankrupt in custodia legis, and that its title vests in the trustee upon his appoint- ment. But the later decisions of that court adjudge that the statement quoted applies only to parties who have no substantial claim of a lien upon or title to the property claimed as that of the bankrupt, and that against those who have such claims of existing titles or liens when the petition in bankruptcy is filed its filing is neither a caveat nor an attachment, that it creates no lien, and that they are strangers to the proceedings in the absence of an order or process making them parties, or some equivalent notice. Again, it is the title of the bankrupt only that is placed in custodia legis by the adjudication and that vests in the trustee when appointed.^'' The bankruptcy court has no power to determine the validity or amount of liens that may be established in the state court in a suit coromenced by leave of the bankruptcy court.^* The validity of the claim being determined, questions of priority rest exclusively in the juris- diction of the bankruptcy court.^* A general appearance and pleading to the merits constitutes a consent to the jurisdiction of the court.®" The court has, however, no .jurisdiction over suits not affecting the bankrupt's estate and having nothing to do with the bankruptcy proceedings.*^ The court may order the property to be sold free of liens and marshal and distribute 26— Mueller v. Nugent, 184 U. S. 1, 14, 28— Virginia Iron, Coal & Coke Co. v. 46 L. ed. 405, 7 A. B. E. 224. Olcott, 197 Fed. 730, 28 A. B. R. 321. 27— Fidelity Txust Co. v. Gaskell, 195 29— In re MeCallum, 113 Fed. 393, 7 Fed. 865, 28 A. B. E. 4; Jacquith v. A. B. R. 596; American Graphaphone Co. Eowley, 9 A. B. E. 525, afC'g 106 Fed. v. Leeds & Catlin Co., 174 Fed. 158, 23 666, 6 A. B. E. 285; York Mfg. Co. v. A. B. E. 337. Cassell, 201 TJ. S. 344, 50 L 3d. 782, 15 The provision that valid liens are not A. B. R. 633; Hiseock v. Varijk Bank of affected by the bankruptcy act has ref- New York, 206 U. S. 28, 51 L. ed. 945, erenee only to validity of contract anc 18 A. B. R. 1, aff'g 144 Fed. 818, 15 A. ''°* *° remedy for enforcing Uenholder's B. E. 362, rev'g 134 Fed. 101, 14 A. B. "^hts. In re Zehner, 193 Fed. 787, 27 R. 226. In re Eatliman, 183 Fed. 913, 25 ^- ^- ^- ^^®- A B R 246 30— Detroit Trust Co. v. Pontiac Sav- ' '"Tha'proposiWon quoted from Mueller '""f ^""^ ''" l'^' ^^J ^\^- ^' «• ^^l- ■NT i * 1, i 1 -i-i. J! Consent is shown by demurring on V. Nugent must be taken with reference ,',,-j„jj„4.;„„„i „ „ j a ^ x, .. ^ ^^ °, , „ , . ^^ ^ , ^ jurisdictional grounds and to the merits, to the facts then before the court, and not sheppard v. Lincoln, 184 Fed. 182, 25 as applicable to all intents and pur- j^^ g. u_ gg^^ poses." Jones v. Springer, 226 U. S. 31— in re Saxton Furnace Co, 136 148, 57 L. ed. 161, 29 A. B. E. 204. Fed. 697, 14 A. B. R. 483, § 9] COUBTS OF Bankbuptoy 25 the proceeds so as to protect the rights and interests of all; ^'^ or it may enforce a lien against the purchaser of property sold by an assignee subject to such lien;^^ i^^t a judgment creditor cannot claim the jurisdiction of the court for the collection of a debt which is fully secured by the only lien on real estate.** A prior lien gives a prior claim, and the district court may ascer- tain and liquidate it.** After jurisdiction has been acquired of the property, the court of bankruptcy will by summary proceed- ings stop any interference with it, and if it has been seized, will cause its return.*® Its jurisdiction operates as a supersedeas of the process in the hands of a sheriff, and an injunction against all other proceedings than such as might thereupon be had under the authority of the court until the bankruptcy shall have been closed.*' Whenever such jurisdiction is properly and in good faith invoked, the courts are bound to assume and exercise it, there being no discretion in the matter,*^ and the court cannot take into consideration that the proceedings may not be of any great practical value,*® nor will it undertake to revise the proceedings of the state courts in mere matters of detail.*" The fact that the bankrupt's attorneys had not been, admitted to practice in the federal courts would not invalidate proceedings already had, for the provision *^ that the bankrupt may conduct his case by an 32— In re Worland, 1 A. B. E. 450, 1 594; In re Huddleston, 1 A. B. E. 572, N. B. N. 316, 92 Ted. 893; In re Pittel- 1 N. B. N. 214. kow, 1 A. B. E. 472; In re Frank S. 37 — Jones v. Leaeh, 1 N. B. E. 165, Keet, 128 Fed. 651, 11 A. B. E. 117; Fed. Cas. No. 7475. In re Shoe & Leather Eeporter, 129 Fed. 38— In re Keiler, 18 N. B. E. 10, Fed. 588, 12 A. B. E. 248; In re Prince & Cas. No. 7647; Cook v. Waters, 9 N. B. Walter, 131 Fed. 546, 12 A. B. E. 675. E. 155, but see Avery v. Johnson, 3 N. B. See post, e. XXX, § 1270. E. 36; 4 N. B. E. 143, Fed. Cas. No. 675. 33— Bucknam v. Dunn et al., 16 N. 39— In re Pangborn, 185 Fed. 673, 26 B. E. 470, 2 Hask. 215, Fed. Cas. No. A. B. E. 40. 2096. 40— Hobbs v. Head & Dowst Co., 184 34— In re Johaun, 4 N. B. E. 143, Fed. Fed. 409, 26 A. B. E. 63, aff 'd 231 V. Cas. No. 7331. S. 692, 31 A. B. E. 656. 35 — In re Winn, 1 N. B. E. 131. Failure to take proper step to get 36 — ^In re Schloerb, 2 N. B. N. E. 721, exceptions heard on merits by the Su- 44 L. ed. 1183, 178 U. 8. 542; In re Eus- preme Court of the state in which a lien sell, 101 Fed. 248, 3 A. B. E. 658; In re suit is prosecuted by a claimant does not Murphy, 2 N. B. N. B. 393, 3 A. B. E. give the trustee a right to go behind the 499; Byrd v. Harrold, 18 N. B. B. 433, state judgment in order to defeat it. Id. ■ Fed. Cas. No. 229; Carter v. Hobbs, 1 41— G. O. IV. N. B. N. 191, 1 A. B. E. 215, 92 Fed. S6 Beandenbueg on Banketjptcy' [0 attorney authorized to practice in the federal courts is not the source of jurisdiction.*^ There seems to be nothing to prevent a creditor from attack- ing the jurisdiction without first filing formal proof of his claim, which would import a recognition of the jurisdiction, but he must show he is a creditor and has an interest to protect.*^ If the court has no jurisdiction of the subject-matter, it cannot be conferred by the voluntary act of the defendant and the point can be raised at any time.** If want of jurisdiction appears upon the face of the petition and respondent consents to it, the court may take notice of the point on its own motion; *^ but, if it is merely want of jurisdiction over the person, the objection may be waived expressly or by implication.*^ § 10, In law ajid equity. Under the bankrupt law the district court has jurisdiction both at law and in equity.*'^ Its equitable jurisdiction is, how- 42— In re Kindt, 2 N. B. N. E. 373, 98 Fed. 867, 3 A. B. E. 546. 43— In re Boston H. & E. R. E. Co., 6 N. B. E. 209, 9 Blatch. 101, Fed. Cas. No. 1678. 44 — Jobbins v. Montague, 6 N. B. E. 509, Fed. Cas. No. 7330. 45— In re Hopkins, 18 N. B. E. 339, Ted. Cas. No. 6686. 46— Shutts V. Bk., 2 N. B. N. E. 320, 98 Fed. 705, 3 A. B. E. 492; Hall v. Kineell, 2 N. B. N. E. 745, 102 Fed. 301; People V. Brennan, 12 N. B. E. 567. 47— In re Fendley, 10 N. B. E. 250, Fed. Cas. No. 4728; In re Salkey, 11 N. B. E. 423, 6 Biss. 269, Fed. Cas. No. 12253; In re Bowie, 1 N. B. E. 185, Fed. Cas. No. 1725; In re Ind. Cin. & Laf. E. E. Co., 8 N. B. E. 302, Fed. Cas. No. 7023; In re Siegel-Hillman Dry Goods Co., Ill Fed. 980, 7 A. B. E. 351; In re Eochford, 124 Fed. 182, 10 A. B. E. 608; Burleigh v. Foreman, 125 Fed. 170, 11 A. B E. 74; In re Kane, 127 Fed. 552, 11 A. B. E. 533; Lockman v. Lang, 128 Fed. 279, 11 A. B. E. 597; Dodge v, Nor- lin, 133 Fed. 363, 13 A. B. E. 176; In re Waugh, 133 Fed, 281, 13 A. B. E. X87; Mason v. Wolkowich, 150 Fed. 699, 17 A. B. E. 709; Missouri-American Elee. Co. V. Hamilton-Brown Shoe Co., 165 Fed. 283, 21 A. B. E. 270; First Nat. Bank of Philadelphia v. Abbott, 165 Fed. 852, 21 A. B. E. 436; WestaU v. Avery, 171 Fed. 626, 22 A. B. E. 673; In re Swofiford Bros. Dry Goods Co., 180 Fed. 549, 25 A. B. E. 282; In re Brenner, 190 Fed. 209, 26 A. B. E. 646. "Proceedings in bankruptcy generally are in the nature of proceedings in equitj" , and the words 'at law' in the opening eentenee conferring on the courts of bank- ruptcy 'such jurisdiction, at law and in equity, as will enable them to exercise original jurisdiction in bankruptcy pro- ceedings,' may have been inserted to meet clause 4, authorizing the trial and punishment of offenses, the jurisdiction over which must necessarily be at law and not in equity. ' ' Bardes v. First Nat. Bank of Hawarden, 178 U. S. 524, 44 L. ed. 1175, 4 A. B. E. 103. A district court sitting in bankruptcy, whether it is exercising its primary or ancillary jurisdiction, is a court of equity. Fidelity Trust Co. v. GaskeU, 195 Fed. 865, 28 A. B. E. 4. § 10] CouBTS OF Bankbuptcy 27 ever, "confined to controversies relating to a bankrupt estate. "Within this limited area, whether or not a biU in equity may be maintained mnst be tested by the ordinary rules that govern bills before any other tribunal, and perhaps the most familiar test is to inquire whether the plaintiff has an adequate remedy at law."*^ The mere fact that there is a remedy at law will not oust the jurisdiction of equity if the remedy at law is not as prompt, practical and efficient to the ends of justice and its prompt administration as the equitable remedy.*^ As a court of equity, it will deal with the rights of the parties «pon their merits, rather than be controlled by strict legal forms,^*' and will seek to administer the law according to its spirit and not merely by its letter.^^ It follows that within the limits prescribed by the bankruptcy acts and the special rules of practice prescribed by the supreme court, bankruptcy procee;d- ings are to be administered in accord with the general principles and practices of equity, ^^ and this applies to the correction of mistakes in judgment and other matters of record injurious to the rights of the parties.^^ The court can exercise the full powers of a court of equity for the ascertainment and enforcement of the equities of parties interested in the bankrupt estate,^* and, as between contending creditors, in the interest of fair dealing and good conscience, it will postpone the claim of one where there is evidence of a fraudulent c6mbination and scheme in favor of others.^^ It will also restrain the enforcement of a legal right so that it shall 48 — Sessler v. Nemcof, 183 Fed. 656, eree. First Nat. Bank of Philadelphia v. 25 A. B. B. 618; Brumley v. Jones, 141 Abbott, 165 Fed. 852, 21 A. B. E. 436; Fed. 318, 15 A. B. E. 578. Missouri-American Elec. Co. v. Ham- 49— Cox V. Wall, 2 N. B. N. E. 572, 99 jlton-Brown Shoe Co., 165 Fed. 283, 21 Fed. 546, 3 A. B. E. 664. A. B. E. 270. 50— In re Byrne, 2 N. B. N. E. 246, 3 53— In re Brenner, 190 Fed. 209, 26 A. A. B. E. 268, 97 Fed. 762; In re North B. E. 646. See, also, Virginia Iron, Coal Carolina Car Co., 127 Fed. 178, 11 A. B. & Coke Co. v. Oleott, 197 Fed. 730, 28 A. E. 488. B. E. 321. 51— In re Kane, 127 Fed. 552, 11 A. B. 54— In re Siegel-Hilhnan Dry Goods E. 533. Co., Ill Fed. 980, 7 A. B. E. 351; In re 52— Westall v. Avery, 171 Fed. 626, 22 Swofford Bros. Bry Goods Co., 180 Fed. A. B. E. 673; In re Gerber, 186 Fed. 693, 549, 25 A. B. E. 282. 26 A. B. E. 608. 55— In re Headley, 2 N. B. N. E. 250, As to taking of testimony before ref- 3 A, B, E. 272, 97 Fed. 765. 28 Bbandenbueg on Bankeuptcy [§ 10 not cause unnecessary loss or embarrassment to the estate.''® It will protect infants, lunatics and other incompetents and appoint a guardian ad litem for them.^'' § 11. In rem or personam. "While in so far as it affects the bankrupt, a bankruptcy pro- ceeding is to a certain extent a proceeding in personam,^* still the proceeding is essentially one in rem ^® so far as the bank- ruptcy proceeding proper is concerned,®" and, except in those instances where notice is provided for and required, so far as such proceedings are in rem, what is done therein is binding upon creditors whether or not they have actual notice or knowledge of the pendency of the proceeding.®^ "A proceeding in rem determines the status of persons or things. The particular pro- ceedings in rem known as bankruptcy proceedings determine status both of a person and of a thing. The proceedings leading up to the adjudication in bankruptcy determine the status of the debtor as a bankrupt; those concerned with the distribution of assets determine the status of the property of the bankrupt." ®^ An attachment of the bankrupt's property after the filing of the petition and before adjudication cannot operate to remove the bankrupt's estate from the jurisdiction of the bankruptcy court for the purpose of the administration under the act of congress for "the exclusive jurisdiction of the bankruptcy court is so far in rem that the estate is regarded as in custodia legis from the filing of the petition." ®* §12. Territorial jurisdiction. It has been held that the process of the bankruptcy court is restricted to the territorial limits of the district,®* and that it has 56 — ^In re Chambers, Calder & Co., 2 60 — Eeeeiver's accounting not in rem. N. B. N. B. 388, 98 Fed. 865, 3 A. B. E. Whitney v. Wenman, 140 Fed. 959, 14 537. A. B. B. 591. 57— In re O 'Brian, 2 N. B. N. B. 312. 61— In re Billing, 145 Fed. 395, 17 A. 58 — ^In re Billing, 145 Fed. 395, 17 A. B. E. 80; In re Benedict, 140 Fed. 55, 15 B. B. 80. A. B. E. 232. 59 — Johnson v. United States,- 163 Fed. 62— In re Continental Corporation, 14 30, 20 A. B. E. 724; In re Billing. 145 A. B. E. 538. Fed. 395, 17 A. B. E. 80; InreEeynolds, 63— Acme Harvester Co. v. Beekman 127 Fed. 760, 11 A. B. E. 758; In re Lumber Co., 36 L. ed. 208, 222 U. S. 300, Beals, 116 Fed. 530, 8 A. B. E. 639. 27 A. B. E. 262. From the minute of adjudication all 64— In re Boston-Cerrillos Mines Corp., assets are in custody of court. Walter A. 206 Fed. 794, 30 A. B. E. 739. Wood Co. V. Eubanks, 169 Fed. 929, 22 A. B. E. 307. § 12] CouBTS OF Bankruptcy 29 no jurisdiction to control the actions of parties out of the dis- trict, who are not claiming the exercise of the jurisdiction of the court, who have not become parties therein, or who can never be brought in unless they voluntarily appear.^^ Under the terms of the bankruptcy law, bankruptcy courts are invested with the designated jurisdiction "within their respective territorial limits as now established, or as they may be hereafter changed. ' ' ^^ Notwithstanding this language, many courts held that the dis- trict courts of the United State's had no ancillary jurisdiction in bankruptcy proceedings,^'' and that the court of original juris- diction had the power to determine title, the right to the possession and the existence of liens upon specific property claimed as a part of the bankrupt's estate situated in other dis- tricts, and the power to enforce its decisions, in those districts.®* In 1910, however, the federal supreme court held that such ancillary jurisdiction existed®^ and its decision has been con- strued as a determination that the limitation of section 2 of the bankruptcy act, above set forth, restricts the exercise of the power of a district court in which a petition in bankruptcy is filed to its own district and that it may not enforce its process or its order for the delivery of property without the territorial limits of its district.'" A contrary conclusion is, however, reached by the supreme court itself in a subsequent decision in which it announces the rule that a court of bankruptcy is not confined in the administration of the property of a bankrupt to state or district boundaries, and it is unnecessary to commence ancillary 65 — In re Schwartz, 204 Fed. 326, 30 18 A. B. E. 627; In re Tybo Mining & A. B. R. 344. Eeduction Co., 132 Fed. 697, 13 A. B. R. 66— Act 1898, §2. 62; In re Bridge & Iron Co., 133 Fed. An objection that the court is without 568, 13 A. B. R. 304. jurisdiction to make a sale of land situ- 69 — Babbitt v. Dutcher, 54 L. ed. 402, ated in another state, without raising the 216 tJ. S. 102, 23 A. B. R. 519. See post, question of ancillary power under the § 13. amendment of 1910 nor the statute of 70 — ^Fidelity Trust Co. v. Gaskell, 195 1893 requiring sales regulating sales Fed. 865, 28 A. B. E. 4; Stanton v. under federal court orders, held sufficient. Wooden, 179 Fed. 61, 24 A. B. R. 736; In re Britannia Min. Co., 197 Fed. 459, In re Isaac Harris Co., 173 Fed. 735, 28 A. B. R. 651. 23 A. B. R. 237; In re Dunseath & Son 67— See posi, § 13. Co., 168 Fed. 973, 22 A. B. R. 75; In re 68— In re Granite City Bank of Dell Owings, 140 Fed. 739, 15 A. B. R. 472; Rapids, 137 Fed. 818, 14 A. B. R. 404; In re Benedict, 140 Fed. 55, 15 A. B. R. In re Dempster, 172 Fed. 353, 22 A. B. 232; In re Nat. Mercantile Agency, 128 B. 751; Hurley v. Devlin, 151 Fed. 919; Fed. 639, 12 A. B. R. 189. ' 30 Bbandbstbueg on Bankbuptcy [§12 proceedings in all such states or districts in order to subject the property therein to administration and sale, though the court may invoke the ancillary power of another court, if it so desires.^^ § 13. Ancillary jurisdiction^ Prior to the year 1910 there were many decisions that the dis- trict courts of the United States had no ancillary jurisdiction in bankruptcy proceedings.''^ These decisions were not, however, unopposed,''^ and when the question finally came before the fed- eral supreme court in January, 1910, it decided that "the respective district courts of the United States sitting in bank- ruptcy have ancillary jurisdiction to make orders and issue process in aid of proceedings pending and being administered in the district court of another district. " ''* In June, 1910, congress enacted that courts of bankruptcy may "exercise ancillary juris- diction over persons and property within their respective territorial limits in aid of a receiver or trustee appointed in any bankruptcy proceedings pending in any other court of 71 — Eobertson v. Howard, 229 TJ. S. 254, 57 L. ed. 1174, 30 A. B. E. 611. And see, Fidelity Trust Co. v. Gaskell, 195 Fed. 865, 28 A. B. E. 4. The court may order the sale of prop- erty situated in another jurisdiction, ■without invoking the ancillary power of the court in whose jurisdiction the prop- erty is situated. Eobertson v. Howard, 229 U. S. 254, 57 L. ed. 1174, 30 A. B. E. 611; T. E. Wells & Co. v. Sharp, 208 Fed. 393, 31 A. B. E. 344. 72— In re WilUams, 123 Fed. 321, 10 A. B. E. 538; In re Tybo Mining and Ee- duction Co., 132 Fed. 697, 13 A. B. E. 62; In re Granite City Bank of Dell Eapids, 137 Fed. 818, 14 A. B. E. 404; In re Von Hartz, 142 Fed. 726, 15 A. B. E. 747; In re Dempster, 172 Fed. 353, 22 A. B. E. 751. 73— In re Sutter Bros., 131 Fed. 654, 11 A. B. E. 632; In re Benedict, 140 Fed. 55, 15 A. B. E. 232; In re John L. Nelson & Bro. Co., 149 Fed. 590, 18 A. B. E. 66; In re Dunseath & Son Co., 168 Fed. 973, 21 A. B. E. 742; In re Dun- seath & Son Co., 168 Fed. «73, 22 A. B. E. 75. 74— Babbitt v. Dutcher, 216 U. S. 102, 54 L. ed. 402, 23 A. B. E. 519; In re Mad- son Steele Co., 54 L. ed. 407, 216 U. S. 115, 23 A. B. E. 614; In re Eobinson, 179 Fed. 724, 24 A. B. E. 617. Ancillary jurisdiction exercised for the purpose of aiding the court of primary jurisdiction to collect assets and dis- tribute them. In re Lipman, 201 Fed. 169, 29 A. B. E. 189. Court in which real property belonging to estate lies has ancillary jurisdiction. Hartman v. Ackoury, 210 Fed. 188, 31 A. B. E. 514. The reduction of the property of the bankrupt to actual possession is a mere detail of the bankruptcy proceedings, to aid in which a court of a district other than that of the adjudication, within whose jurisdiction the property is found, has ancillary jurisdiction, regardless of diversity of citizenship or the amount in controversy. Musica v. Prentice, 211 Fed. 326, 31 A. B. E. 687, aff'g 205 Fed, 413, 30 A. B. E, 555, § 13] CouEis OF Bankeui'Tcy si bankruptcy."''^ Whether ancillary jurisdiction of another jurisdiction shall be invoked is optional. '« "Ancillary jurisdiction is a term which has a plain and well- known meaning in the equity jurisprudence of the United States, a meaning fixed by settled practice and adjudged by the uniform current of the decisions of the courts of the United States. As neither the court nor the congress modified or limited the term the unavoidable presumption is that they used it, and intended to use it, in its recognized legal significance. In that significance ancillary jurisdiction includes the power to hear and adjudge, at the request of interveners, their claims to title to, or legal or equitable liens upon, the property it takes, or holds in its legal custody, by virtue of that jurisdiction and to send the proceeds to the court of original jurisdiction, or to apply it to the dis- charge of the claims of the interveners in accord with its decision. A court exercising ancillary jurisdiction acts inde- pendently of the court of primary jurisdiction, or of its officers and for itself. It appoints its own receiver, generally the same person appointed receiver by the court of primary jurisdiction, but in the seizure, management, sale and distribution of the property seized within the territorial limits of its district, of which it takes the legal custody, this receiver is, and must be, governed by its orders exclusively. He may not justify any action by any orders of the court of primary jurisdiction. ' ' '''' He must account to the court appointing him and all require- ments of comity to the court of primary jurisdiction are met if the latter court, through its proper officer, is afforded the oppor- tunity to question the correctness of the accounting.''* As to the compensation of the receiver it would seem as though the court has authority not alone to fix his compensation but to pay the same and the receiver's legitimate expenses out of any funds in its hands belonging to the bankrupt's estate,''^ or failing to 75 — ^Bkr. Act. 1898, § 2, as amended by "must account to, and be largely con- Act June 25, 1910, 36 Stat. (Part Ohe) trolled by, the original court that is c. 412, § 2, p. 839. charged with the administration of the 76 — See ante, § 12. estate. ' ' 77— Fidelity Trust Co. v. Gaskell, 195 78— Loeser v. Dallas, 192 Fed. 909, 27 Fed. 865," 28 A. B. R. 4; Loeser v. Dallas, A. B. E. 733. 192 Fed. 909, 27 A. B. E. 733. 79— Fidelity Trust Co. v. Gaskell, 195 In In re Benedict, 15 A. B. E. 232, Fed. 865, 28 A. B. E. 4; Loeser v. Dallas, the court says that the ancillary receiver 192 Fed. 909, 27 A. B. E. 733. 32 Beandbnbubg on- Bahkeuptcy [§ 13 order such payment the court of original jurisdiction will give full faith and credit to the determination of the court of ancil- lary jurisdiction as to the value of the receiver's or other officer's services.®" § 14. Place of business, residence or domicile. Place of business, residence and domicile are three distinct alternative jurisdictional requisites under the present law,*^ so that if the alleged bankrupt does not have either his principal place of business, his residence or domicile within the district, a court of bankruptcy has no power to obtain jurisdiction over him by any service of process otherwise than in accordance with the rule,®^ and the court learning facts depriving it of jurisdiction will act of its own motion.®* Even though the alleged bankrupt appear on the return day and consent to the adjudication, the court will nevertheless dismiss the proceedings on objections from other creditors that he never resided or carried on busi- ness in the state.®* A prior involuntary petition filed in another district cannot deprive the court of the district in which a volun- tary petition is filed of jurisdiction, or of the power to determine its own jurisdiction over the debtor who alleges in his petition that such district is the one he has or has had his principal place of business for the preceding six months.®^ In the case of voluntary proceedings, if objection be made to the adjudication because of lack of these jurisdictional requisites, there is a con- flict as to who bears the burden of showing their existence, some cases holding that it rests on the bankrupt,®® others, on the cred- 80— In re Isaacson, 174 Fed. 406, 23 643, 11 A. B. R. 633, aff'g 127 Fed. 180, A. B. E. 98. 11 A. B. E. 491. 81— In re CUsdeU, 2 A. B. E. 424; In 84— In re Fogerty, 4 N. B. R. 143, re B. H. Williams, 9 A. B. E. 736; In re 1 Sa-wy. 233, Fed. Cas. No. 4895. Elizabeth J. Harris, 11 A. B. E. 649. Creditor may object to jurisdiction in Place of business, residence and domi- voluntary proceedings on ground that cor- cile are distinct. In re Lemen, 208 Fed. P<"'ation did not have its principal place 80 30 A B R 638 °^ business in district for greater part of six months. In re Guanacevi Tunnel Co., 201 Fed. 316, 29 A. B. E. 229. oo T r, -.o-T -r, J <,,,„ .,, 85— In re Beiermeister Bros. Co., 208 83.r-In re Gameau, 127 Fed. 677, 11 ped. 945, 31 A. B. R. 474. 82— Hyslop V. Hoppock, 6 N. B. R. 557, 5 Ben. 533, Fed. Cas. No. 6989. A. B. R. 679 But see lai Mountain Paper Co. v. Morse, 127 Fed. 562, 3 A. B. E. 392. 86— In re Scott, 111 Fed. 144, 7 A. B. But see language of court in White E. 39. See In re Waxelbaum, 97 Bed. §14] Courts of Bankeuptct 33 itor.*'' If, however, the respondent in bankruptcy proceedings consents to a reference ta take proof, he thereby gives the court jurisdiction over his person, and cannot impeach its decrees in a collateral action; ®® but, in a dispute over the ownership of a fund controlled by a trustee in bankruptcy, the court has juris- diction without reference to the residence of the parties.^® "Place of business" means a place where a man is conducting a business of his own.^° In the case of a corporation, its principal place of abode shoijld be construed to mean its principal ofiEice.'*^ A court would have jurisdiction of a petition in case of a foreign corporation, if it has its principal place of business as distinct from its residence or domicile within the district where filed,®^ and this, though its articles of incorporation, or certificates filed by it, recite the fact to be otherwise,®^ and though it has not obtained a license to do 87 — Statement in voluntary petition filed by authority of directors of corpora- tion held prima facie evidence as to principal place of business and burden ■was on creditor. In re Guanacevi Tun- nel Co., 201 Fed. 316, 29 A. B. E. 229. 88 — ^People ex rel. Jennys v. Breunan, 12 N. B. K. 567. 89— In re Sabin, 18 N. B. E. 157, Fed. Gas. No. 12195; Markson & Spaulding v. Meany, 4 N. B. E. 165, Fed. Cag. No. 9098; Payson v.^Dietz, 8 N. B. E. 193, Fed. Cas. No. 10861. 90 — Clerk in employ of express com- pany in capacity of rate elerk and at- torney in fact authorized to endorse all bank papers and to sign custom house clearances held not to have a place of business. In re Henry H. Lipphart, 201 Fed. 103, 28 A. B. E. 705. 91— In re Cal. Pac. E. E. Co., 11 N. B. E. 193, 3 Sawy. 24, Fed. Cas. No. 2315; see In re Ehniia Steel Co., 109 Fed. 456, 5 A. B. E. 484. A corporation doing business in several states, regard will be had to which is in fact the "principal" oflice or place of business. In re Matthews Consol. Slate Co., 144 Fed. 724, 16 A. B. E. 350, aff'g 15 A. B. E. 779; In re Matthews Consol. Slate Co., 144 Fed. 737, 16 A. B. E. 407, afe'g 144 Fed. 724, 16 A. B. E. 350. Brandenburg — 3 Mining corporation held to have its principal place of business in New York, oflS.ces being maintained there for the sale of stock, though little or no business was transacted, it appearing that corpora^ tiou had never actually engaged in min- ing, lu re Gnianaeevi Tunnel Co., 201 Fed. 316, 29 A. B. E. 229. 92 — In re Magid v. Hope Silk Mf^. Co., 110 Fed. 352, 6 A. B. E. 610; In re Marine Machine & Conveyor Co., 91 Fed. 630, 1 A. E. E. 421. 93 — Statement in isharter not eoBclusive as to principal place of business. Dressel V. Lumber Co., 107 Fed. 255, 5 A. B. E. 744; In re Wenatchie-Stratford Orchard Co., 205 Fed. 964, 30 A. B. E. 540; In re Beiermeister Bros. Co., 208 Fed. 945, 31 A. B. E. 474; In re Guanacevi Tunnel Co., 201 Fed. 316, 29 A. B. E. 229. Where the charter of a corporation states its principal place of business to be in one state and its actual biisiness is in another, a bankruptcy court of the, lat- ter state first exercising jurisdiction will retain it against a court of the former state; it not .appearing that greater con- venience of parties would be promoted by transfer. In re Pennsylvania Con. Coal Co., 163 Fed. 579, 20 A. B. E. 872. A certificate filed in a public ofSee by a foreign corporation which designates a 34 Bbandbnbxjbg on Bankbtjptcy [§ 14 business as a foreign corporation.^* So the determination of the question of where the principal place of business of a cor- poration is depends upon where its actual business is transacted and not upon where its chief officers reside and maintain in office.'" While the locus of the principal place of business of a corporation is always a question of fact, yet ordinarily the doubt should be resolved in favor of the jurisdiction in which the cor- poration obtained its corporate existence and where the state law requires the maintenance of an office.®* The winding up of corporate affairs by receivers appointed by a state court is not "business" as that word is used in the expression "principal place of business," ®^ though, as to debts previously contracted, a corporation, by stopping business and going into liquidation, does not change its character of business within the contemplation of the law.®* "Wherever, therefore, the principal place of business of such person has been estab- lished for the greater part of six months preceding the filing of the petition, and without regard to the business there carried on, as to debts previously contracted, proceedings may be main- tained." ®® This rule, which seems based on the law of estoppel, would seem to apply only as against the bankrupt and not to operate against creditors who might object.^ Where the affairs of two corporations have become so intermingled as to render the separation of their assets in bankruptcy impossible, the court first acquiring jurisdiction has the right to deal with them as joint parties.2 Where the bankrupt asserts his residence in a district other than that in which proceedings are instituted and procures a dis- place as its principal place of business is 96 — In re Tennessee Const. Co., 207 not conclusive. In re Thomas MeNally Fed. 203, 31 A. B. E. 67. Co., 208 Fed. 291, 31 A. B. K. 382. 97— In re Perry Aldrioh Co., 165 Fed. 94— In re Duplex Eadiator Co., 142 249, 21 A. B. E. 244. Fed. 906, 15 A. B. E. 324. 98— Tiffany v. LaPlume Condensed 95— In re Tygarts Eiver Coal Co., 203 Milk Co., 141 Fed. 444, 15 A. B. E. 413. Fed. 17?, 30 A. B. E. 183. 99— Tiffany v. LaPlume Condensed Arizona mining corporation licensed to Milk Co., 141 Fed. 444, 15 A. B. E. 413. do business in Missouri held to have its 1 — In re Perry Aldrich Co., 165 Fed. principal place of business in Missouri 249, 21 A. B. E. 244. though managing ofScers lived in Illinois, 2— In re Alaska- American Fish Co., and directors' meetings were held there 162 Fed. 498, 20 A. B. E. 712- In re and proceeds of sale of stock were de- Bridge & Iron Co., 133 Fed. 568 13 A. posited in Illinois bank. Home Powder B. E. 304. Co. V. Gels, 204 Fed. 568, 29 A. B. B. 580. § 15] COXJBTS OF Banketjptcy 35 missal of the proceedings, neither he nor his administrator can deny his residence in such other district upon proceedings being commenced therein.^ §15. — Distinction between "residence" and "domicile." There is a clear difference intended to be made by the law between "residence" and "domicile;" the essential distinction being that the first involves the intent to leave when the purpose for which one has taken up his abode is accomplished; the other has no such intent, the abiding is animo manendi. Thus one may seek a place for the purpose of health, business or pleasure; and if his intent be to remain, it becomes his domicile; if it be to leave as soon as his purpose is accomplished, it is his residence. Perhaps the most satisfactory definition is that one is a resident of a place from which his departure is indefinite as to time, but definite as to purpose, and for this purpose he has made the place his temporary home; so one can have but one domicile but many residences, and cannot be without a legal domicile some- where.* A temporary absence will not destroy either residence or domicile, though an absence that would suffice to destroy a residence might not affect a domicile. Bodily presence is neces- sary to residence while it is not to domicile: for instance, a New Yorker may spend years in Europe retaining his domicile in New York while his residence might be, in the spring, in London; in the summer, in Paris; in the winter, on the Eiviera.^ But where sojourning in or removing to a district for the pur- pose of filing a petition in bankruptcy and on the termination of the proceedings removing from the district does not constitute one a resident.^ A domicile once required is presumed to con- 3 — Long V. Lockman, 135 Fed. 197, 14 ing with Ms wife, but in state wherein A. B. E. 172. he had resided almost three months prior 4— In re Williams, 99 Fed. 544, 3 to starting on his trip. In re Hurley, A. B. B. 677; In re Grimes, 94 Fed. 800, 204 Fed. 126, 29 A. B. B. 567. 2 A. B. E. 160; In re Garneau, 127 Fed. 5— In re Berner, 2 N. B. N. E. 330, 677, 11 A, B. E. 679; In re Owings, 140 3 A. B. E. 325; In re Clisdell, 2 N. B. N. Fed. 739, 15 A. B. E. 472. 6»8, 2 A. B. E. 424, 101 Fed. 246; In re "Eesidence" acquired for purpose of Grimes, 1 N. B. N. 339, 2 A. B. E. 160, acquiring a divorce held the bankrupt's 94 Fed. 800; Brisenden v. Chamberlain, domicile. In re Henry H. Lipphart, 201 53 Fed. 311; In re Watson, 4 N. B. E. Fed. 103, 28 A. B. E. 705. 197, Fed. Gas. No. 12272. Eesidence of traveling salesman held 6— In re Garneau, 127 Fed. 677, 11 not to be in state wherein he was travel- A. B. E. 679. 36 Bbandenbueg ON Bankeuptcy [§ 15 tinue until it is shown to have changed, and where a change of domicile is alleged, the burden of proving it rests upon the person making the allegation,'' and change of domicile can only be proved by showing the acquisition of a new one, and it is not sufficient to show" residence in another place which is not incon- sistent with an intention to return to the place of domicile.^ Where a bankrupt, before the filing of the petition, absconds, his domicile is not thereby changed unless an intent to change is shown. The burden of proof in such case is upon the person alleging the change.^ § 16. — Length of, required. The act provides that "the courts of bankruptcy . . . are hereby invested . . . with such jurisdiction ... as will enable them to exercise original jurisdiction ... to (1) adjudge persons bankrupt who have had their principal place of business, resided, or had their domicile within their respective territorial jurisdictions for the preceding six months, or thef greater portion thereof." The corresponding provision in the act of 1867 was "resided or carried on business for the six months next immediately preceding the time of filing the peti- tion, or for the longest period during such six months." The phraseology of the two provisions is plainly different. Under the act of 1867, it was properly held that a debtor might file his petition in the district in which he had resided or carried on business for the six months next immediately preceding the filing of the petition, or for the longest period during or within such six months that he had resided or carried on business in any district." An interpretation of the expression "the preceding six months or the greater portion thereof ' is not altogether free from doubt. A construction that the word "greater" is synonymous with the 7— Mitchell v. TJ. S., 22 L. ed. 584, 21 the personal movements of the bankrupt Wall. 350, 353; In re Waxelbaum, 97 Fed. are immaterial. Hills v. McKinniss Co. 562, 3 A. B. B. 267; In re Oldstein, 182 188 Fed. 1012, 26 A. B. B. 329. Fed. 409, 25 A. B. B. 138. 10— In re Foster, 3 N. B. B. 57, 3 Ben. 8— In re Clisdell, 2 A. B. B. 424. 386, Fed. Cas. No. 4962; In re Leighton, 9— In re Filer, 108 Fed. 209, 5 A. B. 5 N. B. B. 95, 4 Ben. 457, Fed. Cas. No. E. 332, 3 N. B. N. B. 366; In re Old- 8221; In re Goodfellow, 1 Saw. 510, Fed. stein, 182 Fed. 409, 25 A. B. E. 138. Cas. No. 5536, Jurisdictional requisites being shown, § 16] Courts op Bankkuptcy 37 word "longest" iised in the act of 1867" is contrary to tlie express language of the statute; while the contention that bank^- rupt naust have established his residence or domicile within the territorial jurisdiction at least six months preceding the filing of his petition, and not absented himself during said period for one-half of the time, and that although he may have resided in the district^ for the three anji a half months immedia.tely preced- ing the filing of the petition, but for a number of months or years previously in another state, the court would not have jurisdior tion, is not tenable.^^ Such a construction fails to sufficiently consider the language. The use of the disjunctive "or" shows that the two portions of the provision are alternative. To give jurisdiction the prospective bankrupt must have his principal place of busiijiess, resided or be domiciled in the district for more than three months of the preceding six months, the residence of the creditors being immaterial. So that in order for jurisdiction to exist in bankruptcy, there must have been a residence or domicile for at least three months, and this three months need not be the three months immediately preceding the filing of the petition, but may be any three months of actual legal residence or domicile "within the six months preceding the institution of bankruptcy proceedings.^^ There is no provision in the statute for the case of an astute debtor, who, in his effort to defeat jurisdiction, changes his resi- dence or domicile from one district to another before the three inonths' jurisdictional period is established, though the domicile will be presumed to continue at one place until it is shown to have changed.^* If the residence, domicile or place of business is less than three months, it is not sufficient to make the, juris- dictional period, to allege that the business was being conducted during the additional period by an assignee under a general assignment, where there is no evidence that he actually con- ducted business, or did anything more than close it out.^^ 11— In re Bay, 1 N. B. E. 336, 2 A. B. B. E. 736.; In re Harris, 11 A. B. E. 649; B. 158. In re Tully, 156 Fed. 634, 19 A. B. B. 12— In re Stokes, 1 N. B. N. 106, 1 A. 604. B. E. 35. 14— MitoheU v. TI. 8., 22 L. ed. 584, 21 13— In re Berner, 2 N. B. N. E. 330, WaU. 350; In re Williams, 120 Fed. 38, 9 3 A. B. B. 325; In re Plotke, 3 N. B. N. A. B. B. 737. E. 122, 104 Fed. 964; 5 A. B. E. 171; 15— In re Plotke, 3 N. B. N. B. 122, In re Appel, 2 N. B. N. B. 907, 103 Fed. 104 Fed. 964; 5 A. B. B. 171. 931; In re Williams, 120 Fed. 38, 9 A. 38 Bbandenbukg on Bankruptcy t§ -'■^ A bankrupt may reside and have his domicile in one state and have his principal place of business in another, and the court in either would have jurisdiction if the time be of sufficient length.^« And it has been held that although out of the country for six years his domicile might be in the United States and he dould institute proceedings without an actual residence of three months or more before filing the petition.^'' § 17. — Alien or nonresident. A person without a principal place of business, residence or doniicile within the United States, or who has been adjudged bankrupt by a foreign court of competent jurisdiction, is within the jurisdiction of the federal court of bankruptcy if he has property within the district of such court. ^^ §18. General powers. A court of bankruptcy having jurisdiction of the person or the subject-matter may, under the section of the bankruptcy act ^* investing it with the power "to make such orders, issue such process, and enter such judgments in addition to those specif- ically provided for as may be necessary for the enforcement of the provisions of this act," compel anything which ought to be done for, or prevent anything which ought not to be done against, the enforcement of the law.^" For such purposes the court has the plenary powers of a court of equity and can exer- cise the powers of such a court for the ascertainment and enforcement of the rights and equities of the various parties interested in the estate of the bankrupt.'*^ It has power to issue an injunction to restrain any one from removing, disposing of or otherwise interfering with bankrupt's property; ^^ to appoint receivers whose duty it is to care for and 16— See In re Mackey, 110 Fed. 355, 6 In re Hicks, 133 Ted. 739, 13 A. B. R. A. B. E. 577; In re Brice, 93 Fed. 942, 654. 2 A. B. E. 197; In re Watson, 4 N. B. Court has power to preyeut the doing E. 197, Fed. Cas. No. 12272. of anything that will, at any stage of the 17 — In re Williams, 99 Fed. 544, 3 A, proceeding, tend to embarrass it in the B. E. 677. equitable distribution of the bankrupt 18 — Act 1898, § 2, subd. 1. estate. Virginia Iron, Coal & Coke Co. 19— Act 1898, § 2, subd. 15. v. Olcott, 197 Fed. 730, 28 A. B. E. 321. 20— In re Swofford Bros. Dry Goods 21 — In re SwofEord Bros. Dry Goods Co., 180 Fed. 549, 25 A. B. E. 282; In re Co., 180 Fed. 549, 25 A. B. R. 282. Donnelly, 188 Fed. 1001, 26 A. B. E. 304; 22— In re Jersey Island Packing Co, "» § 18] CoTJBTS OF Bankruptcy 39 protect the assets; *^ to issue orders requiring persons to sur- render for cancellation instruments purporting to convey property of the bankrupt, which it is alleged never became effectivCj^* or property of the bankrupt,^ ^ or property in the hands of an assignee under a general assignment; ^^ and to issue a writ in the nature of a ne exeat and arrest the bankrupt when- ever the facts warrant the belief that he is about to abscond, either with or without his property, to the embarrassment of the bankruptcy proceedings.^^ It has no power to summon' before it by a rule to show cause third persons who are not parties to the record and who reside without the district and state; ^^ nor to issue a warrant for the arrest of the bankrupt under subdivision 9b of the law where the purpose is that the warrant shall serve as a basis of extradition, when he resides in another state.^® While the courts have no power to make general rales in bankruptcy,*" they are not hampered by sucli technicali- ties as to prevent doing what is just and for the protection of the estate, even if it requires the revocation of an order already made.*^ They also have power and authority to order a bank- rupt to deliver to the trustee any money or other property in his possession or under his control, but as the enforcing of such order may lead to the bankrupt's imprisonment for contempt, it should not issue if there be any doubt of his ability to comply therewith,'* and person's holding bankrupt's property without 138 Fed. 625, 14 A. B. E. 689; In re 28 — In re Waukesha Water Co., 116 Pnischen, 1 N. B. N. 526. See also eases Fed. 1009, 8 A. B. B. 715. andei §§ 209, 210, 1043. 29 — In re Ketohum, 108 Fed. 35, 5 A. 23— In re Fixen & Co., 1 N. B. N. 568, B. R. 532. See post, Chap. XIII. 2 A. B. R. 822, 96 Fed. 748. See post, SO^In re Kennedy, 7 N. B. E. 337, Chap. VII. Fed. Cas. No. 7699. 24^In re Waukesha Water Co., 116 31— Samson v. Burton, 6 N. B. R. 403. Fed. 1009, 8 A. B. R. 715. 32— In re Purvine, 1 N. B. N. 326, 96 25— MueUer v. Nugent, 46 L. ed. 405, ^ed. 192, 2 A. B. B. 787; In re Rosser, 184 TJ 8 1, 7 A. B. R. 224. ^ N. B. N. 469, 96 Fed. 305, 2 A. B. R, 26-Bryan v. Bemheimer, 45 L. ed. 815, !f5; In re Tudor, 1 N B N. 476 96 181 ir.7l88, 5 A. B. R. 623. ^^\ 'iV^-^\t T'p'^ ^f fT „_ , ' , „„„„„„,« niick, 2 N. B. N. 104, 97 Fed. 566, 3 A. 27-I;i re Lxpke, 2 N. B. N. R. 347, ^ ^ j^ ^^ Schtesinger, 2 N. B. N. 98 Fed. 970, 3 A, B. B. 569; Matter of jgg^ 97 j,^^ q^O, 3 A. B. R. 342; In re Berkowitz, 173 Fed. X012, 22 A. B. R, ^g^jer, 2 N. B. N. 257, 98 Fed, 839, 3 231, citing In, re Cohen,, 136 Fed. 999, 14 a.. B. E. 533; In re Deuell, 2 N. B. N. A. B. E. 355; In re Flei^pher, 151 Fed, 597, loo Fed. 633, 4 A. B. R, 60; In 82, 18 A. B. B. 194. See post, Chap. re Thiessen, 2 N. B. N. 625. See post, XIII. Chap. XXXVI. 40 Beandenburg on Bankrtjptcy [§ 13 claim of title will be guilty of contempt on withholding it from the trustee and may be summarily proceeded agaiust for its recovery.^* The court of bankruptcy has general power, like any other court, to amend its decrees, in its discretion, in the furtherance of justice, in the absence of any statutory prohibition.^* § 19. Judgment of state court. The court of bankruptcy has no jurisdiction to annul or cor- rect, upon appeal or petition, a judgment rendered in a state court, nor can it question allegations made in pleadings in a state court "prior to the filing of the judgment in the court of bankruptcy with a petition for injunction,®^ nor can the appoint- ment of a receiver by a state court be attacked collaterally in the bankruptcy court.^^ § 20. Receivers in state courts. Proceedings under the state insolvency laws being void, a receiver appointed pursuant thereto for the purpose of taking charge of the insolvent's property will be required to turn the chstody of the same over to the receiver or trustee in the bank- mptcy proceedings, subsequently instituted against the same insolvent, whose power and authority become paramount by virtue of the latter proceedings; ^'^ but where the receiver was appointed more than four months prior to the adjudication,®* or 33— In re Moore, 104 Fed. 869. 865, 16 A. B. E. 658; In re Matthews & 34— In re Cuthbertson, 202 Fed. 266, 29 Sons, 163 Fed. 127, 20 A. B. E. 570; New A. B. E. 823. Eiver Coal Land Co. v. Euffner Bros., The court may modify orders pre- 165 Fed. 881, 21 A. B. E. 474; In re viously made, provided in so doing it Zeigler Co., 189 Fed. 259, 26 A. B. E. 761. does not deprive the parties of the priv- Is receiver 's duty to turn property over ilege of asserting any right to which they to federal receiver. Id. may have been entitled in the bankruptcy See In re Hercules Atkin Co., Ltd., proceeding. Virginia Iron, Coal & Coke 133 Fed. 813, 18 A. B. E. 369. Co. V. Olcott, 197 Fed. 730, 28 A. B. B. 38— Metcalf v. Barker, 187 U. S. 165, 321. 47 L. ed. 122, 9 A. B. E. 36; Pickens v. 35— In re Dunn, 11 N. B. E. 270, 2 Dent, 9 A. B. E. 47, aff'g 106 Fed. Hughes 169, Fed. Cas. No. 4172; McKin- 653, 5 A. B. E. 644; In re English, 127 sey V. Harding, 4 N. B. E. 10, Fed. Cas. Fed. 940, 11 A. B. R. 674; rev'g 122 Fed. No. 8866. 113, 10 A. B. E. 133 ; In re Heckman, 140 36— In re Benwood Brewing Co., 202 Fed. 859, 15 A. B. E. 500; In re Sterling- Fed. 326, 29 A. B. R. 759. worth Ey. Supply Co., 165 Fed. 267, 21 37-^In re Knight, 125 Fed. 35, 11 A. B. E. 342. A. B. E. 1 ; Hooks v. Aldridge, 145 Fed. §'22] OouETS OF Bankbuptcy 4:1 wliere lie is appointed not for tlie purpose of taking charge of th.e insolvent's property but his appointment is merely incidental to other relief,*^ the federal court will not interfere. Prima facie, however, the trustee in bankruptcy is entitled to the prop- erty and those who dispute his right have the burden of showing the exception.*" In this connection the word "judgment" as used in section 67 of the bankruptcy act has been held to be sufficiently broad to apply to a judgment of a state court appointing a receiver which is avoided by the adjudication.*^ In view of the comity existing between the federal and state courts, application should first be made to the state court of which the receiver is an officer.*^ The fact that such property is in the hands of a receiver is no ground for dismissing the petition.*^ § 21. Commencement of proceedings. For jurisdictional purposes bankruptcy proceedings are com- menced by the filing of the originar petition, and the fact that the service of the subpoena, or other further procfeedings, were delayed, is immaterial,** If counting from the day the petition is filed the act of bankrup.tcy was within the four months and the bankrupt has resided, had his domicile or principal place of business the requisite time in the district,*^ the bankruptcy co«rt has full jurisdiction.*^ § 22. Want of sufficient jurisdiction, when raised. Objections to the jurisdiction must be made as speedily as possible; and. where a creditor was notified of the first meeting of creditors, appeared thereat, nominated the trustee; and ■ 39-^ As in foreclosure of mortgage. 43 — In re Green, Pond E. E. Co., 13 Merry v. Jones, 119 Ga. -643, 11 A. B. N. B. E. 118, Fed, Gas. No. 5786. E. 625. 44— Act 1898, § 1, subd. 10; Shute v. -40— Merry v. Jones, 119 Ga. 643, XI A. Patterson, 147 Fed. 509, 17 A. B. E. 99; B. Ei 625. In re Stein, 105, Fed. 749, 5 A. B. E. 288. 41— Mauran v. Carpet Lining Co., 6 45— In re Appel, 2 N. E. N. E. 907, A. B. E. 734"; In re Cameron Currie & 103 Vek. 931; In re Lewis, IN. B. N. Co., 20 A. B. E. 790. • 556, 91 Fed. 532, 1 A. B. E. 548; In re ;, 42_in re Lehgert Wagon Co., 110 Fed. Kinott; 2 N. B. N. E. 373', 98 Fed; 867, 827,-6 A. B^^E. 535;- Wilson v.Parr, 8 3 A. E. E.' 546. • ■' - ' A' B.E. 230^; In re L^s^ery 110 -Fedi 433, 46— 'In re SeWoerb, 2 N. B. N: E. 234, 3' A,. B. B.- 815 ; In re Price, 92 Fied. 987, 97 Fed. 326. '■ • " " ' I A. B.Ei-606;'-fee Tuit,v-.Ca5rriere,ll7 tJ. a 201,V29'L. ed: 855^ • ' ■ ' ' ■ :■■■'■:;: .^ ■ ■ ■,- ■':■.:', 42 Beandenbxjeg on Bankeuptoy [§22 exhaustively examined tlie bankrupt, it is too late for him to raise an objection as to the jurisdiction of the person or thing for the first time on the application for discharge,*'' or on appeal; *® but as jurisdiction over the subject-matter must be given by law, and cannot be given by consent, or be waived, the question may be raised at any time, or made by the court on its own motion.** Where a petition is filed to set aside an adjudication on the ground of want of jurisdiction in the court to make it, although the petitioner may be a stranger to the proceedings and there- fore not entitled to make it, it is in the discretion of the court to hear him as amicus curiae.^" § 23. Collateral attack of decisions. A bankruptcy proceeding is a proceeding in rem and all persons interested in the res are regarded as parties to such proceedings, including not only the bankrupt and trustee but all the creditors of the bankrupt; ^^ and a decree therein is notice to all the world and cannot be attacked collaterally, but is con- clusive as to the jurisdiction of the court and the regularity of the proceedings.^^ Hence in a collateral proceeding objection cannot be raised to the court's jurisdiction,^^ the adjudication,^* 47 — Hall V. Kinsell, 2 N. B. N. E. 745; or the decree is void in form. New Lamp In re PolakofE, 1 N. B. N. 232, 1 A. Chimney Co. v. Ansonia Brass and Copper B. E. 358. Co., 13 N. B. E. 385, 91 U. S. (1 Otto) 48— In re Emrich, 2 N. B. N. E. 656, 656, 23 L. ed. 336. 101 Fed. 231, 4 A. B. E. 89. 52— Shawhan v. Wherritt, 7 How. 627, 49— In re Mason, 2 N. B. N. E. 425, 12 L. ed. 847; Michaels v. Post, 21 Wall. 99 Fed. 256, 3 A. B. E. 599; Shutts v. 398, 22 L. ed. 520; Morse v. Godfrey, 3 Bank, 2 N. B. N. E. 320, 98 Fed. 705, 3 Story 364; In re Columbia Eeal Estate A. B. E. 492. Co., 101 Fed. 965, 4 A. B. E. 411. 50— In re Columbia Eeal Estate Co., 53 — ^In re Clisdell, 101 Fed. 246, 4 A. 101 Fed. 965, 4 A. B. E. 411. B. E. 95; In re Mason, 99 Fed. 256, 3 51— Carter v. Hobbs, 92 Fed. 594, 1 A. -^^ ^- ^- 599; In re Columbia Eeal Estate B. E. 215; Southern L. & T. Co. v. Ben- ^°-' ^"^ ^^^- ^65, 4 A. B. E. 411; New bow, 96 Fed. 514, 3 A. B. E. 9; In re \ ^*™P Chimney Co. v. Brass & Copper aeoox, 164 Fed. 823, 81 A. B. E. 314; In ^°-' " ^- ^- ^- ^^^> ^^ ^- »■ (1 Otto) re Dempster, 172 Fed. 353, 22 A. B. E. ^^t ^li^; ®*- ^^t 751 54— Wilson v. Parr, 8 A. B. B. 230; A J J.J. i. , , see Chapman v. Brewer, 114 IT. S. 158. A decree adjudging a corporation baiJ.. gg l. ed. 83; In re ciodale, 109 Fed! nipt IS m the nature of a decree m rem, 783, 6 A. B. E. 493 ; Edelstein v. United and if the court rendering it had juris- states, 149 Fed. 636, 17 A, B. E. 649; In diction it can only be assailed by a direct re First Nat. Bank of Belte Fourch*,'l52 proceeding in a competent court, unless Fed. 64, 18 A. B. E. 265; Huttig Mfg. due notice of the petition was never given Co, v. Edwards, 160 Fed. 619, 20 A. B. B. § 26] Courts of Bankruptcy 43 the discharge,"® the acts of the trustee ®* or his title for purposes of sale,"'' or the like. §24. Reopening estate. The court has the power to reopen an estate whenever it appears that it was closed before being fully administered."* § 25. Court always open— Term. The court of bankruptcy, having no regular terms, is always open, and its adjudicatiohs, orders and decrees remain, at ajl times, subject to re-examination and correction upon applica- tion made in an appropriate form when discovered to be erro- neous, provided rights have not become vested under them which such correction will disturb ; "^ and, in the exercise of its exclusive original jurisdiction it may act in administrative mat- ters or raatters of mere discretion as well in vacation as in term time, and a judge sitting in chambers in such matters has the same power and jurisdiction as when sitting in court.®" The proceedings in a pending suit are therefore continuous from the filing of the petition to the closing of the estate.®^ § 26. Expedition in hearing. It is the duty of the bankruptcy court to promptly determiije the question of adjudication, proceed with the selection of a trustee and |he administration and distribution of the estate.®^ 349; In re Heeox, 164 Fed. 823, 21 A. 60— Shearman v. Bingham, 7 N. B. B. B. E. 314; In re Dempster, 172 Fed. 353, 490. 22 A. B. E. 751. 61 — In re Ives, 113 Fed. 911, 7 A. B. - See also In re Billing, 145 Fed. 395, 17 E. 692; reversiij^ 111 Fed. 495, 6 A. B. A. B. E. 80. E. 653; In re Jemison Mercantile Co., 55— Black v. Blayo, 13 N. B. E. 195; 112 Fed. 966, 7 A. B. B. 588. Alston V. Bobinett, 9 N. B. E. 74; Corey 62 — ^Acme Harvester Co. v. Beekman V. Bipley, 4 N. B. B. 163; In re Shaffer", Lumber Co., 222 U. S. 300, 27 A. B. B. 104 Fed. 982, 4 A. B. E. 728; Custard v. 262; In re Lisk Mfgj Co., 167 Fed. 411, Wigderson, 130 Wis. 412, 17 A. B. E. 21 A. B. B. 674; In re BUling, 145 Fed. 337. 395, 17 A. B. E. 80. 56 — Morris v. Swartz, 10 N. B. E. 305. Policy of law is to expedite matters. g7_gteele v. Moody, 16 N. B. E. 558. In re Syracuse Paper & Pulp Co., 164 58_gee post, c. XXXIII, § 1427. Fed. 275, 21 A. B. E. 174. 59 — Mahoney v. Ward, 100 Fed. 278, Policy of act is to secure equal and 2 N. B. N. E. 558, 3 A. B. E. 770; San- speedy distribution of property. In re dusky V. Bk., 12 N. B. E. 176, 23 Wall. Swofford Eros. Dry Goods Co., 180 Fed. 289, 23 L. ed. 155; Matter of Hensehel, 549, 25 A. B. E. 282. 114 Fed. 968, 8 A. B, E. 201. Litigants should bd ajert and active. 44 Bbandbnbueg on Bankeuptcy [§27 § 27. Transfer of cases. It is frequently the case that a person may reside in the juris- diction of one court, do business in another, and have his domi- cile in still another; or, in the case of a partnership, each member of a firm may live in different judicial districts and transact business in still others, so that a number of courts may at the same time have jurisdiction to render an adjudication of bank- ruptcy. Under the law of 1867 the court whose jurisdiction was first invoked had entire control, and proceedings in other courts were stayed or dismissed.®^ Section 2, subdivision 19 of the bankruptcy act of 1898, empowers the several courts of bank- ruptcy to "transfer cases to other courts of bankruptcy," but does not prescribe the conditions or circumstances under or upon which such transfer may be made. The act further pro- vides as follows: "In the event petitions are filed against the same person, or against different members of a partnership, in different courts of bankruptcy each of which has jurisdiction, the cases shall be transferred, by order of the courts relinquish- ing 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." ^* It follows from the above that where a court relinquishes jurisdiction under such circumstances, the case should be transferred to and be consolidated with, the peti- tion in that court which having concurrent jurisdiction can proceed with the case "for the greatest convenience of parties in interest."®^ Under the general order relating to the transfer of cases where two petitions are filed against the same individual in different districts, the first hearing must, be had in the district in which the debtor has his domicile; and where there are two or more petitions against or by different members of, the same partner- ship in different courts, each having jurisdiction, or the petitions by the different members shall be filed in the same court, the petition first filed shall be first heard, and in either case the Blanohard v. Ammons, 183 Fed. 556, 25 5 Ben. 168, Fed. Cas. No. 8228; vide A. B. E. 590. especially as to partners, In re Smith, 3 63— In re Boston, H. & E. E. E. Co., N. B. E. 15. 6 N. B. E. 209; 9 Blatchf. 101, Fed. Cas. 64— Act 1898, § 32a. No. 1678; Shearman et al. v. Bingham et 65 — In re United Button Co., 137 Fed. al., 5 N. B. E. 34, 1 Lowell 575, Fed. Cas. 668, 13 A. B. E. 454. No. 12733; In re Leland, 5 N. B, E. 222, .§27] COUETS OF Bankeuptcy 45 proceedings upon tlie other petitions may be stayed until an adjudication is made upon the petition first heard, and the court which makes the first adjudication retains jurisdiction over all the proceedings until the same is closed. The court so retain- ing jurisdiction, if satisfied that it is for the greatest convenience of the parties in interest that another of said courts should pro- ceed with the case, shall transfer it. Earlier petitions may be amended by inserting acts of bankruptcy in later ones.^^ This general order is, of course, subject to the provisions of the bankruptcy law and the case may be transferred and con- solidated for the convenience of parties if brought within the provisions of section 32, in spite of the direction in the general order that the court first adjudicating shall retain jurisdiction until the proceedings are closed.®'' Under the general order where petitions are filed against an individual the first hearing is in the district of domicile; in the case of petitions filed against a partnership, the first filed has priority of hearing.®* "The effect of the general order in connection with the pro- visions of the bankruptcy act is, among other things, to make it the duty of the court retaining jurisdiction of the case by reason of the domicile of the alleged bankrupt, 'if satisfied that it is for the greatest convenience of parties in interest' that another court having concurrent jurisdiction should proceed with the case, to order it to be transferred to such other court. " ®® By the express provisions of the bankruptcy act, the case can only be transferred to another court "having jurisdiction" and a necessary part of the action of a court in transferring a case is to find that the court to whom the case is relinquished has jurisdiction of the bankruptcy proceeding.'"' A court which has jurisdiction of one of the partners may have jurisdiction of all 66 — G. 0. VI. jurisdiction is that the bankrupt's dom- 67 — In re Isaacson, 161 Fed. 777, 779, icile has been in that district during the 20 A. B. K. 430, 437. greater portion of the six months is the 68 — In re United Button Co., 132 Fed. court in which the first hearing' shall be 378, 12 A. B. R. 761. had." In re Isaacson, 161 Fed. 777, 779, In re Sears, 112 Fed. 58, 7 A. B. R. 20 A. B. R. 430, 437. 279. 69— In re United Button Co., 137 Feds "The true meaning of General Order 668, 13 A. B. R. 454. 6 is that where petitions are filed in differ- 70^Kyle Lumber Co. v. Bush, 133 Fed', ent districts the court whose grouiid of 688, 13 A. B. R. 535. ■ \. 46 Bbandenbubg on Bankeuptoy [§27 the partners and of tlie administration of the partnership and individual property, but not to adjudge each member individ- ually bankrupt, unless it has jurisdiction over him personally.'^ "The bankruptcy act does not define or describe 'greatest convenience* or 'parties in interest,' as those phrases are used in section 32 and General Order VI. Both expressions are elastic and largely indefinite. It is manifestly too narrow a construc- tion of the phrase 'parties in interest' to restrict it merely to unsecured creditors in bankruptcy. The bankrupt is not only literally but substantially a party in interest. A creditor hold- ing security which is sought to be set aside by the trustee in bankruptcy is also a party in interest. And it probably may be stated with accuracy that all persons whose pecuniary interests are directly affected by proceedings in bankruptcy are, within the true meaning of section 32 and General Order VI, parties in interest. What may be for the greatest convenience of parties in interest does not necessarily depend upon only one factor or circumstance entering into the situation. Proximitj of the place of business of the bankrupt to the court entertaining proceed- ings in bankruptcy, though a circumstance sometimes entitled to weight is by no means conclusive, and the same may be said with respect to proximity to the place of manufacture. Prox- imity of a majority of the creditors of the bankrupt in number or in the amount of their claims is a circumstance which should also be duly weighed. And the same may be said with at least equal force of a majority of the debtors of the bankrupt in number or in amount. Nor is the element of expedition or of economy in the administration of the estate in bankruptcy to be lost sight of."" 71 — Section 5, c, Act of 1898; In re the place of business of the bankrupt to Murray, 1 N. B. N. 570, 96 Fed. 600, 3 A. the court, proximity of -witnesses whose B. E. 601; see In re Sears, 112 Fed. 58, attendance is desired, in any hearing, and 7 A. B. E. 279. numerous other factors. In re Sterne & 72— In re United Button Co., 137 Fed. Levi, 190 Fed. 70, 26 A. B. E. 259. 668, 13 A. B. E. 454. When an involuntary petition was filed The term "parties in interest" covers against bankrupt as a member of a every party having any interest in or con- firm at the place where the firm business nection with the case, including priority, had been conducted and where the cor- secured and unsecured creditors as well poration which suecoeded the firm con- as the bankrupts themselves, and the term ducted its business retaining the bank- " greatest convenience" depends upon rupt in its employ, although he claimed all the circumstances, including prox- to live in another jurisdiction where he imity of a majority of creditors and of afterwards filed a voluntary petition, the § 28] Courts of Bankeuptcy 47 The word "individual" as used in the general order is equiva- lent to "person" as used in the bankruptcy act and as such includes a corporation.'^* The court taking and retaining jurisdiction under general order 6 has exclusive jurisdiction to determine the question of a transfer under section 32.''* The petition is directed to the discretion of the court,'^ the burden being upon the petitioners to satisfy the court by a fair preponderance of the evidence that it should transfer the case.''* § 28. Judge; quaJification, duty and conduct. The same requirements as to qualification, duty and conduct of federal judges in the courts, apply with equal force to courts of bankruptcy. Thus a judge, who has been a depositor in an insolvent banking institution but who has sold his claim, is not thereby disqualified from sitting in the matter, although the motive on the part of the purchaser of his claim may have been to remove the disqualification,'''' though he would be disquali- fied from acting as the general adviser of trustees as to their acts.''* In the discharge of his functions as a federal judge, his conduct and administration need not conform to the practice in the state courts.'" court held that the greatest conTenience re Tybo Mining & Beduction Co., 132 Ted. of all was subserved by hearing the case 697, 13 A. B. E. 68. at the firm residence, where the debts Case transferred for convenience of were contracted and the facts might be parties. In re General Metals Co., 133 most conveniently and effectively investi- Fed. 84, 12 A. B. E. 770. gated, and stayed the bankrupt's volun- 75 — In re Tybo Mining & deduction tary petition until the question of the Co., 132 Fed. 697, 13 A. B. E. 68. adjudication in the involuntary proceed- 76 — In re Sterne & Levi, 190 Fed. 70, ings had been determined. In re Waxel- 26 A. B. E. 259 ; In re Tybo Mining & baum, 2 N. B. N. E. 228, 98 Fed. 589, Beduction Co., 132 Fed. 697, 13 A. B. E. 3 A. B. E. 392; compare In re Elmira 68. Steel Co., 109 Fed. 456, 5 A. B. E. 484. 77— In re Sime, 7 N. B. E. 407, 2 Sawy. 73— In re United Button Co., 137 Fed. 320, Fed. Cas. No. 12860. 668, 13 A. B. E. 454; In re United But- 78— In re Sturgeon, 1 N. B. E. 131, ton Co., 132 Fed. 378, 12 A. B. B. 761. Fed. Cas. No. 1356. 74— In re Sterne & Levi, 190 Fed. 70, 79 — Nudd v. Burrows, 13 N. B. E. 289, 26 A. B. E. 259; In re United Button 91 U. S. (1 Otto) 426, 23 L. ed. 286. Co., 132 Fed. 378, 12 A. B. E. 761; In CHAPTER m Clebks — Marshals — ^Attorney GENEEAii § 29. Clerks; duties. § 30. Duties in general. § 31. To collect fees. § 32. Inability or pauper affidavit. i 33. Custody of papers. § 34. Compensation of elerk. §35. Marshal's fees. § 36, Attorney general — Statistics of bankruptcy proceedings for congress. § 29. Clerk; duties. ' ' Clerks shall respectively "(1) Account for, as for other fees received by them, the clerk's fee paid in each case and such other fees as may be received for certified copies of records which may be prepared for persons other than officers; " (2) Collect the fees of the clerk, referee, and trustee in each case instituted before filing the petition, except the petition of a proposed voluntary bankrupt which is accompanied by an affidavit stating that the petitioner is without, and cannot 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, trans- mit such papers by mail, and in like manner return papers which were received from such referees after they have been used; "(4) And within ten days after each case has been closed pay to the referee, if the case was referred, the fee collected for him, and to the trustee the fee collected for him at the time of filing the- petition. ' ' ^ The clerks of the district court are also 3:eqnii:ed to. "prepare and keep in their respective offices complete and convenient indexes of all petitions and discharges in bankruptcy hereto- 1— Act 1898, § 51a.. • 48 § 30] Clebks — Mabshals — Attorney Geneeal 49. fore or hereafter filed in the said courts, and shall, when requested so to do, issue certificates of search certifying as to whether or not any such petitions or discharges have been filed; and said clerks shafU be entitled to receive for such certificates the same fees as now allowed by law for certificates as to judg- ments in said courts: Provided, That said bankruptcy indexes and dockets shall at all times be open to inspection and examina- tion by all persons or corporations without any fee or charge therefor. ' ' ^ These indexes should cover all petitions in bankruptcy filed as well as all discharges granted since the enactment of the act of July 1, 1898. § 30. Duties In general. The clerk is required to keep a docket containing certain pre- scribed entries; to indorse on each paper filed with him the day and hour of filing, and a brief statement of its character; ^ to attest all process, summons and subpoenas issued out of the court, under the seal thereof,* and, on application, to furnish the referees blanks with the signature of the clerk and seal of the court.^ In case the judge is absent from the district, the clerk has authority to make the order of reference," a copy of which he should mail forthwith or deliver personally, or through some other officer of the court, to the referee.'' It is also his duty to issue a certificate showing the absence of the judge, or his sick- ness or inability to act as authority for the referee to take possession or release bankrupt's property. He has no judicial powers, but is a ministerial officer, subject to the orders of the judge.* A deputy clerk is not mentioned in the act, and his authority and power are confined to those conferred by statute.^ He may perform ministerial duties.^" The fact that bankrupt was" a brother-in-law of the deputy clerk in whose office a petition was filed has been held sufficient cause for transferring the case, and 2— Act 1898 § 71 added hjAct Feb. 5, 6— Act of 1898, §§ I8f &g. 1903. • 7— G. O. Xir. 3— G. O. III. 8— Act- of 1898, § 38a (3). ■ 4 — Cohen v. American Surety Co., 132 9-^Section' 558, U. 8^ Eev. Stat. App. Div. (N. Y.) 917, 22 A. B. E. 909; 10— May make order of reference. tJil-' G. O. ••lil. ' bertson v. United States,- 168 Ped. 672; 22' 5— G. 0. III. • • • a:B:E.'32; Brandenburg — 4 50 Beandenbubg on Bankbuptcy [§ 30 record to another seat of the court in the same district, though this position seems questionable." § 31. To collect fees. The clerk is required to collect his own fees, $10," those of the referee, $15,^* and trustee, $5, " in each case instituted before filing the petition, except the petition of a proposed volimtary bankrupt accompanied by an affidavit stating that the petitioner is without, and cannot obtain, the money with which to pay such fees. A deposit of the statutory filing fee by a proposed voluntary bankrupt, not within the exception in favor of pau- pers, is a condition precedent to the filing of the petition. In the case of a firm the fee must be collected from each member, as well as the firm where the partnership applies as such, and separate petitions with separate schedules are filed for the several partners; " but it has been held that only one petition in the name of both the partnership and the individual partners, accompanied by schedule setting out the debts and assets of the firm and also of the partners, is necessary and both the joint and separate estates may be administered upon such petition; and it is but one proceeding requiring only one filing fee,^® though on this point the courts do not agree.^'' Upon a petition in involuntary bankruptcy against one person as an individual, no adjudication can be made against other persons who were in partnership with him, even though the latter come in voluntarily and consent to be adjudged bankrupt; but they must file their individual petitions, deposit the fees required and proceed strictly according to law.^® Money belonging to the bankrupt, either in his hands or sub- ll^Bray v. Cobb, 1 N. B. N. 209, 1 paid by each insolvent partner who is A. B. B. 153, 91 Fed. 102. adjudicated, except for the requirement 12 — ^Act of 1898, § 52a. from each such partner of a deposit of 13 — Act of 1898, § 40a. the customary amount to cover costs of 14 — Act of 1898, § 48a. advertising notices to individual creditors. 15— In re Barden, 2 N. B. .N. E. 741, In re City Con. & Bldg. Co., 30 A. B. B. 101 Fed. 553, 4 A. B. R. 31 ; In re Parley 133. & Co., 115 Fed. .359, 8 A. B. E. 266. 17— In re Farley & Co,, 115 Fed. 359, 16— In re Gay, 98 Fed. 87Q, 3 A. B. 8 A. B. R. 266; In re Barden, aoi JPed. E. 529; In le Langslow et al., 1 N. B. 555, 4 A. B. E. 31. IT. 232, 1 A. 3. E. 258, 98 Fed. 869. 18— Mahoney v. Ward, 100 Fed. 278, 2 Separate costs and fees need -not be N. B. N. E. 538, 3 A. B. E. 77. § 32] Clebks— Maeshalb — ^Attokney Genebal 51 ject to his order, is subject to an order for the payment of the statutory fees.^* The provision for the repayment of money advanced for expenses incurred in publishing or mailing notices, etc.,^" does not apply to the filing fee of $30 in voluntary cases, which is not returned to the bankrupt; ^* but, in involuntary cases, the filing fee of $30, the marshal's charges and the indemnity deposit, are all returned to the petitioning creditors.^^ § 32. Inability or pauper affidavit. A petitioner who has no means is exempt from paying the filing fee of $30, and the statutory affidavit of a voluntary bank- rupt is prima facie evidence of petitioner's inability and the bankrupt's petition being accompanied by the pauper's oath, it is the duty of the clerk to file the petition and take the action thereon prescribed by law,^^ subject, however, to investigation; and, if the inquiry is fairly answered respecting available means, and none appear to be held by petitioner when the proceedings were instituted, nor to be obtainable through his individual earn- ings or efforts, the exemption from such payment must be allowed.^* It appearing, however, that the petitioner has money with which to pay the fees, the petition should be filed and an order made requiring the money to be paid into court for that purpose.^^ It has been held that if, upon a reference to the referee to take proof and report the facts showing whether bank- rupt is unable to obtain the money, it appears that he is employed at a monthly salary though as low as $30, he must pay the $30,^® for the liability of petitioner to pay the filing fee does not depend upon his having property not exempt ^'^ but on actual inability. He may be ordered to pay such fees out of pension money received from the United States and remaining 19— In re Mason, 181 Fed. 899, 25 A. 24— In re Levy, 101 Fed. 247, 4 A. B. E. 73. B. R. 108. 20— G. O. X. 25— In re Mason, 181 Fed. 899, 23 A. 21— In re Matthews, 97 Fed. 772, 3 B. E. 73. A. B. E. 265. 2q— In re Collier, 1 N. B. 257, 1 A. B. 22— Act of 1898, § 64b (2) ; In re SU- E. 182, 93 Fe^d. 191. verman et al., 2 N. B. N. E. 18, 3 A. B. 27— In re Hines, 117 Fed. 790, 9 A. B. E. 227, 97 Fed. 325. R. 27; In re Mason, 181 Fed. 899, 25 A. 23— Sellers v. Bell, 94 Fed. 801, 2 A. B. R. 73. B. E. i529; In re Mason, 181 Fed. 899, 25 A. B. E. 73. 52 Beandenbubg on Bankeuptcy [§32 Tinohanged in his hands at the time of filing the petition,^* though, according to the better view, he is not required to solicit loans from his friends for the purpose of paying this expense.^^ Where the petitioner's family lived in affluence in a house belonging to his wife, and it was evident that he had more or less control over her property, he was held not to be excused from paying the filing fee, since that privilege is granted only to paupers in fact.^" In any case in which the clerk's fees are not required by the act to be paid before filing the petition, the judge, at any time during the pendency of the proceedings, may order them paid out of the estate, or, after notice and proof of petitioner's ability, require him to pay them.^^ The petitioner must pay the necessary expenses as the case progresses, and, if he declines when able to pay, his discharge may be refused and his peti- tion be dismissed or his discharge may be postponed until he pays the compensation allowed the clerk, referee and trustee, or else satisfy the court that by reason of ill health or peculiar misfortune he is a worthy object of charity; ^^ but there is no rule or law authorizing the referee to make such order.^^ § 33. Custody of papers. The olerk is entitled to one copy of the petition ^* and of the schedule,^^ and is required to deliver to the referees, upon application,*® all papers which ma,y be referred to him, or, if the offices of such referees are not in the same city or town as the office of the clerk, transmit such papers by mail, and in like manner return papers which .were received from such referees after they have been used.®'' He must also receive and file the records and papers of each case after it is concluded,** together with the bonds of trustees, referees and designated deposi- tories.*^ 28— In re BeSn, 100 Fed. 262, 4 A. B. 33— In re Plimpton, 3 N. B. N. E. 14, E. 53. 103 Fed. 775, 4 A. B. R. 614. 29— In re Mason, 181 Fed. 899, 25 A. 34— Act of 1898, § 59e. B. E. 73; Sellers v. Bell, 94 Fed. 801, 2 35— Act of 1898, § 7 (8). A. B." E. 529; but see In re Hines, 117 36 — Act of 1898, § 39 (10). Fed. 790, 9 A. B. E. 27. 37— Act of 1898, § 39 (8). 30— In re WiUiams, 2 N. B. N. E. 206. 38— Act of 1898, § 39 (7). ■SI—Q: O. XXXV. 39— Act of 1898, § 50h. 32— Anon. 1 N. B. N. 376, 2 A. B. E. 527, 95 Fed. 120; In re Collins, 1 N. B. N. 132; In re Fininger, Id. § 34] ; Cleeks — Marshals — Attobney General 53 § 34. Compensation of clerk. Except when a fee is not required from a voluntary bankrupt, clerks shall respectively receive as full compensation for their service to each estate, a filing fee of ten dollars.*** This feie is in full compensation of all seirvices in filing petitions or other papers required to be filed with the clerk, or in certifying or delivering papers or copies of records to referees or other officers, or in receiving or paying out money or otherwise, unless the clerk is able to specifically point out an exception; the allowance or disallowance of costs and fees is not a matter of equity or supposed hardship, but purely a matter of statutory provision.*^ It does not include the charge for copies furnished to other persons, or expenses necessarily incurred in publishing or mailing notices or other papers; *^ and, before incurring any expense of this nature or in traveling, or in procuring the attendance of witnesses, "or in perpetuating testimony, the clerk may require from the person, for whom the service is to be ren- dered, indemnity for such expense, and the money so advanced shall be repaid as part of the cost of administration.** Clerks of United States courts are entitled to charge ten cents a folio of one hundred words for making copies of papers on file, or of any entry or record, fifteen cents for each certificate, and twenty cents for affixing the seal of the court.** The clerk must issue the notice on the petition for a discharge and is allowed therefor his actual expenses such as postage, stationery and clerical work. This cannot be charged as a fee but should be itemized and charged as an expense.*^ The clerk is entitled to his per diem compensation for days on which voluntary petitions in bank- 40— Act 1898, § 52a. Analogous pro- 43— O. O. X. vision of act of 1867. "See. 47. . . . 44 — Sec. 828, TJ. S. Eev. Stat. That in each case there shall be allowed 45— In re Dunn Hardware & Furni- aud paid, in addition to the fees of the ture Co., 134 Fed. 997, 14 A.. B. E. 186. clerk of the court as now established by Though a voluntary bankrupt might law, or as may be established by gen- furnish the filing fee, if there are no eral order, under the provisions of this assets and he can truthfully swear he is act, for fees in bankruptcy, the following unable to pay for the required notices fees, which shall be applied to the pay- to creditors, he is entitled to have that ment for the services of the registers." service performed by the clerk on the (Here follows the specification of fees.) same conditions as a suit conducted in 41 — ^In re Durham^ 2 N. B. N. E. 1104.^ forma pauperis. ■ In re Durham, 2 N. B. 42— G. 0. XXXV. N.E. 1104Id. 54 Beandenbubg on Bankruptcy [§34 ruptcy, filed during the absence of the judge from the district, are referred.*^ In any case in which the fee is not required by the act to be paid before filing the petition, the judge may at any time order it paid out of the estate, or, after notice and proof of bankrupt's ability to pay it, require him to do so.*^ § 35. Marshal's fees. "Marshals shall respectively receive from the estate where an adjudication in bankruptcy is made, except as herein otherwise provided, for the performance of their services in proceedings in bankruptcy, the same fees, and account for them in the same way, as they are entitled to receive for the performance of the same or simil9.r services in other cases in accordance with laws now in force, or such as may be hereafter enacted, fixing the compensation of marshals. " ** Before incurring any expense in publishing or mailing notices, or in traveling, or in procuring the attendance of witnesses, or in perpetuating testimony, the marshal may require from the person in whose behalf the service is to be rendered indemnity for such expense; and the money so advanced shall be repaid to the person advancing it out of the estate as part of the cost of administering the same.*® He is required to make return, under oath, of his actual and necessary expenses in the service of every warraut addressed to him, and for custody of the property, and other services, and other actual and necessary expenses incurred, with vouchers therefor when- ever practicable, and also with a statement that the amounts 46 — Sibley v. Nason, 196 Maas. 125, 22 shall frame general rules and orders in A. B. B. 712. accordance with the provisions of section 47 — Gr. O. XXXV. ten, from prescribing a tariff of fees for 48 — ^Act 1898, § 52b. Analogous pro- all other services of the ofS.eers of courts vision of Act of 1867. ' ' See. 47. of bankruptcy, or from reducing the fees . . . Before any dividend is ordered, prescribed in this section in classes of the assignee shall pay out of the estate to cases to Jae named in their rules and the messenger tHfe following fees, and no orders." more: (Here follows specification of As under the Act of 1867 marshals ro- ffies.) ceived compensation as such and also as "For cause shown, and upon hearing messengers, the provision as to messen- thereon, such further allowance may be gers' fees in the earlier act is inserted, made as the court, in its discretion, may although under the present law no pro- determine, vision is made for the service of messen- "The enumeration of the foregoing gers. fees shall not prevent the judges, who 49 — G. 0. X. 1 35] Clerks — Marshals — Attorney General 55 charged by him are just and reasonable."" If he has two or more processes in his hands at the same time in the same pro- ceeding, which may be served at the same time and place, mileage can be charged only once, but if additional travel is necessary such additional mileage may be charged."^ It has been held that he is entitled to make a reasonable charge for the service of a petition upon which has been granted an order to show cause, iii addition to the statutory fee for the service of the order, though the papers are bound together and served at the same time."^ When a taxation is made it is conclusive and the marshal is entitled to the fees taxed unless there is fraud or bad faith on his part.^^ By the act of May 28, 1896,^* the marshals were put upon a salary and required to account for and turn into the Treasury of the United Staies all fees taxable under the law. The bankruptcy law and the general orders put whatever the marshal may earn or receive for services rendered in a bank- ruptcy proceeding upon the same plane as such other fees. Hence it becomes necessary to examine the law as -to such fees. On a petition setting forth the facts under oath, a court is vested with discretion to allow such compensation as it may deem proper for the keeping of personal property attached on mesne process,®^ and the comptroller has held that in litigation between private individuals, where property has been seized by the mar- shal (treating the word "seized" as equivalent to "attached"), he should charge himself in his account for fees under the appropriation "salaries, fees and expenses of marshals," with all the expenses allowed him by the court for the keeping of sa.id property under said paragraph, that are not as reimburse- ment for expenses paid to outsiders for such keeping, and as to expenses of the latter character, he should not charge himself or pay them to the clerk.^® By the amendment of 1910 it is expressly provided that the marshal shall not in any form or guise receive, nor shall the court allow him, any other or further 50— G. O. XIX. 140; 2 Supp. R. S. 479; In re Comstook, 51— In re Donohoe, 8 N. B. E. 453, 9 N. B. R. 88, Ted. Cas. No. 3075; In Fed. Gas. No. 3979. re Lowenstein, 3 N. B. B. 65, 3 Ben. 52-~In re Daiiion, 5 A. B. B. 133. 422, Fed. Cas. No. 3572. 53— In re Eejn, 13 N. B. B. 551, 8 Ben. 55-r-2d par. §829 U. S. Hev. Stat 384, Fed. Cas. No. 11678. 56—5 Oomii. Dec. 871. 54— Act of May 28, 1896, 29 Stat. L. 56 Bbandenbubg on Bankeuptox [1 35 compensation for his services than that expressly authorized and prescribed in the act.^'' A deputy marshal, when "engaged in service or attempted service of any writ, process, subpoena, or other order of the court, or when necessarily absent from the place of his regular employ- ment, on official business, will be allowed his actual traveling expenses only, and his necessary and actual expenses for lodg- ing and subsistence not to exceed $2 per day and the necessary actual expenses in transporting prisoners;" ^^ and a field deputy marshal "as compensation, three-fourths of the gross fees, including mileage as provided by law, earned by him, not to exceed one thousand five hundred dollars per fiscal year, or at that rate for any part of a fiscal year; and in addition, shall be allowed his actual necessary expenses, not e;sceeding $2 a day while endeavoring to arrest, under process, a person charged with or convicted of crime; provided, that a field deputy marshal may elect to receive actual expenses on any trip in lieu of mileage." ®* The law ^^ seems to require that if the marshal or his oflSce deputy takes charge of property®^ they can be personally allowed only their actual expenses and any compensation that might be taxed by the court for such services must be turned into the treasury, since their compensation is restricted to their salary, and in addition only actual expenses while engaged in service. A field deputy marshal can receive nothing for this work, except what oaa be allowed under the law mentioned.®^ There is no precedent for the allowance by a judge under this paragraph and section to a marshal of anything but a lump sum for compensation, three-fourths of which the accounting officers allow the field deputy to retain if he peTformed the serviees.^^ If a bourt should allow compensation consisting of a per diem or sum as a fee and a schedule of actual expenses, a question would arise for the consideration of the comptroller of the treasury as to whether the expenses would be allowed in toto as in other expense accounts, or whether the allowance would . .57— Act 1898> § 72, "as amended June 60— Act of May 38, 1896. 25,. 1910. ', ■:; : . 1 61— Par. 2, § 829, U. S. Rev. Stat. ■ 58— See. 10 of the Act of May 28,-1896) 62— Pax. 2,-§ 829, U. S. Eev. Stat. 29 Stat; L. 140,: 2 Supp. E. S, 483. : 63— Sec: 11, Act of May 28j 1896, 59— Sec. 11, Act of May 28, 1896, supra, supra. « .- ... . - ". , ■,; '. §36] Cleeks— Mabshals — Attoeney Gbneeal 57 Ije lumped and three-fourths of it only paid over to the deputy marshal. The marshal himself, and his office deputies, being salaried officers, are not entitled to compensation under para- graph 2, of section 829, U. S, Eevised Statutes; but it has been held that where the petition and affidavits for an order to show cause are required by rule of court to be served with the order, and such service is made by a marshal, he is entitled to a reason- able fee in addition to his fee for serving the order under this subdivision, although the petition is not a writ; ®* and the fee fixed by the latter section for serving a writ is reasonable for the service.®^ §36. Attorney general — Statistics of bankruptcy proceedings for congress. The attorney general shall annually lay before congress statis- tical 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 divi- dends paid and the expenses of administering such estates; and such other like information as he may deem important.*** 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.*'' The neglect of either the referee, trustee, receiver, marshal or clerk of court** to furnish such information as may be called for, renders such officer liable to removal. These reports are called for by the attorney general, for which purpose the department of justice furnishes the neces- sary blanks. It is entirely within his discretion as to when and what reports are called for.*^ 64^See. 829, TJ. 8. Eev. Stat. 67— Aet 1898, § 54a. 65— In re Damon, 104 Fed. 775, 5 A. " 68— Act of 1898, § 1 (18). B. B. 133.. 69— Act of 1898, § 34a. 66— Act 1898, §53a. CHAPTER IV Acts of Bankeuptcy — Insolvenct S 37. Acts of bankruptcy, defined. §38. Classes. §39. Estoppel. § 40. Insolvency. § 41. When partnership insolvent. § 42. Transfers or concealment with intent to defraud. S 43. Transfers with intent to prefer. § 44. Transfers or conveyances not acts of bankruptcy. § 45. — Conveyances of partnership property. § 46. — Conveyances to relatives. § 47. — Chattel mortgages. S 48. — Mortgages. § 49. — Pledge. § 50. — Sales. § 51. Preference through legal proceedings. §52. Assigjmient for benefit of creditors; receiver or trusteeship. § 53. Admitting in writing , inability to pay debts and willingness to be adjudged bankrupt on that ground. § 54. Tinie for filing petition. § 55. Defense of solvency. § 56. Testimony on denial of insolvency. § 57. Practice in case of defense on the ground of solvency. § 37. Acts of bankrupt(gr defined. Acts of bankruptcy by a person shall consist of his having (1) conveyed, transferred, concealed, or removed, or per- mitted to be concealed or removed, any part of his property with intent to hinder, delay, or defraud his creditors, or any of them; or (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such credr itors 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 prop- erty affected by such preference vacated or discharged such preference; or 58 38] Acts op Bankeuptcy — Insolvency 59 (4)' made a general assignment for the benefit of his cred- itors, or, being insolvent, applied for a receiver or trustee for his property or because of insolvency $, receiver or trustee has been put in charge of his property under the laws of a state, of a territory, or of the United States ; ^ or (5) admitted in writing his inability to pay his debts and his willingness to be adjudged a bankrupt on that ground.'^ §38. Classes. Acts of bankruptcy may, in general, be considered under two classes, 1. e., those resulting from insolvency and those which are dishonest or fraudulent. The first three definitions of the acts of bankruptcy, specified in the present law, follow closely those given in section 39 of the act of 1867, while the fourth and fifth definitions have no 1 — Subdivision 4 was amended by the Aet of February 5, 1903, by the enact- ment of the matter in the text in lieu of the following: "(4) Made a general assignment for the benefit of his cred- itors. ' ' 2 — Analogous provision in Act of 1867. Sec. 39. And Be it further enacted, That any person residing and owing debts as aforesaid, who, after the passage of this act, shall depart from the State, district, or Territory of which he is an inhabitant, with intent to defraud his creditors, or being absent, shall, with such intent, remain absent; or shall conceal himself to avoid the service of legal process in any action for the recovery of a debt or demand provable under this aet; or shall conceal or remove any of his property to avoid its being attached, taken, or seques- tered on legal process; or shall make any assignment, sale, conveyance or transfer of his estate, property, rights, or credits, either within the tJnited States or else- where, with intent to delay, defraud or hinder his creditors ; or who has been ar- rested and held in custody under or by virtue ot mesne process or execution, issued out of any court of any State, district, or Territory, within which such debtbf iresides or has property founded upon a, demand in its nature provable against a bankrupt's estate under this act, and for a sum exceeding one hundred dollars and such process is remaining in force and not discharged by payment, or in any other manner provided by the law of such State, district, or Territory ap- plicable thereto, for a period of seven days; or has been actually imprisoned for more than seven days in a civil action, founded on contract, for the sum of one hundred dollars or upwards, or who, being bankrupt or insolvent, or in contemplation of bankruptcy or insol- vency, shall make any payment, gift, grant, sale, conveyance, or transfer of money or other property, estate, rights, or credits. Or give any warrant to confess judgment; or procure or suffer his prop- erty to be taken on legal process, with intent to give a preference to one or more of his creditors, or to any person or per- sons who are or may be liable for him as indorsers, bail, sureties, or otherwise, or with the intent, by sucK disposition of his property, to defeat or delay the oper- ation of this act; or who, being a banker, merchant or trader, has fraudulently stopped or suspended and not resumed payment of his commercial paper, within a period of fourteen days, shall be deemed to have committed an act of bankruptcy. 60 Bbandenbueg on Bankeijptcy • [§38 |counterpart in that act. The law of 1867 specified three acts of bankruptcy which are omitted from the present statute, namely, the absconding or avoiding the service of process on part of the debtor, the arrest and holding in custody of a debtor, under process of execution for a period of seven days; and the fraudu- lent suspension of payment of commercial paper by a banker, merchant or trader for a period of fourteen days. §39. Estoppel. Any person conniving in the alleged act of bankruptcy whether it be actually fraudulent or only constructively so should be denied the relief asked if based on the ground of such act.^ §40. Insolvency. Insolvency is not essential in voluntary proceedings.* The law expressly declares a person to be insolvent whenever the aggregate of his property, exclusive of any he may have con- veyed, transferred, concealed or removed, or permitted to be concealed or removed, with intent to defraud, hinder or delay his creditors, is, at a fair valuation, insufficient in amount to pay his debts.^ On the trial of a contested involuntary petition, in 3— In re Miner, 2 N. B. N. E. 1073, restricted (Ecfort v. Greely, 6 N. B. E. ,104 Fed. 520; Simonson v. Sinsheimer, 433, Fed. Cas. No. 4260; Toof v. Martin, 95 Fed. 948; In re Eomanow, 92 Fed. 6 N. B. E. 49, 13 WaU. 40, 20 L. ed. 510, 1 N. B. N. 213, 1 A. B. E. 461; 481, Martin v. Toof, 4 N. B. E. 158, Fed. » Massachusetts Brick Co., 5 N. B. E. 408, Cas. No. 9164; Stranahan v. Gregory, Fed. Cas. No. 9259; Perry v. Langley, 4 N. B. E. 142, Fed. Cas. No. 13522; In 1 N. B. E. 559, Fed. Cas. No. 11006; In re Lewis, 2 N. B. E. 145; In re Kings- re Williams, 4 N. B. E. 132, Fed. Cas. No. bury, 3 N. B. E. 84, Fed. Cas. No. 7816; 17706. See General Assignments, post Merchants' Nat. Bk. v. Truax, 1 N. B. §— . In re Marks Bros., 15 A. B. E. 457. E. 146, Fed. Cas. No. 9451; Warren v. 4 — In re Foster Paint & Varnish Co., Bk., 7 N. B. E. 481, 10 Blateh. 493, Fed. 210 Fed. 652, 31 A. B. E. 548. Cas. No. 17202; Jackson v. McCuUoeh, 5— Act 1898, § 1, subd. 15. 13 N. B. E. 283, 1 Woods 433, Fed. Cas. Under the Act of 1867 it was held that No. 7140; Sawyer v. Turpin, 5 N. B. E. insolvency consisted in the inability to 339, 2 Lowell 29, Fed. Cas. No. 12410; pay debts according to the custom of the In re Woods, 7 N. B. E. 126, Fed. Cas. place of business, although the assets No. 17990; Webb v. Sachs, 15 N. B. E. might be largely in excess of liabilities; 168, 4 Sawy. 158, Fed. Cas. No. 17325; that it was no excuse that he might have Hall v. Wager, 5 N. B. E. 181, 3 Biss. paid them if time was given, and that 28, Fed. Cas. No. 5951; In re Black, 1 the words "insolvent" and "insolvency" N. B. E. 81, 2 Ben. 196, Fed. Cas. No. were not synonymous with the words 1457; Eison v. Knapp, 4 N. B. E. 114, "bankrupt" and "bankruptcy," but less Fed. Cas. No. 11861); that debts could 40] Acts of Bankeuptoy — Insolvency ■61 determining the issue of the solvency or insolvency of the alleged bankrupt, all property available to the debtor to meet his lia- bilities within a reasonable time," excluding such property as he may have transferred or concealed in fraud of • creditors,'' or conveyed without consideration immediately " preceding his bankruptcy, and money upon his person,^ should be considered in determining his assets. The fact, however, that the transfer may be preferential does not exclude the property from con- sideration, there being no fraud.® There is a conflict of opinion as to whether exempt property should be included in computing his assets." The term "fair valuation" is the equivalent of the present market value, and not what the debtor would have been able to realize therefor considering his situation, the number and amount of his obligations, and the like.^^ It means "a value not be paid in full out of debtor's prop- erty by levy and sale on execution (In re Wells, 3 N. B. E. 95, Fed. Cas. No. 17388; In re Oregon Bull. etc. Co., 13 N. B. R. 503, Fed. Cas. No. 10559; but see Harrison v. McLaren, 10 N. B. R. 244, Fed. Cas. No. 6139) ; failure to keep promises to pay at a specific time made repeatedly to demands of payment (In re Armstrong, 16 N. B. R. 275, 9 Ben. 212, Fed. Cas. No. 539) ; being required by a banker to give collateral security for a draft cashed the day before (Mer- chants' Bk. V. Cook, 16 N. B. R. 391, 95 TJ. S. (5 Otto) 342, 24 L. ed. 412). The foregoing do not define insolvency under the present law, but the acts named may tend to slow that the debtor's property, at a fair valuation, is insufficient to jviy his debts. 6 — Louisiana Nat. Life Assn. Society y. Segen, 196 Fed. 903, 28 A. B. R. 407. 7— In re Baumann, 96 Fed. 946, 3 A. B. R. 196; In re Shoesmith, 135 Fed. 684, 13 A. B. R. 645; Acme Food Co. v. Meier, 153 Fed. 74, 18 A. B. E. 550; In re Minard, 156 Fed. 377, 19 A. B. E. 485; In re Crenshaw, 156 Fed. 638, 19 A. B. R. 502; Utah Ass'n of Credit Men v. Boyle, Furn. Co., 39 Utah, 518, 26 A. B. R. 867; In re Duke & Son, 28 A. B. R. 195. 8— In re Tudor, 1 N. B. N. 339. 9 — "Where property is transferred in payment of or as security for a just debt, the mere fact that it may involve a pref- erence in bankruptcy, . . . does not exclude it from consideration in deter- mining the debtor's solvency." In re Doschen, 120 Fed. 408, 9 A. B. R. 547. Where a mortgage does not convey the title to the property, the mortgagor's equity should be considered an asset even though the mortgage is claimed to be a preferential transfer. Lansing Boiler & Engine Works v. Ryerson & Son, 128 r^ed. 701, 11 A. B. R. 558. 10— Excluded: In re Duke & Son, 28 A. B. B. 195; Louisiana Nat. Life Assur. Society v. Segen, 196 Fed. 903, 28 A. B. E. 407. Included: In re Hines, 144 Fed. 142, 16 A. B. R. 295; In re Crenshaw, 156 Fed. 638, 19 A. B. R. 502; Louisiana Nat. Life Assur. Society v. Segen, 196 Fed. 903, 28 A. B. R. 4'07. See, also, Utah Ass'n of Credit Men v. Boyle Furniture Co., 39 Utah 518, 26 A. B. E. 867. 11 — Duncan v. Landis, 106 Fed. 839, 5 A. B, E. 649, 62 Bbandenbubg on Bankeuptcy [§ 40 that can be made promptly effective by the owner of property 'to pay his debts.' " It excludes the sacrifice price obtainable or execution or foreclosure sale as well as the retail price obtain- able in the slow process of trade. It means "such a price as a capable and diligent business man could presently obtain for the property after conferring with those accustomed to buy such property. ^^ In making such estimate there should not be included prospective profits upon goods ordered but not paid for or delivered,^^ and in case of credits due the bankrupt on accounts, tte estimate should be on their actual and not their nominal value. ^* A corporation which has sufficient property to pay its debts does not become insolvent within the meaning; of the law upon the appointment of a receiver in a state court.^^ In determining the solvency of a corporation, bonds which are, at most, irregular are to be considered a part of the indebtedness,^^ and contested claims of amounts claimed to be due from holders of bonus stock are not assets.^'' Where a referee has twice examined the question and finds Such valuation is not affected by any respects a fair and reasonable one, the depreciation consequent upon the recov- debtor is bound by the result as to the ery of judgment against the debtor and valuation and can not prove his solvency a levy thereunder. In re Hines, 144 Fed. by a higher estimate based on their being 142, 16 A. B. E. 295. free and sold at retail in the usual course 12— Stern v. Paper, 183 Fed. 228, 25 of business. In re Martin, 1 N. B. N. A. B. E. 451. 301. "Fair valuation" is the market value, 13— In re Bloch, 109 Fed. 790, 6 A. B. that is "what the property will probably E. 300. bring, or is worth in the general market, .14 — In re Coddington, 118 Fed. 281, where everybody buys. " In re Hines, 144 9 A. B. E. 243. Fed. 142, 16 A. B. E. 295. Installment accounts against persons Property should be valued at a fair who, though doubtless honest and may valuation at the time and in the situation eventually pay debts in full, are execu- it was at the time the alleged act of tion proof, should not be considered, bankruptcy was committed. In re Duke Louisiana Nat. Life . Assur. Society v. & Son, 28 A. B. E. 195. Segen, 196 Fed. 903, 28 A. B. E. 19. "Fair market value" is value debtor 15 — In re Henry Zeltner Brewing' Co., might have realized on assets. In re Ma- 117 Fed. 799. rine Iiwn Works, 159 Fed. 753, 20 A. B. 16 — First Nat. Bank of Wilkesbarre B. 390. V. Wyoming Valley Ice Co., 136 Fed. 466, A fair valuation of the goods levied 14 A. B. E. 448. on should be taken, with reference to 17 — First Nat. Bank of Wilkesbarre v. their actual situation and liability to sale Wyoming Valley Ice Co., 136 Fed. 466, on execution, and, if such sale is in all 14 A. B. E. 448. §42] Acts of Bankruptcy — Insolvency 63 that the debtor's property at a fair valuation was insufficient to pay his debts the finding of insolvency should not be disturbed." § 41. When partnership insolvent. Under the act of 1867, a partnership was held insolvent if unable to pay its debts in the ordinary course of business. Under the present act, some courts, adhering to the entity doc- trine, have held that the solvency or insolvency of a partnership depends solely on partnership debts and assets independent of the solvency of its individual members,^* but the better rule, sup- ported by a recent decision of the supreme court, is that the insolvency of the members of the firm as individuals is essential to the insolvency of the partnership, and that all the property which may be made liable for the firm debts n;iust be considered in determining whether or not the co-partnership is solvent. Partners are liable in solido, and in order that a firm may be adjudged a bankrupt it must be shown not only that the co-part- nership is insolvent, but that every one of its members is individually insolvent.^" The inability of a partnership to meet its matured obligations, together with its dissoliltion, and the transfer of practically all of its property to creditors, either by way of payment or security, leaving other debts unpaid, are facts sufficient to establish its insolvency.^* § 42. Transfers or concealment with intent to defraud. The first act of bankruptcy specified in the bankruptcy act is committed when one conveys, transfers, conceals or removes, 18— In re Kowe Planing Mill, 99 Fed. 12 N. B. E. 181, 2 Low. 400; In re 937, 2 N. B. E. 531, 8 A. B. E. 766. Parley 138 Fed. 927, 15 A. B. E. 54; 19— In re McMurtrey & Smith, 142 Francis v. McNeal, 186 Fed. 481, 26 A. Fed. 853, 15 A. B. E. 427; In re Berten- B. E. 555, aff'd 228 U. 8. 695, 57 L. shaw, 157 Fed. 363, 17 L. E. A. (N. S.) ed. 1029, L. E. A. 1915 E 706, 30 A. B. 886, 19 A. B. E. 577; In re Everybody's E. 244; Washington Cotton Co. v. Morgan Grocery & Meat Market, 173 Fed. 492, & Williams, 192 Fed. 310, 27 A. B. E. 21 A. B. E. 925.' In re Morgan & Wil- 638, aff 'g 184 Fed. 938, 25 A. B. E. 861; liams, 184 Fed. 938, 25 A. B. E. 861, In re Duke & Son, 28 A. B. E. 195. afE'd 192 Fed. 310, 27 A. B. E. 638. All parties must be insolvent to ad- 20 — Francis v. McNeal, 228 TJ. S. 695, judge partnership. In re Perlhefter & 57 L. ed. 1029, L. E. A. 1915 E 706, 30 Shatz, 177 Fed. 299, 25 A. B. E. 576. A. B. E. 244, aff 'g 186 Fed. 481, 26 A. B. See, also, Tumlin v. Bryan, 165 Fed. E. 555; Davis v. Stevens, 104 Fed. 235, 166, 21 L. E. A. (N. S.) 960, 21 A. B. 3 N. B. N. E. 131; In re Blair, 99 Fed. E. 319; Worrell v. Whitney, 179 Fed. 76, 2 N. B. N. E. 364, 3 A. B. E. 588; 1014, 24 A. B. E. 749. Vaccaro v. Bank, 103 Fed.'436, 2 N. B. N. 21— In re Miller, 104 Fed. 764. E. 1037, 4 A. B. E. 474; In re Bennett, 64 Beandenbtjkg ON Bankbuptcy [§42 or permits to be concealed or removed, any part of Hs property, -with the intent to hinder, delay or defraud his creditors, or any of them,22 "The fraudulent intent which the law requires need not necessarily involve moral obliquity. The ancient phrase 'to hinder delay or defraud' has always been in the disjunctive and an intent to hinder or delay is adequate, even if it be not an intent to defraud, "^s This section makes those conveyances which by the common law and the statute of EMzabeth were held void, because fraudulent, a ground for adjudicating the grantor a bankrupt.^* Its language is the familiar language of statutes against fraudulent conveyances and congress clearly intended that as used in the bankruptcy act such words should have the same construction and effect as has, for a long period of time, been given them in such statutes.^® As so construed the test of the conveyances reached by this section is the bona fides of the transfer.^^ It follows that an actuaP'^ intent to hinder, delay or defraud creditors,^* as distinguished from an intent to prefer,^^ must exist on the part of the grantor; and, such intent existing, the innocence of the transferee,^" or the fact that a full and fair consideration was received,^'^ may be immaterial. If a creditor is intentionally to be hindered or delayed, an intent to defraud is unnecessary. ^2 To "conceal" means "to hide or withdraw from observation; to cover or keep from sight"; it has to do "with what concerns others and implies an act done or procured to be done which is , 22 — Aet 1898, § 3a, subd. 1. 28 — Lansing Boiler & Engine Works 23— In re Condon, 198 Fed. 947, 29 v. Ryerson & Son, 128 Fed. ZOlf 11 A. A. B. E. 907. B. E. 558; In re Belknap, 129 Fed. 646, 24 — Lansing Boiler & Engine Works 12 A. B. E. 326; Hoffschlaeger Co., Ltd., V. Eyerson & Son, 128 Fed. 701, 11 A. v. Young Nap, 12 A. B. E. 521 ; Mer- B. E. 558. chants Nat. Bank v. Cole, 149 Fed. 708, 25 — Lansing Boiler & Engine Works 18 A. B. E. 44; In re Minard, 156 Fed. V. Eyerson & Son, 128 Fed. 701, 11 A. 377, 19 A. B. E. 485; In re McLoon, 162 B. E. 558. Fed. 575, 20 A. B. R. 719. See, also, Cordes v. Arts, 213 U. S. 223, 29 — In re Belknap, 129 Fed. 646, 12 53 L. ed. 772, 22 A. B. E. 1, aff'g 152 A. B. E. 326. Fed. 943, 18 A. B. E 513. 30— In re Drumraond, 1 N. B. E. 10, 26 — Lansing Boiler & Engine Works Fed. Gas. No. 4093. V. Eyerson & Son, 128 Fed. 701, 11 A. 31— See In re Smith, 176 Fed. 426, 23 B. E. 558. , A. B. E. 864. 27— In re MeLoon, 162 Fed. 575, 20 32— In re Hughes, 183 Fed. 872, 25 A. B. E. 719. A. B. E. 556. § 42] Acts of Bankruptcy — ^Insolvency 65 intended to prevent or hinder." ^s wiietlier the debtor has any right to or control of the property during the time of conceal- ment is not the criterion by which the effect of the act is to be determined.** While this intent to hinder, delay or defraud, must be estab- lished by proof,*^ still one is presumed to intend the natural and probable consequences of his acts,** and all the surrounding cir- cumstances and conditions under which the transfer is made are to be considered in determining the existence of the intent to hinder, delay or defraud creditors.*'' The intent may be inferred from the acts done and the circumstances surrounding the trans- actions,^^*- it having been held that the conveyance itself may afford a presumption of a fraudulent intent so far as existing creditors are concerned.*® The following have been held to be acts of bankruptcy and accordingly void; transfers made to defeat the operation of the bankrupt law so far as they stand in the way of enforcing its provisions, where the proceedings are instituted within the pre- scribed time; *® or the transfer of property for an inadequiate consideration; *" or any act the effect of which is to evade the provisions of the law; *^ or the absconding of an insolvent, carry- 33— In re Glazier, 195 Fed. 1020, 28 fraud creditors. In re Hallin, 199 Fed. A. B. E. 391. 806, 28 A. B. E. 708. 34 — In re Glazier, 195 Fed. 1020, 28 A. Where, as under the laws of Missouri, B. E. 391. in the absence of actual fraud, the con- 35 — The intent must be established by structive fraud implied from a conveyance proof, fraud must be shown and the good to the use of the mortgagor is, purged faith of the transaction must be success- away even as to creditors, by the mort- fully impeached. Merchants Nat. Bank gagee taking possession of the property V. Cole, 149 Fed. 708, 18 A. B. E. 44. before the creditors seize same or take 36 — ^In re Salmon & Salmon, 143 Fed. any action to enforce their rights to it, 395, 16 A. B. E. 122; Beau-Chamberlain no act of bankruptcy is committed by Mfg. Co. V. Standard Spoke & WifSe Co., the giving of such mortgage where the 131 Fed. 215, 12 A. B. E. 610. mortgagee afterwards takes possession. 37 — In re Larkin, 168 Fed. 100, 21 A. Johansen Bros.' Shoe Co. v. Alles, 197 B. E. 711; In re Bellah, 116 Fed. 69, Fed. 274, 28 A. B. E. 299. 8 A. B. E. 310. 39 — Stevenson v. McLaren, 14 N. B. 38— In re Alexander, 4 N. B. E. 45, E. 403; Beattie v. Gardner, 4 N. B. E. Fed. Cas. No. 161; In re Gilbert, 112 106, Fed. Cas. No. 1195; In re Cowles, Fed. 951, 8 A. B. E. 101. 1 N. B. E. 42, Fed. Cas. No. 3927. The giving of a chattel mortgage for 40 — See Citizens Bank 5f Salem v. $25 more than the actual amount bor- DePauw Co., 105 Fed; 926, 5 A. B. B, rowed or received by the mortgager held 345. not to constitute the conveyance of prop- 41-^Webb v. Sachs, 15 N. B. E. 168, 4 erty with intent to hinder, delay or de- Sawy. 158, Fed. Cas. No. 17325. Brandenburg — 5 66 Brandenburg ON Bankbuptcy [§42 ing with him money or property not exempt, which constitutes both a conceahnent as well as a removal of property with intent to defraud ;*2 or the giving of a mortgage for a present con- sideration the funds realized being used to prefer certain creditors;** conveyances not made in the usual and ordinary course of business of the debtor; ** and in determining whether a transaction is so made the question is not whether it is usual in the general conduct of business throughout the community, but whether it is according to the usual course of business of the particular person whose conveyance is in question.*^ The conveyance of all of one's property in trust to sell the same and pay first the expenses, second the debts of a prefer- ential character under the state laws, third the creditors, all of whom, with the respective amounts due each, were set out in the conveyance, and fourth to pay any balance to the grantor, has been held not to work a preference and upon that ground not an act of bankruptcy; nor, if the defeasance and reservation to the grantor after satisfaction of the beneficiaries is bona fide, is it a general assignment under the bankruptcy act; but it must be regarded as a deed given with intent to hinder, delay and defraud creditors within the meaning of the law and so an act of bankruptcy, because it puts the administration of an estate in the hands of a person chosen by the debtor instead of his creditors, as directed by the bankrupt law, though there is no fraud of the kind requisite to avoid conveyances at common law, or under the statute of frauds.*® Having in mind that intent to hinder, delay or defraud creditors must exist, the selling of goods at a sacrifice to raise money to ward off threatened criminal pro- ceedings *^ or the failure to take legal proceedings looking to the recovery of goods removed by a creditor, there being no evidence of collusion,*® have been held not to constitute acts of bank- ruptcy. Under the entity theory a transfer by a partner of indi- 42— In re Filer, 108 Ped. 209, 5 A. B. 46— In re Eumsey & Sikemier Co., 2 R. 332. N. B. N. E. 128, 99 Fed. 699, 3 A. B. E. 43— In re Pease, 129 Fed. 446, 12 A. B. 704. E. 66. 47— In re Belknap, 129 Fed. 646, 12 44r— Eison v. Knapp, 4 N. B. E. 114, A. B. R. 326. Fed. Cas. No. 11861; Babbitt v. Wal- 48— In re Belknap, 129 Fed. 646, 12 bran & Co., 4 N. B, E. 30, Fed. Cas. A. B. E. 326. No. 694. 45— Eison v. Knapp, 4 N. B. E. 114, Fed. Cas. No. 11861. § 43] * Acts of Bankeuptoy — Insolvency 67 vidual property with intent to defraud his own and partnership creditors is not an act of bankruptcy by the firm.*® A transfer made after dissolution of a partnership may constitute an act of bankruptcy of the partnership, if it was of firm funds.^" The first act of bankruptcy defined may be committed by the person chfirged when perfectly solvent. If a solvent person con- veys or transfers, conceals or removes, or permits to be concealed or removed, any part of his property with the intent to hinder, delay, or defraud his creditors, or any of them, he commits an act of bankruptcy; and if within the ensuing four months he becomes insolvent, and a petition is thereupon filed against hina, such petition may allege such acts as the act of bankruptcy, and the person may be adjudicated a bankrupt accordingly.^^ So, also, in the absence of an intent to hinder, delay or defraud, the fact that one is insolvent when the transfer, is made does not render it an act of bankruptcy. ^^ It follows that, except as it bears on the issue of good faith,^^ solvency or insolvency of the debtor at the time of the transfer is immaterial. Whil<^, as stated, insolvency is not an element in the first act of bank- ruptcy still solvency at the time of the filing of the petition is a complete dfefense to the proceedings,^* the burden being on the debtor, however, to prove that he was solvent at that time.^^ § 43. Transfers with intent to prefer. The second act of bankruptcy specified in the act of 1898 con- sists of a person having "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. " ^® It should be noted that all preferences given by an insolvent within four months prior to the filing of the petition are acts of bank- 49— In re Stovall Grocery Co., 161 Fed. v. Eyerson & Son, 128 Fed. 701, 11 A. B. 882, 20 A. B. E. 537. E. 558. 50— In re Mitchell & Co., 211 Fed. 778, 54^Act 1898, § 3e; In re Hughes, 183 31 A. B. E. 814. Fed. 872, 25 A. B. E. 556; Acme Food Co. 51— In re Larkin, 168 Fed. 100, 21 A. v. Meier, 153 Fed. 74, 18 A. B. E. 550. B. E. 711; In re Pease, 129 Fed. 446, 12 55— Act 1898, § 3o; In re Crenshaw, A. B. E. 66. 156 Fed. 638, 19 A. B. E. 502; Louisiana 52— In re McLoon, 162 Fed. 575, 20 Nat. Life Asaur. Society v. Segen, 196 A. B. E. 719; Eiehardson v. Shaw, 209 Fed. 903, 28 A. B. E. 407. U. S. 365, 52 L. ed. 835, 19 A. B. E. 56— Act 1898, §3, subd. 2; Troy 717, aff'g 147 Fed. 659, 16 A. B. E. 842. Wagon Works v. Vastbinder, 130 Fed. 53 — Lansing Boiler & Engine Works 232, 12 A. B. E. 352, 68 Bbandenbubg on Bankbuptot ' [§43 ruptcy if given with an intent to prefer, whether they can or cannot be set aside by the trustee, and hence it is not necessary that the creditor benefited have had reasonable cause to believe that it was intended to give a preference." Payments, sales, or transfers of any character, declared void by the bankrupt law, are only void against persons claiming under proceedings in bankruptcy or in the course of administration of a bankrupt's estate in a court of bankruptcy; ^* but if made by a person so unsound in mind as to be wholly incapable of managing his affairs they cannot be made the basis of proceedings in bank- ruptcy against the objections of his guardian.^® The purpose of the bankrupt act being to secure the equal distribution of the bankrupt's estate among his creditors, every act of an insolvent which tends to defeat that purpose should be construed strictly against him.®" A creditor who relies on the commission of the second act of bankruptcy must show affirmative action on the debtor's part and must prove that it was taken with intent to prefer the creditor.®^ The word "transfer" is here used in its most comprehensive sense and is intended to include every means and manner by which property can pass from the possession and ownership of another,*^ and includes sale and every other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally, as a payment, pledge, mort- gage, gift, or security.®* It includes the payment of money,®* the transfer of valuable accounts,®^ the giving of a mortgage,®® the assignment of money to become due ®'' as well as allowing a judg- ment to be taken and docketed, thereby creating a lien and a security for the debt,®* or any act by which some creditors are 57— In re Donnelly, 193 Fed. 755, 27 64— Boyd v. Lemon & Gale Co., 114 A. B. E. 505. Ted. 647, 8 A. B. B. 81. 58— Berryman v. Allen, 15 N. B. R. 65 — In re MeQee, 105 Fed. 895, 5 A. 113. B. E. 262. 59— In re Funk, 101 Fed. 244, 4 A. 66— In re Biggs Eestaurant Co., 130 B. E. 96. Fed. 691, 11 A. B. B. 508; In re Edel- 60— Hall V. Wager, 5 N. B. R. 181, 3 man, 130 Fed. 700, 12 A. B. E. 238. Bias. 28, Fed. Cas. No. 5951. 67— In re O 'Donnell, 131 Fed. 150, 12 61— In re Truitt, 203 Fed. 550, 29 A. A. B. E. 621. B. E. 570. 68— In re Tupper, 163 Fed. 766, 20 62— Carson et al. v. Trust Co., 182 U. A. B. E. 824; In re Truitt, 203 Fed. 550, S. 438, 45 L. ed. 1171, 5 A. B. E. 814. 29 A. B. B. 570. 63— Act of 1898, § la (25). Confessing judgment that levies and §43] Acts of Bankbuptcy — Insolvency 69 intentionally preferred over others.®* It is immaterial whether the transfer is made directly or indirectly to the creditor whose claim is preferentially paid; ""^ and the same is true of a transfer to several creditors under an agreement that they should sur- render the notes they held and have the property fairly appraised, and, if its value exceeded the aggregate of their debts, the debtor was to receive the excess.''^ This section of the bankruptcy act deals only with transfers made while insolvent* to creditors''® with intent to prefer''* such creditors over other creditors, with a resultant depletion of the estateJ^ The word "creditor" includes indorsers and sure- ties; ''^ but, under the doctrine that where a broker buys stock for a customer, on margin, title is in the customer, the latter is not a creditor.'''' An agent doing his principal's business in his own name may commit an act of bankruptcy by making a preferential payment though such payment is really for his principal.''* As stated there must be an intent on the part of sales might be made held an act of bank- ruptcy. In re Nusbaum, 152 Fed. 835, 18 A. B. R. 598. 69— In re Edelstein, 1 N. B. N. 168. 70— Goldman v. Smith, 1 A. B. E. 266, 1 N. B. N. 160, 93 Fed. 182; In re Grant, 106 Fed. 496, 5 A. B. B. 837. 71— In re Noroross, 1 N. B. N. 257, 1 A. B. B. 644. 72 — Troy Wagon Works v. Vastbinder, 130 Fed. 232, 12 A. B. R. 352; Acme Food Co. V. Meier, 153 Fed. 74, 18 A. B. B. 550; In re Kassel, 195 Fed. 492, 28 A. B. E. 233; Johansen Br6s. Shoe Co. V. AUes, 197 Fed. 274, 28 A. B. R. 299; Chicago Motor Vehicle Co. v. American Oak Leather Co., 141 Fed. 518, 15 A. B. R. 804. 73 — The preference must be over other creditors existing at the time of the trans- fer. Brake v. Callison, 129 Fed. 201, 11 A. B. R. 797. 74 — ^Richmond Standard Steel Spike & Iron Co. V. Allen, 148 Fed. 657, 17 A. B. R. 583; Merchants' Nat. Bank v. Cole, 149 Fed. 708, 18 A. B. E. 44; In le FUnt HiU Stove & Const. Co., 149 Fed. 1007, 18 A. B. E. 81; Goodlandei;- Robertson Lumber Co. v. Atwood, 152 Fed. 978, 18 A. B. R. 510; In re Mc- Loon, 162 Fed. 575, 20 A. B. R. 719; Wil- son V. Nelson, 183 U. S. 191, 46 L. ed. 147, 7 A. B. R. 142; but see The Grif- fin Pants Factory v. The Nelms Racket Store Co., 2 N. B. N. R. 630; Johnson v. Wald, 2 A. B. E. 84, 93 Fed. 640. Giving chattel mortgage for purchase of piece of goods, covering both new and old stock, held not an act of bankruptcy. Martin v. Hulen & Co., 149 Fed. 982, 17 A. B. R. 510. 75 — The payment by the attorney of the bankrupt out of his own funds, of a claim against the bankrupt amounts only to a substitution of creditors and is not an act of bankruptcy. In re Kerlin, 209 Fed. 42, 31 A. B. R. 12, rev'g 30 A. B. E. 816. 76 — ^An accommodation indorser, even before payment of note, is a creditor. In re O'Donnell, 131 Fed. 150, 12 A. B. E. 621. One who signs or indorses as surety for the debtor is a creditor. Crandall v. Coats, 133 Fed. 965, 13 A. B. E. 712. 77 — ^Eichardson v. Shaw & Davidson, 147 Fed. 659, 16 A. B. E. 842. ' 78— J. W. Calnan Co. v. Doherty, 174 Fed. 222, 23 A. B. E. 297. 70 Bbandenbukg on Banketjptcy [143 tlie debtor to prefer the favored creditor but this intent may be presumed from circumstances/® for every person of a sound mmd is presumed to intend the necessary, natural and legal conse- quences of his deliberate acts.*" It follows that if a debtor, with knowledge of his insolvency, . does an act which operates as a preference to one of his creditors, he is presumed to have so intended,®^ though this rule does not apply to payments of an infinitesimal sort working no injury of which the law would take account,®^ in the absence of surrounding circumstances showing an intent to prefer.*^ In the case of a transfer of all ^* or, under certain circum- stances, the transfer of a large part of one's property,*^ or the payment of substantial sums to certain creditors,^® a strong pre- sumption of an intent to prefer arises. The size of the payment, however, makes no difference if the requisite intent existed ; it is of importancse merely in determining whether or not the intent did exist.*'' "Intent to prefer" involves a knowledge of the existence of other creditors,*^ but there is a strong presumption 79 — Intent to prefer will be presumed from payment of antecedent debt with knowledge of insolvency. In re Condon, 209 Fed. 800, 31 A. B. E. 754, aff'g 198 Fed. 947, 29 A. B. E. 907. Fact that mortgage given to secure antecedent debt was not recorded for sev- eral months held sufficient to warrant finding of intent to prefer. In re Edel- man, 130 Fed. 700, 12 A. B. E. 238. Intent to prefer presumed where debtor gave creditor mortgage after rendition of verdict against him in favor of another creditor, judgment not having been entered. In re Smith, 176 Fed. 426, 23 A. B. E. 864. 80 — Macon Grocery Co. v. Beach, 156 Fed. 1009, 19 A. B. E. 558; Eex Buggy Co. V. Hearick, 132 Fed. 310, 12 A. B. E. 726. 81 — Macon Grocery Co. v. Beach, 156 Fed. 1009, 19 A. B. E. 558. 82 — Macon Grocery Co. v. Beach, 156 Fed. 1009, 19 A. B. E. 558. Three dollar payment a week before filing of petition held not an act of bank- ruptcy. In re Stovall Grocery Co., 161 Fed. 882, 20 A. B. E. §37,s Intent to prefer not presumed from small payments to creditors in usual course of business. In re Douglass Coal & Coke Co., 131 Fed. 769, 12 A. B. E. 539; In re Columbia Eeal Estate Co., 205 Fed. 980, 30 A. B. E. 471. 83— In re Ball, 156 Fed. 682, 19 A. B. E. 609; Naylon & Co. v. Christiansen Harness Mfg. Co., 158 Fed. 290, 19 A. B. E. 789. 84— In re Gilbert, 112 Fed. 951, 8 A. B. E. 101; In re Waite, 1 LSw. 207, Fed. Cas. No. 17044. 85— Toof V. Martin, 13 Wall. 40, 20 L. ed. 481. 86 — Intent presumed where substantial sums were paid certain creditors in full for their accounts while denying pay- ments to other creditors. Eex Bug^ Co. V. Heariek, 132 Fed. 310, 12 A. B. E. 726. 87— In re Perlhefter & Shatz, 177 Fed. 299, 25 A. B. E. 576; In re Condon, 198 Fed. 947, 29 A. B. E. 907. 88— Merchants' Nat. Bank v. Cole, 149 Fed. 708, 18 A. B. E. 44; In re Pangborn, 185 Fed. 673, 26 A. B. E. 40, § 45] Acts of Bankruptcy — Insolvency 71 that one knows of his debts.*^ The fact that a debtor is unable to pay all his debts does not render the payment of current expenses an act of bankruptcy. *** § 44. Transfers or conveyances not acts of bankruptcy. An insolvent debtor may sell or incumber his estate for a present and sufficient consideration, if the transaction is bona fide,®^ without committing axi act of bankruptcy,®^ and no con- cealment can be implied where he shows good faith in respect to the care of the money received.®^ The following transfers have been held not to operate as a preference and, therefore do not constitute acts of bankruptcy: a transfer of property by an insolvent, when there is no other creditor having a provable debt against such debtor; ®* the payment by an insolvent of the back rent, water charges and other incidental expenses necessary to effect the sale of a leasehold; ®^ the conveyances of one's prop- erty, which exceeds in value his debts to another who agrees to p§y all the debts and support the grantor during the rest of his life; ®® an unexecuted agreement by a railroad company to transfer certificates of stock ; ®^ the assignment of book accounts as collateral security for the payment of present loans and advances to the bankrupt; ®* or any transfer of one's property when entirely solvent. § 45. — Conveyances of partnership property. A transfer of firm property from one member to another is not ordinarily a fraud on creditors, nor does it hinder or delay them, nor constitute a fraudulent preference, and is not an act of bank- ruptcy,*® but if made to enable the individual creditors of the 89— In re Pangborn, 185 Fed. 673, 26 94— Beers v. Hanlin, 99 Fed. 695; In A. B. R. 40; In re Morgan & Williams, re Johann, 4 N. B. E. 143, Fed. Cas. 184 Fed. 938, 25 A. B. E. 861, aff'd 192 No. 7331. See, also, ante, § 43n,'73. Fed. 310, 27 A. B. E. 638. 95— In re Pearson, 1 N. B. N. 402, 2 90— Payment of president's current A. B. E. 482, 95 Fed. 425. salary. Eichmond Standard Steel Spike 96 — In re Cornwell, 6 N. B. E. 305, & Iron Co. V. AUen, 148 Fed. 657, 17 Fed. Cas. No. 3250. A. B. E. 583. 97— Winter v. I. M- & N. P. Ey. Co., 91— Gattman & Co. v. Honea, 12 N. B. 7 N. B. R. 289, 2 Bill. 287, Fed. Cas. No. R. 493, Fed. Cas. No. 5271 ; In re Foster, 17390. 126 Fed. 1014, 11 A. B. E. 131. 98— Young v. Upson, 8 A. B. E. 377. 92— Githens v. SMffler, 112 Fed. 505, 7 99— In re Munn, 7 N. B. R. 468, 3 A. B. E. 453. Biss. 442, Fed. Cas. No. 9925. 93— Fox V. Eckstein, 4 N. B. E. 123, Fed. Cas. No. 5009. 72 Bbandbnbueg on Bankeuptoy [§45 transferee to secure a preference, it is.^ Nor does it constitute an act of bankruptcy to transfer the whole stock of a dissolved partnership to the one solvent partner to settle the affairs, even tliough a sale is made by such partner in gross.^ § 46. — Conveyances to relatives. A voluntary conveyance made by a person not indebted at the time, in favor of his wife or children, cannot be impeached by subsequent creditors on the ground of its being voluntary, but must be shown to be fraudulent or made with a view to future debts; ^ but it will be fraudulent as to creditors and an act of bankruptcy if the grantor be indebted at the time to such extent that the settlement will embarrass him in the payment of his debts, although the debts due may be subsequently paid in the course of business.* A conveyance by a father to his son in consideration of sup- port by the son has been held to be fraudulent as to creditors and an act of bankruptcy; ^ so is any transfer on the part of an insolvent, to a relative, which results in a concealment of assets or a fraud on the creditors; ^ or where an insolvent father lends money to his son, who makes a gift of the amount of the loan to his mother by purchasing a house in her name; '' or the trans- fer of property to a relative in payment of an antecedent debt.* § 47. — Chattel mortgages. The giving of a chattel mortgage is a disposition of property out of the usual course of business,® and when given by an insolvent upon all his personal property, authorizing the mort- gagee to sell the same at private sale,^° or when given, pursuant to a previous oral agreement, to secure an existing debt,® it creates a preference and is an act of bankruptey.^^ When given on bankrupt's stock of goods to secure an alleged debt, the pur- 1— Collins V. Hood, 4 McLean 186. 7 — In re Eldred, 3 N. B. B. 61, Fed. 2— In re Weaver, 9 N. B. E. 132, Fed. Cas. No. 43§8. Cas. No. 17307. ^ 8— In re Grant, 106 Fed. 496, 5 A. B. 3— Barker v. Smith, 12 N. B. E. 474, E. 837. 2 Woods 87. 9— U. S. v. Bayer, 13 N. B. E. 88, Fed. 4r— Antrines v. Kelly, 4 N. B. E. 189. Cas. No. 14548. 5— In re Johann, 4 N. B. E. 143, Fed. 10— The Griffln Pants Factory v. Nelms Cas. No. 7331. Eacket Store Co., 2 N. B. N. E. 630. 6— In re Eathbone, 2 N. B. E. 89, 3 11— In re Smith, 176 Fed. 426, 23 A. Ben. 50, Fed. Cas. No. 11581. B. E. 864. §49] Acts oi? Bankbuptcy — ^Insolvency 73 pose being to hinder, delay, or defraud the creditors, it is an act of bankruptcy; ^'^ as is a chattel mortgage which permits the mortgagor to dispose of the goods in due course of trade, without reference to the good faith of the mortgage debt, or the intention of the mortgagor as to fraud,^^ or where one gives a bill of sale of personalty in which there is no change in the possession of the property, the first owner taking back a writing in the nature of a lease.^* Neither the giving of a chattel mortgage for a present bona fide consideration ^^ nor the renewal of chattel mortgage ^^ constitutes an act of bankruptcy. §48. — Mortgages. A debtor may give a mortgage for a present consideration to enable him to carry on his business, if there is no intent to delay creditors,^'' and the sale of a mortgage for its cash value is a transfer in the usual and ordinary course of business and not an act of bankruptcy.^* The giving by a debtor, knowing him- self to be insolvent, of a mortgage or deed of trust to secure a creditor on a pre-existing debt, is a preference, and therefore an act of bankruptcy, irrespective of whether the creditor knew or had reasonable ground to believe that a preference was intended.^^ § 49. — Pledge. It is not a fraud upon creditors and therefore not an act of bankruptcy for a debtor to receive collateral from his pledgee for collection,^'' nor to pledge one's property for a present fair consideration, when the purpose is not to hinder, delay or defraud creditors. There is a conflict as to whether a pledge of property pursuant to a previous agreement constitutes an act of bankruptcy.^ ^ 12— In re MoKibben, 12 N. B. E. 97, 18— Judson v. Kelty, 6 N. B. E. 165, Fed. Cas. No. 3859. 5 Ben. 348, Fed. Gas. No. 7S67. 13-In re Poster, 18 N. B. E. 64, Fed. ^^^^ ^^ ^d. W. Wright Lumber Co., Cas. No. 4964. „„.„„,_,„ 20— Clark v. Iselin, 11 N. B. E. 337, -14-In re Gumey, 15 N. B. E. 373, 7 ^^ ^^^ ^^^^ ^^ ^_ ^^ ^gg. ^^^^^ ^_ Biss. 414, Fed. Cas. No. 5873. ^^^^^^^ 19g j,^^^ ggg^ 28 A. B. E. 249. 15-Tln re Cutting, ^45 Fed. 388, 16 A. 21— Assignment, within four month B. E. 751. period, of insurance policies pursuant to 16 — ^In re Cutting, 145 Fed. 388, 16 A. previous oral agreement making them col- B. E. 751. lateral security is not an act of bank- 17— In re Sanf ord, 7 N. B. E. 352, Fed. ruptoy. WUder v. Watts, 138 Fed. 426, Cas. No. 12310. 15 A. B. E. 57. 74 Beandenbubg on Bankeuptcy [§5Q § 50, — Sales. The law does not contemplate that all sales or transfers of goods by an insolvent shall constitute preferences and therefore be deemed acts of bankruptcy, but only such as are made within four months of the filing of the petition, with the ulterior pur- pose of hindering, delaying, or defrauding some or all of his creditors, or while insolvent making a transfer to a creditor with the intent to prefer such creditor. Although a sale is made in contemplation of bankruptcy, it is not prima facie fraudulent, and an act of bankruptcy, unless surrounded by unusual circum- stances, and is not then void as to purchasers in good faith,^^ since the law does not forbid an insolvent from selling, exchang- ing or otherwise disposing of his property at any time prior to the filing of the petition, provided such action leaves his estate in as good condition as formerly.^^ A merchant in embarrassed circumstances may sell his goods at less than cost price to raise money to pay debts, the purchaser knowing of his insolvency; ^^ or he may continue to sell his stock at retail while endeavoring to compromise with his cred- itors, in the absence of a fraudulent intent; ^^ or raise money to defray expenses in contemplated bankruptcy proceedings, pro- vided he does not sell at a sacrifice and the sum raised is reason- able;^* or he may exchange goods covered by a warehouse receipt in a warehouse for others of less or equal value.^'^ An adjudication will not be made where debtor sells his stock for the purpose of going into a new business, although to prevent seizure of the proceeds on state process, he does not put them into tangible shape,^* there being no evidence of vendor's insolvency.^ ^ A sale will be held to be an act of bankruptcy where the Transfer of aeeounts pursuant to an 24 — Sedgwick v. Lyneh, 8 N. B. R. 289, agreement to pledge held act of bank- Fed. Cas. No. 12615. ruptcy. Anniston Iron & Supply Co. v. 25 — In re Hunger v. Champlin, 4 N. Anniston Boiling Mill Co., 125 Ted. 974, B. R. 90, Fed. Cas. No. 9923. 11 A. B. R. 200. 26— In re Keefer, 4 N. B. R. 126, Fed. 22— In re Hunt, 2 N. B. R. 166, Fed. Cas. No. 7636. Cas. No. 6881. 27— Sharp v. Phila. Warehouse Co., 19 23— Cook V. TuUis, 9 N. B. R. 438, 18 N. B. R. 378. Wall. 332, 21 L. ed. 933 ; Clark v. Iselin, 28— Fox v. Eckstein, 4 N. B. R. 123, 11 N. B. R. 337, 21 Wall. 360, 22 L; ed. Fed. Cas. No. 5009. 568. See Gitbens v. ShifSer, 112 Fed. 29 — In re Valliquette, 4 N. B. R. 92 505, 7 A. B. R. 453, Fed. Cas. No. 16823. '. '•' '• § 51] Acts of Bankruptcy^ — Insolvency 75 purpose is to hinder, delay or defraud the creditors, as where household furniture in a dwelling inhabited by the owner and another person is transferred to such other person by a bill of sale without any other circumstances to indicate the actual possession; ^" or a sale by an insolvent of his stock with intent to prefer some of his creditors; ^^ or a conveyance, absolute on its face, in which the grantor secretly reserves the right to retain possession for a limited period, under a parol agreement, as part of the consideration; ^^ or a sale of a stock of goods in gross, out of the usual and ordinary course of business of a retail dealer; ^* or a sale shortly before bankruptcy where vendor and vendee conspired to defraud creditors ; ^* or a sale of an entire stock below cost, the purchaser selling it at an advance and the last purchaser being informed at the time of the circum- stances of the first purchase ; ^^ or where a purchaser of goods assumes debts of the vendor as part consideration, and sells the goods leaving the debts unpaid, which the vendor is obliged to discharge, commits an act of bankruptcy, and is liable to the vendor for the amount of such debts.'® § 51. Preference through legal proceedings. One commits an act of bankruptcy if, while insolvent, he suf- fers or permits 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.*^ "The concluding part of the clause, with reference to the sale or final disposition, is connected with what precedes^ in respect to preference through legal proceedings, by the word ' and, ' thus rendering a failure to vacate or discharge such preference an essential of every act of bankruptcy under this section. " ^* It is essential that the debtor 30— Allen "v. Massey, 4 N. B. E. 75, 36— Phelps v. Clasen, 3 N. B. E. 22, Fed. Cas. No. 231. Fed. Gas. No. 11074. 31— In re Morgan, 101 Fed. 982, 2 N. 37— Aet 1898, §3, sub. 3; In re Mc- B. N. E. 846, 4 A. B. E. 402. Cartney, 188 Fed. 815, 26 A. B. E. 548. 32— Lukins v. Aird, 2 N. B. E. 2, 6 38— In re Vetterman, 135 Fed. 443, 14 Wall. 78, 18 L. ed. 750. A. B. E. 245; In re Vostbinder, 126 Fed. 33— In re Deane & Garret, 2 N. B. E. 417, 11 A. B. E. 118; In re Doddy 29, Fed. Cas. No. 3700. Jourdan & Co., 127 Fed. 771, 11 A. B. 34— Dickinson v. Adams, 17 N. B. E. E. 344; In re E. L. Eadke Co., 193 Fed. 380, 4 Sawy. 257, Fed. Cas. No. 3896. 735, 27 A. B. E. 950; Folger v. Putnam, 35_Walbrun v. Babbitt, 9 N. B. E. 1, 194 Fed. 793, 28 A. B. E. 173. 16 "Wall. 577, 21 L. ed. 489. Mere suing out of attachment and 76 Beandenbueg on Bankbuptcy [§51 be insolvent,^® but his intent is of no vital importance," nor is it necessary to show that the debtor did or tried to do anything,. levying same insufBoient. In re Vetter- man, 135 Fed. 443, 14 A. B. E. 245. 39 — ^Acme Food Co. v. Meier, 153 Fed. 74, 18 A, B. R. 550; Johansen Bros. Shoe Co. V. Alles, 197 Fed. 274, 28 A. B. R. 299. 40— Bradley Timber Co. v. Wliite, 121 re,d. 779, 10 A. B. R. 329, aff'g 119 Fed. 989, 9 A. B. R. 441; Wilson Bros. v.. Nel- son, 183 U. S. 191, 46 L. ed. 147, 7 A. B. R. 142; In re Rome Planing Mill Co., 96 Fed. 812, 3 A. B. R. 123. The result obtained by the creditor and not the specific intent of the debtor is the essential fact. In re Rung Fur- niture Co., 139 Fed. 526, 14 A. B. R. 12. Intent Necessary Under the Act OP 1867 — That act provided that a person should be deemed to have committed an act of bankruptcy who had "procured or suffered his property to be taken on legal process, with intent to give a pref- erence to one or more of his creditors," thus making the "intent" an essential element. The act of 1898 provides that the act of bankruptcy shall consist in his having "suffered or permitted, virhile insolvent, any creditor to obtain a pref- erence through legal proceedings, and not having at least five days before a sale or final disposition of any property af- fected by such preference vacated or dis- charged such preference," making the effect of the act without regard to the intention of the .parties the test. Hence the decisions under the act of 1867 are not controlling nor even very valuable under the present act; though some (In re Black, 1 N. B. R. 81, 2 Ben. 196, Fed. Cas. No. 1457; In re Wells, 3 N. B. R. 95 Fed. Cas. No. 17388; Warren v. Bk., 7 N. B. R. 481, 10 Blatch. 493, Fed. Cas. No. 17202, 96 U. S. (6 Otto) 539, 24 L. ed. 640; Wilson v. Bk., 5 N. B. R. 270, 17 Wall. 473, 21 L. ed. 723; In re Craft, 1 N. B. R. 89, 2 Ben. 214, Fed. Cas. No. 3316; Vogel v. Lathrop, 4 N. B. R. 146, Fed. Cas. No. 16985; Bk. v. Campbell, 6 N. B. R. 353, 14 Wall. 87, 20 L. ed. 832; Webb v. Sachs, 15 N. B. R. 168, 4 Sawy. 158, Fed. Cas. No. 17325; In re Dibble, 2 N. B. R. 185, 3 Ben. 203, Fed. Cas. No. 3884; Haughey v. Albin, 2 N. B. R. 129, 2 Bond 244, Fed. Cas. No. 6222; In re Leeds, 1 N. B. R. 138, Fed. Cas. No. 8205; In re Woods, 7 N. B. R. 126, Fed. Cas. No. 17990), may be usefully consulted, in so far as they hold that the facts imply intent; but others (Wright v. Filley, 4 N. B. R. 197, Fed. Cas. No. 18077; Wilson v. Bk., 9 N. B. R. 97, 17 WaU. 473, 21 L. ed. 723 ; Rankin v. Florida R. R. Co., 1 N. B. R. 196, Fed. Cas. No. 11567; Louch- heim Bros. v. Heuzey, 18 N. B. R. 173; Bk. V. Warren, 17 N. B. R. 75, 96 IT. S. 539, 24 L. ed. 640; Shimer v. Huber, 19 N. B. R. 414, Fed. Cas. No. 12787; In re King, 10 N. B. R. 103, Fed. Cas. No. 7783), so far as they hold that mere passivity on the debtor's part is not suf- ficient, do not state the law under the present act, which is just the reverse, that passive non-resistance to proceed- ings which will work a preference is suf- ficient (In re Meyers, 1 N. B. N. 207, 1 A. B. R. 1). Under the former act the entry of a judgment upon a warrant of attorney was held to constitute an act of bankruptcy where the creditors had reasonable cause to believe the debtor in- solvent, even though at the time of the execution of the bond there was no reason to BO believe (In re Lord, 5 N. B. R. 318, Fed. Cas. No. 8503); and, where a debtor had committed no act of bank- ruptcy and would not voluntarily petition, a creditor might sue him so as to force him to commit an act of bankruptcy and then himself proceed against him in in- voluntary bankruptcy. Warren v. Bk., 7 N. B. R. 481, 10 Blatch. 493, Fed. Cas. No. 17202; Coxe v. Hale, 8 N. B. R. 562, Fed. Cas. No. 3310) ; but the confession of a judgment as security for a loan of money made contemporaneously with such confession was held not to be an act of bankruptcy (Clark v. Iselin, 9 N. B. § 51] Acts of Bankruptcy — ^Insolvency 77 or even that he had given the matter a thought.*^ It follows that it is immaterial that debtor resisted proceeding in which judg- ment was obtained *2 or that the debt on which the judgment rests is valid, due at the time the action was commenced and that the judgment was entered and levy made without any collu- sion between the bankrupt and the creditor, or without the former having intended to give a preference, the effect of the act rather than the intent of the parties being regarded, insolvency being admitted.*^ The attempted enforcement while insolvent, within four months next before the filing of an involuntary petition, of a lien on the property of the alleged bankrupt validly created and subsisting for more than that period, coupled with an omission by him to secure, at least five days before the sale or final dis- position of such property, the vacation or discharge of such lien, is not an act of bankruptcy. "Mere failure, while insolvent, to vacate and discharge the lien within the statutory period of five months, and at least five days before a sale or final disposition of the property affected, does not constitute an act of bank- ruptcy. Priority is obtained when a lien attaches, and not when it is enforced. The date of the sale is immaterial in this respect; whenever it takes place, it relates back to the time when the lien attached."** It is essential that the transaction result in a preference *^ to a "creditor," that is, one who owns a demand or claim provable against the bankrupt.*^ There seems to be a conflict as to whether the act of bank- E. 19, 10 Blatch. 204, Fed. Cas. No. 194 Fed. 929, 28 A. B. R. 92; In re Deer 2825; In re Leeds, 1 N. B. E. 138, Fed. Creek Water & Water Power Co., 205 Cas. No. 8205). Fed. 205, 29 A. B. E. 356. 41 — ^In re Truitt, 203 Fed. 550, 29 A. 45 — Preference by legal proceedings B. E 570. does not include a levy upon a judgment 42 — ^Bradley Timber Co. v. White, 121 of foreclosure of a lien which affects only Fed. 779, 10 A. B. E. 329, aff 'g 119 Fed. the property bound by the lien. In re 989, 9 A. B. R. 441. Deer Creek Water & Water Power Co., 43— Wilson Bros. v. Nelson, 183 XT. S. 205 Fed. 205, 29 A. B. B. 357. 191, 46 L. ed. 147, 7 A. B. E. 142; In 46— In re Crafts-Eiordan Shoe Co., 185 re Meyers, 1 N. B. N. 207, 1 A. B. E. 1; Fed. 931, 26 A. B. E. 449; In re Windt, Wilson V, Bank, 17 Wall. 473, 21 L. ed. 177 Fed. 584, 24 A. B. R. 536. 723, distinguished and held no longer eon- Surety on construction bond held a trolling. See In re Bamberger, 2 N. B. creditor. United Surety Co. v. Iowa Mfg. N. E. 95. Co., 179 Fed. 55, 24 A. B. E. 726. 44 — Colston V. Austin Eun Mir). Co., 78 Beandenbxjeg on Bankbuptcy [§ 51 rnptcy contemplated by this section is definitely eonstunmated five days before a sale or final disposition of the -property,*^ or whether while the failure to discharge a levy five days before a sale is an act of bankruptcy, such failure four, three and two days and one day before the sale and on the day of the sale are not also distinct acts of bankruptcy.** The "five days" means the day of the sale and the four preceding days.*® A day must be fixed for a sale or final disposition of the property.^" The phrase "final disposition" is broader than the word "sale" ^^ and covers "every other method of passing the control and dominion of the property from the debtor, insolvent person, to another or to others, either absolutely or as security to the preferred creditor to the exclusion of his other creditors." ^^ n?he dominant fact in this provision of the law is the actual result that has been attained by the creditor. If through legal proceedings he has succeeded in obtaining a preference, the debtor is required to vacate or discharge it within the specified time, and if he fails so to do he commits an act of bankruptcy. How he is to vacate or discharge a preference is nc fc specified, but whatever the nature of the legal proceedings employed by the creditor may be, if the result thereof gives such creditor a preference over others, it must be discharged by the debtor within the time allotted. It has been held that if he has a defense to the debt he must set it up; or, if he can overthrow the pref- erence because of defects in creditors' procedure he should pursue that method, and if neither of these weapons is available he may file his petition in voluntary bankruptcy. His failure 47— In re National Hotel & Cafe Co., dan & Co., 127 Fed. 771, 11 A. B. E. 138 Fed. 947, 15 A. B. E. 69. 344. 48 — In re Nusbaum, 152 Fed. 835, 18 Where a third person gave an attaoh- A. B. E. 598. ing oifioer security, known as an "of- 49 — Pittsburgh Laundry Supply Co. v. fleer's receipt," and returned property Imperial Laundry Co., 154 Fed. 662, 18 to debtor, taking back a mortgage, A. B. E. 756. failure to discharge attachment within Allegation that corporation had allowed four months not an act of bankruptcy, an attachment to issue and which has In re Windt, 177 Fed. 584, 24 A. B. E. "not to the present time been vacated," 536. is insufficient. Seaboard Steel Casting 51 — Folger v. Putnam, -194 Fed. 793, Co. V. Trigg Co., 124 Fed. 75, 10 A. B. 28 A. B. E. 173; In re Tupper, 163 Fed. E. 594. 766, 20 A. B. E. 824. 50— In re Vetterman, 135 Fed. 443, 14 52— In re Tupper, 163 Fed. 766, 20 A. A. B. E. 245; In re Vostbinder, 126 Fed. B. E. 824; Folger v. Putnam, 194 Fed. 417, 11 A. B. E. 118; In re Dqddy Jour- 793, 28 A. B. E. 173. §51] Acts of Bankeuptcy — Insolvency 79 to move may be regarded as a confession that he is hopelessly- insolvent and is conclusive proof that he consents to the prefer- ence that he declines to strike down.^* The levy must be valid.^* This section is limited to such acts as by construction of law and in view of the bankruptcy law work an injury to other cred- itors by securing to them a preference which the law is designed to prevent. It does not apply therefore to such levies and liens as are acquired long before the passage of the act and more than four months prior to the petition, which it is not the pur- pose of the law to affect or disallow,^® nor to a judgment for the foreclosure of a lien in the nature of a mortgage to secure a note, and a levy on the land conveyed, where the note and mort- gage were given before the enactment of the bankruptcy law and for a valid debt, although the creditor may recover a gen- eral judgment as well as the judgment of foreclosure, the levy made affecting only the property bound by the lien.^" The failure of an insolvent to discharge an attachment levied by a creditor five days before the day of sale thereunder, although he may not actively procure or participate in the bring- 5?— In re Moyer, 1 N. B. N. 260, 1 A. B. E. 577, 93 Fed. 188; In re Eeieh- man, 91 Fed. 624, 1 N. B. N. 556, 1 A. B. E. 17. Failure to vacate or discharge a pref- erence obtained by legal proceedings, either by payment or by voluntary pe- tition in bankruptcy five days before the expiration of the four months from the date of preference, after which such pref- erence becomes assailable, consummates an act of bankruptcy initiated in allow- ing the preference to be obtained. Bavenna Nat. Bank v. Curtiss, 30 A. B. E. 818. Permitting attachment to remain undis- turbed until sale warrants finding of in- solvency five days before sale. In re Crafts-Eiordan Shoe Co., 185 Fed. 931, 26 A. B. E. 449. 54— In re Samuel Bodek, 188 Fed. 817, 26 A. B. E. 476. 55— In re Ferguson, 95 Fed. 429, 2 A. B. E. 586. • The phrase "sale or final disposition" does not include sales which merely sub- stitute money for property without affect- ing the rights of the parties. In re Crafts- Eiordan Shoe Co., 185 Fed. 931, 26 A. B. E. 449. Priority is obtained when lien attaches not when enforced. Attempted enforce- ment during four month period of lien acquired prior to four month period, held not an act of bankruptcy. Colston v. Austin Eun Min. Co., 194 Fed. 929, 28 A. B. E. 92. Enforcing a valid lien through legal proceeding is not an act of bankruptcy, the creditor not thereby obtaining a pref- erence to which he was not otherwise en- titled. Eichmond Standard Steel Spike & Iron Co. V. Allen, 148 Fed. 657, 17 A. B. E. 583. Distraint of goods under landlord's warrant. In re Belknap, 129 Fed. 646, 12 A. B. E. 326. Livery stable keeper's statutory lien. In re Mero, 128 Fed. 630, 12 A. B. E. 171. 56— In re Chapman, 99 Fe^S. 395, 3 A. B. E. 607. 80 Beandbnbubg on Bankruptcy ii^^ ing of the attachment suit," or the sale under a judgment execu- tion,^8 ig an act of bankruptcy. So, also, failure to stay a .iudg- ment sale pending appeal may be an act of bankruptcy under this section.** The creditors need not wait until an actual levy is made before filing a petition, but if money is paid by the bankrupt or another by his direction, or other property is transferred to the sheriff holding an execution, its application on the execution completes the pref erence.8» jj^r need they wait until a sale has taken place, but if five days before the day advertised the debtor has not discharged the preference, they may file a petition against him.^i Where a debtor, while solvent, gives judgment notes or a war- rant of attorney and subsequently when he has become insolvent, judgment is entered and execution is levied pursuant thereto, the debtor commits an act of bankruptcy, since the prefei;ence complained of is obtained by issuing the execution and the sub- sequent sale, and not by giving the judgment notes.^^ The entry of judgment on a warrant of attorney, or otherwise, there being no actual execution thereon or sale thereunder, would not con- stitute an act of bankruptcy ®* under the third subdivision of the law, but would constitute acts of bankruptcy either as an illegal preference on the part of the insolvent, or as hindering and delaying other creditors;^* or if the property is actually taken, though there be no sale, it would come within the spirit of 57 — ^In re Eeiohman, 1 N. B. N. 556, 61 — In re Eome Planing Mill Co., 3 A. 1 A. B. E. 17, 91 Fed.. 624; In re B. E. 123, 96 Fed. 812; In re Elmira Ferguson, 95 Fed. 429, 2 A. B. E. 586; Steel Co., 109 Fed. 456, 5 A. B. E. 484. In re Franeis-Valentine Co., 1 N. B. N. 62— Wilson v. Nelson, 183 U. S. 191, 529, 2 A. B. E. 523, 94 Fed. 793; s. c. 46 L. ed. 147, 7 A. B. E. 142; rev'g '1 N. B. N. 532, 2 A. B. E. 188, 93 Fed. 98 Fed. 76, 1 N. B. N. 567, 1 A. B. E. 953, 89 Fed. 691 ; Folger v. Putman, 194 63 ; In re Moyer, 93 Fed. 188, 1 N. B. N. Fed. 793, 28 A. B. E. 173, aff'g 193 Fed. 260, 1 A. B. E. 577; In re Thomas, 103 464, 27 A. B. E. 923; In re Putman, 193 Fed. 272, 2 N. B. N. E. 1021, 4 A. B. Fed. 464, 27 A. B. E. 923. E. 571; In re Eeiehman, 91 Fed. 6?4, 58— In re Moyer, 93 Fed. 188, IN. 1 A. B. E. 17; In re American Brewing B. N. 260, 1 A. B. E. 577; In re Whalefi, Co., 112 Fed. 752, 7 A. B. E. 463; contra, 1 N. B. N. 228; In re Storm, 103 Fed. Duncan v. Landis, 106 Fed. 839, 5 A. B. 618, 4 A. B. E. 601; In re Tupper, 163 E. 649. Fed. 766, 20 A. B. E. 824. 63— In re Anderson, 2 N. B. N. E. lODQ. 59 — In re Eung Furniture Co., 139 64 — Scheuer v. Smith & Montgomery Fed. 526, 14 A. B. E. 12. Book & Stationery Co., 112 Fed. 407, 7 60— In re Miller, 104 Fed. 764, 5 A. A. B. E. 384. See ante, § 43n 68. B. E. 140. § 52] Acts of Bankbuptcy — ^Insolvency 81 • subdivision 3 of the law,^" as would also be the case wbere money due the bankrupt is turned over to the sheriff by the party from whom it is due to be applied on the execution although there is no actual levy or sale.^^ The same is true where execu- tions on confessed judgments were levied but subsequently at the instance of creditors' attorney withdrawn to await further orders, and a year later but within four months of the bank- ruptcy proceedings other executions on the same judgments were levied on the same property, the first judgments were held to be dormant and only the lien under the latter executions was valid, which, not having been discharged within five days before sale, was an act of bankruptcy. ^'^ A debtor allowing a creditor to secure judgment and levy thereunder "suffers and permits" the same to be done.®® Failure to discharge, as required by the act, an insolvent part- nership after its dissolution, constitutes an act of bankruptcy as to the firm and individual parties.®^ §52. Assignment for benefit of creditors; receiver or trustee- ship. Since tne time of George II and even prior, the current of Eng- lish adjudications, followed by our own, has been that a volun- tary assignment of a debtor to an assignee of his own choosing, though without preference, is itself an act of bankruptcy, a fraud upon the act and hence a fraud upon creditors as respects their rights in bankruptcy and voidable at the trustee's option, even without any express provision to that effect in the statute, on the principle that it defeats the rights of creditors secured by the bankrupt law to the choice of a trustee, to the summary juris- diction of the bankruptcy court, and to the ample control which the law intended to give them over the estate of their insolvent debtors.''" Following this rule the bankruptcy act has provided that a general assignment for the benefit of creditors is an act of bahk- 65— In re Harper, 105 Fed. 900, 5 Ai 69— Holmes v. Baker & HamUton, 160 B. E. 567. Ted. 922, 20 A. B. B. 252. 66— In re Miller, 5 A. B. E. 140. 70— In re Gutwillig, 90 Fed. 475, a£- 67— In re Ferguson, 95 Fed. 429, 2 firmed 92 Fed. 337; West v. Lea, 174 U. A. B. S. 586. S. 590, 43 L. ed. 1098, 2 A. B. E. 463. 68— Bogen & Trummell V. Protter, 129 Fed. 533, .12 A. B. E. 288. Brandenburg— 6 82 Beandenbueg on- Bah-krtjptcy [§5^ ruptcy,''^ although made without preferences, without actually intending to defraud creditors, and without insolvency.''^ To be an act of bankruptcy, the assignment must be a general assign- ment for benefit of creditors.''* "A general assignment for the benefit of creditors is ordinarily a conveyance by a debtor with- out consideration for the grantee of substantially all his prop- erty to a party in trust to collect the amounts owing to him, to sell and convey the property, to distribute the proceeds of all the property among his creditors, and to return the surplus, if any, to the debtor. " ''* A conveyance direct to a creditor or to 71— Act 1898, § 3a, subd. 4. In re Knight, 125 Fed. 35, 11 A. B. E. 1; Whittlesey v. Becker & Co., 142 App. Div. (N. Y.) 313, 25 A. B. E. 672. 72— In re Meyer, 98 Fed. 976, 3 A. B. E. 559; In re Sievers, 1 N. B. N. 68, 1 A. B. E. 117, 91 Fed. 366; s. e. as Davis V. Bohle, 1 N. B. N. 216, 1 A. B. E. 412, 92 Fed. 325; Lea Bros. v. West Co., 1 N. B. N. 79, 1 A. B. E. 261, 91 Fed. 237; s. c. 1 N. B. N. 409, 2 A. B. E. 463, 174 U. S. 590, 43 L. ed. 1098; Leidigh Car Co. V. Stengel, 1 N. B. N. 387, 2 A. B. E. 383, 95 Fed. 637; In re Gutwillig, 1 N. B. N. 40, 1 A. B. E. 8, 90 Fed. 475, s. c. 1 N. B. N. 554, 1 A. B. E. 388, 92 Fed. 337; In re Simonson, White- son, & Co., 1 N. B. N. 230, 1 A. B. E. 197, 92 Fed. 904; Bray v. Cobb, 1 N. B. N. 209, 1 A. B. E. 153, 91 Fed. 102; In re Smith, 1 N. B. N. 356, 2 A. B. E. 9, 92 Fed. 135; In re Mercur, 1 N. B. N. 527, 2 A. B. E. 626, 95 Fed. 634; Day V. Beck & Gregg Hardware Co., 114 Fed. 834; Green Eiver Deposit Bank v. Craig, 110 Fed. 137, 6 A. B. E. 381; In re Salmon & Salmon, 143 Fed. 395, 16 A. B. E. 122; In re Eichardson, 192 Fed. 50, 27 A. B. E. 590; In re Farthing, 202 Fed. 557, 29 A. B. E. 732. It is not necessary to aver or prove that the debtor was insolvent at the time of the assignment or at the time of filing the petition. [Leidigh Car Co. v. Sten- gel, 95 Fed. 637; 1 N. B. N. 387, 2 A. B. E. 383 ; Lea Bros. v. West Co., 91 Fed. 237, 1 N. B. N. 79, 1 A. B. E. 261, 174 U. S. 590, 43 L. ed. 1098, 1 N. B. N. 409, 2 A. B. E. 463; Simonson v. Sinsheimer et al., 100 Fed. 426, 3 A. B. E. 824.] Nor is it a defense to deny the insolvency where an assignment is the act charged. [Lea Bros. v. Geo. M. West Co., 91 Fed. 237, 1 N. B. N. 79, 1 A. B. E. 261; 174 U. S. 590, 43 L. ed. 1098, 1 N. B. N. 409, 2 A. B. E. 463; Bray v. Cobb, 91 Fed. 102, 1 N. B. N. 209, 1 A. B. E. 153.] 73 — Act 1898, § 3a, subd. 4. Missouri- American Elee. Co. v. Hamilton-Brown Shoe Co., 165 Fed. 283, 21 A. B. E. 270. 74 — Missouri-American Elec. Co. v. Hamilton-Brown Shoe Co., 165 Fed. 283, 21 A. B. E. 270. If the legal effect of the transaction is a transfer of all the debtor's property to a trustee for the benefit of all creditors, share and share alike, who shall come in and prove their claims and thus accept its terms, it constitutes a general as- signment. Courtenay Mercantile Co. v. Finch, 194 Fed. 368, 27 A. B. E. 688, aff 'g 186 Fed. 352, 26 A. B. E. 365. The phrase "general assignment" as here used is to be taken in its generic sense, and embraces any conveyance at common law or by statute by which the parties intend to make an absolute and unconditional appropriation of the prop- erty conveyed to raise funds to pay the debts of the assignor share and share alike. In re Tomlinson Co., 154 Fed. 834, 18 A. B. E. 691. So called "bill of sale" held a gen- eral assignment. ' Id; Where copartnership private ba&k was § 52] Acts op Bankeuptcy — ^Insolvency 83 creditors for his or their benefit creates no general assignment for benefit of creditors because it raises no trust.'^^ A transfer of property is essential,''^ but it is not necessary that the assign- ment be valid according to the state law,'''' or that it should be valid for all purposes, as, for instance, that the creditors should assent thereto.''* It follows from the above that an assignment by a debtor of a part of his property to his largest creditor in payment of the latter 's debt and the creditor agreeing to pay all the other creditors of the debtor out of the proceeds of the property assigned is not an assignment for the benefit of cred- itors within the meaning of the bankruptcy act.''^ Where one of the members of a firm, who was insolvent, as liquidating part- ner, makes a general assignment for the benefit of creditors, which purported to convey all the firm's property, the question of the validity of such assignment as to the partners not joining is immaterial, for the language of the act applies to any instru- ment which is or purports to be a general assignment and such assignment is an act of bankruptcy by the fiim and the execut- ing partner, but not of the other partner, though he knew of and made no attempt to prevent such assignment; ®" and if made by the partnership and the individuals composing it, the act of bankruptcy is committed by all.®"^ But, if one of two persons being wound up by special agent under 76 — Stockholders merely voting to state law, transfer by partners of non- make an aissigninent insufficient. In re exempt individual property for firm Federal Lumber Co., 185 Ped. 926, 26 debts held to render entire transaction A. B. E. 438. one transaction and to be a general as- 77 — Courtenay Mercantile Co. v. Pinch, signment for benefit of creditors. In re 194 Fed. 368, 27 A. B. E. 688, afC'g 186 Salmon & Salmon, 143 Fed. 395, 16 A. Fed. 352, 26 A. B. E. 365. B. E. 122. 78— Griffin v. Button, 165 Fed. 626, 21 Adoption of resolution by stockholders A. B. E. 449; Canner v. Webster Tapper authorizing board of directors to appoint Co., 168 Fed. 519, 21 A. B. E. 872. a committee to advertise and sell at pub- 79 — Missouri- American Elec. Co. v. lie auction the property of 'the corpora- Hamilton-Brown Shoe Co., 165 Fed. 283, tion and if sold the board of directors 21 A. B. E. 270. to wind up and settle debts of corporation 80— In re Meyer, 1 A. B. E. 565, 98 held not an assignment for benefit of Fed. 976. creditors. In re EartweU Oil MUls, 165 Assignment by a partner constitutes Fed. 555, 21 A. B. R. 586. an act of bankruptcy as to the firm though 75 — Missouri-American Elee Co. v. the other partner does not participate Hamilton-Brown Shoe Co., 165 Fed. 283, therein. Yungbluth v. Slipper, 185 Fed. 21 A. B. E. 270; Anniston Iron Supply 773, 26 A. B. E. 265. Od. V. Anniston Eolling Mill Co., 125 Fed. 81— In re Green, 106 Fed. 313, 5 A. 974, 11 A. B. E. 200. B. E. 848. 84 Beandenbxjeg on Bankettptoy [§52 jointly and severally liable for a debt, who are not partners, does an act wMcb would subject him to adjudication in bank- ruptcy, such act does not affect his associate.*^ The confession of judgment to a trustee for the benefit of all creditors has been held in Pennsylvania to be the equivalent of a general assign- ment.^^ An application by a corporation to a state court for its dissolution and the appointnient of a receiver upon the ground of its insolvency is not equivalent to a general assignment, and hence is not an act of bankruptcy upon that ground.^* But where the officers of a corporation, acting under authority of a resolution of the board of directors, and in pursuance of a vote taken at a meeting of the stockholders, though against the objec- tion of a minority of the stockholders, make a general assignment, it is an act of bankruptcy on which a petition in involuntary bankruptcy against the corporation may be main- tained.®^ Under the provision of the act of 1867 which provided that to "procure or suffer his property to bfe taken on legal process with 82 — James v. Atlantic Delaine Co., 11 N. B. E. 390, Fed. Cas. No. 7179. 83 — Green Eiver Deposit Bank v. Craig, 110 Fed. 137, 6 A. B. E. 381. 84 — ^In re Empire Metallic Bedstead Co., 1 N. B-. N. 386, 2 A. B. E. 329, 2 N. B. N. E. 304, 95 Fed. 957, 98 Fed. 981, re- versing 1 N. B. N. 301; In re Harper Bros., 2 N. B. N. E. 605, 100 Fed. 266, 3 A. B. E. 804; In re Baker-Eieketson Co., 2 N. B. N. E. 133, 97 Fed. 489, 4 A. B. E. 605. But see post this section making such action an act of bankruptcy. The making of a general assignment for the benefit of creditors being express- ly made an act of bankruptcy by the act of 1898, the decisions under the act of 1867, which did not contain this express provision, are rendered useless, though, under the provisions of that act such assignments were held acts of bank- ruptcy as being intended to interfere with the operation of the bankrupt law (In re Kasson, 18 N. B. E. 379, Fed. Cas. No. 7617; Eowe v. Page, 13 N. B. E. 366; In re Langley, 1 N. B. E. 155; In re Mandelsohn, 12 N. B. E. 533, 3 Sawy. 342, Fed. Cas. No. 9420; Ins. Co. v. Ins. Co., 14 N. B. E. 311, Fed. Cas. No. 5486; McDonald v. Moore, 15 N. B. E. 26, 8 Ben. 579, Fed. Cas. No. 8763; Piatt v. Preston, 19 N. B. R. 241, Fed. Cas. No. 11219, 5046; Pool v. McDonald, 15 N. B. R. 560, Fed. Cas. No. 11268; Cragin V. Thompson, 12 N. B. E. 81, 2 Dill. 513, Fed. Cas. No. 3320; In re Smith, 3 N. B. E. 98, 4 Ben. 1, Fed. Cas. No. 12974; In re Crofts Bros., 17 N. B. E. 324, 8 Biss. 188, Fed. Cas. No. 3404; Jones v. Clifton, 18 N. B. R. 125, Fed. Cas. No. 7453; In re Lawrence, 18 N. B. E. 516, Fed. Cas. No. 8133; Jackson v. MeCul- lough, 13 N. B. E. 283, 1 Woods 433, Fed. Cas. No. 7140; contra, In re Haw- kius, 2 N. B. R. 122; Farrin v. Craw- ford, 2 N. B. E. 181, Fed. Cas. No. 4686; Sedgwick V. Place, 1 N. B. E. 204, Fed. Cas. No. 12622; Langley v. Perry, 2 N. B. E. 180, Fed. Cas. 8067; In re Marter, 12 N. B. E. 185, Fed. Cas. No. 9143; In re Kimball, 16 N. B. E. 188, Fed. Cas. No. 7770). 85— Clark v. Mfg. Co., 101 Fed. 962, 4 A. B. E. 351. § 52] Acts of Bankettptcy — ^Insolvency 85 intent to defeat or delay tlie operation of this act," the procure- ment of a receivership was held to he an act of bankruptcy.^* In the absence of an equivalent provision under the act of 1898, prior to the amendment of 1903, it was held that the failure to resist a bill for receivership was neither a conveyance, transfer, concealment or removal of property by the respondent, and if it should be held to be a transfer, it was a transfer permitted rather than made, on failing to oppose the bill therefor, which was not forbidden; nor was it a general assignment for the benefit of creditors; *'' nor such an admission as would bring it within the purview of subdivision 5 of this section, although it might be the unanimous and voluntary act of the members of the cor- poration.®® The Act of February 5, 1903, amending the Act of 1898, added a provision to the fourth act of bankruptcy provid- ing two additional acts of bankruptcy, viz.: (1) Being insolv- ent applied for a receiver or trustee for his property. (2) Be- cause of insolvency a receiver or trustee has been put in charge of his property under the laws of a state, of a territory, or of the United States.®' In both cases insolvency is essential,®" and in the second of the above subdivisions the receiver must have been put in charge of the debtor's property because of insolv- ency.®^ And this fact is not established merely by proof that 86— See. 39, act of 1898; In re Bin- Fed. 1007, 12 A. B. E. 601; In re Boston inger, Fed. Gas. No. 1420. & Oaxaea Mining Co., 181 Fed. 422, 24 87— In re Baker-Eicketson Co., 2 N. B. A. B. E. 923. N. B. 133, 97 Fed. 489, 4 A. B. E. 605; Where the application for a receiver Empire Metallic Bedstead Co., 2 N. B. N. has been made by the debtor himself, the E. 304, 98 Fed. 981; Vaccaro v. Bk., 2 commission of an act of bankruptcy de- N. B. N. E. 1037, 103 Fed. 436, 4 A. B. pends solely upon the issue of solvency E. 474; Davis v. Stevens, 104 Fed. 235; vet non. Blaekstone v. Everybody's Store, In re Henry Zeitner Brewing Co., 117 207 Fed. 752, 30 A. B. E. 497. Fed. 798, 9 A. B. E. 63 ; In re Gilbert, 'Appointment of a receiver for insolvent 112 Fed. 951, 8 A. B. E. 101. corporation by consent under Georgia 88— In re Baker Eieketson Co., 2 N. Code (1895), §2716, held act of bank- B. N. E. 133, 97 Fed. 489, 4 A. B. B. ruptey. In re Pickens Mfg. Co., 158 Fed. 605. 894, 20 A. B. E. 202. 89 — The amendment to 3a (4) vphen Eeceiver appointed for insolvent cor- introduced read "Being insolvent, ap- poration in dissolution proceedings under plied for or was put in the hands of a New York Code of Civil Procedure held . receiver. ' ' In the Senate its language- act of bankruptcy. In re The Edward was changed to read as finally enacted. G. Milbury Co., Ltd., 11 A. B. E. 523. 90 — ^In re Edward Ellsworth Co., 173 91 — ^In re Douglass Coal & Coke Co., Fed; 699, 23 A. B. E. 284; In re Zeitner 131 Fed. 769, 12 A. B. E. 539; In re Brewing Co., 117 Fed. 799, 9 A, B. E. 63; Spalding, 139 Fed. 244, 14 A. B. E. 129, Lowenstein v. McShane Mfg. Co., 130 rev'g 134 Fed. 507, 13 A. B. E. 223; 86 Beandenbxjrg on Bankeuptot [§52 insolvency existed when the court acted; ^^ nor does the fact that the debtor is insolvent when the petition in bankruptcy is filed prove insolvency as of the date of the appointment of the receiver.^^ ''Insolvency" need not be the sole ground,^* and being the real ground it is not material that it is not the ex- pressed ground.^^ While the judge appointing the receiver cannot by parol evidence give the grounds for his written or- der,®® still, if the order does not recite the grounds upon which Zugalla V. International Mercantile Agency, 142 Fed. 927, 16 A. B. E. 67, rev'g 13 A. B. E. 725; Blue Mountain Steel Co. V. Partner, 131 Fed. 57, 12 A. B. R. 559; Moss Nat. Bank of Sandusky v; Arend, 146 Fed. 351, 16 A. B. E. 867; In re Perry Aldrich Co., 165 Fed. 249, 21 A. B. E. 244. Appointment of receiver on ground other than that of insolvency is not an act of bankruptcy. In re Columbia Eeal Estate Co., 205 Fed. 980, 30 A. B. E. 471. Appointment of receiver pendente lite on application of minority stockholders to prevent mismanagement by board of directors held no| an act of bankruptcy. In re Boston & Oaxaca Mining Co., 181 Fed. 422, 24 A. B. E. 923; In re Gold Eiver Mining & Tunnel Co., 200 Fed. 162, 29 A. B. E. 563. ■Appointment of temporary receiver for corporation in equity action on allegations of insolvency, etc., which are denied, held not. an act of bankruptcy. In re Hud- son Eiver Electric Power Co., 173 Fed. 934, 23 A. B. E. 191, afe'd 183 Fed. 701, 33 L. E. A. (N; S.) 454, 25 A. B. E. 504. "The bankruptcy act has not super- seded the right and power of a court of equity to take charge of the property of an insolvent corporation for the protec- tion of stockholders and creditors, mar- shal the same, recognize and enforce valid liens and priorities and equitably distri- bute the surplus proceeds among ita creditors. "In re Edward Ellsworth Co., 173 Fed. 699, 23 A. B. E. 284. 92 — In re Boston & Oaxaca Mining Co., 181 Fed. 422, 24 A. B. E. 923. The appointment of a receiver for the purpose of preserving assets and con- ducting the alleged bankrupt's business as a going concern is not an act of bank- ruptcy in the absence of proof of in- solvency; Schumert & Warfield, Ltd., v. Security Brewing Co., 199 Fed. 358, 28 A. B. E. 676. The fact that the petition for the ap- pointment of a receiver alleged insolvency which is denied in the answer is not con- clusive that insolvency wq,s the ground upon which the receiver was appointed. Id. 93 — In re Boston & Oaxaca Mining Co., 181 Fed. 422, 24 A. B. E. 923. 94 — If a substantial ground it is suf- ficient. In re Kennedy Tailoring Co., 175 Fed. 871, 23 A. B. E. 656; In re Beatty, 150 Fed. 293, 17 A. B. E. 738; Hooks V. Aldridge, 145 Fed. 865, 16 A. B. E. 658. 95— In re Electric Supply Co., 175 Fed. 612, 23 A. B. E. 647. Appointment of receiver of a corpora- tion under statute not specifying in- solvency as a ground for receivership held act of bankruptcy. In re Belfast Mesh Underwear Co., 153 Fed. 224, 18 A. B. E. 620. ' Held an act of bankruptcy where re- ceiver was appointed on petition alleging that owing to gross mismanagement cor- poration could not continue business, could not raise necessary capital to meet matured and maturing obligations and that it was threatened with suits, etc. In re Electric Supply Co., 175 Fed. 612, 23 A. B. E. 647. 96 — Blue Mountain Steel Co. v. Partner, 131 Fed. 57, 12 A. B. E. 559. § 52] Acts of Bankruptcy — Insolvency 87 it is based, the record may be referred to or the grounds shown by evidence aliunde; ^'' but the grounds being recited they can- no't be impeached.®* The fact that a decree of a state court appointing a receiver upon the recital of a finding of insolv- ency is modified after the filing of the petition in bankruptcy so as to recite the appointment of a receiver on other grounds than insolvency will not prevent an adjudication if the debtor is shown to have been insolvent at the time.®* Under the first of the above subdivisions, the commission of the act of bankruptcy is not dependent upon the record in the court to which the appli- cation for a receiver is made,^ but the determination of such question rests with the bankruptcy ^ court, and this includes the question as to whether the alleged bankrupt was insolvent at the time of the application for the receiver.^ If it appears from the record in the receivership proceeding and is established by proof that the application is made under some statutory authority or general equity jurisdiction having no relation to insolvency, the application for a receiver does not constitute an act of bank- ruptcy.* But if it appears that the alleged bankrupt was in- solvent at the time and that the purpose of the proceeding is to have the debtor's property distributed among creditors and, in the case of a corporation, its dissolution brought about, an act of bankruptcy is committed.^ 97— In re Spalding, 139 Fed. 244, 14 Trading Co., 206 Fed. 813, 30 A. B. E. A. B. E. 129, rev'g 134 Fed. 507, 13 A. 604. B. E. 223; In re Kennedy Tailoring Co., 99 — In re Wenatchee Heights Orchard 175 Fed. 871, 23 A. B. E. 656. Co., 204 Fed. 674, 30 A. B. E. 401. Judge before whom the receivership 1 — Exploration Mercantile Co. v. Pa- proceedings are had is competent to oifie Hardware & Steel Co., 177- Fed. testify upon which of several grounds ap- 825, 24 A. B. E. 216. pearing in the record of the state court 2 — Exploration Mercantile Co. v. Pa- the receiver was appointed. Schumert & cifle Hardware & Steel Co., 177 Fed. Warfleld, Ltd. v. Security Brewing Co., 825, 24 A. B. E. 216. 199 Fed. 358, 28 A. B. E. 676. 3 — Exploration Mercantile Co. v. Pa- 98— In re Spalding, 139 Fed. 244, 14 cifio Hardware & Steel Co., 177 Fed. 825, A. B. E. 129, rev'g 134 Fed. 507, 13 24 A. B. E. 216. A. B. E. 22». 4 — Exploration Mercantile Co. v. Pa- Where from the record in receivership cifie Hardware & Steel Co., 177 Fed. 825, proceedings in a state court it appears 24 A. B. E. 216., that the ground of the appointment of 5 — So held where petition for receiv- a receiver was insolvency, parol evidence ership was based on depressed condition is inadmissible to show that insolvency in business and danger of assets being was not the ground of the appointment. wasted through attachment and litiga<- Ddyle-Eidd Df y Goods Go. v. Sadler-Lusk tion. Exploration Mercantile Co. v; Pa- 88 Brandenbueg on Bankbuptoy [§52 Under the second subdivision above named, however, the com- mission of the act of bankruptcy is dependent upon the record in the case before the court making the appointment of a re- ceiver.^ The questions of insolvency at the time of the appointing of the receiver, and at the time of the filing of the bankruptcy peti- tion, and whether the receivers were appointed because of insolvency, may properly be submitted to the jury.'' Eeceivers are "put in charge" within the meaning of this section when the decree appointing them is entered, and the petition must be filed within four months from that date.* Con- senting to receivership is not an application for receivership.® In the case of a party who is solvent, the appointment of a receiver would not be an act of bankruptcy under this subdivi- sion of the law, but might be held to be a transfer with intent to hinder, delay or defraud creditors through the substitution of the procedure of the state court for the more expeditious and economic method provided by the bankruptcy law,^" or result ia a preference through, the payment, on certain claims entitled to priority under the state law, an amount greater than would be allowed under the bankruptcy law.^^ This subdivision does not mean that the trustee must be put in charge by the order of a court but embraces all other methods whereby the property of an insolvent is committed to a trustee for the creditors or the laws of a state, territory, or of the United States.^^ So, too, the receiver need not be appointed under the cifio Hardware & Steel Co., 177 Fed. 825, until later is material. In re Perry Ald- 24 A. B. R. 216. rich Co., 165 Fed. 249, 21 A. B. R. 244. 6 — In re Douglass Coal & Coke Co., 12 9 — In re Gold Run Mining & Tunnel A. B. B. 539; In re Spalding, 139 Fed. Co., 200 Fed. 162, 29 A. B. R. 563. 244, 14 A. B. R. J.29, rev'g 134 Fed. 507, 10— See In re Metallic Bedstead Co., 13 A. B. B. 223; In re Edward Ells- g N. B. N. R. 304, 98 Fed. 981; In re worth Co., 173 Fed. 699, 23 A. B. R. 284. Harper Bros., 2 N. B. N. R. 605, 100 Fed. To be put in charge "because of in- 366, 3 A. B. R. 804; In re Henry Zelt- solvency" requires that the court mak- ^^^ 3^ ^^^ ^^^ g ^ ^ ing the appointment determine the ques- „ „„ . ■, _ „ , „ . tioa of insolvency. Zugalla v. Interna- l' f ^ c^itra In re Burrell et al., 9 A. tional Mercantile Agency, 142 Fed. 927, B. R. 178. 16 A. B. R. 67, rev'g 13 A. B. R. 725. 11— See Mather v. Ooe, 1 N. B. N. 554, 7— Act 1898, 1 19, subd. a. Blue Moun- 92 Fed. 333, 1 A. B. .R. 504. tain Iron & Steel Co. v. Partner, 131 Fed. 12— rln re Hercules Atkin Co., Ltd., 133 67, 12 A. B. B. 559. Eed. 813, 13 A. B. R. 369. 8— > The amendment of 1910, however, extends the right to become a volimtary bankrupt to corporations, other than municipal, rail- road, insurance, and banking corporations.^^ Under the act as amended, the board of directors of a corpora- tion at a duly called meeting ordinarily has the power to put the corporation into bankruptcy, by authorizing the filing of a vol- untary petition.^^ A creditor has no standing to object to an adjudication of a corporation on a voluntary petition on the ground that the corporation is solvent or that the directors had no power to file the petition.^^ Iron Co. V. AUen, 148 Fed. 657, 17 A. In re Foster Paint & Varnish Co., 210 B. E. 583. Fed. 652, 31 A. B. R. 548. 12 — In re Goodfellow, 2 N. B. E. 114, 1 In the absence of statute or charter Low 510, Fed. Cas. No. 5536. provisions to the contrary, the power of 13 — In re Kai Y. Chung, 1 N. B. N. 33. the board of directors to petition for vol- 14 — See ante, § 53; post, § 84. untary adjudication is presumed. In re 15 — Section 4a, as amended June 25, Guanacevi Tunnel Co., 201 Fed. 316, 1910. 29 A. B. E. 229. 16 — In re Kenwood Ice Co., 189 Fed. Eesolution of two directors in absence 525, 26 A. B. E. 499. and without notice to third held sufacient. Directors of Pennsylrania corporations Dodge v. Kenwood Ice Co., 204 Fed. 577, have power to authorize the filing of a 29 A. B. E. 586. voluntary petition by the corporation 17 — In re Guanacevi Tunnel Co., 201 without the consent of the stockholders. Fed. 316, 29 A. B. E. 229. 104 Beandbnbubg on Bankbuptoy [| 61 §61. Faamers. A person engaged chiefly in farming or the tillage of the soil may become a voluntary bankrupt, but cannot be adjudicated an involuntary bankrupt.^® § 62. Indians. Citizenship is not a prerequisite to the adjudication of one a bankrupt, but it is only necessary that he be^ person with the necessary residence or domicile." While an Indian is a person within the meaning of the constitution and laws of the United States,^^ a court of bankruptcy would certainly have no jurisdic- tion over one who retained his nomadic life and tribal relations. Furthermore, all agreements or contracts for the payment or delivery of money or other thing of value made by an Indian, without Tcompliance with the statute as to approval by the Sec- retary of the Interior and Commissioner of Indian Affairs, are absolutely null and void,2**'and subject the other party to a severe penalty.^^ Hence, a claim against an Indian for a debt contracted in contravention of this statute could not support an involuntary petition and would not be the basis of a volun- tary petition. But an Indian who has become a citizen is equally liable as any other person to the provision of the law. "Where, however, an Indian has not become a citizen but has adopted the habits and manners of civilized people, and such an agreement has been approved in conformity with the statute, a court of bankruptcy would have jurisdiction so far as such claim or claims only are concerned, and which would support a volun- tary petition, or an involuntary petition if sufficient in amount, but to that exent only,^^ as the weight of authority supports the right of an Indian off his reservation to institute proceedings in the United States courts.^* § 63. Infants. If a minor is liable for his contracts, or for what are com- monly understood to be his debts, as for necessaries, judgments 18— See post, § 95. 22— See In re Eeimie, 1 N. B. N. 335, 19— U. 8. V. Crook, 5 Dill. 453, Art. 1, 2 A. B. E. 182; In re Bussie, 96 Fed. Const. § 2; Elk T. Wilkins, 112 XT. S. 112, 608, 3 A. B. B. 6.- 28 L. ed. 650. 23— Fellows v. Blacksmith, 19 Howard 20— U. S., E. S. §210. 366, 15 L. ed. 684; Elk v. Wilkins, 112 21— U. S., B. S. § 2105. U. S. 112, 28 L. ed. 650. § 66] iWho May Become Bankeupts 105 in actions for torts, and the like, he is included within the pro- visions of the bankrupt act,** at least as to voluntary bankruptcy. A debt contracted by him during infancy may be acknowledged on reaching his majority when it would support a petition in bankruptcy. An infant member of a partnership cannot join in a voluntary petition by the firm.*^ § 64. Insane persons. As a lunatic, or person non compos mentis, is unable to per- form the duties and assume the burden and obligations imposed, which accompany the benefits to be derived from the law, neither he nor his committee or guardian would be authorized to file a voluntary petition.^® But if the bankrupt becomes non compos mentis after the filing of the petition, the proceedings are con- ducted and concluded the same as though he had not become insane.^'' - § 65. Married women. Formerly married women were only in a very restricted way capable of contracting debts and so were not included within the bankruptcy laws, but the married women acts have now gen- erally emancipated them from such restrictions. Wherever and to whatever extent they may contract debts, there and to that extent they are within the present act, and may become volun- tary bankrupts or be made involuntary bankrupts.^* B. Involuntary Bankrupts § 66. Historical. Though English bankruptcy acts were in existence from the time of Henry VIII, they applied only to traders until 1860, when they were extended to other persons. The original American act, that of 1800,^® applied only to traders, bankers, brokers and underwriters. The act of 1841 *" 24— In re Briee, 1 N. B. N. 310, 2 A. 26— In re Eisenberg, 117, Fed. 786, 8 B. B. 197, 93 Fed. 942; In re Duguid, A. B. E. 551. 100 Fed. 274, 2 N. B. N. E. 607, 3 A. B. 27— See post. Chap. XI. E. 794; see In re Penzansky, 8 A. B. E. 28— See eases, post, % 91. 99; In re Walrath, 175 Fed. 243, 24 A. 29—2 Stat, at L. 19, c. 19. B. E. 541. 30— 5 Stat, at L. 440, e. 9, 25— See post, § 88. 106 Beandenbubg on Bankeuptct [§66 added mercliants. The act of 1867^^ applied to all persons guilty of certain acts of bankruptcy as well as to bankers, mer- chants, and traders, and to all money, business or commercial corporations or joint-stock companies. The original act of 1898 provided that: "Any natural person, except a wage-earner or a person engaged chiefly in farming or the tillage of the soil, any unincorporated company, and any corporation engaged prin- cipally in manufacturing, trading, printing, publishing or mercantile pursuits, owing debts to the amount of one thousand dollars or over," as well as private bankers, might be adjudged involuntary bankrupts. The amendment of 1903 added mining corporations. In 1910 the whole act was again changed very materially as to corporations by an amendment which provided that: "Any natural person, except a wage-earner or a person engaged chiefly in farming or tillage of the soil, any unincorporated, company, and any moneyed, business, or commercial corporation except a municipal, railroad, insurance, or banking corporation, owing debts to the amount of one thousand dollars or over, may be adjudged an involuntary bankrupt.^^ § 67. Amount of assets and liabilities. To authorize an adjudication in involuntary proceedings, the amount of debts owed by the debtor must equal or exceed one thousand dollars. A "debt" is defined by the act as any debt, demand or claim provable in bankruptcy.^^ The amount of debts owing is to be computed as of the date of the commission of the act of bankruptcy, and the fact that by the assent of creditors to a general assignment constituting the act of bankruptcy the amount of actual indebtedness is reduced below one thousand dollars is immaterial.^* It is not necessary to an adjudication that the alleged bankrupt have any non- exempt assets.*^ §68. JBurden of proof . The burden of proof is upon the petitioners to prove that the alleged bankrupt was engaged principally in a business render- 31—14 Stat, at L. 517, o. 176; Bank- 34 — In re Jaoobson, 181 Fed. 870, ruptcy Act of 1867, § 37. 24 A. B. E. 927. 32 — Act of 1898, i 4b as amended June 35 — ^In re Ceballos & Co., 161 Fed. 445, 25, 1910. 20 A. B. E. 459; In re Pinson, 180 Fed. 33— Act of 1898, § 1 (11). 787, 24 A. B. E. 804. § 70] Who May Become Bankeupts 107 ing him subject to adjudication,^^ and was not within the classes expressly excepted from the operation of the act.^^ §69. Aliens. An alien may be adjudged an involuntary bankrupt.^^ To give jurisdiction in an involuntary proceeding there need be neither residence, domicile nor place of business, but it is only necessary that the debtor has committed an act of bankruptcy and has property within the jurisdiction of the court of bank-, ruptcy or that he has been adjudged bankrupt by a court of competent jurisdiction without the United States and has prop- erty within the United States. § 70. Banks and bankers. National banks and banks incorporated under the state and territorial laws cannot be adjudged involuntary bankrupts under this law, but their liquidation when insolvent is expressly pro- vided for by the United States, state and territorial laws.^® The laws of the United States provide that, when any national banking association shall be dissolved, and its rights, privileges and franchises declared forfeited, as prescribed in section 5239 of the Eevised Statutes of the United States, and when any creditor of any national banking association shall have obtained a judgment against it in any court of record, on proper showing, or whenever the comptroller of currency shall become satisfied of the insolvency of a national banking association, he may, after due examination of the affairs, in either case, appoint a receiver, who shall proceed to close up such association and enforce the personal liability of the stockholders, as provided for in section 5234 of the Eevised Statutes of the United States.*" The various states and territories wherein state and territorial 36— Walker Eoofing, etc., Co. v. Mer- 38— In re Goodfellow, 2 N. B. E. 114, chant & Evans Co., 173 Ted. 771, 23 A. 1 How. 510, Ted. Cas. No. 5536. B. E. 185; Philpot v. O'Brion, 126 Fed. 89— Smith v. Mfr. Nat. Bank, 9 N. B. 167, 11 A. B. E. 205, aff 'g 121 Fed. 139, E. 122, Fed. Cas. No. 13076; In re Manu- 10 A. B. E. 424; In re Hudson Eiver facturers Nat. Bank, Fed. Cas. No. 9051, Electric Power Co., 173 Fed. 934, 23 A. 5 Biss. 499. B. E. 191, aff'd 183 Fed. 701, 25 A. B. 40— See Act of June 30, 1876, 1 Supp. R. 504. E. S. 107, c. 156, as amended by Act of 37— In re Leland, 185 Fed. 830, 25 A. August 3, 1892, 2 Supp. E. S. '63, c. 360, B. B. 209; In re Duke & Son, 28 A. B. and by Act of March 2, 1897, 2 Id. 565, E. 195. c. 354. 108 Bbandenburg on Bankeuptcy [§ 70 banks have been organized have prescribed special provisions of law applicable to such institutions on becoming insolvent, and providing for their liquidation.*^ The act as it read prior to the amendment provided that priv- ate bankers could be adjudged involuntary bankrupts. While such provision is not to be found in the amended law, yet, priv- ate bankers are not within the exceptions contained therein, and may be adjudicated. A "private banker" is a person or firm, engaged in banking without having special privileges or author- ity from the state.*^ The term has a definite signification and has been held to apply to individuals or to a firm only, and not to comprehend a corporation. Accordingly a corporation could not be adjudged a bankrupt as a "private banker,"** and the same has been held true of an unincorporated banking com- pany.** § 71. Corporations prior to amendment of 1910. § 72. — In general. Under the law as it existed prior to the amendment of 1910, a corporation could not become a voluntary bankrupt, but if engaged principally in manufacturing, trading, printing, pub- lishing, mining, or mercantile pursuits, it could be adjudged an involuntary bankrupt. The term corporation as used compre- hended all bodies having any of the powers and privileges of private corporations not possessed by individuals or partner- ships, and included limited or other partnership associations 41 — Under the Act of 1867 it was held liquidation only, but was hampered by that the court had no jurisdiction to ad- stay laws and adjudged a bankrupt in judge a national bank bankrupt for sus- 1872, was not to be regarded as a bank pension of payments (Smith v. Mfr. Nat. or trader as against persons with whom Bk., 9 N. B. E. 122, Fed. Cas. No. 13076) ; settlements were made within four but that it might adjudge private bank- months of bankruptcy. (Harmanson, ers involuntary bankrupts, the bank being Ass. v. Bain et al., 15 N. B. E. 173, 1 a private corporation, though its object Hughes, 188 Ted. Cas. No. 6072.) was of a public nature and the govern- 42 — People v. Doty, 80 N. Y., 225, 228; ment shares with the corporators in the Perkins v. Smith, 116 N. Y. 441, 448. stock. (Sweatt v. Boston, etc., E. E., 5 43 — In re Surety & Guarantee Co. Trust N. B. E. 234, 3 Cliff. 339, Ted. Cas. No. Co., 9 A. B. E. 129; see Davis v. Stevens, 13684). An incorporated society doing a 104 Ped. 235, 4 A. B. E. 763. general banking business, which had 44 — Burkhart v. German-American ceased in 1862 on account of the war and Bank, 137 Fed. 958, 14 A. B. E. 222. resumed in 1865 for the purpose of §72] Who May Become Bankrupts 109 organized tinder laws making the capital subscribed alone responsible for the debts of the association.*^ The fact that the language of the act of 1898 was originally much narrower than that of the act of 1867 which applied to "all moneyed, business and commercial corporations and joint stock companies," and the fact that it was amended in 1903 by inserting the word "mining" was relied on by the courts as showing an intent on the part of congress that the words of the act should be con- strued in their ordinary significance and not extended beyond the plain language of the act.*^ The supreme court, however, held that doubtful words and terms should be given a liberal rather than a narrow meaning.*'^ The act referred to the time of the filing of the petition and a reasonable time prior thereto, and not to some prior time in the history of the corporation,*^ though it was held that where a corporation had been engaged in one of the enumerated pursuits it could be proceeded against in bankruptcy regardless of the period of time between its cessation of operation and the filing of the petition in bankruptcy, and regardless of the fact that the claims of the petitioning creditors did not arise during the period in which the corporation was so engaged.*^ What constituted the chief or principal occupation of a cor- poration where it was engaged in more than one kind of business was so largely a question of fact that it was necessary to deter- mine each case upon the particular facts and circunistances thereof.^" The purpose of the corporation as expressed by its • charter was held to be of no consequence except in so far as it had a bearing upon the business in which it was actually 45 — ^Aet of 1898, § 1 (6). In re Her- ing, etc., Co. v. Merchant & Evans Co., cules Atkin Co., Ltd., 133 Fed. 813, 13 173 Fed. 771, 28 A. B. E. 185; In re A. B. E. 369. Surety & Guarantee Trust Co., 121 Fed. 46— White Mountain Co. v. Morse & 73, 9 A. B. E. 129. Co., 127 Fed. 643, 11 A. B. E. 633, aff'g 47— Friday v. Hall & Kaul Co., 216 XI. 127 Fed. 180, It A. B. E. 491; In re Con- S. 449, 54 L. ed. 562, 23 A. B. E. 610, eord Motor Car Co., 173 Fed. 445, 23 A. rev'g 158 Fed. 593, 19 A. B. E. 841. B. E. 73; First Nat. Bank of Wilkes- 48 — In re Interstate Paving Co., 171 barre v. Wyoming Valley Ice Co., 136 Fed. 604, 22 A. !b. E. 572. Fed. 466, 14 A. B. E. 448; Zugalla v. 49 — Eobertson v. Union Potteries Co., International Mercantile Agency, 142 177 Fed. 279, 22 A. B. E. 121. Fed. 927, 16 A. B. E. 67, rev'g 13 A. B. 50— See In re Excelsior Cafe Co., 175, R. 725; In re Wentworth Lunch Co., 159 Fed. 294, 23 A. B. E. 701. Fed. 413, 20 A. B. E. 29; Walker Roof- 110 Beandenbueg on Bankbuptcy [§ 72, engaged,^^ and there was no judicial. presumption tliat the cor- porate name of a corporation denoted the business in which it was principally engaged.^^ Accordingly, a water company empowered "to buy, sell, use and deal in water for power, manufacturing and hydraulic purposes" where it confined itself entirely to obtaining and furnishing* water for cities and munici- pal boroughs and their inhabitants, was held not to be engaged principally in trading or mercantile pursuits.^^ To determine in which pursuit the bankrupt was principally engaged, the volume of business done in each pursuit was con- sidered and often held determining.^* Where the statutes of the state permitted the corporation to be organized to carry on two distinct lines of business, one within the act and the other not within it, neither of which could be termed its principal business, and both of which stood on the same footing for the purpose of ascertaining what was its principal business, it was held that the corporation could not be adjudicated.^^ A corporation must have been actively engaged in one of the pursuits enumerated before the commission of the act of bank- ruptcy. It was not sufficient that it was organized for the purpose of engaging therein,^^ or that it had authorized its directors to make and endeavor to get contracts.^^ However, the fact that a corporation had not done all of the acts which constituted the whole of its business did not prevent it from being engaged in that business. If it had l5egun upon the execu- tion of a part of the work laid out, it was held to be engaged in « 51 — ^Walker Eoofing, etc., Co. v. Mer- re Tontine Surety Co., 116 Fed. 401, 8 chant & Evans Co., 173 Fed. 771, 23 A. A. B. E. 421. B. E. 185; In re Eeisler Amusement Co., 52 — United States v. Freed, 179 Fed. 171 Fed. 283, 22 A. B. E. 501; Columbia 236, 25 A. B. E. 89. Iron Works v. National Lead Co.," 127 53 — ^In re N. T. & Westchester Water Fed. 99, 11 A. B. E. 340; In re New York Co., 2 N. B. N. E. 414, 98 Fed. 711, 3 & New Jersey loe Lines, 14 A. B. R. 61 ; ^- ^- ^- 508. In re Kingston Realty Co!, 160 Fed. 445, 54— See Toxaway Hotel Co. v. J. L. 19 A. B. E. 845; rev'g 157 Fed. 299, Smathers & Co., 216 U. S. 439, 54 L. ed. 19 A. B. E. 465; Friday v. Hall & ^^^' ^^ ^- ^- ^- ^^2- Kaul Co., 216 TJ. 8. 449, 54 L. ed. 562, ,„l^^'' ™ Humphery Advertising Co., 23 A. B. E. 610, rev'g 158 Fed. 593, 19 ^''J'^' ^«Vf .''• f " ^^ *'• A. B. E. 841; Toxaway Hotel Co! v. Je^^l Zl^lTl" ..?"''''' ""^'i Smathers & Co., 216 tJ. S. 439, 54 L. ed. I^'b r 375. ' ''^ ^ 558, 23 A. B. E. 626 ; In re Concord Motor ■57lln re Coolidge Eefrigerator & Car Car Co., 173 Fed. 445, 23 A. B. E. 73; In Co., 190 Fed. 908, 27 A. B. E. 209. §73] Who May Become Bankkupts 111 that business, although it had not proceeded far enough to do all the things which constituted its business.*** Nor would a temporary suspension of business deprive it of the character of a trading, mercantile, manufacturing or mining corporation.^^ §73. — Trading corporations. • A "trader" is defined as one who makes it his business to buy merchandise or goods and chattels, and to sell the same again for the purpose of making a profit, the quantum of dealing being immaterial when the intention to deal generally exists,^'' as a baker, who buys flour and makes it into bread for sale,^^ a butcher,®^ a stair builder,^^ a corporation engaged in cutting ice, purchasing ice from third parties and selling same,®* one engaged in the manufacture of lumber,®^ and the like. The buy- ing and selling of grain, stock, bonds and other securities,^® or the engaging in the insurance,®'' theatrical,®* or hotel business,®^ and the like,'''' were held not trading pursuits within the mean- ing of the law. 58 — ^In re Eeisler Amusement Co., 171 Fed. 283, 22 A. B. E. 501; White Moun- tain Co. V. Morse, 127 Fed.. 643, 11 A. B. E. 633, aff'g 127 Fed. 180, 11 A. B. E. 491; In re Duquesne Brew. Co., 177 Fed. 609, 24 A. B. E. 44; In re Bloomsburg Brewing Co., 172 Fed. 174, 22 A. B. E. 625. 59 — ^In re Georgia Manufacturing & Public Service Co., 166 Fed. 964, 21 A. B. E. 878. 60 — 3 Camp. 233, Bouv. Law. Diet.; In re New York & Westchester Water Co., 98 Fed. 711, 3 A. B. E. 508; In re Surety & Guaranty Co., 9 A. B. E. 129; In re Cowles, 1 N. B. E. 42, Fed. Cas. No. 3297, 3 Starkie, 56, 2 Car. & P. 135, 1 Term E. 572; First Nat. Bank of Wilkesbarre v. Wyoming Valley lee Co., 136 Fed. 466, 14 A. B. E. 448. 61— In re Cocks, 3 Ben. 260, Fed. Cas. No. 2933; In' re AnketeU, 19 N. B. E. 268, Fed. Cas. No. 394. 62— In re Bassett, 8 Fed. 266. 63— In re Garrison, 7 N. B. E. 287, 5 Ben. 430, Fed. Caa. No. 5254. 64— First Nat. Bank of Wilkesbarre v. Wyoming Valley Ice Co., 136 Fed. 466, 14 A. B. E. 448. But see. In re New York & New Jersey Ice Lines, 147 Fed. 214, 16 A. B. E. 832, afC'g 14 A. B. E. 61. 65— In re Cowles, 1 N. B. E. 42, Fed. Cas. No. 3297. 66 — In re Surety & Guaranty Co., 9 A. B. E. 129; In re Cleland, L. E. 2, Ch. App. 465. 67 — In TO Cameron Town Mut. Fire, Lightning & Windstorm Ins. Co., 96 Fed. 756, 2 A. B. E. 372. 68 — In re Oriental Society, 104: Fed. 975, 5 A. B. E. 219. 69 — In re United States Hotel Co., 134 Fed. 225, 13 A. B. E. 403 ; In re Barton Hotel Co., 12 A. B. E. 335. 70 — The following were held under the Act of 1867 not to be included within the term "tradesmen" or "merchants": One who merely makes up the product of his own land (In re Chandler, 4 N. !B. E. 213, 1 Lowell 478, Fed. Cas. No. 2591) ; a firm owning and Operating a farm, the members of which owned stock in and were officers of a solvent manu- facturing corporation (In re &tiekn£y, 17 112 Beandenbubg oisr Bankeuptct [§74 § 74. — Mercantile corporations. "Mercantile" is defined as pertaining to merchants, or the business of merchants,'^ ^ a merchant being one whose business it is to buy and sell merchandise, including all those things mer- chants sell, either wholesale or retail, as dry goods, hardware, groceries, drugs, etc. ; '^^ or one who keeps a livery, or boards horses belonging to other persons ; ''^ a saloon-keeper who buys cigars and liquors in quantities and sells them at retail ''* or one whose business is the gathering of iiiform^tion and printing and publishing a book of ratings with reference to the. standing of merchants,''* The terms "trading" or "mercantile pursuits" were restricted to dealing in the ordinary subjects of commerce, and incidental purchases or sales by a person not otherwise so engaged were held not to constitute such dealing. The court was held to have no jurisdiction of a corporation organized for the purpose of giving theatrical performances, and engaged chiefly in such business; ''^ nor a club organized principally for social intercourse ; '''' a real estate company; ''* a building and N. B. E. 305, Fed. Gas. No. 13439) ; a person who owned oil lands which he divided into leaseholds and received rent in oil, however extensive his transactions and credits (In re Woods, 7 N. B. E. 126, Fed. Gas. No. 17990) ; one who sold a carriage, a slave, two pairs of horses, a piano, a lot of cigars, and some harness, for which he had contracted debts, in the absence of a showing that they had been bought for the purpose of sale (In re Eogers, 3 N. B. E. 139, 1 Lowell 423, Fed. Gas. No. 12001) ; a debtor who con- ducted a business on a cash basis and a considerable time prior to filing his peti- tion had given it up, leaving nothing out- standing either as assets or debts (In re Keach, 3 N. B. E. 3, 1 Lowell 335, Fed. Gas. No. 7629) ; a stock and gold broker who was not a member of the stock ex- change, but conducted his business through other brokers who were and who kept no books (In re Moss, 19 N. B. E. 132, Fed. Gas. No. 9877) ; or a common carrier (In re Union E. E. Go., 10 N. B. E. 178, Fed. das. No. 14376). 71 — Webst. Diet., Toxaway Hotel Co. v. Smathers & Co., 216 U. S. 439, 54 L. ed. 558, 23 A. B. E. 626. 72— Bouv. Law Diet. 73 — In re Morton Boarding Stables, 108 Fed. 791, 5 A. B. E. 736; In re OdeU, 9 Ben. 209, Fed. Gas. No. 10426. Contra: Gallagher v. DeLancey Stables Co., 158 Fed. 381, 19 A. B. E. 801; In re Willis Cab & Automobile Co., 178 Fed. 113, 23 A. B. E. 593. 74— In re Sherwood, 17 N. B. E. 112,' 9 Ben. 66, Fed. Gas. No. 12773. In re Barton Hotel Co., 12 A. B. E. 335. 75 — ^In re Mutual MercantUe Agency, 111 Fed. 152, 6 A. B. E. 607. Contra: Zugalla v. International Mer- cantile Agency, 142 Fed. 927, 16 A. B. E. 67, rev'g 13 A. B. E. 725. 76— In re Oriental Society, 104 Fed. 975, 5 A. B. E. 219; In re Eeisler Amuse- ment Co., 171 Fed. 283, 22 A. B. E. 501. 77— In re Fulton Glvh, 113 Fed. 997, 7 A. B. E. 670. 78 — In re Altonwood Park Co., 160 Fed. 448, 20 A. B. E. 31; In re Kingston §751 Who May Become Bakkbupts 113 loan corporation;'^® a corporation engaged in general stock, bond, grain and brokerage business ; *" a fire insurance com- pany; ^* a laundry; ^^ a saloon or restaurant; *^ a hotel; ^* a cold storage company; ^"^ a corporation authorized to buy, own and deliver merchandise, but which it never did own in fact; ®® or one engaged in the carriage by water of passengers.*^ It was held, however, that an incorporated sanatorium company con- ducting its business for profit, and not on charitable lines, was a corporation engaged principally in trading or mercantile pur- suits and could be proceeded against in involuntary bank- ruptcy.** §75. — Manufacturing corporations. "Manufacturing" has no technical meaning and is not limited by the means used in making nor by the kind of product pro- duced.*® To come within the provisions of the act as to manufacturers, it was not necessary that the corporation itself performed every operation with or upon the so-called raw material necessary to Eealty Co., 160 Fed. 445, 19 A. B. E. 845, rev'g 157 Fed. 299, 19 A. B. E. 465. Contra: In re Oregon Trust & Savings Bank, 156 Fed. 319, 19 A. B. E. 484. 79— In re The New York Building- Loan Banking Co., 127 Fed. 471, II A. B. R. 51. 80— See In re Moss, 19 N. B. E. 132, Fed. Cas. No. 9877; In re Surety & Guar- antee Trust Co., 121 Fed. 73, 9 A. B. E. 129; Laker v. Stapely Co., 21 A. B. E. 303. Contra: In re Leighton & Co., 147" Fed. 311, 17 A. B. E. 275. 81— In re Moore & Muir Co., 173 Fed. 732, 23 A. B. R. 122; In re Cameron Town Mut. F., L. & N. Ins. Co., 96 Fed. 756, 2 A. B. E. 372. But see. In re Mer- chants' Ins. Co., 6 N. B. E. 43, 3 Biss. 162, Fed. Cas. No. 9441. ,82 — la re Steam Laundry Co. of Queens County, 24 A. B. E. 457; In re Eagle Steam Laundry Co., 184 Fed. 949, 25 A. B. E. 868; In re White Star Laundry Co., 117 Fed. 570, 9 A. B. R. 30. 83 — In re U., 8. Eestaurant & Realty Co., 187 Fed. 118, 25 A. B. R. 915; In re Brandenburg — 8 Excelsior Cafe Co., 175 Fed. 294, 23 A. B. E. 701; In re Wentworth Luneh Co., 159 Fed. 413, 20 A. B. E. 29. In re Chesapeake Oyster & Fish Co., 112 Fed. 960, 7 A. B. R. 173. Contra: In re Barton Hotel Co., 12 A. B. R. 335. 84 — Toxaway Hotel Co. v. Smathers & Co., 216 V. S. 439, 54 L. ed. 558, 23 A. B. R. 626; In re Barton Hotel Co., 12 A. B. R. 335. Contra: Campbell v. Finek, 2 Duv. 107. 85 — In re Philadelphia Freezing Co., 174 Fed. 702, 23 A. B. E. 508. 86 — In re Tontine Surety Co., 116 Fed. 401, 8 A. B. E. 421. 87— In re Phila. & Lewes. Transp. Co., 114 Fed. 403. 88 — ^In re San Gabriel Sanatorium Co., 1 N. B. N. 390, 2 A. B. R. 408, 95 Fed. 271. 89— Friday v. Hall & Kaul Co., 216 TI. S. 449, 54 L. ed. 562, 26 L. R. A. (N. S.) . 475, 23 A. B. R. 610, rev'g 158 Fed. 593, 19 A. B. E. 841. 114 Brandenbueg ON Bankeuptoy [§75 produce the finished article, it being sufficient that it did any of the several acts necessary to produce the manufactured article in its completed form.®" A corporation was held to be engaged in manufacturing though the bankruptcy proceedings were com- menced before any manufactured articles were turned out in their final form.®^ Thus it was held that a corporation which had purchased woodland was engaged in the manufacture of paper though no paper had actually been produced,®^ and that a corporation chartered to manufacture malt liquors, having built a brewery, was engaged in manufacturing, though it never began to brew.®* A temporary suspension of business due to a lack of demand for the article manufactured did not prevent manufacturing from being the principal business of a corporation also engaged in other pursuits.®* The term manufacturer was held to include building and con- struction companies ; ®^ a corporation engaged in building ships ; ®^ a corporation engaged in installing heat and power plants, constructing conduits, waterworks and sewers;®'' a laundry; ®* and a fish packing company.®® On the other hand, a cold storage corporation,^ a corporation generating electricity,^ 90— In re Troy Steam Laundering Co., Merchant & Evans Co., 173 Fed. 771, 23 132 Fed. 266, 13 A. B. E. 97. A. B. E. 185; In re Kingston Eealty Co., 91 — ^White Mountain Paper Co. v. 160 Fed. 445, 19 A. B. E. 845, rev'g 157 Morse, 127 Fed. 643, 11 A. B. R. 633, Fed. 299, 19 A. B. E. 465; In re Mae- aff 'g 127 Fed. 180, 11 A. B. E. 491. Niehol Construction Co., 134 Fed. 979, 14 92— White Mountain Paper Co. v. A. B. R. 188; Butt v. MacNichol Const. Morse, 127 Fed. 643, 11 A. B. E. 633, Co., 140 Fed. 840, 15 A. B. E. 515, aff'g aff 'g 127 Fed. 180, 11 A. B. E, 491. 134 Fed. 979, 14 A. B. E. 188; In re HiU 93— In re Duquesne Brew. Co., 177 Fed. Co., 148 Fed. 832, 17 A. B. R. 517. 609, 24 A. B. E. 44; In re Bloomberg 96— Columbia Irons Works v. National Brewing Co., 172 Fed. 174, 22 A. B. R. Lead Co., 127 Fed. 99, 64 L. E. A. 645, 625. 11 A. B. E. 340. 94— In re Georgia Manufacturing & 97— United Surety Co. v. Iowa Mfg. PubUe Service Co., 166 Fed. 964, 21 A. Co., 179 Fed. 55, 24 A. B. E. 726. B. E. 878. 98— In re Troy Steam Laundering Co., 95— Friday v. Hall & Kaul Co., 216 U. 132 Fed. 266, 13 A. B. R. 97. S. 449, 54 L. ed. 562, 26 L. R. A. (N. S.) 99— In re Alaska American Fish Co., 475, 23 A. B. R. 610, rev'g 158 Fed. 593, 162 Fed. 498, 20 A. B. E. 712. 19 A. B. E. 841; In re First Nat. Bank 1- In re PhUadelphia Freezing Co., of BeUe Fourohe, 152 Fed. 64, 18 A. B. E. 174 Fed. 702, 23 A. B. R. 508. 265; In re Rutland Realty Co., 157 Fed. 2— In re Hudson River Electric Power 296, 19 A. B. E. 546; In re Church Co., 173 Fed. 934, 23 A. B. E. 191, afl'd Const. Co., 157 Fed. 298, 19 A. B. E. 549. 183 Fed. 701, 33 L. R. A. (N. S.) 454, Contra: Walker Roofing, etc., Co. v. 25 A. B. E. 504. Contra : In re Charles § 78] .Who May Become Bankeupts 115 a corporation engaged chiefly in repairing automobiles,* or in renting moving picture films,* or in soliciting and placing advertisements,^ and a restaurant company,^ were held not to be manufacturing companies. § 76. — Mining corporations. Mining corporations were included, by the amendatory act of 1903, in the class of those who could be adjudged involuntaiy; bankrupts. Prior to that date it was generally held that since they were not engaged in manufacturing, trading or mercantile pursuits they were excepted from 'the provisions of the law.'' The term "mining" was held to include quarrying.® § 77. — Printers and publishers. The decisions that the publishers of a daily paper and the pro-- prietors of a book and job printing office were not manufacturers within the meaning of the act of 1867 ® were not controlling under the original act of 1898, since such corporations were specifically included within the later law and could now be pro- ceeded against in involuntary bankruptcy.^" A mercantile agency was held not to be engaged in publishing.^^ §78. —Railroads. Eailroads and transportation companies did not come within any of the classes specified in original act of 1898 and accord- ingly could not be adjudicated involuntary bankrupts.^^ Town Light & Power Co., 183 Fed. 160, Co., 104 Fed. 67; McNamara v. Helena 25 A. B. E. 68. Coal Co., 5 A. B. E. 48; In re Teoopa . 3— In re Concord Motor Gar Co., 173 Mining & Smelting- Co., 110 Fed. 120, 6 Fed. 445, 23 A. B. E. 73. A. B. E. 250; Herron Co. v. Superior 4^-In re Imperial Film Exchange, 198 Court, 8 A. B. E. 492. Fed. 80, 28 A. B. E. 815. 8 — In re Matthews Consol. Statfe Co., 5— In re Humphery Advertising Co., 144 Fed. 737, 16 A. B. E. 407, aff'g 144 177 Fed. 187, 24 A. B. E. 41; In re Sny- Fed. 724, 16 A. B. E. 350; In re Quincey der & Johnson Co., 133 Fed. 806, IS A. Granite Quarries Co., 147 Fed. 279, 16 B. E. 325. A. B. E. 823. 6— In re Wentworth Lunch Co., 159 9 — In re Kenyon et al., 6 N. B. E. Fed. 413, 20 A. B. E. 29. 238; In re The Capital Pub. Co., 18 N. 7— In re Keystone Coal Co., 109 Fed. B. E. 319. 872, 6 A. B. E. 377, reversing 3 N. B. N. 10 — See In re Mutual Mercantile R. 349; In re Woodside Coal Co., 105 Fed. Agency, 111 Fed. 152, 6 A. B. E. 607. 56, 5 A. B. B. 186; In re Elk Park Min- 11 — Zugalla v. International iSlercan- ing and Milling Co., 101 Fed. 422, 4 A. tile Agency, 142 Fed. 927, 16 A. B. E. B. E. 131; In re EolUns Gold & Silver 67, rev'g 13 A. B. E. 725. Mining Co, 102 Fed. 982, 4 A. B. B. 12— In re Philadelphia & Lewes 327; In re Chicago Joplin Lead & Zinc Transp. Co., 114 Fed. 403; N. Y. & "West- 116 Bbandenbueg on Bankbuptcy [§79 § 79, Corporations subsequent to amendment of 1910. § 80. — In general. The amendatory act of 1910 renders "any moneyed, business, or commercial corporation^ except a municipal, railroad, insur- ance, or banking corporation, owing debts to the amount of one thousand dollars or over" subject to the provisions of the act. The language is similar to that employed in the act of 1867 and decisions under that act now become authoritative, though it should be observed that the act of 1867 did not except "municipal, railroad, insurance, or banking" corporations. The amendment of 1910 is not retroactive.^^ The word "business" is more extensive than the word "trad- ing," " and a corporation carrying on and pursuing any lawful business defined by its charter, and clothed with the power to do so, for the sake of gain, may be termed a "business" corpora- tion.^^ The words "money, business, or commercial corpora- tions" may be said to embrace all those classes of corporations that deal in or with money or property in the transactions of money, business, or commerce, for pecuniary gain, and not for religious, charitable or educational purposes.^® A corporation engaged in leasing its own property and collecting rents there- for is a business corporation,^'^ as is a corporation engaged in farming.^* § 81. — Quasi public corporations. While it has been held that a public service corporation is not amenable to this act on the ground of public policy,^^ this seems doubtful in view of the express terms of the act which excludes Chester Water Co., 2 N. B. N. R. 414, 98 In re -Eadke Co., 193 Fed. 735, 27 A. B. Fed. 711, 3 A. B. E. 508; Cong. Bee., R. 950 j Sweatt v. Boston, H. & E. R. Co., Vol. 31, p. 6247. 23 Fed. Cas. No. 13,684; Winter v. No. 13 — In re United States Restaurant & Pac. Ry. Co., 2 Dill 487, Fed Cas. No. Realty Co., 187 Fed. 118, 25 A. B. R. 915. 17,890; Bump on Bankruptcy (9th Ed.) 14:— Adams v. B. H. & B. R. Co., Fed. 778. Cas. No. 47, Holmes, 30; Harris y. 17— In re Eadke Co., 193 Fed. 735, 27 Amery, L. R. 1 C. P. 148, 154. A. B. R. 950. 15 — Rankin v. Florida A. & G. C. R. 18 — Harris v. Amery, L. E. 1 C. P. 148, Co., Fed. Cas. No. 11, 567, 1 N. B. R. 154. 647; Alabama & C. R. Co. v. Jones, Fed. 19 — See In re Hudson River Electric Cas. No. 126, 5 N. B. R. 97. Power Co., 173 Fed. 934, 23 A. B. R. 16— Adams v. Boston, H. & E. B. Co., 191, aff 'd. 183 Fed. 701, 33 L. R. A. (N. Fed. Cas. No. 47, Holmes, 30. And see, S). 454, 25 A. B. E. 504. § 83] Who May Become Bankeupts 117 such corporations only if they are "municipal" or "railroad" corporations.*" However, under the act of 1867, incorporated steamship companies and canal corporations, as well as rail- road *^ and insurance ** companies were held not amenable, and the same reason would perhaps now apply to public service cor- porations not within the technical definition of a municipal or railroad company. A municipal corporation, strictly speaking, is one whose whole interest belongs to the government; or which is created for the administration of political or municipal power.** § 82. — Business conducted through agent. Where a business is transacted, either purposely or by acquiescence, in the name of a corporation, the rule that one who credits an agent, who, by consent or with the knowledge of the principal, is transacting the principal's business in his own name, that is, the name of the agent, may ordinarily pursue for pajmient the agent, or the equitable owner, applies and the creditors have the option to proceed against the corporation,** § 83. — Pendency of proceedings to dissolve. A corporation which has committed an act of bankruptcy can- not escape and avoid the jurisdiction of the bankruptcy court by instituting a proceeding in a state court for its dissolution.*^ A proclamation by the governor of a state repealing the charter of a corporation for nonpayment of taxes does not work a dis- 20— See Adams v. Boston, H. & E. E. Florida, etc., E. E. Co., 1 N. B. E. 196, Co., Fed. Caa. No. 47, Holmes, 30. Fed. Cas. No. 11567; Ala. & Chatt. E. E. 21— New Orleans S. F. & L. E. Co. v. Co. v. Jones, 5 N. B. E. 97, Fed. Caa. No. Delamore, 114 U. S. 501, 29 L. ed. 244; 126. Adams v. B. H.,& E. E. Co., Fed. Cas. 22 — ^In re Independent Ins. Co., Fed. No. 47, Holmes, 30; Sweatt v. Boston, Cas. No. 7017, 1 Holmes, 103; In re Her- eto., Co., 5 N. B. E. 234, 3 Cliff. 339, Fed. cules Ins, Co., Fed. Caa. No. 6402, 6 Ben. Cas. No. 13684; In re Cal. Pac. E. E. Co., 35; In re Merchants Ins. Co., Fed. Cas. 11 N. B. E. 193, 3 Sawy. 240, Fed. Cas. No. 9441, 3 Bess. 162. No. 2315; Winter v. I. M. & N. Ey. Co., 7 23— Adams & Boston, H. & E. E. Co., N. B. E. 289, 2 Dill. 487, Fed. Cas. No. Fed. Cas. No. 47, Holmes, 30. See also 17890 J In re Southern Minn. Ey. Co., 10 g'weatt v. Boston, H. & E. K. Co., Fed. N. B. E. 86, Fed. Cas. No. 13138; In re Cas. No. 13,684, 3 Cliff. 339. Opelousas & Great West E. E. Co., 3 N. 24 — J. W. Calnan Co. v. Doherty, 174 B. E. 31, Fed. Caa. No. 10547; In re Ala. Fed. 222, 23 A. B. E. 297. & Chatt. E. E. Co., 6 N. B. E. 107, 5 25— In re Adams & Hoyt Co., 164 Fed. Blatch. 390, Fed. Caa. No. 124; Eankin v. 489, 21 A. B. E. 161. 118 Bbandenbtjeg on Bankbuptcy [§83 solution thereof so as to prevent an administration of its estate in bankruptcy proceedings.^® § 84. — Admission of insolvency. Like an individual, a corporation may admit its insolvency and a willingness to be adjudged bankrupt, but such act will not make the proceedings in effect voluntary.^'' However, under the act as it stood prior to 1910 it was doubtful whether an adjudication should be made on an involuntary petition alleging such facts on the admission of the directors where the petition, for instance, was filed by three creditors, one being the president of the cor- poration and the others acting under his direction, since it would in effect be the voluntary act of the corporation and appear to be an attempt to evade the law.^* An admission of insolvency and willingness to be adjudged bankrupt, as stated in letters to creditors signed by the presi- dent and authorized by a meeting of the majority of directors, will support a petition although some of the directors may not have had notice of the meeting. ^^ § 85. — Consent adjudication. On a petition in involuntary bankruptcy against a corporation, there can be no adjudication or reference of the case by the clerk to the referee, on a written admission by the respondent of the acts of bankruptcy charged and a waiver of service and of the time for appearance, because creditors as well as the alleged bankrupt have the right to appear and plead to the petition within five days after the return day, and hence that day must be fixed by the issuance of a subpoena and the case must remain in the clerk's office until the five days have passed; 3» nor in any involuntary proceeding is a consent order sufficient to warrant adjudication of the debtor, nor will other parties than the one against whom the petition is filed be adjudicated unless included ,.f;r^." '■" ^""^^'^ ^^^'"^^ ^^""^ °°-' 29-In re Marine Mach. & Conveyo* 159 Fed. 901, 19 A. B. B. 785. Co., 91 Fed. 630, 1 N. B. N. 135, 1 A. T.^Ti,'' r.^f^ ^'^ ®°°'^' ^°-' ^°^ ^- ^- ^21- See, also, ante, §§52, 53. ^ ed. 747, 4 A. B. K. 528. But see. In re And see, In re Kenwood Ice Co., 189 Fed. New Amersterdam Motor Co., 180 Fed. 525, 26 A B R 499 ^^I'A^- ^-^^ '"■ ^'-^'^ '' L. Humbert Co., 100 Fed. 28— In re Bates Mach. Co., 1 N. B. 439. N. 135, 91 Fed. 625,. 1 A. B. E. 129, § 88] Who May Become Bankkupts 119 in the petition, though they are connected with him as partners, parties in interest or otherwise.^^ §86. Executors and administrators. Except in pending cases ^^ the act of 1898 does not appear to have contemplated the administration of decedents' estates in bankruptcy, but seems to have left their administration to the proper state tribunals. No provision appears to have been made for proceedings in bankruptcy, in the case of an executor, or like ofl&cer, authorized by the court appointing him to carry on decedent's business temporarily, becoming, as to such busi- ness, bankrupt. If the debtor died after committing the act of bankruptcy, proceedings cannot be instituted against the executor, or administrator, and his estate cannot be administered in bankruptcy,^* but in a pending case, they may appear or be made parties to represent a deceased bankrupt. Executors appointed by will for the limited purpose of adjusting the testa- tor's banking business would not come within the class of executorships designed to be administered under the bankrupt act.3* §87. Indians. See Indians, ante, § 62. §88. Infants. An infant cannot be adjudged bankrupt in an involuntary pro- ceeding.*® And where one member of a partnership in such proceedings is an infant, an adjudication should be made against the partner, or partners, who are of age, and against the firm, and the petition dismissed without costs to the infant, with a specific statement that it is dismissed because of his infancy. Nor can an infant member of a partnership join in a voluntary petition by the firm or be included in an adjudication th§reon.*« 31— Mahoney v. Ward, 2 N. B. N. B. L- E- A. 118, 5 A. B. B. 570; In re EUen- 538, 100 Fed. 278, 3 A. B. E. 770. beoker, 205 Ted. 396, 30 A. B. E. 537. 32— Act of 1898, § 8. 36— In re Dupnigan, 1 N. B. N. 528, 33— In re Pierce, 2 N. B. N. E. 979, 103 2 A. B. E. 628, 95 Fed. 428; In re Du- ■Fed. 977. guid, 100 Fed. 274, 2 N. B. N. E. 607, 34— Graves v. Winter, 9 N. B. E. 357, 3 A. B. E. 794; Consult In re Derby, 8 Fed. Cas. No. 5710. N. B. E. 106, 6 Ben. 232, Fed. Cas. No. 35— In re Eidemiller, 105 Fed. 595, 53 3815; Farris v. Richardson, 6 Allen, 118; 120 Bbandenbueg on Bankeuptcy [§88 In the case of a debt incurred by an infant wMch could not be repudiated upon reaching his majority, it would be such a debt as would support an involuntary petition after he becomes of age, but it is doubtful whether it would before that period. §89. Indorsers. An indorser's liability on a note constitutes a debt which may be made the foundation of either voluntary or involuntary pro- ceedings in bankruptcy;^'' but it has been held that a mere accommodation indorser cannot be adjudged bankrupt for failure to pay such paper,^^ though this seems questionable. § 90. Insane persons. A court of bankruptcy will not take jurisdiction of a petition in involuntary bankruptcy against a person who is insane, or who prior to the filing of the petition has been formally so adjudged by a competent court and for whose person and estate a guardian h^s been appointed. A transfer of property by such person, if at the time wholly incapable of managing his busi- ness affairs, cannot be held an act of bankruptcy on which a petition in involuntary bankruptcy may be maintained by his creditors against such guardian's objections.*^ If, however, the bankrupt does not become insane until after the filing of the petition, it will have no effect upon the proceeding.*'' § 91. Married women. A married woman cannot be adjudged a bankrupt where by the law of her domicile she is incapable of making a contract,*^ though in those states where she is authorized to contract, she may be, and there appears to be no reason why a partnership between a man and his wife may not be so adjudged.*^ rpj^e test In re Smedley, 10 L. T. N. S. 432; In re re Weitzel, 14 N. B. E. 466, 7 Biss. 289, Cotton, 2 N. Y. Leg. Obs. 370; In re Ted. Cas. No. 17365; In re Pratt, 6 N. Book, 3 McLean, 317. B. E. 276, 2 Lowell, 96, Fed. Cas. No. 37— In re Nicodemus, 3 N. B. R. 55, 11371; In re Murphy, 10 N. B. E. 48, Fed. Cas. No. 10254. Fed. Cas. No. 9946; In re Eisenberg, 117 38— In re Clemens, 9 N. B. E. 57, 2 Fed. 786, 8 A. B. E. 551. Dill, 533, Fed. Cas. No. 2877. 40— Act of 1898, § 8. 39— In re Ward, 194 Fed. 174, 28 A. 41- In re Goodman, 8 N. B. E. 380, B. E. 29; In re Solomon & Carvel, 163 5 Biss. 401, Fed. Cas. No. 5540. Fed. 140, 20 A. B. E. 488; In re Funk, 42— In re Kinkead, 7 N. B. E. 439, 3 101 Fed. 244, 4 A. B. E. 96; oomp. In Biss. 405, Fed. Cas. No. 7824. § 94] Who May Become Bankeupts" 121 is whether her contracts constitute an existing indebtedness under the state law, and it is inunaterial that they cannot be enforced by a judgment in personam.*^ She may avail herself of her coverture to defeat debts in bankruptcy,** and a petition founded upon a debt evidenced by notes which do not show on their face an intention to bind her separate estate must allege that the notes were given for the benefit of her separate estate or else were given by her in the course of business if she be a trader.*^ § 92. Unincorporated companies. The restriction of liability to involuntary proceedings to cor- porations of certain classes does not apply to unincorporated companies, and accordingly an unincorporated company may be adjudged bankrupt regardless of the nature of its business.*^ § 93. Exempt occiipations. §94. — I In general. The act expressly provides that wage-earners and persons engaged chiefly in farming and tillage of the soil cannot be adjudged involuntary bankrupts.*^ The fact that the act of bankruptcy complained of is a general assignment for creditors does not render such person subject to adjudication.** The exceptions in the act apply to partnerships,*^ but not to corporations.^" The clause "engaged principally in manufac- turing, etc.," in the original act of 1898, qualified "any corpora- 43 — ^A married woman in Florida, hav- Unineorporated company doing a gen- ing separate statutory property, and en- eral 'banking business under a name not gaging in trade, buying and selling on disclosing the identity of the members her own account, but not a free dealer, thereof is in effect a partnership and may can be adjudged a bankrupt. MacDon- be adjudged. Burkhart v. German- aid V. TefEt-Weller Co/, 128 Fed. 381, American Bank, 137 Fed. 958, 14 A. B. 65 L. E. A. 106, 11 A. B. B. 800. B. 222. 44— In re Sliehter, 2 N. B. R. 107, 47— Act of 1898, § 4b. Fed.,Cas. No. 12943. 48— Olive v. Armour & Co., 167 Fed. ' 45— In re Rowland, 2 N. B. E. 114, 517, 21 L. E. A. (N. S.) 109, 21 A. B. Fed. Cas. No. 6791; In re Collins, 10 E. 901. N. B. E. 325, 3 Biss. 415. 49— H. D. Still's Sons v. American Nat. 46— Unincorporated f,re msuranee as- Bank, 209 Fed. 749, 31 A. B. E. 320. sociation may be adjudged bankrupt. In 50 — In re The Lake Jackson Sugar re Seaboard Fire Underwriters, 137 Fed. Co., 11 A. B. E. 458, Referee's report 987, 13 A. B. K. 722. confirmed 129 Fed. 640. 122 Bbandenbueg on Bankeuptcy [§ 94 tion" only, and did not prevent the adjudication of an individual because not engaged in one of the occupations specified.^^ All of the debtor's activities and pursuits must be considered as a whole. No part of them may be ignored merely because they concern themselves with the affairs of a partnership of which the debtor is a member.^^ The fact that one engaged chiefly in farming is incidentally engaged in the business of a private banker does not make him subject to the act.^* The business in which the person was engaged at the time of the commission of the act of bankruptcy ordinarily determines his status, and not that in which he was engaged when the petition was filed,^* or when his debts were incurred. It does not follow that the time when the debts accrued and the nature of the debts are wholly immaterial. If they accrued, largely or wholly, while the debtor was not in a business rendering him exempt from adjudication, that fact might be quite persuasive in determining his status.®^ Some courts have gone even further and held that the status of the bankrupt is to be determined as of the period during which he was engaged in the business in which he contracted the debts of the petitioners, and acquired and owned the assets sought to be subjected to administration, where such period precedes the 51 — Cleage v. Laidley, 149 Fed. 346, creditors within the statutory period 17 A. B. E. 598. thereafter, notwithstanding the fact that, 52— American Agricultural Chemical after the act of bankruptcy, he aban- Co. v. Brinkley, 194 Fed. 411, 27 A. B. dons the business in which he had been ^- 438. engaged, and becomes chiefly occupied in 53— Couts V. Townsend, 126 Fed. 249, farming and so continues to the filing 11 A. B. E. 126. of the petition. In re Lockhardt, 101 54— Counts V. Columbus Buggy Co., Fed. 807, 4 A. B. B. 307; In re Mackey, 210 Fed. 748, 31 A. B. E. 312; In re 110 Fed. 355, 6 A. B. E. 577. Leland, 185 Fed. 830, 25 A. B. E. 209; One who incurs debts in non-exempt Flickinger v. First Nat. Bank of Van- occupation, changes to an exempt oecupa- dalia, 145 Fed. 162, 16 A. B. E. 678; tion, and thereafter commits an act that In re Hoy, 137 Fed. 175, 14 A. B. E. in a non-exempt occupation would con- 648; In re Lockhardt, 101 Fed. 807, stitute an act of bankruptcy, is not sub- 4 A. B. K. 307; See In re Taylor, 2 N. ject to adjudication in involuntary pro- B. N. E. 929, 102 Fed. 728, 4 A. B. E. ceedings by reason thereof, and of such SIS' debts still existing, or at all. In re Contra, In re United States Hotel Co., Folkstad, 199 Fed. 363, 29 A. B. B. 77. 134 Fed. 225, 68 L. E. A. 588, 13 A. B. And see. In re Leland, 185 Fed. 830^ K- 403. 25 A. B. E. 209. A merchant,^ who commits an act of 55 — In re Leland, 185 Fed. 830 25 A. bankruptcy, may be adjudged a bank- B. E. 209. rupt on a petition duly filed by his § 95] Who May Become Bankrupts 123 time of the commission of the act of bankruptcy; this on the theory that such construction will prevent the bankrupt from incurring debts and acquiring assets in a non-exempt occupa- tion, and then by ceasing to do business in such occupation aiid engaging in an exempt occupation, and thereafter committing an act of bankruptcy, defeat the operation of the law,^^ That a person or corporation comes within an excepted class under the statute is not a personal privilege which can be waived or only be set up by the bankrupt in person, but the question is jurisdictional and may be raised by any creditor.^'' What constitutes one a wage-earner or person engaged chiefly in farming or tillage of the soil is a question of fact,^* and the finding of the referee concurred in by the district will not be disturbed upon appeal in the absence of clear mistake.®' While the issue of whether the alleged bankrupt is a farmer or wage- earner may be submitted to a jury, neither party is entitled to a jury as of right, and its finding thereon is purely advisory.®" While the burden is ordinarily upon the petitioners to show that the bankrupt did not belong to an exempted class,®^ yet, when it clearly appears that the debtor several years prior to the act of bankruptcy lost his status as a farmer or wage-earner, the burden rests upon the contestants to show that he has regained the exempt status.*^ § 95. — Fanners a,nd tillers of the soil. A person engaged chiefly in farming is one whose chief occu- pation or business is farming, and one's chief occupation or business, so far as worldly pursuits are concerned, is that which is of principal concern to him, of some permanency in its nature and which he deems of paramount importance to his welfare and 56— In re Burgin, 173 Fed. 726, 22 A. 59— Stephens v. Merchants ' Nat. Bank, B. E. 574; In re Naroma Chocolate Co., 154 Fed. 341, 18 A. B. E. 560. 178 Fed. 383, 24 A. B. E. 154. And, see, 60— In re Wakefield, 182 Fed. 247, 25 In re Wakefield, 182 Fed. 247, 25 A. A. B. E. 118; Carpenter v. Cudd, 174 B. E. 118. Fed. 603, 23 A. B. E. 463. 57— In re Taylor, 102 Fed. 728, 2 N. 61— la re Leland, 185 Fed. 830, 25 B. N. E. 929, 4 A. B. E. 515. A. B. E. 209; In re Duke & Son, 28 A. 58-7r-American Agricultural Chemical B. E. 195. Co. V. Brinkley, 194 Fed. 411, 27 A. B. 62— In re Leland, 185 Fed. 830, 25 A. E. 438. B. E. 209. 124 Beandenbueg on Bankbuptcy [§95 on which he chiefly relies for his livelihood or as the means of acquiring wealth, great or small.®^ In the expression "persons engaged chiefly in farming or the tillage of the soil," the latter phrase does not limit the former. The term farming is not synonymous with tillage of the soil, and to constitute one a farmer within the meaning of the act it is not essential that he in person till the soil, or that his opera- tions should be limited to agricultural planting, sowing and cultivation of the soil.®* Accordingly it is held that one chiefly engaged in stock farming is included within the exception though he cannot be said to be a tiller of the soil.®^ One who keeps a dairy as an incident to his fanning operations may not on that account be adjudicated, if his principal business is that of farming.*® A truck farmer who sells his products by cart the same from door to door is a tiller of the soil.®'' A retired farmer renting his farm on shares is not exempt,®* and where the farm upon which the alleged bankrupt had been engaged in farming belonged to his wife and was leased to a third party shortly before the commission of the act of bank- ruptcy, an adjudication was held proper.®® The wife of a farmer, who assists him in the usual and cus- tomary way by keeping the house and doing the dairy work, is not by reason of that fact a farmer, and the added facts that the title to the farm is in her, and that she rents adjacent land in her own name to be worked as part of the farm, does not operate to make her a farmer where it appears that the arrange- 63 — In re Mackey, 110 Fed. 355, 6 ing station, relying upon purchased feed A. B. K. 577; In re Drake, 114 Fed. for preparing the cattle for market much 229, 8 A. B. R. 137. more than on the products of his farm, 64 — Bank of Dearborn v. Matney, 132 held not chiefly engaged in farming or Fed. 75, 12 A. B. E. 482; In re Eugs- •tillage of the soil. Bank of Dearborn v. dale, 16 N. B. R. 215, Fed. Cas. No. 12123. Matney, 132 Fed. 75, 12 A. B. E. 482; 65 — One whose principal occupation is In re Brown, 132 Fed. 706, 13 A. B. E. raising live stock and producing fodder 140. for feeding them by cultivation of the 66— Gregg v. Mitchell, 166 Fed. 725, soil, is chiefly engaged in farming. In 20 L. E. A. (N. S.) 148, 21 A. B. E. 659. re Dwyer, 184 Fed. 880, 25 A. B. E. 913; 67— In re Terry, 208 Fed. 162, 30 A. Hoffschlaeger Company, Ltd., v. Young B. E. 631. Nap, alias Young Lap, 12 A. B. E. 510; 68— In re Leland, 185 Fed. 830, 25 A. In re Eugsdale, 16 N. B. E. 215, Fed. B. E. 209. Cas. No. 12123. 69— Hoffschlaeger Company, Ltd., v. One whose chief occupation is trading Younjg Nap, alias Young Lap, 12 A. B. cattle, using his lands as a mere feed- R. 521, § 96] Who May Become Bankeupts 125 ment was made as a cover and to keep the property from the creditors of her husband, who was the actual owner,'"' § 96. — Wage eajners. This term comprehends any one who works for wages, salary, or hire, at a rate not to exceed $1,500 per annum; ''^ and while such a person may become a voluntary bankrupt, he cannot be adjudicated an involuntary bankrupt.''^ Where a salesman obtains an expense allowance above his salary, such allowance, in so far as it defrays living expenses which would otherwise necessarily be paid by the salesman, must be counted in determining whether the total compensation exceeds $1,500.''* While the act does not expressly provide that a person's chief occupation must be that of a wage-earner to come within its exceptions, it is held that a manufacturer or trader does not come within the definition of a wage-earner because incidentally earn- ing wages in another occupation.'^* So, the president and owner of the majority of stock of a corporation who receives in divi- dends an amount much in excess of his salary and who has other means of obtaining a livelihood cannot be said to be a wage- earner because his salary as president of the corporation is less than $1,500 per year.''^ The work done must be such as is compensated by' wages, salary or hire, other earnings not being put in the same cate- gory.''^ A teamster who uses his horses and wagons in perform- ing services for which he is paid by the day is a wage-earner,'''' but a person giving music lessons at a stated price per hour is nof-s A married woman doing ordinary house work does not become a wage-earner by reason of the fact that at times she performs services for third persons.''® 70— In re Johnson, 149 Fed. 864, 18 76— First Nat. Bank of Wilkes-Barre A. B. E. 74. ■ V. Barnum, 160 Fed. 245, 20 A. B. E. 71— Act of 1898, § 1 (27). " 439. 72— In re Pilgfer, 118 Fed. 206. 77— In re Yoder, 127 Fed. 894, 11 A. 73— In re Hurley, 204 Fed. 126, 29 A. B. E. 445. B. E. 567. 78 — First Nat. Bank of Wilkes-Barre 74— In re Naroma Chocolate Co., 178 v. Barnum, 160 Fed. 245, 20 A. B. E. Fed. 383, 24 A. B. E. 154. 439. 75— Carpenter v. Cudd, 174 Fed. 603, 79— In re Eemaley, 23 A. B. E. 29. 23 A. E. E. 463. 126 Beandenbueg ON Bankeuptoy [§97 C, Bankbtjptcy op Paetneeship and Membees Thereof r § 97. Jurisdiction in general. A partnership is regarded in the bankruptcy law as a legal entity capable of being adjudicated a bankrupt. That its mem- bers reside in different districts is no objection to the adjudica- tion of a firm.^o The court, having jurisdiction over one partner, has jurisdiction to adjudge his firm bankrupt though it has not been in existence three months.*^ § 98. What is a partnership. A partnership is usually defined to be a voluntary contract between two or more competent persons to place their money, effects, labor and skill, or some one or all of them, in lawful commerce or business, with the understanding that there shall be a communion of the profits thereof between them. But partner- ship and community of interest, independently considered, are not always the same thing; for the first as between the partners themselves, is founded upon the copartnership agreement which • prescribes the relation they bear to each other, and of itself creates the community of interest; but the last may exist, not- withstanding there has been no agreement between the parties. Part owners of a ship, for example, are uniformly treated as tenants in common, and not as partners, although it cannot be denied that there is a community of interest between them in every part of the vessel, and each is entitled to a share of her earnings in proportion to his individual interest, and mu^t also share the loss. Joint owners of merchandise may consign it for sale abroad to the same consignee; and if each gives separate instructions for his own share, it is well settled law that these interests are several, and that they are not to be treated as partners in the adventure.^^ .While every partnership is founded on a community of interest, it is, nevertheless, incorrect to suppose that every com- munity of interest necessarily constitutes the relation of partner- ship within the meaning of the commercial law. Whenever it appears that there is a community of interest in the capital 80— In re Schwartz, 204 Fed. 326, 30 82— Berthold v. Goldsmith, 24 How. A. B. E. 344. 536, 16 L. ed. 762. 81— In re Mitchell & Co., 211 Fed. 778, 31 A. B. R. 814. § 98] Who May Become Bankeupts 127 stock, and also a community of interest in the profit and loss, then it is clear that the case is one of actual partnership between the parties themselves, and of course it is so as to third parties. The authorities are uniform, however, that it is seldom or never essential that both of these ingredients should concur in the case in order to establish that relation. Cases occur, undoubtedly, where a community of interest in the property, without any regard to the profits, will eilmost necessarily lead to the con- clusion that the relation between the parties was that of partnership; and, under some circumstances, that conclusion will follow, although the sale of the property for the joint interest may not be contemplated by the parties. Participation in the profits, however, will not alone create a partnership between the parties themselves as to the property, contrary to their intention.^3 It has also been held that where it is known that a person augments the capital of a partnership and enhances its credit he cannot be exempted from liability for its, debts.** Actual participation in the profits as principal creates a part- nership as between the parties and third persons,*^ whatever may be the intention in that behalf, and that is so although the dormant partner is not liable for the loss beyond the amount of the profits. Every man who has a share of the profits of a trade or business ought also to bear his share of the loss, for the reason that in taking a part of the profits, he takes a part of the fund of the trade on which the creditor relies for payment.^® Actual partnership, as between a creditor and the dormant partner, is considered by the law to exist where there has been a participation in the profits, although the participant may have expressly stipulated with his associates against all the usual incidents to the partnership relation.®'' The mere possession by a person, without consideration, of goods sold a firm, does not prove him a partner.*® 83— Berthoia v. Goldsmith, 24 How. E. 555; see Moore v. Walton, 9 N. B. E. 536, 16 L. ed. 762. 402, Fed. Cas. No. 9779. S4^Wallerstein v. Ervin, 112 Fed. 124, 86— Grace v. Smith, 2 W. Black, 998; 7 A. B. E. 256, citing Ex parte Sillitoe, Waugh v. Carver, H. Black. 235. 1 Glyn & J. 374, Ex parte Hargreaves, 87 — Pond v. Pittard, 3 Mees. and Wels. 1 Cox, Ch. 440, In re Mason (1899), 1 357; Berthold v. Goldsmith, 24 How. Q. B. 810, Stratton v. Tabb, 8 111. App. 536, 16 L. ed. 762. 225, and others. 88— Lott v. Young, 109 Fed. 798, 6 A. 85— In re Francis, 7 N. B. E. 359, 2 B. E. 436. Sawy. 286; In re Blumenthal, 18 N. B. 128 Beandenbusg on Bankeuptcy [§99 § 99. Creditor cannot compel institution of proceedings. A creditor cannot compel partners to petition for tlie adjudica- tion of co-partners, or tke firm.^® § 100. Good faith of petitioner. A proceeding instituted by one partner for the purpose of vexing and harassing his co-partner,®" or merely to dissolve the- partnership,®^ will be dismissed. § 101. Adjudication by consent. An order by consent will not authorize the adjudication of other parties than those against whom the petition is filed, though they be connected with the latter as partners,®^ and an adjudication of a partnership on a voluntary petition of one member will be vacated where the other member did not authorize or consent and was not given notice.®* The fact that two alleged partners admit the existence of a partnership alleged to be composed of more than two members is not sufficient proof thereof to admit an adjudication without the consent of the other alleged partners.®* § 102. Period during which partnership may be adjudicated. To render a partnership subject to adjudication in involuntary proceedings, it is essential that the partnership actually be in existence or its affairs must still be unsettled at the time of the filing of the petition.®^ ^ Bankruptcy proceedings may be instituted by and against a partnership so long as any party has the right to sue for a settlement or to enforce an executory agreement or to recover reimbursement for moneys paid on a partnership debt, or unad- 89— In re Harbaugh, 15 N. B. R. 246, 312; but see as to secret partners, In re Fed. Cas. No. 6045. Mandenhall, 9 N. B. R. 497, Fed. Cas. 90— In re Hamlin, 16 N. B. R. 522, 8 No. 9425; In re Harris, 2 N. B. N. E. Biss. 122, Fed. Cas. No. 5994. 868, 4 A. B. R. 132. 91— Amsinck v. Bean, 11 N. B. R. 496, 93— In re City Con. & B. Co., 29 A. 22 Wall 395, 22 L. ed. 801. B. R. 171. 92— In re Elliot, 2 N. B. N. R. 350; 94— In re McLaren, 125 Fed. 835, 11 Mahoney v. Ward, 100 Fed. 278, 2 N. B. A. B. R. 141. N. R. 538, 3 A. B. R. 770; In re Kruegar, 95— Act of 1898, § 5, provides that "a 5 N. B. R. 539, Fed. Cas. No. 7941; In partnership, during the continuation of re Prankard, 1 N. B. R. 51, Fed. Cas. No. the partnership business, or after its dis- 11366; In re Freund, 1 N. B. N. 165, 1 solution and before the final settlement A. B. R. 25; In re O 'Brian, 2 N. B. N. R. thereof, may be adjudged a bankrupt." § 102] Who May Become Bankrupts 129 ministered partnership assets remain, or partnership debts enforceable against any partner anywhere within the territorial jurisdiction of the United States exist,'^ notwithstanding the fact that the partnership may have been dissolved. The partners cannot put an end to the power of the bankruptcy court to administer the partnership estate by a mere dissolution of the firm,®'' and although one of the members has already been adjudicated, the firm may still be declared bankrupt.*^ Under the act of 1867, it was held that a partnership, though dissolved, might be adjudged a bankrupt, if it had assets,®^ but not if the contrary was shown,^ though there were certain cases which held that while there might be no assets, but there were debts, it could be,^ which last ruling seems to have proceeded on the theory that since there were possible assets, a partnership bankruptcy might be necessary after all and it might as well be granted at once. The insertion of the words "before final settle- ment" in the present act was probably done to remove the doubt which existed under the former act. If the partnership has been dissolved by the partners inter sese prior to the filing of the petition, the bankruptcy proqeed- ings cannot be said to have been instituted ' ' during the contiaua- tion of the partnership business" though creditors, without 96— In re Webster, 2 N. B. N. E. 54; 9650; Ex parte Han> Fed. Cas. No. 5919; In re Levy, 95 Fed. 812, 2 A. B. E. 21; In re Harbaugh, 3 N. B. E. 10?, Fed. ref. dee. 1 N. B. N. 287; In re Meyers, Cas. No. 6164; See also. In re Hathorn, 96 Fed. 408, 1 N. B. N. 515; In re 2 Woods 73, Fed. Cas. No. 6214; In re Hersh, 97 Fed. 571, 2 N. B. N. E. 137, McFarland, lO N. B. E. 381, Fed. Cas. 3 A..B. E. 344; In re Elliot, 2 N. B. N. E. No. 8788. 350; In re Freund, 1 N. B. N. 105, 1 1— In re Winkins, 2 N. B. E. 113, Fed. A. B. E. 25. Contra, when only debts Cas. No. 17875; In re Abbe, 2 N. B. E. exist; In re Altman, 1 N. B. N. 358, 1 26, Fed. Cas. No. 4; Hopkins v. Carpen- A. B. E. 689. ter, 18 N. B. E. 339, Fed. Cas. No. 6686; 97— In re Noonan, 10 N. B. E. 330, In re Work, Fed. Cas. No 18044; In re Fed. Cas. No. 10292. Daggett, 8 N. B. E. 433, Fed. Cas. No. 98— Hunt V. Pooke, 5 N. B. E. 161, 3536; In re Temple, 17 N. B. E. 345, 4 Fed. Cas. No. 6896. Sawy. 92, Fed. Cas. No. 13825. 99— In re Greenfield, 5 Ben. 552, Fed. 2— In re Noonan, 10 N. B. E. 330, Cas. No. 5772; In re Marko, Fed. Cas. 3 Biss 491, Fed. Cas. No. 10292; In re No. 9094; In re Gorham, 18 N. B. E. Williams, 3 N. B. E. 74, 1 Lowell ,406, 419, 9 Biss. 23, Fed. Cas. No. 5264; In Fed. Cas. No. 17703; Hunt v. Pooke, re Crockett, 2 N. B. E. 75, 2 Ben. 514, 5 N. B. E. 161, Fed. Cas. No. 6896; Fed. Cas. No. 3402; In re Bidwell, 2 N. Hudgins v. Lane, 11 N. B. E. 463, 2 B. E. 78, Fed. Cas. No. 3402; In re Hughes, 361, Fed. Cas. No. 6827. Mitchell, 3 N. B. K. Ill, Fed. Cas. No. Brandenburg— 9 130 Bbandenbueg ON Bankeuptcy [§102 knowledge of the dissolution of the partnership, have extended credit to the continuing partner upon reliance of the existence of the partnership. The partnership affairs are unsettled within the meaning of the act so long as partnership debts are left unpaid; but debts which are binding on the partners only by- estoppel as to creditors without notice of dissolution are not firm debts, within the meaning of the rule.^ § 103. Death or insanity of a partner. After the filing of a petition, the death or insanity of a partner will not abate the proceedings, but they are continued "in the same manner so far as possible, as though he had not died or become insane.* A surviving partner who commits an act of bankruptcy with respect to the joint property can be adjudged bankrupt individually ^ and it has been held that where the firm is dissolved by the death of one partner, the firm cannot be adjudicated,® though the survivor may be individually and as surviving member of the firm,'' and the individual estate of the deceased would still be liable for the partnership debts.^ On the other hand, it is held that where the partnership articles provide that upon the death of a member thereof the survivuig partners shall continue the business through the year, as sur- viving partners, the latter, upon death of partner member, con- stitute the firm entity, and may petition or be petitioned against to put the firm in bankijiptcy, an act of bankruptcy having been committed by them.^ A partnership, one of whose members is insane, may be adjudi- cated,^" and it has been held that the guardian of a partner, who becomes insane before adjudication, may consent to the adminis- tration of the estate in bankruptcy,^^ though this position does not seem tenable, if the party became insane before the petition was filed.^2 3— In re Pinson & Co., 180 Fed. 787, 7— In re Stevens, 5 N. B. E. 112, 1 24 A. B. R. 804. Sawy. 397, Fed. Gas. No. 13393. 4— Act of 1898, § 8. Hunt v. Pooke, 8— Vaeearo v. Bank, 2 N. B. N. E. 5 N. B. E. 161, Fed. Gas. No. 6896. 1037, 103 Fed. 436. 5— In re Meyer, 98 Fed. 976; afe'g 1 9— In re Goe, 157 Fed. 308, 19 A. B. N. B. N. 304, 1 A. B. E. 565, 92 Fed. E. 618. 896; In re Stevens, 5 N. B. E. 112, 1 10— In re L. Stein & Co., 127 Fed. 547, Sawy. 397, Fed. Cas. No. 13393. 11 A. B. E. 536. 6— In re Evans, 161 Fed. 590, 20 A. 11— In re O'Brien, 2 N. B. N. E. 312. B. E. 406; In re Temple, 17 N. B. E. 12— See, also, post, § 391. 345, 4 Sawy. 92, Fed. Cas. No. 13825. § 10'6^ Who May Become Bankeupts 131 § 104. What' partners may be adjudged involuntary bankrupts. § 105. — In general. AH the members of a firm may be adjudged bankrupts, though one has assumed the firm debts and purchased the assets; ^* or where a special partner contributes a certain sum in cash and a certain amount in goods; ^* and the firm creditors may prove against the assuming member as if they were his individual creditors.^^ If a liquidating partner makes a general assignment of the firm's property, he, together with the partnership, should be adjudged bankrupt.^^ Persons doing business without authority under a corporate name may be proceeded against as a partnership, or individ- ually." § 106. — Nominal and dormant partners. A secret partner whose firm commits an act of bankruptcy may be adjudged a bankrupt although individually entirely solvent, and it has been held that the law is restricted to the case of an actual partnership between the parties, and not to a partnership as to creditors only where there is no joint estate.^^ There is no reason why a dormant partner may not be either included in an adjudication against the firm, or be adjudged bankrupt on a petition against him separately ^^ which rule would doubtlessly be true of nominal partners,^" since one who permits himself to be held out as a partner may be adjudged bankrupt as a member of the firm, at the suit of the creditors.^^ 13— In re Shepard, 3 B. E. 42, 8 Ben. B. R. 559, aff'g 92 Fed. 896, 1 N. B. N. .347, Fed. Cas. No. 12754; In re Stowers, 1"304, 1 A. B. E. 565. 1 LoweU, 528, Fed. Cas. No. 13516. 17— Davis v. Stevens, 104 Fed. 235; 14-In re Merrill, 13 N. B. R. 91, 12 ^" ""^ MandeuhaU, 9 N. B. E. 497, Fed. Blatehf. 221, Fed. Cas. No. 9467. ^^'- ^°- ^^^5. IK T T n -KT -D T, ori„ ,T 18— In TO Kennej, 97 Fed. 554, 3 A. 15— In re Long, 9 N. B. E. 227, 7 „ ,, „_„ , t -rv • -D -.A-, T^ ■, ^ L „.„^ ■■- -^ B. E. 353; see also. In re Dovraing, 3 Ben. 141, Fed. Cas. No. 8476; In re Down- ^_ ^ ^ ^^g ^ott v. Young, 109 Fed. ing, 3B. E. 182; IDUl. 33, Fed. Cas. No. 793 6 A B R 436 4044; In re Collier, 12 B. E. 266, Fed. i9_Ex parte Hamper, 17 Ves. 403. Cas. No. 3002; In re Eiee, 9 B. E. 873, 20— Lindley on Part. p. 650. Fed. Cas. No. 11750. 21— In re Krueger, 5 N. B. E. 43(9, 2 X6— In re Meyer, 98 Fed. 976, 3 A. Low. 66, Fed. Cas, No. 7941, . 132 Beandenbueg on Bankbuptcy [§107 § 107. What partners may not be adjudged. On a petition filed against a partnership and its members, a partner who has not committed or participated in committing the act of bankruptcy cannot be adjudged bankrupt; ** and where there has been no settlement, after dissolution of a firm, one partner is not entitled to an adjudication against his former partner on account of money or assets that have come into his hands over and above his share, or on account qf obligations entered into during the continuation of the partnership, for which both are jointly liable.^* A minor cannot generally be adjudged an involuntary bsmk- rupt,^* hence, if one member of a firm is a minor, the- petition should be dismissed as to him without costs, but with a specific statement that the dismissal is on account of his minority, and continued against the adult partners and against the firm. Clause "h" of section 5 not applying in this instance.*^ § 108. Proceedings against solvent partner. If a firm be insolvent, but one partner thereof solvent, the creditors may proceed against both the firm and the solvent partner, but the latter may clear himself by paying all the debts.^* An objecting partner cannot be adjudicated against his will and may prevent his own adjudication, but he cannot escape an accounting which is necessary to facilitate the jurisdiction of the court over the partnership case.^'' § 109. Exempted occupations. The fact that a member of a partnership is chiefly engaged in farming or is a wage-earner does not prevent the adjudication of 22— In re Meyers, 98 Fed. 976, 3 A. 118; Lovell v. Beauehamp (1894), App. B. E. 559, aff 'g 92 Fed. 896, 1 N. B. N. Cas. 607; but see In re Briee, 93 Fed. 304, 1 A. B. E. 565. 942, 1 N. B. N. 310, 2 A. B. E. 197.. 23— Sigsby v. Willis, 3 N. B. R. 51, 3 26— In re Bennett, 12 N. B. E. 181, Ben. 371, Fed. Cas. No. 12849. 2 Lowell, 400, Fed. Cas. No. 1314. 24— See ante, § 88. 27— In re Junck & Balthazard, 169 Fed. 25— In re Duguid, 100 Fed. 274, 2 481, 22 A. B. E. 298. N. B. N. E. 607, 3 A. B. E. 794; In re And see, Francis v. MeNeal, 228 U. S, Dunnigan, 95 Fed. 428, 1 N. B. N. 528, 695, 57 L. ed. 1029, L. R. A. 1915 E 706, 2 A. B. E. 628; In re Derby, 8 N. B. E. 30 A. B. E. 244, afE'g 186* Fed. 481, 106, 6 Ben. 232, Fed. Cas. No. 3815; 26 A. B. R. 555. Farris v. Richardson, 6 Allen (Mass.) § 109] "Who May Become Banketjpts 133 the partnership of which he is a member, nor prevent the admin- istration of the assets of the non-adjudicated partner.^* It has been held that a partnership engaged chiefly in farm- ing or tillage of the soil cannot be adjudicated.*^ 28— In re Duke & Son, 28 A. B. B. Fed. 749, 31 A. B. B. 320; E. E. Suther- 195; Id., 199 Fed. 199, 29 A. B. E. 93. land Medicine Co. et al. v. Eieh & Bailey, 29— Stills' Sons v. Am. Nat. Bank, 209 22 A. B. B. 85. CHAPTER VI Pabties, Pleadings and Process A. VOLUNTAEY PROCEEDINGS i 110. Who may file a voluntary petition. i 111. Petition to be based on provable debt. i 112. Filing must be voluntary. i 113. Pendency of previous voluntary or iiivoluntary petition. i 114. Joint petitions. i 115. Allegations of the petition. i 116. Withdrawal of the petition. B. Involtjntaet Proceedings i 117. Nature of proceedings. i 118. Against whom commenced. i 119. Who may file petition. i 120. — Good faith of petitioner. i 121. — Compelling creditors to become petitioners. i 122. — Nimiber of creditors and amount of claims. i 123. — Creditors of what date included. i 124. — Eelatives and employees. i 125. — Stockholders and directors as creditors. i 126. — Corporation acting as purchasing agent. i 127. ' — Stockholder 's or director 's liability. i 128. — Assignee or trustee. i 129. — Married women. i 130. — Obligee in bond and surety. \ 131. — Partner. i 132. — Claims counted. i 133. — Unliquidated claims. i 134. — Secured, priority and lien creditors. i 135. — Preferred creditors. i 136. — Creditors participating in act of bankruptcy. i 137. Intervening petitioners. \ 138. — Right to intervene. ] 139. — Time of intervention. i 140. — Manner of intervention. i 141. — Status of interveners. i 142. — Intervening creditors counted. 5 143. Withdrawal of petitioners. ] 144. Process. i 145. — Form of. i 146. — By whom issued. 1 147, — When issued. 134 Pabties, Pleadings and Peocess 135 i 148. — Personal service. i 149. — Service by publication. i 150. Notice to creditors. 1 151. — In general. i 152. — Creditors named in answer. 5 153. Form of petition. § 154. Allegations of petition. § 155. — In general. 1 156. — Eesidence or place of business of debtor. 1 157. — Nature of petitioner 's claim. i 158. — Number and amount of claims. § 159. — Business or occupation of debtor. § 160. — Act of bankruptcy. § 161. — When multifarious. § 162. — Waiver of defects. \ §163. Filing of petition. § 164. Amendment of petition. H65. By whom allowed and form of application. 1 166. — Sequires special showing. g 167. — Time of filing. g 168. — Objections to. § 169. — When allowed. §170. —When denied. gl71. " — Effect of amendment. §172. — Amended petition not treated as original. § 173. — Demurrer or answer to amended pleading. § 174. Appearance and plea. §175. —Who may defend. § 176. — Bringing in additional parties. § 177. — Mode of appearance personally. §178. — Time for appearance. § 179. — Voluntary appearance. § 180. — Demurrer. § 181. — Plea or answer. § 182. — Beplication. §183. Verification of pleadings. §184. — Verification necessary. § 185. — Corporations. §186. — By agent, attorney or partner. § 187. — Defects and objections. §188. — Verification of answer. C. Peoceedings by oe Against Paetneeships and Membees Theeeof § 189. Voluntary petition by partnership or members. §190. — Form and allegations. §191. — Necessity of separate petitions. §192. — Necessary parties. §193. Proceedings against firm by member thereof. § 194. Adjudication of individual partners. §195. Involuntary petition against firm or members. § 196. — In general. § 197. — Partnership creditors. 136 Beandenbukg on Bankkuptcy [§ 110 A. VOLUNTABY PeOCEEDINGS § 110. Who may file a voluntary petition.^ Any qualified person may file a petition to be adjudged a vol- untary bankrupt.^ The president of a corporation cannot execute and file a peti- tion in voluntary bankruptcy in the name of the corporation without special authority.^ § 111. Petition to be based on provable debt. Where the petition schedules no debts or only such as are excepted from a discharge, th'^ adjudication should not be made, or, if made, be set aside upon motion and the proceedings dis- missed for want of jurisdiction, since a debt not affected by a discharge will not give jurisdiction.* § 112. Filing must be voluntary. No one can be called on to show cause why he himself shall not go or put any one else into voluntary bankruptcy,^ although, if a debtor has committed no act of bankruptcy, and will not volun- tarily petition, a creditor may sue him, so as to force him to commit an act of bankruptcy, and may then institute involuntary 1 — See Chap. 5 for persons qualified B. N. E. 39, 3 A. B. R. 580. But see to become bankrupt. Columbia Eeal Estate Co., 4 A. B. E. 411. 2— Act of 1898, § 59a. 5— In re Harbaugh, 15 N. B. E. 246, Analogous provision in act of 1867. Fed. Cas. No. 6045; "There is nothing "See. 11. . . . That if any person resid- in the law requiring an insolvent per- ing withinlihe jurisdiction of the United son to file a petition under any cireum- States, owing debts provable under this stances. He has the right to do so when act exceeding the amount of three hun- he finds that he is unable to pay his debts dred dollars, shall apply by petition, and desires to make a surrender of his . . . the filing of such petition shall be property, under the provisions of the an act of bankruptcy, and such petitioner bankruptcy act, distribute it equally shall be adjudged a bankrupt. ..." among his creditors, and be relieved from 3— In re Jefferson Casket Co., 182 Fed. further liability. The right of volun- 689 25 A B E 663 ^^^^ petition is a privilege extended by 4l-Aot of 1898, §4a; In re Maples *^^ ^^^ *° ^® exercised by the debtor, 105 Fed. 919, 5 A. B. E. 426; In re «« ^^ '"/•y f ^ Proper. It is the right of Yates, 114 Fed. 365, 8 A. B. R. 69; In a creditor to institute and prosecute in- voluntary proceedings, but he cannot. re Morales, 105 Fed. 761; In re Bellah, ^^^er any conditions, compel the debtor 116 Fed. 69, 8 A. B. E. 310; Elmira to take the initiative." Eichmond Steel Co., 109 Fed. 456, 5 A. B. E. 484; Standard Steel Spike & Iron Co. v. Allen, Contra, In re Tinker, 99 Fed. 79, 2 N. 148 Fed. 657, 17 A. B. R. 583. § 113] Pabties, Pleadings and Pkocess 137 proceedings against Him.® Tlie default of a defendant to a peti- tion in involuntary bankniptcy, through failure to appear, does not convert the proceedings into one of voluntary bankruptoyJ § 113. Pendency of previous voluntary or involuntary petition. General Order VII, providing for priority of the petition alleging the earliest act of bankruptcy, only applies where the debtor has appeared and shown cause against an adjudication on two or more involuntary petitions, and cannot be relied upon to determine the priority between an involuntary and a volun- tary petition.^ The pendency of an involuntary petition before adjudication does not necessarily invalidate a subsequent volun^ tary petition, or vice versa, filed in the: same or another district, as the former may be invalid for want of jurisdiction, or other creditors may justify, or even make desirable a subsequent petition, and the question of jurisdiction will arise on each peti- tion and be determined according to the circumstances, and this is true both as to individual bankniptcy and as to partnership cases.® In such case it would seem advisable to give creditors, filing the involuntary petition, notice, before any adjudication is niade on the voluntary petition, and then such action should be taken as appears for the best interests of the estate; *•* but want of formal notice of the filing of a voluntary petition to creditors who had previously filed an involuntary petition is no objection to an adjudication upon the voluntary petition where such creditors had actual notice.^"^ Nor is it any objection to an adjudication upon such voluntary petition that the motive of the debtor in seeking a speedy adjudication in the voluntary case is that he may be enabled to effect a composition with his 6— Warren v. Bank, 7 N. B. E. 481, 80; In re Waxelbaum, 2 N. B. N. E. 228, 10 Blateh. 493, Ted. Cas. No. 17202; 98 Fed. 589, 3 A. B. E. 392 ; In re Steger, , Coxe V. Hale, 8 N. B. E. 562, Ted. Cas. 113 Fed. 978, 7 A. B. E. 665; In re Dwyer, No. 3310. 112 Ted. 777, 7 A, B. E. 532; In re Can- 7— In re Taylor, 2 N. B. N. E. 926, 102 field, Fed. Cas. No. 2380; In re Willarski, Fed. 728, 4 A. B. E. 515. 4 N. B. E. 390, Fed. Cas. No. 17619; In 8 — In re New Chattanooga Hardware re Stewart, 3 N. B. E. 28, Fed. Cas. No. Co., 190 Fed. 241, 27 A. B. E. 77. 13419; In re Flanagan, 18 N. B. E. 439, 9— In re Laohenmaier, 203 Fed. 32, 29 Fed. Cas. No. 4850, 5 Sawy. 312. A. B. E. 325; In re New Chattanoogj 10— In re Dwyer, 112 Fed. 777, 7 A. Hardware Co., 190 Fed. 241, 27 A- B. E. B. E."532. 77; In re Carpenter, 25 A. B. E. 161; 11— In re New Chattanooga Hardware In re Billing, 145 Fed. 395, 17 A. B. E. Co., 190 Fed. 241, 27 A. B. E. 77. 138 Beandenbubg on Bankbuptcy [§ 113 creditors," or that the petitioning creditors have incurred expense in connection with the involtmtary petition, or that a receiver has been appointed in the involuntary proceedings.^* A voluntary bankrupt, who has contracted new debts since filing a petition on which a discharge was refused, may file a new petition;^* and, where two creditors each file a petition against their debtor, who, pending such proceedings, files a peti- tion and is adjudged bankrupt, and the petitioning creditors prove their claims under the voluntary petition, they waive their right to continue the involuntary proceedings.^® The provision in section 14b of the act denying the right to a discharge to one who has in voluntary proceedings been granted a discharge within six years does not prevent the filing of a second voluntary petition within six years after a previous discharge, though in the second proceeding no discharge can be had.i5^ § 114. Joint petitions. Two or more persons cannot apply for bankruptcy in the same petition, except as incidental to a partnership, so that joint con- tractors, not partners, must file separate petitions and the cred- itors can prove against each estate separately; ^® but, where community rights exist, it has been held that husband and wife may unite in a joint petition.^'' § 115. Allegations of the petition. A voluntary petition need not in every case set up a technical act of bankruptcy.^* In order to justify an adjudication in voluntary bankruptcy, a petition filed in the name of a corporation must allege corporate 12 — ^In re New Chattanooga Hardware A. B. R. 689; In re Moore, 5 Bias. 79, Co., 190 Fed. 241, 27 A. B. R. 77. Fed. Cas. No. 9750; Ex parte Weston, 13 — ^In re New Chattanooga Hardware 12 Met. 1; Harmon v. Clark, 13 Gray, Co., 190 Fed. 241, 27 A. B. E. 77; In re 114, 122; Forsyth v. Woods, Fed. Cas. Stegar, 113 Fed. 978, 7 A. B. R. 665. No. 17992, 11 WaU. 484, 486, 20 L. ed. 14— In re Driske, 13 N. B. E. 112, 2 207, 209; In re Nuns, 16 Blatch. 439, LoweU, 430, Fed. Cas. JSTo. 4090; In re Fed. Cas. No. 10269; In re Roddin, 6 Drisoo, 14 N. B. R. 551, Fed. Cas. No. Biss. 377, Fed. Cas. No. 11989; Bnffum 4086. V. Seaver, 16 N. H. 160; Maok v. Wood- 15— In re Noonan, 6 N. B. R. 579^- ruff, 87 111. 570. 15a— In re Little, 137 Fed. 521, 13 A. ■ 17— In re Ray, 1 N.- B. N. 276. ^- ^- 640. 18- In re Junck & Balthazard, 169 16— In re AltSnan, 1 N. B. N. 358, 1 Fed. 481, 22 A.^. R. 298: §120] Paeties, Pleadings and Process 139 action by the board of directors authorizing the petition and its execution by the officer signing the name of the corporation thereto.^® Objections to a petition on the ground that it fails to show that the bankrupt was not within the exceptions of section 4a, and that it does not have the seal of the corporation attached and fails to show that it was authorized by the corporation must be made before the adjudication.^^* § 116. Withdrawal of the petition. • When there are no creditors who have proved their claims or who object, a voluntary bankrupt may withdraw his petition, and cannot be prevented by subsequent creditors who wish to prevent new proceedings.^" B. Involtjntaey Pbocbedings § 117. Nature of proceedings. A proceeding in involuntary bankruptcy is not a mere suit inter parties, but partakes of the nature of a proceeding in rem, in which every creditor has a direct interest,^ ^ and cannot be converted into voluntary bankruptcy by the default of defend- ant to appear.^^ § 118. Against whom commenced. Section 4b of the law makes provision for the persons who may become involuntary bankrupts. A petition may be filed against a person who is insolvent; and who has committed an act of bankruptcy within four months after the commission of such act.2* § 119. Who may file petition. § 120. — Good faith of petitioner. The utmost good faith is required on the part of creditors fihng a petition in involuntary bankruptcy and they should not 19— In re Jefferson Casket Co., 182 465, Fed. Cas. No. 11213; In Hanover Fed. 689, 25 A. B. E. 663. Nat. Bank v. Moyes, 186 U. S. 181, 46 19a— Dodge V. Kenwood Ice Co., 204 L. ed. 1113, 8 A. B. E. 1. Fed. 577, 29 A. B. E. 586. ' 22— In re- Taylor, 2 N. B. N. R. 926, 20— In re Hebbert, 104 Fed. 322. 102 Fed. 728, 4 A. B. E. 515; see also 21— In re Murphy, 2 N. B. N; E. 393, ante, § 112. 3 A. B. E. 499; In re Boston, etc., E. E. 23 — Act of 1898, § 3b. See ante, Chap. Co., 6 N. B. E. 209, 9 Blatch, 101, Fed. IV. Cas, No. 1678; In re Piatt, 6 N. B. E. 140 Bbandenbukg on Bankeuptcy [§120 be permitted to recklessly institute proceedings for the purpose of making the alleged bankrupt disclose a list of his creditors, his assets or liabilities.^* An agreement by an attorney to pay the creditor's claim, in order to induce him to sign the petition, is not invalid and does not disqualify the creditor.^^ § 121. — Compelling creditors to become petitioners. The court of bankruptcy is not vested with power to compel a creditor to Jpecome a petitioner in involuntary bankruptcy.^' § 122. — Number of creditors and amount of claims. Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hundred dollars or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt.^'' The same number of creditors are required for proceedings against a corporation as in the case of an individual.^* If a merchant fails to exhibit a statement of his accounts when demanded, he cannot complain of proceedings in bankruptcy commenced against him without the requisite number of cred- itors joining in the petition, provided a suflS.cient number join before the trial.^® A claim cannot be split up and part thereof assigned for the purpose of obtaining additional creditors,^" nor can a general 24 — ^In re Scammon, 11 N. B. E. 280, 28 — ^In re Leavenworth Savings Bank, 6 Biss. 195, Fed. Gas. No. 12429. 14 N. B. E. 92, 4 DiU. 363, Ted. Gas. 25— Bernard v. Fromm, 132 App. Div. No. 8165. (N. Y.) 922, 22 A. B. E. 585. 29— Paren & Gaff Mfg. Co. v. Peale, 26— In re Gillette, 104 Fed. 769. 17 N, B. E. 377, Fed. Gas. No. 10981. 27— Act of 1898, §59b; Analogous 30— In re Independent Thread Co., provision in act of 1867. "See. 39. . . . 113 Fed. 998, 7 A. B. E. 704; In re Any person . . . shall be deemed to have ■ Halsey Eleetrio Generator Co., 163 Fed. committed an act of bankruptcy, and, 118, 20 A. B. R. 738; In re Tribelhorn, subject to the conditions hereinafter pre- 137 Fed. 3, 14 A. B. R. 491. scribed, shall be adjudged a bankrupt, "Splitting of claim" held to dis- on the petition of one or more of hia qualify both assignees thereof as pe- creditors, the aggregate of Whose debts titioners. In re Perry & Whitney Co., provable under the act amount to at least 172 Fed. 744, 22 A. B. E. 772, aff'd 175 two hundred and fifty dollars, provided Fed. 52, 23 A. B. R. 695. such petition is brought within six months The fact that the one of the petitioners after the act of bankruptcy shall have derived his claim by assignment from been committed." another is immaterial in the absence of § 122 Pasties, Pleadings and Process 141 assignee, to whom the claims of a majority of creditors have been assigned, reassign such claims to third persons for the sole purpose of increasing the number of creditors and thereby pre- vent the filing of a petition by a single creditor.^ ^ Creditors may, however, purchase claims against the debtor, in good faith, in order to join in the petition to make the necessary amount."^ That one not joining in the petition owns a claim, such as would have made her a competent petitioner, is immaterial on question whether there is a efficient number of petitioning creditors.** Where two of the original petitioning creditors collude to compel the debtor to pay the claim of a third, they are estopped from proceeding further as petitioning creditors, where as a result of their collusion the number of petitioning creditors is reduced below the statutory number.** » Where in pursuance of a fraudulent scheme to prevent the filing of a petition against him, the insolvent transfers all his property to a third person who assumes the payment of all his debts, except one, and, by the state law, such transferee becomes absolutely liable to the creditors whose debts are assumed, the creditors so preferred will not be counted so as to bring the number of creditors over twelve and prevent the filing of the petition by the unpaid creditor.*^ Nor will the holders of small claims against the insolvent based on purchases of household necessities after the making of such transfer be counted, where it is apparent that they were left unpaid for the express purpose of preventing the filing of a petition in bankruptcy.*® A judgment on an involuntary petition is final and conclusive, unless reversed for error or fraud, as against all persons who were before the court at the time,*'' and an application to hold a showing' that the claim of the latter A. B. E. 344; In re Woodford, 13 N. B. was split up for the purpose of creating E. 575, Fed. Cas. No. 17972. a petitioning creditor. In re Stone, 206 33 — In re Perry & Whitney Co., 172 Fed. 356, 30 A. B. E. 392. Fed. 745, 22 A. B. E. 772. 31 — ^Leighton v. Kennedy, 129 Fed. 34 — Cummins Grocery Co. v. Talley, 737, 12 A. B. E. 229. 187 Fed. 507, 26 A. B. E. 484. Where a number of claims have been 35 — In re Blount, 142 Fed. 263, 16 assigned to a common assignor, they will A. B. E. 97. be considered as claims filed by one 36 — In re Blount, 142 Fed. 263, 16 creditor. Lowenstein v. McShane Mfg. A. B. E. 97, Co., 130 Fed. 1007, 12 A. B. E. 601. 37— Neustadter v. Dry Goods Co., 1 32— In re Bevins, 165 Fed. 434, 21 N. B. N. 552, 96 Fed. 830, 3 A. B. E. 96. 142 Beandenbubg on BankbuptCy [§ 122 such adjudication void on the ground that the requisite number and amount had not joined ^^ should not be entertained. Although the bankrupt has signed a written admission that the requisite quorum has united in the petition it has been held that the court must still "be satisfied that the admission is made in good faith, ' ' ^^ which probably means that the court is to ascertain that the admission is true, since there are others than the bankrupt interested and entitled to be heard. The adjudica- tion being conclusive on the question of whether the requisite number join in the petition, the fact that less than the requisite number and value join is an irregularity which in one case has been held will be cured by a decree rendered with respond- ent's consent,** though this position seems hardly tenable since all crjsditors are entitled to an opportunity to contest the adjudication. § 123. — Creditors of what date iacluded. The right to file an involuntary petition is limited to such creditors as hold debts at the date of the alleged act of bank- ruptcy; *^ but a creditor is not disqualified as a petitioner because a claim ownedljy him was not transferred to him until after the act of bankruptcy.*^ The number of petitioning creditors and amount of their claims is to be determined as of the date of the filing of the petition.*^ § 124. — Relatives and employees. The bankruptcy act expressly provides that in computing the number of creditors of a bankrupt for the purpose of determin- ing how many creditorsTnust join in the petition, such creditors 38— In re Duncan, 14 N. B. R. 18, 8 43— In re Western Sav. & Tr. Co., 17 Ben. 365, Fed. Cas. No. 4131. N. B. E. 413; Moulton v. Coburn, 131 39— In re Flanagan, 18 N. B. R. 439, Fed. 201, 12 A. B. E. 553, afE'g 126 Fed. Fed. Cas. No. 4850. 218, 11 A. B. R. 212; Contra. In re ' 40— In re Williams, 11 N. B. R. 146, Plymouth Cordage Co., 135 Fed. 1000, 6 Biss. 233, Fed. Cas. No. 17700. 13 A. B. R. 665 (holding date of adjudi- 41— In re Stone, 206 Fed. 356, 30 A. cation as proper time) ; In re Jacobson, B. R. 392; In re Callison, 130 Fed. 987, 21 A. B. R. 921 (holding that where 12 A. B. R. 344. the act of bankruptcy consists of an as- 42— In re Hanyan, 180 Fed. 498, 24 signment for creditors, the amount of A. B. R. ,72; In re Perry & Whitney creditors is to be computed as of the Co., 172 Fed. 745, 22 A. B. R. 772. date of assignment. § 125] Parties, Pleadings and Peocess 143 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."** Consanguinity is the relation existing between persons descending from a common ancestor; affinity is the connection existing, in consequence of marriage, between the husband or wife and the kindred of the other. Creditors of a bankrupt cor- poration who are its officers or directors should not be counted, because of their connection with respondent corporation, on the ground of its being in the case of a corporation the same as con- sanguinity and affinity in a natural person, or because they are employees.*^ The provisions of the act excluding employees and relatives in counting the number of creditors applies only when such employees or relative refuse to join in the petition. Employees and near relatives are presumably in sympathy with the alleged bankrupt, and the purpose of this provision is clearly to prevent the fictitious use of their names to defeat a proceeding otherwise maintainable. Where the employee or relative appears, not in aid of a defense, or as a weapon to defeat, but as a petitioner, the reason for excluding him in counting the number of cred- itors fails, and with it the rule.*^ § 125. — Stockholders and directors as creditors. There seems to be no reason why creditors of a corporation, who happen also to be stockholders, might not join in a petition, but this would not be so if such creditors are its directors or officers, in which case they should be excluded on the ground of being employees.*'' - 44 — Act of 1898, § 59e. claim amounts to $500 or more, he may 45 — In re Barrett Pub. Co., 2 N. B. N. be the sole petitioner. Id. E. 80; Contra, In re Rollins Gold and 47— Barrett Pub. Co., 2 N. B. N. E. Silver Min. Co., 2 N. B. N. R. 988, 102 80; Contra, In re EoUius Gold & Silver Fed. 982, 4 A. B. E. 327. Min. Co., 2 N. B. N. E. 988, 102 Fed. 46— Perkins v. Dormah, 206 Fed. 858, 982, 4 A. B. E. 327. 30 A... B. It. 767. An employee or per- ' Directors of a corporation who . are son related within the third degree to also creditors may become petitioning the b.ankrupt may be., a petitioning creditors. Home Powder Co. v. Geis, 204 creditor, and in case the number of Fed. 568, 29 A. B. E. 580. creditors be less than tWelve, and his 144 Beandenbueg on Banketjptcy [§ 126 § 126. — Corporation acting as purchasing agent. A creditor of a corporation acting as purchasing agent for another is not a creditor of the latter, though its stock is owned and its business controlled by the latter.^* § 127. — Stockholder's or director's liability. A judgment founded on tort against an insolvent corporation is sufficient to constitute the basis of a creditor's suit to reach an unpaid, subscription to the corporate stock, entitling . the judgment creditor to join in a petition against the stockholder.** Where, under the laws of a state, the liability of the director of a corporation whose funds have been embezzled is contractual, a creditor of the corporation has a provable claim and may petition for the adjudication of the director.^" § 128. — Assignee or trustee. The fact that an assignee of an entire claim has no financial interest in the claim but holds, it solely for the benefit of his assignor does not disqualify him as petitioning creditor; ^^ but the transfer of a partnership note, to the wife of a partner of the alleged bankrupt, to prevent the setting up of any set-off or counterclaim or defense which the latter might have against his partner, has been held to prevent the transferee from becoming a petitioning creditor,^^ The mere fact that the creditor is a trustee under a voluntary assignment does not exclude him from petitioning or being counted, unless there is some fraud con- nected with it.^* A trustee in bankruptcy may be a petitioning creditor.^* §129. — Married women. A married woman may commence or join in proceedings against her husband where she is an actual creditor, and the law 48— In re Hudson River Electric Power 51— In re Halsey Electric Generator Co., 173 Fed. 934, 23 A. B. E. 191, aff 'd Co., 163 Fed. 118, 20 A. B. E. 738. ]83 Fed. 701, 33 L. E. A. (N. S.) 454, 52— In re Pangborn, 185 Fed. 673, 26 25 A. B. E. 504. . A. B. E. 40. 49— In re Putman, 193 Fed. 464, 27 53— In re Lloyd, 15 N. B. E. 257, Fed. A. B. E. 923. Cas. No. 8429. 50— In re Brown, 164 Fed. 673, 21 54— Hays v. Wagner, 150 Fed. 533, 18 A. B. E. 123. A. B. E. 163. 1 132] Pabties, Pleadings and Process 145 of the state permits the creation of enforceable debts as between husband and wife.^^ § 130. — Oblige© in bond and surety. In the case of a bond payable to the people of a state, the state is the creditor, although the money goes to the city treasurer,^® and in the case of a surety on a defaulting contractor's bond the surety company becomes a creditor for the amount of the loss sustained and may file the petition.^^ A surety upon a note who has not paid the note cannot file a petition against the maker, although the latter has committed an act of bankruptcy.^^ A surety upon an "officer's receipt" given in attachment pro- ceedings, who turned back the property attached to the attach- ment debtor, taking his mortgage note, cannot force the debtor into bankruptcy, because he takes no further action about the attachment, and by his inaction has permitted the four months to come within five days of expiring.^^ § 131. — Partner. In involuntary proceedings, an objection that the petitioner and the alleged bankrupt are partners is not determinable on a preliminary objection to the jurisdiction, where the arrange- ments between the. parties is not one going to the merits of the controversy.®" §132. — Clainis counted. All claims must be counted irrespective of amounts;®^ pro- vided they are provable,®^ although they may not be due.®* 55 — In re Novak, 101 Fed. 800, 4 A. 62 — One cannot force another into B. E. 311. bankruptcy by the use of alleged debts 56 — In re Chamberlin, 17 N. E. B. 50, which by operation of law will be ex- 9 Ben. 149, Fed. Cas. No. 2580. • tinguished, and therefore not provable, 57 — Boyce v. U. S. Fidelity & Guar- the instant the adjudication exists. In anty Co., Ill Fed. 138, 7 A. B. E. 6. re Windt, 177 Fed. 584, 24 A. B. E. 536. 58 — Phillips V. Dreher Shoe Co., 112 Under the laws of Massachusetts tax- Fed. 404, 7 A. B. E. 326; In re Kiker, collector cannot maintain involuntary pe- 18 N. B. E, 383, Fed. Cas. No. 11833. tition unless the taxes have remained un- 59 — ^In re Windt, 177 Fed. 584, 24 paid for three months after having been A. B. E. 536. cominitted to him, since until then he has 60 — ^In re Schenklin & Coney, 113 Fed. no provable claim. In re Corwin Mfg. 421, 7 A. B. E. 162. Co., 185 Fed. 976, 26 A. B. E. 269. 61-^In re Brown, 111 Fed. 979, 7 A. 63— Linn v. Smith, 4 N. B. E. 12, B. B. 102; In re Woodford, 13 N. B. E. Fed. Cas. No. 8375; In re Alexander, 575, Fed. Cas. No. 17972. How. 470, Fed. Cas. No. 161. Brandenburg — 10 146 Bbandenbxtbg on Bankkuptcy [§ 132 A claim for accrued interest will be counted,^* as wiU a claim based on an indorser's liability on a note, if fixed; ^^ a claim for damages for a breach of contract; ®® a claim released without consideration upon the fraudulent representations of another creditor; *'' a claim based upon an alleged gaming contract wTiere respondent's testimony is the only evidence against the express terms of the contract and rules of the exchange on which it was to be executed,®^ or the like. A petition cannot be filed by one holding an unliquidated claim for damages for a tort ; ®® or claims for rent to accrue under a lease for breach of warranty, until liquidated; '"' or claims against an infant which may be repudiated on reaching majority. '^^ Nor can a petition be filed by a creditor who has disposed of his claim; ''^ or one whose claim is barred by the statute of limitations of the state where the proceedings are pending; ''^ or by an indorsee whose claim is paid by the indorser during the pendency of the proceeding.'^* It is not necessary that the larger creditors should be requested to sign the petition for adjudication and refuse.''^ Creditors who have assented to a general assignment made by their debtor and who therefore cannot join in a petition, are not to be counted; ''^ or claims based on a note given in place of a lost note, if both are without consideration, though iiot neces- 64^Sloan v. Lewis, 12 N. B. E. 173, 4 A. B. E. 551; Beers v. Hanlin, 99 Fed. 22 Wall. 150, 22 L. ed. 832. 695, 3 A. B. E. 745; In re Heinsfurter, 65— In re Nickodemus, 3 N. B. E. 55, 97 Fed. 198, 3 A. B. E. 113. Fed. Gas. No. 10254. 70— In re Mahler, 105 Fed. 428, 5 A. The owner of a note not yet due, in- B. E. 453. dorsed by the bankrupt, has a provable 71 — In re Eidemiller, 105 Fed. 595, 53 claim and may join in the petition. In L. E. A. 118, 5 A. B. E. 570". re Kcithenberg, 140 Fed. 798, 15 A. B. E. .72— In re Burlington Malting Co., 109 485. Fed. 777, 6 A. B. E. 369. 66— In re Stern, 116 Fed. 604, 8 A. 73— In re Noesen, 12 N. B. E. 422, B. E. 569; but see In re Big Meadow 6 Biss. 443, Fed. Cas. No. 10238; In re Gas Co., 113. Fed. 974, 7 A. B. E. 697; Cromwell, 6 N. B. E. 305, Fed. Cas. No. In re Grant Shoe Co., 130 Fed. 881, 12 3250. A. B. E. 349, aff'g 125 Fed. 576, 11 74— In re Broich, 15 N. B. E. 11, 7 A. B. E. 48. Biss. 303, Fed. Cas. No. 1921. 67— Michaels v. Post, 12 N. B. E. 152, 75— In re Currier, 13 N. B. E. 68, 2 21 Wall.-398, 22L.ed. 520. Lowell 436, Fed. Cas. No. 3492. . '68— Hill V, Levy, 2 N. B. N. E. 180, 76— In re Miner, 2 N. B. N. E. 1073, 9S Fed. 94, 3 A.. B. B. 374.. 104 Fed. 520. See, also, post, § 136. 69 — In re- Briiekmann,. 103 Fed. 65, § 134] Paeties, Pi^adings and Peocess 147 sarily a voluntary gift; '''^ or where the respondent has a counter- claim provable in bankruptcy against the petitioning creditor which would reduce the claims below the requisite amount.^* A subcontractor who has furnished the alleged bankrupt, a contractor, materials and labor under a contract by the terms of which the contractor was not to become liable therefor until the material was in place and the owners had paid therefor cannot become a petitioning creditor until the contingencies provided for have occurred.'''' A creditor holding a claim based upon a contract in violation of statute is not proper petitioner.*" § 133. — Unliquidated claims. Where the claims of the petitioning creditors are unliqui- dated, the court, upon the motion of the alleged bankrupt, may direct the liquidation thereof before answer.*^ § 134. — Secured, priority aaid lien creditors. Secured creditors may prove their claims; *^ but the court has authority to inquire into and determine the value of such se- curities, or priority claims, in order to ascertain whether the claims of the petitioning creditors are of the amount required by law; ^* and only the excess over such securities or priorities is counted.** Creditors having liens created within four months 77 — In re Cornwall, 4 N. B. E. 134, entitled to sign the petition (In re Frost, Fed. Gas. No. 3251. 11 N. B. E. 69, 6 Biss. 213, Fed. Cas. 78 — ^In re Osage Valley, etc., Co., 9 No. 5134), which was especially true if N. B. E. 281, Fed. Cas. No. 10592. they obtained their security or lien in 79— In re Ellis, 143 Fed. 103, 16 A. B. fraud of the act or if it would be avoided E. 221. if bankruptcy followed (In re Seraffofd, 80— In re Wyoming Valley Co-opera- 15 N. B. E. 104, 4 Dill. 376, Fed, Cas. tive Ass'n, 198 Fed. 436, 28 A. B. E. No. 12556). A fully secured creditor 462. might file his petition without, expressly 81 — ^In re Smith, 209 Fed. 91, 31 A. waiving his preference though the bet- B. E. 560. ter practice was to do so (In re Stansell, 82— Act of 1898, § 57a, §§562, 629. 6 N. B. E. 183, Fed. Cas. No. 13293; 83— In re Cal. Pac. E. E. Co., 11 N. In re Bloss, 4 N. B. E. 37, Fed. Cas. B. E. 193, 3 Sawy. 240, Fed. Cas. No. No. 1562; see In re Crossette, 17 N. B. 2315. E. 208, Fed. Cas. No. 3455) ; and in such 84 — Act of 1898, § 56b. In re Smith, a case the petition had the same effect 176 Fed. 426, 23 A. B. E. 864. aS a waiver (In re Bloss, 4 N. B. E. 37, Under the act of 1867, it was held Fed. Cas. No. 1562; In re Broich, 15 that secured or lien creditors could not N. B. E. 11, 7 Biss. 303, Fed. Cas. No. be reckoned among creditors whose claims 1921) . were unconditionally provable and hence 148 Brandenbueg on Bankruptcy [§ 134 of the filing of tlie petition, on discovering the true condition of the bankrupt, may institute proceedings.*® § 135. — Preferred creditors. Creditors holding claims unconditionally provable without any release or other prelinjinary action,*^ will be counted. The object of the bankrupt law is the equal distribution of an insolv- ent's property among his creditors; and to this end intentional preferences are forbidden and made acts of bankruptcy. Hence a conveyance of property,*'' or a transfer constituting a prefer- ence, void under the bankrupt law for any reason,** or which it is charged is a fraudulent preference,*^ cannot be considered as paying or satisfying the debts for which they are given. Other- wise an insolvent debtor and his preferred creditors could violate the law and, upon their very violation, base their claim to protection against its enforcement, which could not be allowed, since no one can base a right on an unlawful axjt. Such transactions are unlawful; they are prohibited by law; and are acts of bankruptcy. The debts attempted to be satisfied are still the debts of the debtor within the meaning of the law. The same act cannot be at the same time an act of bankruptcy and a discharge therefrom. It cannot have the effect of making the debtor a bankrupt and protecting him from being adjudged a bankrupt. The act of 1867 aa amended by the act of June 22, 1874,»» provided that fraudulently preferred debts should not be proved until the preferences were surrendered, and under that provision it was held that where a creditor had two disconnected claims and received a fraudulent preference on one, he could prove on the other; ®i but, if he had but one and had received a preference,, having at the time reasonable cause to believe his debtor insolv- 85— In re Smith, 176 Fed. 426, 23 A. 88— In re Tirre, 1 N. B. N. 402, 95 Fed. B. E. 864. 425, 2 A. B. R. 493. But see, In re Schenkein et al., 113 Fed. 89— In re Cain, 1 N. B. N. 389, 2 A. 421, reversing 7 A. B. R. 162; In re Bur- B. E. 378. lington Malting Co., 109 Fed. 777, 6 A. 90—18 U. S. Stat. 178, § 12. B- E. 369. 91— In re McVay, 13 Fed. 443; In re 86— In re Frost, 11 N. B. E. 69, 6 Bias. Holland, 8 N. B. E. 190, Fed. Gas. No. 213, Fed. Cas. No. 5134; In re Hunt, 6604; In re Aspinwall, 11 Fed. 146; In 5 N. B. E. 433, Fed. Cas. No. 6882. re Eichter's Est, 4 N. B. E. 67, 1 Dill. 87— In re Norcross, 1 N. B. N. 257, 1 544, Fed. Cas. No. 11803 A. B. R. 644. §135] Paeties, Pleadings akd Process 149 ent, he could not prove it or be counted to make the requisite number.®* Under the present act the proof and allowance of claims are distinct ** and there is no requirement that a preferred creditor shall surrender payments on account before proving his claim, or forbidding him to prove it,®* but merely that it cannot be allowed unless the preference is surrendered.®^ There being no prohibition against his proving his claim and his claim not being satified by the preference, a preferred creditor has a provable claim ®® and should be counted to make the requisite number of creditors and may file a petition in involuntary bankruptcy.®'' This must be so since there is no provison of law enabling him to surrender his preference and fully qualify himself for an allowance until the trustee is appointed, since the referee cannot receive it and a receiver is not to be appointed for that purpose,®* and furthermore it does not remain for the bankrupt to say that the creditor has been preferred.®® This is contrary to several decisions,^ though even in this line of decisions his right is rec- ognized if his preference is innocent and he offers to surrender 92— In re Israel, 12 N. B. E. 204, 3 Dill. 511, Fed. Cas. No. 7111; Clinton V. Mayo, 12 N. B. E. 39, Fed. Cas. No. 2899; In re -Currier, 13 N. B. E. 68, 2 Lowell 436, Fed. Cas. No. 3492; In re Eado, 6 Ben. 230, Fed. Cas. No. 11522; In re Hunt, 5 N. B. E. 433, Fed. Cas. No. 6882; In re Marcer, 6 N. B. E. 361, Fed. Cas. No. 9060; Ecker v. Mc- Allister, 17 N. B. E. 42. 93— In re Wise, 2 N. B. N. E. 151. 94— Act of 1898, § 63a, § 619 et seq.; In re Folb, 1 N. B. N. 134, 91 Fed. 107, 1 A. B. E. 22. 95— In re Knost & Wilhelmy, 1 N. B. N. 403, 2 A. B. E. 471; aff'd 99 Fed. 409; In re Ft. Wayne Elec. Corp., 2 N. B. N. B. 434, 99 Fed. 400, 3 A. B. E. 634; In re Conhaim, 2 N. B. N. E. 148, 97 Fed. 923, 3 A. B. E. 249. 96— In re Noroross, 1 N. B. N. 257, 1 A. B. E. 644. 97— In re Smith, 176 Fed. 426, 23 A. B. E. 864; In re Cain, 1 N. B. N. 389, 2 A. B. E. 378; In re Hertzhkopf, 118 Fed. 101, 9 A. B. E. 90; In re Noreross, 1 N. B. N. 257, 1 A. B. E. 644; see In re Bloss, Fed. Cas. No. 1562; In re Calif. Pae. E. E. Co., Fed. Cas. No. 2315; In re Stansell, Fed. Cas. No. 13293; In re Miller, 5 A. B. E. 140. A preferred creditor may not be counted against the petition, nor in com- puting the number of creditors that must join in the petitionj unless he first sur- renders his preference, but if he sur- renders his preference before the adjudi- cation, he may then be counted. In re Vastbinder, 126 Fed. 417, 11 A. B. B. 118; Stevens v. Nave-McCord Mercan- tile Co., 150 Fed. 71, 17 A. B. E. 609. 98— In re Thompson, 2 N. B. N. B. 1016. 99— In re Morton, 118 Fed. 908. 1— In re Wing Tick Co., 13 A. B. E. 757; In re Fishblate Clothing CO., 125 Fed. 986, 11 A. B. E. 204; In re GUlette, 104 Fed. 769, 5 A. B. E. 119; In re Miner, 2 N. B. N. E. 1073, 104 Fed. 520; In re Eogers Milling Co., 2 N. B. N. E. 973, 102 Fed. 687, 4 A. B. E. 540. 150 Bbandenbubg on Bankeuptcy [§135 it,* but they appear to rest on a failure to distinguish between the proof and allowance of claims, which is drawn in the present act, and follow the cases under the former act, the difference in which has been pointed out. So a creditor is entitled to prove for the balance of a claim on which a payment was made long prior to the filing of the petition.^ § 136. — Creditors particapating in act of bankruptcy. The general rule is that where a creditor connived in the alleged act of bankruptcy, whether it be either actually or con- structively fraudulent, he is precluded from proceeding against such debtor in involuntary bankruptcy, and should not therefore be counted,* as where a creditor on being made a party to a gen- eral assignment files his claim and participates in the admin- istration of the estate under the assignment,^ though if the 2— In re MiUer, 104 Fed. 764, 5 A. B. B. 140. 3— In re Girard Glazed Kid Co., 129 Fed. 841, 12 A. B. E. 295; In re Folb, 1 N. B. N. 134, 91 Fed. 107, 1 A. B. B. 22; In re Marcer, 6 N. B. E. 351, Fed. Gas. No. 9060. 4-~Clark v. Henne & Meyer, l27 Fed. 288, 11 A. B. E. 583; Stroheim v. Perry & Whitney Co., 175 Fed. 52, 23 A. B. E. 695, afE'g 172 Fed. 745, 22 A. B. E. 772; In re Crenshaw, 156 Fed. 638, 19 A. B. E. 502; Woolford v. Diamond State Steel Co., 138 Fed. 582, 15 A. B. E. 31; Durham Paper Co. v. Seaboard Knitting Mills, 121 Fed. 179, 10 A. B. E. 29; Simonson v. Sinsheimer, 95 Fed. 948; Leidigh Carriage Co. v. Stengel, 1 N. B. N. 387, 95 Fed. 637, 2 A. B. E. 383; In re Eomanow, 1 N. B. N. 213, 1 A. B. E. 461, 92 Fed. 510; In re Gillette, 104 Fed. 769, 5 A. B. E. 119; In re Mass. Brick Co., 5 N. B. E. 408, Fed. Cas. No. 9259; Perry v. Langley, 1 N. B. E. 559, Fed. Cas. No. 11006; contra. In re Curtis, 1 N. B. N. 357, 2 A. B. E. 226, 94 Fed. 630, aff'g 1 N. B. N. 163, 1 A. B. E. 440, 91 Fed. 737. Creditor inducing, procuring or consent- ing to the act of bankruptcy complained of is estopped to become a petitioner. In re Taylor House Ass'n, 209 Fed. 924, 31 A. B. E. 727. In the absence of special circumstances a creditor assenting in vrriting to a com- mon-law assignment for the benefit of creditors is estopped to petition for the bankruptcy of the assignor on the ground of such assignment. Moulton v. Cobum, 131 Fed. 201, 12 A. B. E. 553, aff'g 126 Fed. 218, 11 A. B. E. 212. Creditors participating in receivership proceedings cannot petition, Lowenstein V. McShane Mfg. Co., 130 Fed. 1007, 12 A. B. E. 601. Creditor assenting to state court re- ceivership estopped to become petitioning creditor. In re Gold Eun Mining & Tun- nel Co., 200 Fed. 162, 29 A. B. E. 563. An ofScer of alleged bankrupt cor- poration who has himself brought about the act of bankruptcy complained of is not a proper petitioner. In re "Taylor House Ass'n, 209 Fed. 924, 31 A. B. E. 727. 5 — Lowenstein v. McShane Mfg. Co., 130 Fed. 1007, 12 A. B. E. 601; Moulton V. Coburn, 131 Fed. 201, 12 A. B. E. 553, aff'g 126 Fed. 218, 11 A. B. E. 212; In re Hirose, Doing Business Under the Name of Hirose Shoten, 12 A. B. E. 154; In re Miner, 2 N. B. N. E. 1073, 104 Fed. § 138] Parties, Pleadings and Process 151 creditor has done nothing more than file his claim with the assignee or receiver ® or merely sells him small bills of goods to replace his stock,' he will not be estopped. Nor does the general rule apply if the creditor has only offered to assent to a general assignment for the benefit of creditors upon condition that the assignee be changed,* or if his consent has been procured by fraud® or false representations of his debtor^" or he merely advises the sale of a debtor's property for a certain sum and the distribution of the proceeds among his creditors pro rata, when such transfer is the alleged act of bankruptcy, if, after such transfer, the proceeds were diverted by the debtor to other pur- poses.**" § 137. Intervening petitioners. § 138. — Right to intervene. A creditor other than the original petitioner, although holding a claim for a mere nominal sum," or holding security for part of his claim,** may enter his appearance by petition alleging that he is a creditor, stating the purpose of his petition and nothing more, and thereby acquire all the rights of the original peti- tioner, even though it be proven that the latter has no claim.** 520; In re Simonson v. Sinsheimer, 95 Weedman Stave Co., 199 Fed. 948, 29 Fed. 948; Leidigh Carriage Co. v. Sten- A. B. R. 460; In re Curtis, 91 Fed. 737, gel, 1 N. B. N. 387, 95 Fed. 637, 2 A. B. 1 N. B. N. 163, 1 A. B. R. 440; In re R. 383; Massachusetts Brick Co., 5 N. B. Romauow, 1 N. B. N. 213, 1 A. B. R. R. 408, Fed. Caa. No. 9259; Ferry t. 461, 92 Fed. 510; Simonson t. Sinsheimer, Langley, 1 N. B. R. 559, Fed. Cas. No. 05 Fed. 948. 11006; In re Romanow, 92 Fed. 510, 1 7 — Simonson v. Sinsheimer, 100 Fed. N. B. N. 213, 1 A. B. R. 461; but see 426, 3 A. B. R. 824. Spicer v. Ward, 3 N. B. R. 127, Fed. Cas. 8— Spicer v. Ward, 3 N. B. B. 127, No. 13241. Fed. Cas. No. 13241. In In re Salmon & Salmon, 143 Fed. 9 — Canner v. Webster Tapper Co., 168 395, 16 A. B. R. 122, it was held that Fed. 519, 21 A. B. B. 872. creditors participating in proceedings in- 10 — In re Canner, 21 A. B. B. 199; stituted by the Attorney General of the Canner v. Webster Tapper Co., 168 Fed. state for the appointment of a receiver 519, 21 A. B. R. 872. for an insolvent private bank were not 11 — In re Gillette, 104 Fed. 769, 5 A. thereby estopped to demand an adjudi- B. R. 119. cation in bankruptcy, since the operation 12 — ^In re Brown, 111 Fed. 979, 7 A. of the statute in so far as it applied B. R. 102, to private banks was suspended by the 13-^Johansen Bros. Shoe Co. ▼. AUes, passage of the bankruptcy act. 197 Fed. 274, 28 A. B. R. 299. 6— In re Salmon & Salmon, 143 Fed. 14-^Act 1898, § 59f . In re Vastbinder, 395, 16 A. B. R. 122; Hays v. Wagner, 126 Fed. 417, 11 A. B. R-. 118; In re 150 Fed. 533, 18 A. B. R. 163; In re Laeey, 10 N. B. R. 477; In re Taylor, 152 Beandenbueg ON Bawkbuptoy [§138 The purpose of this provision of the act is to enable creditors, other than the original petitioners, who favor an adjudication, to acquire a standing such as will prevent a dismissal in case any of the original petitioners are disqualified, and to grant to creditors who are opposed to an adjudication, the right to join the alleged bankrupt, or assert his right in opposition in case of his failure to do so.^^ A creditor who files a petition in bankruptcy has the right to request others to intervene when such intervention becomes necessary to preserve the proceeding,^^ and another creditor may intervene and be permitted to prosecute the original peti- tion where the court is satisfied that the original petitioning creditor does not intend to prosecute further, and the pending application of the original creditor to discontinue the proceed- ings is sufficient evidence in that regard.^'' The pendency of a petition to discontinue the proceedings instead of depriving creditors of the right to inten'^ene is notice to them that the original creditor does not intend to prosecute further and con- fers on them the very right to intervene.-* An assignee of a claim has same right to intervene as his assignor,^^ and where one who files a petition in bankruptcy against another is himself adjudged a bankrupt, his trustee is properly substituted as petitioner in his place.^" A receiver appointed by a state court may be permitted to intervene to oppose the adjudication, in the discretion of the court.^* A creditor assenting to a common-law assignment is estopped to intervene. ^^ 1 N. B. N. 412; In re Austin, 16 N. B. 18 — ^In re Buchanan, 10 N. B. R. 97, E. 518, Fed. Cas. No. 662; In re Men- Fed. Cas. No. 2073. denhall, 9 N. B. E. 380, Fed. Cas. No. 19— In re Fitzgerald, 191 Fed. 95, 26 9425; In re Mammoth Lumber Co., 109 A. B. R. 773. Fed. 308, 6 A. B. R. 84. 20— In re Jones, 7 N. B. R. 506, Fed. 15— In re Dandridge & Pugh, 209 Fed. Cas. No. 7450. 838, 31 A. B. R. 15. 81 — Blaekstone v. Everybody's Store, 16— In re Smith, 176 Fed. 426, 23 A. 207 Fed. 752, 30 A. B. E. 497; Butler & B. R. 864. Co. V. Pahnenberg, 207 Fed. 705, 30 A. 17— In re Buchanan, 10 N. B. B. 97, B. R. 502. Fed. Cas. No. 2073; In re Lacey, 10 N. 22— In re Lewis F. Perry & Whitney B. R. 477, Fed. Cas. No. 7965; In re Co., 172 Fed. 745, 22 A. B. R. 772; aff'd Shaffer, 17 N. B. R. 369, 4 Sawy. 363, Stroheim v. Perry & Whitney Co., 175 Fed. Cas. No. 12742. Fed. 52, 23 A. B. R. 695. § 139] Parties, Pleadings and Pbocess 153 Where the act of bankruptcy charged in an involuntary peti- tion against a partnership is the transfer of its property to an assignee for the benefit of creditors, such assignee is entitled to intervene and contest the petition, and, having been permitted to intervene and been heard, he has the right to appeal from a decree adjudging respondent bankrupt.^* Where one member of a firm died and his administrators allowed the surviving part- ner (respondent) to continue the business without a new agreement, the administrators could only come in as any other creditors, in the absence of a new agreement, the surviving part- ner having converted his former partner's property to his own use with the knowledge and consent of the administrators.^* § 139. — Time of intervention. Creditors other than the original petitioners may, at any time, enter their appearance and join in the petition,^® even though the four months have expired since the commission of the act of bankruptcy.^® Such intervention must be made during the pendency of the proceedings, and as a rule will not be made after adjudication or dismissal, since the successive retrial of decided issues will not be permitted,^ ^ though it is within the court's power to permit creditors other than original petitioners to intervene at any time.^^ Under the former act nearly two years after a firm filed a voluntary petition in bankruptcy on which it was adjudged bankrupt and its property conveyed to an assignee, a creditor filed a bill alleging that two persons not named in the petition were copartners in the firm and asked that they be joined in the bankruptcy proceedings, and it was held that the creditor could not supply the omission, but could have 23— In re Meyer, 98 Fed. 976, 3 A. 27 — Neustadter v. Dry Goods Co., 1 B. E. 550. N. B. N. 552, 3 A. B. E. 96, 96 Fed. 24^In re Mills, 11 N. B. E. 74, Fed. 830; In re Bush, 6 N. B. E. 179, Fed. Cas. No. 9611. Cas. No. 222; In re Mutual Mercantile 25— Act of 1898, § 59f. In re Cren- Agency, 111 Fed. 152, 6 A. B. E. 607; In shaw, 156 Fed. 638, 19 A. B. E. 502; re Tribelhorn, 137 Fed. 3, 14 A. B. E. In re Lewis F. Perry & Whitney Co., 172 491 ; In re Marion Contract and Con- Fed. 744, 22 A. B. E. 770., struction Co., 166 Fed. 618, 22 A. B. E. 26— In re Charles Town Light & Power 81. Co., 183 Fed. 160, 25 A. B. E. 687; In re 28— In re Stein, 105 Fed. 749; In re Maekey, 110 Fed. 355, 6 A. B. E. 577; Houghton, 10 N. B. B. 337, Fed. Cas. In re Stein, 105 Fed. 749, 5 A. B. K. No. 6730; In reOImstead, 4 N. B. E. 71, 288; In re Eomanow, 1 N. B. N. 213, Fed. Cas. No. 10505. 1 A. B. E. 461, 92 Fed. 510. 154 Bkandenbxjeg on BankbxjptC"? [§ 139 ^he same remedies against sucli parties as before tlie petition was filed.^^ § 140. — Manner of intervention. A creditor other than the original petitioner may intervene by- petition, simply alleging that he is a creditor and desires to intervene and thereby becomes entitled to all the rights of such original petitioner.^" § 141. — Status of interveners. Intervening creditors acquire a definite status as parties, and any order or decree of the bankrupt court affects them just as it affects original parties. The interveners cannot be eliminated except upon such hearing as must be accorded to the original parties. So it is held that they are necessary parties to an appeal from an order denying an adjudica;tion.*^ § 142. — Intervening creditors counted. Creditors joining in the petition subsequent to the filing thereof may be counted in making up the number of creditors and amount of claims,^^ and where the requisite number does not join, and afterwards a supplemental petition is filed in which other creditors join, the total number being sufficient, the sup- plemental petition will not be dismissed because it did not alone contain the requisite number.^* § 143. — Withdrawal of petitioners. Permission to withdraw will be denied whenever necessary to further the purposes of the act.^* Where a creditor joins in a proceeding in involuntary bank- ruptcy and allows the petition to be filed, and afterwards assigns 29— Citizens' Nat. Bank v. Cass, 18 33— In re Frisbie, 15 N. B. E. 522, 14 N. B. E. 279, Fed. Cas. No. 2732. Blatch. 185, Fed. Cas. No. 5129. 30 — In re Taylor, 1 N. B. N. 412; In 34 — In re Quincey Granite Quarries re Austin, 16 N. B. E. 518, Fed. Cas. Co., 147 Fed. 279, 16 A. B. E. 823; In No. 662; In re Mendenhall, 9 N. B. E. re Sheffer, 17 N. B. E. 369, 4 Sawy. 363, 380, Fed. Cas. No. 9424. Fed. Cas. No. 12742; In re Beddingfield, 31— In re Dandridge & Pugh, 209 Fed. 1 N. B. N. 385, 2 A. B. E. 355, 96 Fed. 838, 31 A. B. E. 15. 190; In re Eomanow, 92 Fed. 510, 1 N. 32— In re Crenshaw, 156 Fed. 638, 19 B. N. 213, 1 A. B. E. 461; In re Sargent, A. B. E. 502; In re Plymouth Cordage 13 N. B. E. 144, Fed. Cas. No. 12361; Co., 135 Fed. 1000, 13 A. B. E. 665; In re Eosenfields, 11 N. B. E. 86, Fed. In re Charles Town Light & Power Co., Cas. No. 12061. 183 Fed. 160, 25 A. B. E. 687. § 146] Pabties, Pleadings and PkoOess . 155 his claim,^^ or obtains a settlement from the bankrupt,^^ it, is too late to withdraw from the proceedings. When, however, a cred- itor's name has been signed to the petition without his knowl- edge, he may repudiate the proceedings and the petition will be dismissed as to him ^'' or if he join therein through misrepre- sentation, he may be allowed to withdraw at any time before adjudication; f^ though not if the misrepresentation is not sub- stantial and intentionally false.^^ A party having once appeared cannot withdraw his appearance on the ground that the court did not have jurisdiction, but must raise that question by demurrer.*" A creditor who has petitioned for leave to join may, in the discretion of the court be allowed to withdraw his petition.*^ §144. Process. § 145. — Form of. All process, summons and subpoenas shall issue out of the court, under its seal, and be tested by the clerk; and upon appli- cation, blanks with the signature of the clerk and seal of the court, may be furnished to referees.*^ The memorandum to tbe effect that "the defendant is to enter his appearance in the suit in the clerk's office on or before the day at which the writ is returnable; otherwise the bill may be taken pro confessO," required by Equity Eule 12 need not be contained in the writ of subpoena.** §146. — By whom issued. The referee has no power to issue a subpoena,** but the same may be issued by the clerk.*^ 35 — But Bee In re Western Savings 41 — Moulton v. Coburn, 131 Fed. 201, & Tr. Co., 17 N. B. E. 413, Fed. Cas. No. 12 A. B. R. 553, afE'g 126 Fed. 218, 11 17442. A. B. E. 212. 36 — In re Ryan, 114 Fed. 373, 7 A. B. Dismissal of petition,^,8ee post, Chap. E. 562. VIII. 37— In re Rosenfields, 11 N. B. R. 86, 42— G. O. Ill; Official Forms 4 and 5, Fed., Cas. No. 12061. §§ 1690, 1691, post. 38— In re Sargent, 13 N. B. R. 144, 43 — In re Wing Yick Company, 13 A. Fed. Cas. No. 12361 ; In re HefEron, 6 B. E. 360. Biss. 156, Fed. Cas. No. 632. 44— In re Pierce, 111 Fed. 516, 6 A, 39— In re Vogel, 18 N. B. E. 165, Fed. B. E. 747. Cas. No. .16981. 45— In re Abbey Press, 134 Fed. 51, 13 40— In re Ulrich, 3 N. B. E. 34, 3 A. B. R 11. Ben. 355, Fed. Cas. No. 14327. 156 Bbandbnbxjbg on Banketjptoy [§ 147 §147. — When issued. No process of subpoena will issue from the clerk's office in any suit in equity until the bill is filed in the office.*^ that is, in bank- ruptcy proceedings until the petition is filed; and, whenever, a bill or petition is filed, the clerk must issue the process of sub- poena thereon, as of course, upon the application of the plaintiff or petitioner.*'' Where there is more than one defendant or respondent, a writ of subpoena may, at the election of the plaintiff or petitioner, be issued out separately for each defendant or respondent, except in the case of husband and wife defendants, or a joint subpoena against all the defendants or respondents.** No process need be issued on an intervening petition, if issued on the original petition.*^ § 148. — Personal service. Upon the filing of a petition for involuntary bankruptcy, serv- ice thereof, with a writ 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.^" 46 — Equity Eule 11. property not excepted by this act frOm 47 — Equity Eule 12. the operation thereof and from any inter- 48 — Equity Eule 12. f erenee therewith. ... A copy of the 49 — In re Taylor, 1 N. B. E. 412; In petition and of such order to show cause re Laeey, 10 N. B. E. 477, 483, 492. shall be served upon such debtor by de- 50 — Act of 1898, § 18a. livering the same to him personally, or Analogous provision of Act of 1867. leaving the same at his last or usual place "Sec. 40. . . . That upon the filing of abode; or, if such debtor cannot be of the petition authorized by the next pre- found, or his place of residence ascer- ceding section, if it shall appear that tained, service shall be made by publi- suflicient grounds exist therefor, the court cation in such manner as the judge may shall direct the entry of an order re- direct. No further proceedings, unless quiring the debtor to appear and show the debtor appear and consent thereto, cause, at a court of bankruptcy to be shall be had until proof shall have been holden at a time to be specified in the or- given, to the satisfaction of the court, der, not less than five days from the of such service or publication; and if service thereof, why the prayer of the such proof be not given on the return petition should not be granted; and may day of such order, the proceedings shall also, by its injunctions, restrain the be adjourned and an order made that debtor, and any other person, in the the notice be forthwith so served or pub- meantime, from making any transfer or lished." disposition of any part of the debtor's '§ 148] Parties, Pleadings and Pkocbss 157 The quashing of a subpoena returnable after the statutory fifteen days does not, however, oust the court of jurisdiction." In determining the return day of a writ of subpoena, Sundays and holidays are included in the computation.^^ Whenever any subpoena shall be returned not executed as to any defendant, the plaintiff shall be entitled to another sub- poena, toties quoties, against such defendant if he shall require it, until the due service is made; ^* and the service of all process, mense and final, shall be by the marshal of the district, or his deputy, or by some other person specially appointed by the court for that purpose, and not otherwise. In the latter case, the person serving the process must make afiidavit thereof. Upon the return of the subpoena as served and executed upon any defendant, the clerk must enter the suit upon his docket as pending in the court, and state the time of the entry.^* The duplicate petition with a writ of subpoena must be served upoii the alleged bankrupt. An order to show cause why the prayer of the petition should not be granted is provided,^^ which also orders a copy of the petition with a subpoena to be served^* upon the alleged bankrupt by delivering to him personally or "by leaving the same at his last usual place of abode in said district" at least five days before the time fixed for the hear- ing. The mode of service directed in the order to show cause ^'' must be construed to mean "last" in time, that is, the existing, present, dwelling-house, or the existing, present, usual, custom- ary place of abode,^* and if he has had more than one place of abode in the district, it would be the last, in common parlance, though correctly used "last" signifies past and done with. However, if inquiry at the "last" and usual abode of an alleged bankrupt elicits no information as to his present whereabouts beyond the fact that he is not in, service is sufficiently made by leaving the papers with some adult person who is a member of or resident in the family, stating that they are for the bank- rupt.^® 51— In re Levy Outfitting Co., 29 A. 54— ^E.quity Eule 15. B. B. 13. 55 — Official Form 4, § 1690, post. 52— In re Levy Outfitting Co., 29 A. 56 — See Equity Eule 13. B. R. 13. " 57— Official Form 4, § 1690, post. 53— Equity Eule 14. Gleason v. Smith, : 58— Hyslop v. Hoppock, 6 N. B. E. 552, Perkins & Co.,' 145 Fed. 895, 16 A. B. E. 5 Ben. 447, Fed. Cas. No. 6988. 602. 59— In re Norton, 148 Fed. 301, 17 158 Brandenbubg on Bankeuptcy [§ 148 Service on the cashier of a corporation which has passed into the hands of a receiver,^" or upon the agent or attorney appointed to receive service of process within the state, in case of a foreign corporation, is sufficient,^^ but service upon a director of a corporation not authorized to accept service has been held insufificient.®^ Service may be made outside the district,^* but where service is so made without an appearance on defendant's part, no order can be made which will apply to him in person, but the proceed- ing will affect only property which can come into possession of the trustee.®* The court does not lose- jurisdiction by reason of the fact that the subpoena accompanying the original petition is returned with the endorsement that the debtor cannot be found, and noth- ing further is done,®^ § 149. — By publication. In case personal service cannot be made, notice must be given by publication in the same manner and for the same time as pro- vided by law for notice by publication in suits to enforce a legal or equitable lien, in the courts of the United States, except that unless the judge shall otherwise direct, the order need not be published more than once a week for two consecutive weeks,®* A. B. E. 504; In re Derby, 8 N. B. E. The act prior to the amendment of 106, Fed. Cas. No. 3815; Ala. & Chatt. February 5, 1903, read as follows: E. E. Co. V. Jones, 5 N. B. E. 97, Fed. "Upon the filing of a petition for Cas. No. 126. involuntary bankruptcy, service thereof, 60 — Piatt V. Archer, 6 N. B. E. 465, with a writ of subpoena, shall be 9 Blatch. 559, Fed. Cas. No. 11213; Ala. made upon the person therein named & Chatt. E. E. Co. v. Jones, 5 N. B. E. as defendant in the same manner that 97, Fed. Cas. No. 126; Isett v. Stewart, service of such process is now had upon 16 N. B. E. 191; Stuart v. Hines, 6 N. the commencement of a suit in equity in B. E. 416. the courts of the United States, except 61 — In re Magid Hope Silk Mfg. Oo., that it shall be returnable within fifteen 110 Fed. 352, 6 A. B. E. 610. days, unless the judge shall for cause fix 62 — In re Plasmon Co., 14 A. B. R. a longer time; but in case personal service 487. cannot be made, then notice shall be given 63 — Hills V. F. D. McKinniss Co., 188 by publication in the same manner and Fed. 1012, 26 A. B. E. 329. for the same time as provided by law 64— In re Appel, 103 Fed. 931, 2 N. for notice by publication in suits in B. N. E. 907. equity in courts of the' United States." 65— In re Stein, 105 Fed. 749, 5 A. B. The provision is satisfied by two pub- ^- 288. lications, one on a certain day of the week 66— Act of 1903, § 18ft, and another on the same dajr of the week 1 151] Parties, Pleadings and Pbocess 159 and the return day shall be ten days after the last publication unless the judge shall fix a longer time.®'' An order designating a day upon which the defendant is required to appear and plead, must be made by the court, and it is such order that must be published.^* , Service by publication is only authorized where the party to be served cannot be found or his place of residence ascerjjained,®^ and is not authorized where an adult person who is a member or resident of his family can be found at his last place of resi- dence.''" Notwithstanding the fact that a lunatic has been per- sonally served, the better practice is to supplement it by the usual publication.''^ Publication is constructive notice to the person in possession as well as to the defendant, and hence it is not necessary that the order directing service by publication be served upon a state receiver in possession of the alleged bankrupt's property.''^ § 150. Notice to ^editors. §151. — In general. The proceeding is in a large sense in rem. The filing of the petition by proper parties, containing the jurisdictional allega- tions, operates as lis pendens, and no notice to creditors is necessary.''* If a party holding an adverse claim is made a defendant, and it sets up no cause of action and prays no special relief against him, the purpose merely being to put an end to further action by him, he does not by such procedure continue to be subject to the orders of the bankruptcy court without further process.''* following. In re McDonald, 30 A. B. for the bankrupt to appear before the E. 120. court at the time and place named therein 67 — "Eeturn day" used in section 18 to answer the petition in bankruptcy, means the day appointed by law when Bauman Diamond Co. v. Hart, 192 Fed. writs are to be returned and filed by 498, 27 A. B. E. 632. the marshal and not answer day or ap- 69 — Stuart v. Hines, 6 N. B. E. 416. pearance day. In re McDonald, 30 A. 70 — In re Norton, 148 Fed. 301, 17 B. E. 120. A. B. E. 509. 68 — As to form of order, see In re 71 — In re Burka, 107 Fed. 674, 5 A. McDonald, 30 A. B. E. 120. B. E. 843. The mere publication of a citation is- 72 — Bauman Diamond Co. v. Hart, 192 sued .by the clerk directing the marshal Fed. 498, 27 A. B. E. 632. to summon the bankrupt by making pub- 73 — In re Billing, 145 Fed. 395, 17 lieation of the citation is insufScient A. B. E. 80. though the citation contains a direction 74 — Louisville Trust Co. v. Cominger, 160 Beandenbueg on Bankbuptcy [§152 § 152. — Creditors named in answer. Section 59d of the act provides that: "If it be averred in the petition the creditors of the bankrupt 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, and thereupon the court shall cause all such creditors to be notified of the pendency of such petition." The duty of sending out the notices to creditors prescribed in this subdivision is in the first instance on the respondent; but, on his default, the duty devolves on the petitioner. It is in the court's discretion to decide what effect failure to send out such notices in a reasonable time shall have.''^ The mode of service, whether personally or by mail, is discretionary.''^ § 153. Form of petition. All petitions and the schedules filed therewith must be printed or written out plainly, without abbreviation or interlineation, except where such may be necessary for the purpose of refer- ence,'''' and it has been held that petitions in bankruptcy wiU not be filed nor considered unless they are the prescribed printed forms, and that written or typewritten petitions and schedules will be returned to the parties without action; '''^ but such requirement is governed entirely by rule of court and not bj^ any provision of the law. A defective caption does not deprive the court of jurisdiction of the proceedings.''^ The general form of petition in involuntary bankruptcy®" should be used as the form of an involuntary petition against a partnership with the necessary adaptations to meet the par- ticular case, no special form being prescribed, and the bank- rupt's answer should also be in the form prescribed.*^ 184 U. 8. 18, 46 L. ed. 413, 7 A. B. R. 78— Mahoney v. Ward, 2 N. B. N. E. 421, aff'g 107 Fed. 898, 5 A. B. E. 537. 538, 3 A. B. E. 770, 100 Fed. 278; see 75— In re Barrett Pub. Co., 2 N. B. N. also 1 N. B. N. 239, 396. E. 80. 79— In re Gorman, 15 A. B. E. 587. 76— In re Tribelhorn, 137 Fed. 3, 14 80— Official Form 3, § 1683, post. A. B. E. 491. 81— Official Form 6, . § 1^95, post; 77— G. 0., v.; Official Forms 1, 2, and Mather v. Coe, 1 N. B. N. 554, 1 A. B. 3, §§ 1669, 1682, 1683, post. E. 504, 92 Fed. 333. § 155] Paeties, Pleadings and Process § 154. Allegations of petition. 161 § 155. — In general. A petition in involuntary bankruptcy is in the nature of a pleading and should set forth all the facts material to the claim of the petitioner for an adjudication so that the alleged bank- rupt may be distinctly apprised of what he is required to answer; ®^ though the allegations may be made upon information and belief especially if the sources of information and the grounds of belief a,re given.** The statute contemplates that a trial by jury may be had upon the allegations of the petition in case the alleged bankrupt so chooses and therefore the allega- tions must be of issuable facts, made with reasonable and suflSioient certainty.** A petition is insufficient if it states dis- junctively, or in the alternative several facts, any one of which would be sufficient if alleged unqualifiedly.*^ The authority under which he acts need not be set forth by the agent of a petitioner in bankruptcy.*® Where the petition in involuntary bankruptcy is filed by a partnership, the names of the partners should be disclosed.*'' The petition need not allege that property to be seized is net exempt.** 82— Clark v. Henne & Meyer, 127 Fed. 288, 11 A, B. E. 583; In re Hallin, 199 Fed. 806, 28 A. B. E. 708; In re Sig. H. Eosenblatt & Co., 193 Fed. 638, 28 A. B. R. 401; In re Blmnberg, 133 Fed. 845, 13 A. B. E. 343 ; In re Eaynor, 7 N. B. E. 527, 11 Blatch. 43, Fed. Cas. No. .11597; In re EandaU, 3 N. B. R. 4, Deady 557, Fed. Cas. No. 11551; In re Chappel, 4 N. B. E. 176, Fed. Cas. No. 2612. 83— Orem v. Harley, 3 N. B. E. 62, Fed. Cas. No. 10567; In re Scammon, 10 N. B. E. 66, 6 Bis8. 130; Mueller v. Brentano, 3 N. B. E. 329 ; In re Scull, 7 Ben. 371. Insertion of the words in the petition, that it is made upon information and be- lief, neither add or detract to the strength of the allegation. In re Ball, 156 Fed. 682, 19 A. B. R. 609. 84— in re Hark Brog., 135 Fed. 603, 14 A, B. E. 400; in re Butterfielid, 5 Biss. Brandenburg — 11 120, Fed. Cas. No. 2247; In re Eath- bone, 1 N. B. E. 50, 65, Fed. Cas. No. 11580; In re Beardsley, 1 N. B. E. 52, Fed. Gas. No. 1183; In re Mawson, 1 N. B. E. 115, Fed. Cas. No. 9318; Ex parte Potts, Fed. Cas. No. 11344. 85— In re Laskaris, 1 N. B. N. 209, 1 A. B. E. 480; In re Hannibal, 15 N. B. E. 233, Fed. Cas. No. 6023; Arnat y. Wright, 55 Hun. '561. 86— In re Taylor, 102 Fed. 728, 2 N. B. N. E. 929, 49 B. E. 515; In re Oregdn Bull. Pr. and Pub. Co., 14 N. B. E. 405, 3 Sawy. 614, Fed. Cas. No. 10561, s. c. 13 N. B. E. 503, Fed Cas. No. 10550; Ala. and Chatt. E. E. Co. v. Jones, 5 N. B. E. 97, Fed. Cas. No. 126. But see, In re Levingston, 13 A. B. E. 357. 87— In re Levingston, 13 A. B. E. 357. 88 — Hoffschlaeger Company, Ltd., v. Young Nap, alias Young Lap, 12 A. B. E. 510. 162 Beandenbueg on Bankexjptcy [§ 155 The fact that a petition contains a prayer for intervention will not deprive it of its character as an original petition if it is otherwise sufiScient as such.^® A false statement of a jurisdictional fact for the purpose of making the bankrupt file a statement of his creditors constitutes a fraud upon the court which should set aside any process obtained by such deception, as where a petition in involuntary bankruptcy was signed by six creditors, the first five of whom verified it, alleging that they believed they were one-fourth of the creditors when they knew it was untrue.^'' § 156. — Residence or place of business of d^tor. Having a principal place of business, residence or domicile ^^ within the territorial jurisdiction of the particular court of bankruptcy in which the petition is filed is jurisdictional and must be alleged in the petition and proved. It is not sufficient to allege these facts disjunctively in a petition because in such case it states neither one fact nor the other, but a positive statement of any one of these facts, or a conjunctive statement of any two or all three would be sufficient; and, it has been held that if upon examination of the petition and schedules,^* the referee finds them insufficient, he should return them to the clerk with a state- ment of the defects noted thereon.^^ 89 — In re HafE, 136 Fed. 78, 13 A. B. of business, was not sufficient to sustain E. 362. an allegation of carrying on business 90 — ^In re Keiler, 18 N. B. R. 10, Fed. -within the jurisdiction (In re Little, 2 Cas. No. 7647; In re Scanimon, 11 N. N. B. E. 97, 3 Ben. 25, Fed. Cas. No. B. R. 280, 6 Biss. 195, Fed. Cas. No. 8391) ; and, where a person acted as 12429. agent and attorney in buying and selling 91 — Vnder the act of 1867. A peti- merchandise, at an office with a sign tioner in bankruptey» carried on busi- having his brother's name on it, and was ness for many years in one city and then well known by those dealing with him to retired and moved to another, but was be doing such business at that office, he employed in the former place, his petition carried on business within the meaning was properly filed in the district where of the term used (Iri re Bailey, 1 N. his business was conducted (In re Belcher, B. B. 177, 2 Ben. 437, Fed. Cas. No. 1 N. B. E. 202, 2 Ben. 463, Fed. Cas. 753). As to office of a corporation, see No. 1237). A clerk employed in one In re Cal. Pac. E. E. Co., 11 N. B. B. state and residing in another was held 193, 3 Sawy. 240, Fed. Cas. No. 2315. not to have carried on business in the 92 — Act of July 1, 1898, § 39a (2). former (In re Magie, 1 N. B. E. 153). 93— In re Laskaris, 1 N. B. N. 209, 1 The fact that a person has an office at A. B. R. 480; In re Clisdell, 2 A. B. B. which he receives mail and settles up the 24; In re Beals, 17 N. B. E. 108, 9 Ben. old business of an insolvent firm of which 223, Fed. Cas. No. 1165. he was a member, and which had gone out 158] Parties, Pleadings and Peocess 163 §157. — Nature of petitioners' claim. The nature of the petitioners' claim should be set out with such particularity as will enable the court to find from the peti- tion the essential jurisdictional facts.®* As creditors must have been such at the time of filing the petition, this must appejir in the petition.*^ F^-cts, not conclusions of law, must be alleged, so that it is not sufficient to allege that petitioner has a "prov- able claim" but the facts showing that it is one must be alleged.^® To uphold a demurrer to a petition on the ground that the claim of a petitioner is baiTed by the statute of limi- tations it must affirmatively appear that the claim is so barred.®'' §158. — Number and amount of claims. It must appear that there is the requisite number of creditd^s under the law ®® and that their claims are of the required amount, but an averment to that effect may be made upon information and belief.®® That the petitioners should know such to be the 94— In re Farthing, 202 Fed. 557, 29 A. B. E. 732. Petition should set out with reasonable particularity the nature of petitioner's claim, the dates, to whom payable, whether acquired by assignment, etc. Id. 95— In re Western 8av. & Tr. Co., 17 N. B. E. 413, 4 Sawy. 190, Fed. Cas. No. 17442. 96— In re White, 135 Fed. 199, 14 A. B. E. 241; In re Hadley, 12 N. B. R. 366, Fed. Cas. No. 5894. But see. In re Brett, 130 Fed. 981, 12 A. B. E. 492. An allegation of debt as "balance due upon goods, wares and merchandise sold and delivered to respondent by petitioner at respondent's request" is sufficient as to the nature of the petitioner's claim. Hoffsehlaeger Company, Ltd., v. Young Nap, alias Young Lap, 12 A. B. E. 510. A petition stating that the claims of the petitioners are provable and are for goods sold and delivered within one year of the date of the execution of the pe- tition is sufficient without an allegation as to when the claims became due or as to the amount of the securities held, or as to the manner in which the value of the securities are fixed. In re Hark Bros., 135 Fed. 603, 14 A. B. E. 400. An allegation of the alleged bank- rupt's place of business for six months prior to the filing of the petition is a sufficient allegation as to the place where the debt of the alleged bankrupt for goods sold and delivered accrued. Hoff- sehlaeger Company, Ltd., v. Young Nap, alias Young Lap, 12 A. B. E. 510. A petition averring that a firm were manufacturers and had made and de- livered certain notes which were nego- tiated but not paid, need not allege that the notes were given for the purpose of their business. In re Kenyon, 6 N. B. E. 238; contra, In re Cap. Pub. Co., 18 N. B. E. 319. 97 — ^Allegation that petitioners "hold and own negotiable notes" executed by the bankrupt for the amounts named, "now due and owing to petitioners" is too indefinite. In re Farthing, 202 I^gd. 557, 29 A. B. E. 732; In re E. L. Eadke Co., 193 Fed. 735, 27 A. B. E. 950. 98— In re Scammon, 11 N. B. E. 280, 6 Biss. 195, Fed. Cas. No. 12429; Taft Co. V. Century Savings Bank, 141 Fed. 369, 15 A. B. E. 594. 99— Perin & Gaff Mfg. Co, v. Peale, 17 N. B. E. 377, Fed. Cas. No. 10981. 164 Bbandenbueg on Bankruptcy [§ 158 fact cannot in tlie very nature of the case be required, and when the petition is alleged upon belief, without charging either information or knowledge, that the petitioners constitute the requisite proportion of creditors, it will nevertheless be sufficient.^ Where a petition shows on its face a su^cient petitioning creditor, and there is established on the trial a sufficient peti- tioning creditor, the absence of a statement of the amount of his claim in the petition may be disregarded.^ § 159. — Business or occupation of debtor. A court of bankruptcy is a court of record, and, although its j^sdiction is limited, it is not an inferior court in the sense that all facts essential to its jurisdiction must affirmatively appear on the face of the record, and a decree cannot be im- peached collaterally, as for want of jurisdiction, merely because the petition omitted to allege that the corporation belonged to one of the classes that might be adjudged an involuntary bank- rupt.^ While there is some diversity of opinion as to whether the petition should aver. the bankrupt's business or that he does not come within the excepted classes, the better practice is to set forth such information,* though its omission would not be fatal, if the form of petition prescribed by supreme court,^ is other- wise followed, since that makes no provision for such informa- tion.^ The principal business of the alleged bankrupt must be 1 — In re Mann, 14 N. B. E. 572, 13 alleged bankrupt is not one of the ex- Blatchf. 401, Fed. Cas. No. 9033. cepted classes or that it appear from a 2 — In re Pangborn, 185 Fed. 673, 26 specific statement of the business ip A. B. E, 40. -which he is engaged that his principal, 3 — In re Columbia Real Estate Co., business is not within the exceptions. In 101 Fed. 965, 4 A. B. E. 411; In re re Brett, 130 Fed. 981, 12 A. B. E. 492. Elmira Steel Co., 109 Fed. 456, 5 A. B. Defect in this respect may be cured E. 484; In re Stern, 116 Fed. 604, 8 A. by amendment. Conway v. Gennan, 166 B. E. 569; In re Taylor, 102 Fed. 728, Fed. 67, 21 A. B. R. 577. 2 N. B. N. E. 929, 4 A. B. E. 515; In 5— Official Form 3, § 1683, post. re Pilger, 118 Fed. 206, 9 A. B. R. 244;. 6— In re Broadway Savings Trust Co., In re White, 135 Fed. 199, "14 A. B. R. 152 Fed. 152, 18 A. B. E. 254; In re First 241 ; Rise v. Bordner, 140 Fed. 566, 15 Nat. Bank of Belle Fourche, 152 Fed. 64, A. B. R. 297; Woolford v. Diamond State 18 A. B. R. 265; In re Callison, 130 Fed. Steel Co., 138 Fed. 582, 15 A. B. R. 31; 987, 12 A. B. R. 344; In re Columbia In re Levingston, 13 A. B. R. 357; In re Real Estate Co., supra; Green Eiver De- Mero, 128 Fed. 630, 12 A. B. E. 171. posit Bank v. Craig, 3 N. B. N. E. 897, 4 — It is essential that the petition 110 Fed. 137, 6 A. B. R. 381 ; contra, In show by a negative averment that the re Taylor, 102 Fed. 728, 2 N, B, N. B. § 160] Parties, Pleadings and Process 165 stated. It is not sufficient to allege merely that a part of the business of the alleged bankrupt was within the statute.^ § 160. — Act of bankruptcy. The rule is that the specific facts relied on as an act of bank- ruptcy should be alleged with time, place, person and circum- staijces. An averment couched in the general language of the statute is insufiScient.* No greater detail, however, is required than it is probable the creditors can furnish,^ and if the names of the creditors receiving a preference alleged as an act of bankruptcy are not known, it is sufficient to allege the fact of the preference, adding the reason why a more specific allegation is not possible.^" So, in case of fraudulent concealment, where the evidence is wholly circumstantial, it is impossible and unriea- sonable, and therefore unnecessary, to aver in the petition the precise details of the act of concealment.^^ The intent to defraud should be alleged as a fact and not as a matter of infor- mation and belief in a petition setting up a preference or a fraudulent conveyance as an act of bankruptcy. ^^ Insolvency at the time of the transfer alleged as an act of bankruptcy must be alleged.^* Where a transfer within the 929, 4 A. B. E. 515; In re PilgSr, 118 a certain iaj^ because of insolvency a Fed. 206, 9 A. B. E. 244. receiver was put in charge of its prop- , 7 — In re Imperial Film Exchange, 198 erty under the laws of the State of Tea- Fed. 80, 28 A. B. E. 815. nessee in the chancery court thereof is 8 — In re Condon, 209 Fed. 800, 31 A. not an allegation of a conclusion of law. B. E. 754, aff'g 198 Fed. 947, 29 A. B. In re Kennedy Tailoring Co., 175 Fed. E. 907; In re Stone, 206 Fed. 356, 30 871, 23 A. B. E. 656. A. B. E. 392; In re Deer Creek Co., 9— In re Mero, 128 Fed. 630, 12 A. 205 Fed. 205, 29 A. B. E. 356; In re B. E. 171. - Eadke Co., 193 Fed. 735, 27 A. B. E. 950; 10 — In re Lackow, 140 Fed. 573, 14 A. In re Pressed Steel Wagon Goods Co., B. E. 514. 193 Fed. 811, 27 A. B. E. 44; In re Pure 11— In re Bellah, 116 Fed. 69, 8 A. Milk Co. of Mobile, 154 Fed. 682, 18 A. B. E. 310. B. E. 735; In re Hark Bros., 135 Fed. 12— Orem v. Harley, 3 N. B. E. 62, 603, 14 A. B. E. 400; In re White, 135 Fed. Cas. No. 10567. Fed. 199, 14 A. B. E. 241; In re Nelson, 13 — In re New Chattanooga Hardware 98 Fed. 76, 1 N. B. N. 567, 1 A. B. E. Co., 190 Fed. 241, 27 A. B. E. 77. 63; In re ClifEe, 1 N. B. N. 509, 2 A. B. And see. In re Ward, 161 Fed. 755, 20 E. 317, 94 Fed. 354. A. B. E. 482. Concealment of assets held sufficiently An allegation that the debtor applied alleged as an act of bankruptcy. In re for a receiver for its property followed Glazier, 195 Fed. 1020, 28 A. B. E. 391, by an allegation that the corporation was An allegation that the defendant com- then and there insolvent is a sufficient mitted an act of bankruptcy, in that, on allegation that the debtor was insolvent 166 Bkandenbukg on Bankeuptcy [§ 160 ifour-month period is the act of bankruptcy relied on, the peti- tion should allege an intent to hinder, delay or defraud, or to prefer one creditor over another." The petition in such case, should also allege that there were other creditors, and that the debts or indorsements secured by the mortgage were pre-exist- ing, or, if then incurred or made, that the mortgages were given for an adequate consideration. ^^ Failure to recite the partic- ular payments alleged to constitute a preference or to allege that the transfer referred to was made with intent to prefer renders the petition demurrable.^^ A petition which charges the obtaining of a judgment and levying of an execution against the debtor while insolvent as an act of bankruptcy but which fails to allege the failure on his part within five days before a sale or final disposition of the property levied on, to have the same vacated or discharged, is demurrable.^'' A petition charging that the application for a receiver in the name of a stockholder was the act and deed of the corporation, and that the directors and officers thereof accepted the service issued in the case sufficiently alleges that the corporation com- mitted an act of bankruptcy in applying for a receiver.^^ § 161. — When multifarious. Multifariousness consists in the inclusion in one bill of several matters perfectly distinct and independent and is generally for- bidden.^^ A petition in involuntary bankruptcy which unites with a prayer for the adjudication against the debtor a prayer for the provisional seizure of his property by the marshal and a prayer for an injunction against attaching creditors and a receiver of a state court forbidding them to dispose of certain property in their hands, is,multifarious; ^^ but a petition charg- when the application for a receiver was 17 — ^In re Vastbinder, 126 Ted. 417, U made. Exploration Mercantile Co. v. Pa- A. B. R. 118; In re Pressed Steel Wagon cifio Hardware & Steel Co., 177 Ped. 825, Goods Co., 193 Fed. 811, 27 A. B. E. 44. 24 A. B. R. 216. 18— Exploration MeroantUe Co. v. Pa- 14— In re Hammond, 163 Fed. 548, 20 cifio Hardware & Steel Co., 177 Fed. 825, A. B. R. 776; In re Flint Hill Stone & 24 A. B. R. 216. Const. Co., 149 Fed. 1007, 18 A. B. R. 19— Cooper, Eq. PI. 182, 18 Ves. 80, 2 81; In re Ewing, 115 Fed. 707. Mass. 201, 4 Cow. 682, 2 Gray 467. 15— In re Flint Hill Stone & Const. Co., 20— Mather v. Coe, 1 N. B. N. 554, 149 Fed. 1007, 18 A. B. R. 81. 1 A. B. R. 504, 92 Fed. 333. 16— In re Hammond, 163 Fed. 548, 20 A. B. R. 776. § 163] Parties, Pleadings and Pkocess 167 ing different acts of fraud, connected with different parts of the estate, hut done with a common fraudulent purpose,^^ or different acts of hankruptcy, is not. § 162. — Waiver of defects. Entering a general appearance and joining issue on the merits waives all formal or modal defects, and all questions which might have been raised by demurrer or plea in abatement. Thereafter it is too late to raise the objection that the petition does not state the special facts constituting an alleged preference since such defect might have been raised by motion to dismiss or answer and is amendable; ^^ or to object to the petition for any irregularity.^* § 163. Filing of petition. By section 59c of the act of 1898 it is provided: "Petitions shall be filed in duplicate, one copy for the clerk and one for service on the bankrupt. ' ' ^* This section does not say when the duplicate must be filed; but elsewhere*® it is provided that "upon the filing of a petition for involuntary bankruptcy, serv- ice thereof, with a writ of subpoena, shall be made, etc.," *® that the prayer shall be for "service of this petition with a sub- poena,"*'' that "a copy of said petition, together with a writ of subpoena, be served," and** that the clerk's docket shall contain a memorandum of the filing of the petition, but says nothing about the copy, while if the petition is to be filed in duplicate the docket should show it,*® since the day and hour of filing must be endorsed on each paper filed with the clerk. The duplicate therefore should be filed with the original, or to speak more correctly duplicate originals should be filed within the four months, and failure to so file a duplicate petition is a fatal error which cannot be cured by amendment, or by a filing nunc pro 21— Noreross v. Nathan, 2 N. B. N. 24 — In re Stevenson, 1 N. B. N. 313, B.. 405, 99 Fed. 414, 3 A. B. E. 613; 2 A. B. E. 66, 94 Fed. 110; In re Dupree, Carter v. Hobbs, 1 N. B. N. 191, 1 A. IN. B. N. 513, 97 Fed. 28. B. E. 215, 92 Fed. 594; Eobinson v. 25— Act of 1898, §18. White, 1 N. B. N. 513, 97 Fed. 333, 3 26— Official Form No. 3, § 1683, post. A. B. E. 88. 27— Official Form No. 4, § 1690, post. 22— In re Cliffe, 1 N. B. N. 509, 2 28— G. O. I. A. B. E. 317, 94 Fed. 354. 29— G. O. U. 23— In re MeNaughton, 8 N. B. E. 44, Fed. Cas. No. 8912. 168 Bbandbkbubg on Bankruptcy [§ 163 tunc, and the filing of the duplicate must be entered by the clerk on his docket,*" though it has been held that the failure to file a duplicate is waived by answering to the merits.*^ The statute is fully satisfied when an original and a copy are both filed in the clerk's office before the expiration of the four months' period after the act of bankruptcy. It is not necessary that two originals be filed.*^ "Wiiere the last day of the four- month period falls on Sunday, the petition may be filed on Monday.** A petition alleging as an act of bankruptcy a preference given by the bankrupt, which is filed within five days before the sale of final disposition of the property affected, excluding the day of such sale or disposition, is prematurely filed.** It is sufficient that the petition be delivered in duplicate to the clerk of the bankruptcy court and by him marked "Filed," though it is done outside of his office and after office hours,** but if the duplicate is not filed until after the expiration of four months from the act of bankruptcy, it will be fatal and incur- able, consequently the clerk's docket should show the filing of both copies.*® The petition should be filed with the clerk direct and not with the judge.*'' If the issuing of the subpoena is delayed until after the expiration of the four months, though the petition was filed within that time, the proceeding will nevertheless be valid.** A petition signed, verified and presented by all the members of a firm and accompanied by schedules of firm creditors and firm assets, no adjudication being made thereon, which is sub- sequently in part withdrawn, and a new petition filed, with 30— In re Stevenson, 1 N. B. N. 313, 2 A. B. E. 66, 94 Fed. 110; In re Von 2 A. B. E. 66, 94 Fed. 110; In re Dupree, Boreke, 1 N. B. N. 505, 2 A. B. E. 322, 1 N. B. N. 513, 97 Fed. 28. 94 Fed. 352. 31— In re Plymouth Cordage Co., 135 36— In re Stevenson, 1 N. B. N. 313, 2 Fed. 1000, 13 A. B. E. 665. A. B. E. 66, 94 Fed. 110; In re Dupree, 32— Millan v. Exchange Bank of Man- 1 N. B. N. 513, 97 Fed. 28; see In re nington, 183 Fed. 753, 24 A. B. E. 889. Bellah, 116 Fed. 69, 8 A. B. E. 310. 33— Eavenna Nat. Bank v. Curtiss, 37— In re Sykes, 106 Fed. 669, 6 A. 30 A. B. E. 818. B. E. 264. 34— Pittsburgh Laundry Supply Co. v. 38 — In re Appel, 103 Fed. 931, 2 N. Imperial Laundry Co., 154 Fed. 662, 18 B. N. E. 907; In re Lewis, 1 N. B..N. A. B. E. 756. 135, 556, 1 A. B. E. 458, 91 Fed. 632, 35 — In re Stevenson, 1 N. B. N. 313, citing In re Bear, 5 Fed. 53. § 167] Paeties, Pleadings and Pbocbss 169 certain parts of the old petition pasted thereon accompanied by the individual schedules of all the partners by way of amend- ment, and an adjudication made, within the meaning of the act the petition was filed on the later, and not the earlier date."^ § 164. Amendment of petition. § 165. — By whom allowed and form of application. The court, or referee, may allow amendments to the petition , and schedules; but such amendments must be printed or written, signed and verified, like the original petitions and schedules, and if made to separate schedules, must be made separately, with proper references; and, if made on application of the petitioner, the cause of error in the paper originally filed must be stated.*" § 166. — Requires special showing. Special reasons are required for amendments to sworn peti- tions or other pleadings required to be verified by the oath of the party; and, where the object is to introduce new facts or to change essentially the grounds of the prosecution or defense, the courts are disinclined to allow such amendments except for very special reasons, and in cases where they are clearly required in the furtherance of justice, and are applied for without unrea- sonable delay.*^ A formal application ffcr leave to amend should be made,*^ setting forth the reason for the omission or error in the original petition.** Where, however, the petition fails to state the reasons, the petitioners may be allowed time to make the inser- tion in their application.** §167. —Time of filing. An amended petition will not be stricken from the files merely becJause an order allowing an extension of time within, which to 39— In re Washburn, 99 Fed. 84, 3 13 N. B. E. 96, 6 Ben. 339, Fed. Gas. A. B. E. 585. No. 17935; White v. Bradley Tiniber Co., 40— G. O. XI; In re Brumelkamp, 1 116 Fed. 768. N. B. N. 360, 2 A. B. E. 318, 95 Fed. 42— In re Pressed Steel Wagon Goods 814; In re Harris, 1 N. B. N. 384, 2 Co., 193 Fed. 811, 27 A. B. E. 44i A. B. E. 359; In re Strait, 2 A. B. E. 43— G. O. XI. In re Pure Milk Go. of 308, 1 N. B. N. 354. Mobile, 154 Fed. 682, 18 A. B. e:'735. ■ 4-1— In re Eeed, 1 N. B. E. 137) Fed. 44^In re Portner, 149 Fed, 799, 18 Gas. No.' 11644; In re Keiler, 18 N. B. A. B. E. 89, E. -10, Fed, Gas. No. 7647; In re Wood, 170 Beandenbueg on Bankruptcy [§ 167 file it was not filed within the time originally allowed for the amendment.*^ § 168. — Objections to. Objections can only be made to defects which have not been waived, expressly or by proceeding regardless of them, and by persons who have not acted so as to estop themselves. A cred- itor who joined in an involuntary petition in good faith, cannot afterwards object to an amendment which is necessary to its prosecution,*® but, although no objection was made to a fault contained in the original petition, it may be objected to in an amended petition.*'' A creditor who fails to appear or answer a petition in bank- ruptcy within the statutory time thereby waives all objections to subsequent amendments thereto which do not change the sub- stance of the cause of action nor the extent of relief sought, and renounces his right to contest the cause of action, and his right to notice of a hearing upon the amended petition.** Where certain persons executed a petition as an amended petition and as auxiliary to pending proceedings which were dismissed, it cannot be filed as an amended petition because there is nothing to amend nor as an original petition because not executed as such.*^ § 169. — When allowed. • The general orders in bankruptcy with refereniee to amend- ments were not intended to abrogate or restrict the general power of amendment in other respects vested in courts.^" The granting or not granting of an application to file an amendment to the pleadings of a case in equity or at law, rests largely within the judicial discretion of the court, and the exer- cise of that discretion will not be interfered with by a reviewing court, unless it appears to have been practically abused." 45— In re E. L. Eadke Co., 193 Fed. N. B. N. E. 1122, 102 Fed 617 4 A. 735, 27 A. B. E. 950. B. E. 602. ' 46-.In re Sargent, 13 N. B. E. 144, 50— In re Bellah, 116 Fed. 69, 8 A. B. Fed. Gas. No. 12361. E. 310. 47— In re W. 8. Tr. Co., 17 N. B. E. 51— In re Sig. H. Eosenblatt & Co., 413, 4 Sawy. 190, Fed. Cas. No. 17442. 193 Fed. 638, 28 A. B. E. 401; Pittsburgh 48— In re Broadway Sav. T. Co., 152 Lavmdry Supply Co. v. Imperial Laundry Fed. 152, 18 A. B. E. 254. Co., 154 Fed. 662, 18 A. B. B. 756. 49— In re Hyde & Gload Mfg. Co., 2 Under the act of 1867 the following 169] Parties, Pleadings and Peocess 171 Where the facts are such as to make it apparent to the revising court that the right to amend could not have been denied by the court below except upon such a mistaken view of the facts dis- closed by the record as would amount to an abuse of the discretion exercised by the court, its action in that regard should be reversed and the amendment allowed.^* The right to amend exists at any stage of the proceeding,^^ jf otherwise authorized, regardless of the time that has elapSed,, but this right cannot go further than to bring forward and make effective that which is in some shape already in the record.^* A mistake in the name of the alleged bankrupt,^^ or the failure to join a non-resident partner,^® may be cured by amendment. So the petition may be amended with respect to the residence or place of business of the alleged bankrupt, and an averment as to amendments weie allowed and would doubtless be allowed now: Supplying the residence of his co-partner omitted in a petition by one partner against his co- partner (In re Vanderhoof, 18 N. B. B. 543, I"ed. Cas. No. 16841;, In re Jersey- City Window Glass Co., 1 N. B. E. 113, Ped. Cas. No. 7292) ; to conform to proof which differed from the allegations of the petition (In re Houghton, 1 N. B. K. 121, Ped. Cas. No. 6223) ; to supply an allega- tion that suffering property to be taken on legal process with intent to give a preference was done when the debtor was insolvent or in contemplation of in- solvency (In re Craft, 1 N. B. K. 89, 2 Ben. 214, Ped. Cas. No. 3816) ; to sup- ply the amount where the name of a creditor is stated in a petition asserting a claim by a proper averment l)ut the amount is omitted, .if done in good faith (In re Blaii, 17 N. B. B. 492, Ped. Cas. No. 1481) ; to supply the formal asser- tion of an averment which appeared in substance in the petition and of wliich evidence was received at the trial with- out objection (In re Craft, 2 N. B. B. 44, 6 Blatch. 177, Ped. Cas. No. 3317; In re McKibben, 12 N. B. R. 97, Ped. Cas. No. 8859) ; after adjudication to bring in his co-partner so as to effect a dis- charge of partnership debts (In re Little, 1 N. B. B. 74, 2 Ben. 86, Ped. Cas. No. 6390) ; after the first meeting of creditors to bring in certain judgment creditors (In re Bateliffe, 1 N. B. E. 98, Ped. Cas. No. 11578). In general, petitioning credit- ors may amend their petition on the trial (Hardy v. Bininger, 4 N. B. E. 77, Ped. Cas. No. 6057) ; or those whose rights ac- crue after admitted proof of claim (In re Jones, 2 N. B. B. 20, Ped. Cas. No. 7447). The court may allow supple- mental affidavits or proofs to be filed, if the af&davits to the petition or the depositions as to indebtedness and acts of bankruptcy are not sufficient (In re Hanibel, 15 N. B. E. 233, Ped. Cas. No. 6023). That justice might be done to all parties, great latitude of amendment was allowed up to a discharge in bankruptcy (In re Pierson, 10 N. B. B. 193, Ped. Cas. No. 11154) ; but a new cause of action would not be permitted under guise of amendment (In re Leonard, 4 N. B. E. 182, Ped. Cas. No, 8255; In re Gallinger, 4B. B. 729). 52— In re Carley, 8 A. B. E. 720. 53— In re Waite, 1 N. B. B. 84; May V. Harper, 4 N. B. E. 156. 54— In re Mercur, 116 Fed. 655, 8 A. B. B. 275. 55 — Gleason v. Smith, Perkins & Co., 145 Ped. 895, 16 A. B. B. 602. 56— In re Schwartz, 204 Ped. 326, 30 4.. B. E. 344. 172 Bkandenbxjeg on Bakkeuptcy [§ 169 residence within the judicial district for a period of more than six months prior to the filing of the petition substituted for one inadvertently, but erroneously, made, setting forth a conduct of business.^'' A petition against a partnership and the members thereof may be amended by striking out all reference to the partnership, where it appears that no partnership in fact existed.'* On the other hand, a petition filed by all the members of a fir^l in the form prescribed for partnership cases except that it does not ask for the adjudication of the firm but only of the members may be amended by inserting a prayer for the adjudication ofc the firm '^ and where the petition and schedules filed by one member of a firm seeking to be discharged from both firm and individual debts did not originally include them, to include petitioner's firm as well as individual indebtedness, the names of the mem- bers of the firm, and a prayer for discharge from partnership debts, the schedules to contain a list of the firm's property and debts.^" An amendment relating to the number of petitioning cred- itors,®^ and nature and amount of their claims,®^ to the occupa- tion or business of the debtor,®^ and to errors and deficiencies 57— In re Weinman, 2 N. B. N. R. 51; 94, 21 A. B. E. 570; In re White, 135 Fed. In re Blair, 2 N. B. N. E. 364, 99 Fed. 199, 14 A. B. E. 241. 76, 3 A. B. E. 588 ; In re VanderhofE, Motion to amend petition by setting out 18 N. B. E. 543, Fed. Cas. No. 16841; petitioner's claim with more partieular- Woolf ord V. Diamond State Steel Co., 138 ity denied where creditors representing Fed. 582, 15 A. B. E. 31. 97 per cent of the indebtedness had as- 58 — In re Eiehardson, 192 Fed. 50, 27 sented to general assignment and ob- A. B. E. 590. jeeted to amendment. In re Farthing, 59— In re Meyers, 2 N. B. N. R. Ill, 202 Fed. 557, 29 A. B. E. 732. 3 A. B. E. 260, 97 Fed. 757; see In re 63— In re Marion Contract & Con- MeFaun, 96 Fed. 592, 3 A. B. E. 66. struction Co., 166 Fed. 618, 22 A. B. 60— In re Laughliu, 96 Fed. 589, 3 E. 81; Conway v. German, 166 Fed. 67, A. B. E. 1; In re Hartman, 96 Fed. 593, 21 A. B. E. 577; In re Broadway Sav- 3 A. E. B. 65. ings Trust Co., 152 Fed. 152, 18 A. B. 61— Petition by a single creditor may E. 254; In re First Nat. Bank of Belle be amended by alleging that creditors Fourehe, 152 Fed. 64, 18 A. B. E. 265; are less than twelve in number. In re In re Crenshaw, 156 Fed. 638, 19 A. B. Plymouth Cordage Co., 135 Fed. 1000, E. 502; Armstrong v. Fernandez, 208 TJ. 13 A. B. E. 665; In re HafE, 136 Fed. 78, S. 324, 52 L. ed. 514, 19 A. B. E. 746; In 13 A. B. E. 362. re Brett, 130 Fed. 981, 12 A. B. E. 492; . 62— Millan v. Exchange Bank of Man- In re White, 135 Fed. 199, 14 A. B. E. nington, 183 Fed. 753, 24 A. B. E. 889; 241; In re Plymouth Cordage Co., 135 Conway v. German, 166 Fed. 67, 21 A. Fed. 1000, 13 A. B. E. 665. B. E. 577; Eyan v. Hendricks, 166 Fed. § 169] Parties, Pleadings and Peocess 173 in the verification of the original petition «* can be made though more than four months has elapsed' since the commission of the act of bankruptcy. When so made they relate back to the date of the filing of the original petition.^^ The referee may require a petition to be amended because the verification failed to show that it was made within the jurisdiction of the notary taking it, was indefinite in that it stated that the petitioner was "duly sworn or affirmed" and was defective and unavailing because of the disqualification of the notary, or for other good and suffi- cient reasons, and the judge will not interfere with his order ; ^"^ or on motion he may require schedules filed prior to the promul- gation of the rules, forms and orders to be amended and supple- mented to conform thereto.®'' The petition may be amended to specify the details of tlie alleged act of bankruptcy in accordance with evidence adduced at the hearing ®* or otherwise procured,®^ or, if it sets forth facts which, if properly alleged and proved, would justify an adjudica- tion, but the allegations are not sufficiently specific, and such petition is verified by the attorney instead of the creditors; ''"or to insert an act of bankruptcy before the expiration of the four months' period,''^ though subsequent to the filing of the original petition.'^ • A petition alleging as an act of bankruptcy a transfer of property with intent to defraud creditors may be amended by allegiag that the transfer was with intent to prefer the cred- 64— MiUan v. Exchange Bank, 183 Fed. 68— Hark v. Allen Co., 146 Fed. 665, 753, 24 A. B. K. 889; In re Nelson, 98 17 A. B. E. 3. Fed. 76, 1 N. B. N. 567, 1 A. B. K. 63. ' 69— In re Hammond, 163 Fed. 548, 20 See also post, § 187. A. B. E. 776; Chicago Motor Vehicle Co. Petition defective because verified on v. American Oak Leather Co., 141 Fed. information and belief may be amended. 518, 15 A. B. E. 804; In re Lauge, 2 N. In re Farthing, 202 Fed. 557, 29 A. B. B. N. E. 85, 3 A. B. E. 231, 97 Fed. E. 732; In re Keet, 128 Fed. 651, 11 197; In re Miller, 104 Fed. 764; In re A. B. E. 117. Oliffe, 1 N. B. N. 509, 2 A. B. "R. 317, A mere clerical error in the jurat of one 94 Fed. 354. of the duplicate originals may be cured 70 — In re Nelson, 98 Fed. 76, 1 N. B. by amendment. In re Bellah, 116 Fed. N. 567, 1 A. B. E. 63. •69, 8 A. B. E. 310. 71— In re Haff, 136 Fed. 78, 13 A. B. 65— See po«i, § 171. B. 362; In re Nusbaum, 152 Fed. 835, • 66— In re Brumelkamp, 1 N. B. N, 18 A. B. E. 598 ; In re Mercur, 1 N. B. 360, 2 A. B. E. 318, 95 Fed. 814. N. 527. See White v. Bradley Timber ■ 67— In re Ogles, 1 N. B. N. 326, 93 Co., 116 Fed. 768, 8 A. B. E. 671. Fed. 426, 1 A. B. E. 671; In re Harris, ' 72— In re Hamrick, 175 Fed. 279, 23 1 N. B. N. 384, 2 A. B. E. 359. A. B. E. 721. 174 Beandenburg on Bankbuptcy [§ 169 itors.'^ The failure to allege insolvency at the time of the making of a transfer alleged as an act of bankruptcy is curable by amendment.''* "Where two or more petitions are filed against the same indi- vidual, the petition in the district in which the debtor has his domicile may be amended by inserting an allegation of an act of bankruptcy committed at an earlier date than the first alleged, if such earlier act is charged in either of the other petitions, and the same is true with reference to proceedings against a partner- ship, except that in such a case the petition first filed may be amended.''^ In view of General Orders VI, the power of amend- ment in such case is limited to the case where an earlier act of bankruptcy is sought to be incorporated.''^ §170. —When denied. The same principles which govern the allowance of amend- ments in similar cases in other courts control the matter of amendment in bankruptcy cases ; and consequently amendments will not be permitted for the purpose of introducing new acts of bankruptcy into the petition after the four months' period has expired; '''' or a new cause of action; ''* nor can an involun- tary petition be amended by adding a new party after all the testimony has been taken and the case is on hearing before the court; ''^ nor will creditors, who have recklessly and falsely made and sworn to a petition, knowing it to be false, be per- mitted to have others join in and carry it on.*" A petition setting forth the total amount of the creditor's claims at less 73— In re Hark Bros., 142 Fed. 279, 15 In re Bellah, 116 Fed. 69, 8 A. B. E. A. B. E. 460; In re Hammond, 163 Fed. 310. 548, 20 A. B. E. 776. Proposed amendment which does not 74 — In re Hammond, 163 Fed. 548, show that alleged act of bankruptcy was 20 A. B. E. 776. .committed within four months prior to 75 — G. O. VI. the filing of the original petition will be 76— In re Sears, 117 Fed. 294, 8 A. disallowed. In re Jones, 209 Fed. 717, B. E. 713, rev'g 112 Fed. 58, 7 A. B. 31 A. B. E. 693. E. 279. 78— In re Leonard, 4 N. B. K. 182, 77— In re Haff, 136 Fed. 78, 13 A. B. Fed. Cas. No. 8255. E. 362; Wilder v. Watts, 138 Fed. 426, 79— In re Pitt, 14 N. B. E. 59, 8 Ben. 15 A. B. E. 57; In re Walker, 164 Fed. 389, Fed. Cas. No. 11188. 680, 21 A. B. E. 132; White v. Bradley 80— In re Keiler, 10 N. B. E. 10, Fed, Timber Co., 116 Fed. 768; In re Eeed, Cas. No. 7647. 1 N. B. E. 137, Fed. Cas. No. 11164; see / §172] Pabties, Pleadings and Process 175 than $500 cannot be amended by adding the claim of another creditor so as to raise the total above the jurisdictional amount. ^^ An amendment may be refused where all the creditors joining in the petition were parties to insolvency proceedings in another court and nothing could be gained by the administration of the debtor's estate in the bankruptcy court.** Withdrawals from a firm cannot be set up by amendment where made more than four months prior to the amended peti- tion thereto.** After a proceeding against an individual has been commenced and testimony taken, the title thereof cannot be amended, by mere order, so as to direct the proceeding against a partnership of which the individual is a member.** § 171. — Effect of amendment. An amended petition which sets up the same cause of action asserted in the original pleading, merely giving greater precision to charges already made, is regarded as a continuation of the original and relates back so as to take effect as of the date of the original.*^ But where the original petition sets up no act of bankruptcy, an amendment thereof will not relate back to the date of the original so as to effect transactions entered into more than four months prior to the filing of the amendment though within four month'? of the filing of the original.*® The filing of an amended pleading is not the commencement of a new suit, unless it states a new cause of action or seeks more extensive relief or brings in new parties, and the issuance of a new subpoena to parties already before the court is not neces- sary.*^ § 172. — Amended petition not treated as original. An amended petition, executed as such by a creditor to be filed in proceedings previously instituted, cannot, after such 81— In re Stein, 130 Fed. 377, 12 A. 18 A. B. E. 735; Eyan v. Hendricks, 166 B. E. 364. Fed. 94, 21 A. B. E. 570; In re Shoe- 82— Woolford v. Diamond State Steel smith, 135 Fed. 684, 13 A. B. E. 645; Co., 138 Fed. 582, 15 A. B. E. 31. First State Bank of Corwith v. Haswell, 83— In re Perlhefter & Shatz, 177 Fed. 174 Fed. 209, 23 A. B. E. 330; Chicago 299, 25 A. B. E. 576. Motor Vehicle Co. v. American Oak 84— In re Kaufman, 176 Fed. 93, 23 Leather Co., 141 Fed. 518, 15 A. B. E. A. B. E. 429. 804. 85— Armour & Co. v. Miller, 209 Fed. 86 — ^Armour & Co. v. Miller, 209 Fed. 784, 31 A. B. E. 356; Millan v. Exchange 784, 31 A. B. E. 356. Bank, 183 Fed. 753, 24 A. B. E. 889; In 87— In re Broadway Sav. T. Co., 152 re Prae Milk Co. of Mobile, 154 Fed. 682, Fed. 152, 18 A. B. E. 254 176 Beandenbubg OK Bankruptcy [§172 execution, and after the proceedings have been dismissed by the court, be converted into an original petition by striking out the word "amended," and be made the basis of a new and independ- ent proceeding; and where it has been so filed it will be dismissed on the facts being made to appear to the court.®* § 173. — Demurrer or answer to amended pleading. Parties who have appeared are entitled to a reasonable time to demur to or answer an amended pleading.®^ § 174. Appearajice and plea. § 175. — Who may defend. The bankrupt or any creditor,^** that is one having a provable claim which may be established at this stage by affidavit or verified pleadings may appear and plead; and there is nothing in the act to prevent him though he may be secured or have been given a preference which could be avoided by the adjudi- oation.*^ Anyone whose interests may, be affected should be allowed to do so, though it would seem only a "creditor" may be heard, though he need not be the original petitioner.®^ But a creditor cannot oppose an adjudication under an ordinary voluntary petition.®* A stockholder as such has no standing either as a representative of the corporation or as a creditor to appear and defend in behalf of the corporation whose stock he owns.®* A receiver appointed by a state court may contest the adjudi- cation.®^ 88— In re Hyde v. Gload Mfg. Co., Scrafford, 14 N. B. E. 184, Fed. Cas. No. 103 Fed. 617, 2 N. B. N. E. 1122, 4 A. 12557; In re Derby, 8 N. B. E. 106, 6 B. E. 602. Ben. 232; In re Mendelsohn, 12 N. B. 89 — In re Broadway Sav. T. Co., 152 E. 533, 3 Sa^^7. 342. Fed. 152, 18 A. B. E. 254. See, In re Boston, etc., E. E. Co., 5 90— Act of 1898, §§ 18b, 59f. In re N. B. E. 232, Fed. Cas. No. 1679; In re Ives, 113 Fed. 911, 7 A. B. E. 692; In Columbia Eeal Estate Co., 112 Fed. 643, re Jones, 16 N. B. E. 452, Fed. Cas. No. 7 A. B. E. 441. 7442. 93— In re Carleton, 115 Fed. 246; In 91— In re Jack, 13 N. B. E. 296, 1 re Ives, 113 Fed. 911, 7 A. B. E. 692. Woods 549, Fed. Cas. No. 7119; Clinton 94 — ^In re Eureka Anthracite Coal Co., V. Mayo, 12 N. B. E. 39, Fed. Cas. No. 197 Fed. 216, 28 A. B. E. 758. 2899. 95— In re Gold Eun Mining & Tunnel 92— In re Williams, 3 N. B. E, 74, 1 Co., 200 Fed. 162, 29 A. B. E. 563. LoweU 406, Fed, Cas. No. 17703; In re. §176] Paeties, Pleadings and Process 177 An attaching creditor may intervene to contest an adjudica- tion on the merits as well as to claim lack of jurisdiction,®^ or that the requisite number and amount of creditors have not joined, as well as any other material fact in the case.®'' Such creditor may take advantage of any defense available to respond- ent; ®® but this would not be true where the attachment was obtained after the filing of the petition.^® The service of an injunction on a person does not make him a party in interest in the bankruptcy proceedings, except to the extent that he may move to dissolve a wrongful injunction.* § 176. — Bringing in additional parties. The court has power to bring in and substitute additional persons or parties when necessary for the complete determina- tion of 'a matter in controversy. Thus it may permit an amendment to the petition adding the name of a non-resident partner,^ or it may issue an order to a non-joining partner requir- ing him to show cause why the petitioning partner should not be discharged from the liability incurred as a member of the firm,^ even though such non- joining partner be non compos;* though it has been held that where partners are not named in the petition, the court will not order their joinder on a bill filed by the creditors, but the creditors may have the same remedy against them as they would have had before the petition was filed.5 it is questionable whether a corporation in which the bank- rupt was for years a stockholder, can be brought in so as to enable its books to be examined.® The power ;;o bring in parties would not authorize the court 96— In re Jack, 13 N. B. E. 296, 1 98— In re Williams, 14 N. B. B. 132, Woods 549, Fed. Cas. No. 7119; In re Fed. Cas. No. 17706. Williams, 14 N. B. E. 132, Fed. Cas. No. 99— In re Vogel, 18 N. B. E. 165, Fed. 17706; In re Mendelsohn, 12 N. B. E. Cas. No. 1698. 533, 3 Sawy. 342, Fed. Cas. No. 9420; 1— Karr v. Whittaker, 5 N, B. E. 123, In re Burton, 17 N. B. E. 212, 9 Ben. Fed. Cas. No. 7612. ' " 324, Fed. Cas. No. 2214. 2— In re Schwartz, 204 Fed. 326, 30 97— In re Hatje, 12 N. B. E. 548, 6 A. B. E. 344. Biss. 436, Fed. Cas. No. 6215; In re 3— In re Elliot, 2 N. B. N. E. 350. Eroich, 15 N. B. E. 11, 7 Bias. 303, Fed. 4— In re O 'Brien, 2 N. B. N. E. 312. Cas. No. 1921; contra. In re Scrafflord, 5— Bank v. Cass, 18 N. B. B. 279, Ted. 15 N. B. E. 104, Fed. Cas. No, 12556, Cas. No. 2732. rev'g 14 N. B. E. 184, Fed. Cas. No. 6— See In re Post, 1 N. B. N. 294. 12557. Brandenburg — 12 178 Beandenbubg on Bankeuptot [§ 176 to direct a creditor to join in a petition for the purpose of mak- ing the requisite number or amount of claims to give the court jurisdiction. Under the act of 1867, it was held where there appeared to be an adverse interest in any one not before the court, that it could not adjudicate on the same without that person being properly before it, and without setting in motion its machinery for the purpose of litigating any supposed rights;'' and strangers to the bankruptcy proceedings, not served with process, and who had not voluntarily appeared and become parties to such litigation, could not be compelled to come into court under a petition for a rule to show cause.® § 177. — Mode of appearance — Personally. In bankruptcy proceedings the general rule that a party may appear personally prevails and provision is expressly ® made for their conduct by the bankrupt in person in his own behalf, or by a petitioning or opposing creditor; but a creditor will only be allowed to manage before the court his individual interest. In tne case of proceedings against a lunatic, if there be no regular guardian or pommittee, a guardian ad litem should be appointed to protect his interests.^" Every party may appear and conduct the proceedings by attorney," who must be an attorney or counsel authorized to practice in the Federal courts, and the right and power of an attorney in good standing to make a reasonable request or motion will be presumed. ^^ The fact that the bankrupt's attorneys had not been admitted to practice in. the Federal courts would not invalidate the proceedings when the petition and schedules had been duly signed and verified and filed in the clerk's office, the court thereby acquiring jurisdiction over the case and person of the bankrupt." The name of the attorney with his place of business must be entered upon the docket, which the clerk is required to keep," with the date of entry, and 7— In re Pierce, 15 N. B. E. 449, 7 12— In re Pauly, 1 N. B. N. 405, 2 A. Biss. 426, Fed. Cas. No. 11139. B. B. 333; In re Herzikopf, 118 Fed. 8— Smith V. Mason, 6 N. B. E. 1, 14 101; In re Goldenberg, 117 Fed. 692, Wall. 419, 20 L. ed. 748. 9 A. B. K. 156; G. O. IV; see In re Gasser, 9— G. 0. IV. 6 A. B. B. 32. 10— In re Burke, 107 Fed. 674, 5 A. 13— In re Kindt, 2 N. B. N. E. 373, B. E. 843. 98 Fed. 867, 3 A. B. E. 546. 11— Leiter v. Payson, 9 N. B. E. 205, 14— G. 0. I. Fed .Gas. Ko. 8226. §178] Pabties, Pleadings and Process 179 all papers and proceedings offered by an attorney to be filed, must be endorsed with the day and hour of filing and a brief statement of their contents. ^^ Orders granted on motion must contain the name of party or attorney making the motion; and notices and orders, not required by the act or the orders to be served on the party personally, may be served on the attorney.^® The petition and other pleadings may be signed and verified by the attorney in proper cases," and if duly authorized by power of attorney, he may prove his client's claim ^* and vote in his behalf.^* Ordinarily corporations may appear by attorney, who is supposed to have his client's confidence, and who is pre^ sumed to act within the scope of his authority; so that it is not necessary to give him authority to appear and admit the alleged acts of bankruptcy or that the corporators or shareholders should previously by vote authorize or direct him to do so:*" and a duly appointed receiver of a corporation is its proper representative in bankruptcy proceedings.*^ It is competent for a corporation or an individual against whom a petition was filed, whose attorney appeared and gave any waiver of time or other right and admitted the charge brought against it, to appear within a reasonable time and move the court to have the proceedings set aside, provided there has been no unreasonable delay, an attorney's authority not extend- ing to a waiver of his client's right.*^ § 178. — Time for appearance. The bankrupt or any creditor may appear and plead to the petition within five days after the return day, or within such further time as the court may allow.** The requirement of five days as the time within which parties may appear and plead is mandatory,^* though it might be proper to waive it if all the 15— G. O. n. re Eepublie Mfg. Co., 8 N. B. B. 197, 16— G. O. IV. Fed. Cas. No. 11705. 17— Act of 1898, § ISe. See, also, S 186, 22— In re Eepublie Ins. Co., 8 N. B. post. E. 317, Fed. Cas. No. 11706. 18— Act of 1898, § 57. 23— Act of 1898, § 18b. 19— Act of 1898, §56. Subdivision "b" was amended by the 20— Leiter v. Payson, 9 N. B: E. 205, act of February 5, 1903, by changing the Fed. Cas. No. 8226. time for pleading from 10 to 5 days. 21 — In re Gold Eun Mining & Tunnel 24 — ^Day v. Beck & Gregg Hardware Co., 200 Fed. 162, 29 A. B. E. 563 ; In Co., 114 Fed. 834, 8 A. B. E. 175; In re 180 Beandenbubg on Bankbuptct [§ 178 creditors of the bankrupt consented; but a creditor cannot be deprived of the right to appear and plead by the act of the bankrupt in admitting the act of bankruptcy and consenting to the adjudication.^^ Nor can the attorneys for the petitioning creditors and for the bankrupt, by agreement between them- selves, without the consent of other creditors or the leave of court, extend the time for two months or similar period, from the return day, especially where the allegations of the petition are few and simple and easily answered and the court, if applied to, would not have extended the time, "^here the pleading, technically considered, is offered too late, as during an extension of the time to plead, which extension the court found unauthor- ized, it is within the sound discretion of the court to allow, or not to allow, its filing; but, if it contain any defense whatever, that discretion should be exercised toward permitting such defense to be made.^® The time to plead or answer may be extended, as where demurrer is filed, but not for purposes of delay and is later waived by filing an answer.^'' If the five days has expired and the time has not been extended, a creditor would not be author- ized to appear and file an answer raising new issues, especially if the matter has already been heard on the issues already framed.^^ Since creditors as well as the bankrupt have the right to appear and plead to the petition within five days after the return day, that day must be fixed by the issuance of a sub- poena; 2^ so where a subpoena was made returnable and served December 1, that was the return day and an answer and demand for a jury trial filed December 17 were too late and the adjudica- tion should have been made as on a default.'" Good reason should be presented in order to justify the grant- ing of a request for the delay of bankruptcy proceedings." ^ufhal Mercantile Agency, 111 Fed. 152, 28— In re Mutual MercantUe Agency, 6 A. B. K. 607; Neustadter v. Dry Goods 111 Fed. 152, 6 A. B. E. 607. Co., 1 N. B. N. 552, 3 A. B. E. 96, 96 29— In re Humbert, 100 Fed. 439, 4 Fed. 830. A. B. E. 76. 25— In re Elmira Steel Co., 109 Fed. 30— Bray v. Cobb, 1 N. B. N. 209, 1 A. 546, 5 A. B. E. 484. B. E. 153, 91 Fed. 102. 26— G. O. XXXVII. 31— In re Heinsfurter, 1 N. B. N.-510, 27 — In re Cooper Bros., 1/59 Fed. 956, 3 A. B. B. 109. 20 A. B. E. 392. § 179] Parties, Pleadings and Process 181 Where service of the petition was not had within the time limited, other creditors may subsequent thereto be permitted to join in the petition and contest the propriety of the adjudi- cation.*^ § 179. — Voluntary appearance. The voluntary appearance of the alleged bankrupt, either in person or by attorney, will give the court jurisdiction ^^ if it has jurisdiction of the subject matter which latter must be conferred by statutory authority and cannot be given by consent of the parties and may be questioned by the court sua sponte, or on motion, at any time or collaterally.** If he once appears gen- erally, such appearance cannot be withdrawn so as to divest the court of jurisdiction*" as any irregularity in the service is thereby waived.*® The bankrupt cannot be deprived of his right to appear and contest the adjudication merely because of his failure to comply with orders of the court, though if he fails to appear and an order adjudicating him a bankrupt is entered he cannot upon appeal raise the question of jurisdiction to enter the order. *^ But if one or more of the members of a firm are not made parties, the adjudication will not be made,*® and such jurisdic- tional defect is not cured by a consent signed for the non- joining partners filed after the adjudication.*^ If due notice be served on a non-petitioning partner and he enters no appearance and is defaulted, further proceedings will be deemed voluntary on the part of all partners.*" 32— In re Stein, 105 Fed. 749, 5 A. B. 36— In re MeNaughten,. 8 N. B. E. 44. E. 288. 37 — Young & Holland Co. v. Brande 33— In re Western Inv. Co., 170 Ted. Bros., 162 Fed. 663, 20 A. B. E. 612. 677, 21 A. B. E. 367; In re Worsham, 38— In re Altman, 1 N; B. N. 358, 1 142 Fed. 121, 15 A. B. E. 672; In re A. B. R. 689; In re Pitt, 14 N. B. E. 59, Frisehberg, 8 A. B. E. 607. 8 Ben. 389, Fed. Cas. No. 11188; In re 34r-Shutts V. Bk., 2 N. B. N. E. 320, Lewis, 1 N. B. E. 19, 2 Ben. 96, Fed. Cas. 98 Fed. 705, 3 A. B. E. 492; In re Mason, No. 8311; In re Freund, IN. B. N. 105, 1 2 N. B. N. R. 425, 99 Fed. 256, 3 A. B. A. B. E. 25; In re Elliott, 2 N. B. N. E. E. 599; In re Penn, 3 N. B. R. 582, 4 Ben. 350; Citizens' Nat. Bk. v. Casa, 18 N. B.» 99; In re Little, 2 N. B. E. 294, 3 Ben. E. 279, Fed. Cas. No. 2732. 25; In re Leighton, 5 N. B. E. 95; Job- 39— In re Altman, 1 N. B. N. 358, 1 bins V. Montag, 6 N. B. E. 509; In re A. B. E. 689; s. e. 1 N. B. N. 407, 95 Weyhausen, 1 Ben. 397. Fed. 263, 2 A. B. E. 407. 35— In re Frisehberg, 8 A. B. E. 607; 40— In re Carleton,' 115 Fed. 246, 8 In re TTlricli, 3 Ben. 355. A. B. E. 270. 182 Bbaktdenbueq on Bankexjptoy [§ 180 §180. —Demurrer. When the proceedings are equitable, the rules of equity prac- tice established by the suprenae court of the United States are to be followed as near as may be, and, when they are legal, the practice and procedure in cases at law,*^ and accordingly, the same considerations must govern the pleader as in other law and equity cases. Under the new equity rules ^^ the demurrer to the petition has been abolished and every defense formerly raised by demurrer must be made by motion to dismiss or by answer.** Under the old practice a petition which failed to show any of the material allegations required by law was demurrable,** but an objection attacking the sufficiency of the petition could not be availed of by demurrer after the court had appointed a receiver upon facts appearing to give jurisdiction.*^ The sus- taining of a demurrer to a petition in involuntary bankruptcy did not prevent the filing of a new petition.*® A demurrer was waived by answering to the merits.*'' § 181. — Plea or answer. There is no provision in the law authorizing a creditor to file an answer to a petition in voluntary bankruptcy.** Where a creditor other than the original petitioner enters his appearance by a petition alleging that he is a creditor, stating the purpose of his petition and nothing more, the bankrupt may answer denying that such person is a creditor, but need answer for no other purpose.*® Under the act of 1867 if the respondent desired to controvert the petition on the return day of the order to show cause, he had to appear and deny the facts set forth in the petition and demand a hearing by the court, or a trial by jury, and it was held that the court should make a record of such appearance, allegation 41— G. O. XXXVII. 46— In re Toledo Portland Cement Co., 42^Bule 29. 17 A. B. B. 375. 43— In re Jones, 209 Fed. 717, 31 A. 47— In re Cooper Bros., 159 Fed. 956, B. E. 693. 20 A. B. B. 392. 44— See In re Taylor, 102 Fed. 728, 2 48— In re Jehu, 1 N. B. N. 509, 2 A. N, B. N, E. 929, 4 A. B. E. 515; Explora- B. E. 498, 94 Fed. 638. tion Mercantile Co. v. Pacific Hardware 49— In re Taylor, 1 N. B. N. 412; In & Steel Co., 177 Fed. 825, 24 A. B. E. 216. re Lacey, 10 N. B. E. 477. 45— In re Excelsior Cafe Co., 175 Fed. 294, 23 A. B. E. 701. §181] Paeties, Pleadings and Process 183 and demand; but no portion of this previous to tlie making of the record by the clerk was required to be in writing, except the demand for a trial by jury,^" which is equally true under the act of 1898 except that he must appear and plead within five days after return day. If, on the return day of the rule to show cause why a person should not be adjudged a bankrupt, he; appears and obtains a continuance but does not file either demurrer, plea or demand for jury trial, he is not entitled on the day to which the case is continued to demand such trial but may be allowed to file a plea and have the issues tried by the court.^^ Where the debtor fails to answer or plead to a petition the allegations contained therein are taken as confessed,'*^ but the default of the respondent to a petition in involuntary bankruptcy, through failure to appear,^^ or his admission of insolvency and prayer for an adjudication,^* does not convert the proceeding into a voluntary one. Where it is necessary to reform a contract in order to sustain: a petition, the alleged bankrupt should be made a party tp the suit to reform, though it has failed to answer the petition in bankruptcy proceedings.^^ The forms and orders prescribed by the supreme court ^® indi- cate the form, in substance, of the answer to be filed by the alleged bankrupt, but the respondent is not confined tp that particular form and is not limited in the facts he may set out in his answer to those suggested by the prder, but may set out all the available facts with all necessary particularity.^'^ Each dis- tinct charge may be denied in a general manner where several distinct allegations of bankruptcy are set forth in the petition, if an answer of denial in the nature of a special plea to (each allegation is- not filed; ^* and as many defenses as there are may be set up to the petition, but each defense must be pleaded separately.®^ 50— In re Heydette, 8 N. B. E. 332, 55— In re Imperial Corp., 133 Fed. 73, Ted. Cas. No. 6444. 13 A. B. B. 199. 51— In re Sherry, 8 N. B. E. 142. 56— Official Form No. 6, § 1695, post. 52— In re Harris, 155 Fed. 216, 19 A. 57— In re Paige, 2 N. B. N. E. 110, B. E. 204. 99 Fed. 53S, 3 A. B. E. 678. 53— In re Taylor, 2 N. B. N. E. 929, 58— In re Hawkeye Smelting Co., 8 N. 102 Fed. 728, 4 A. B. E. 515. B. E. 385. 54^In re Condon, 209 Fed. 800, 31 A. 59— In re Quimette, 3 N. B. E. 140, B. E. 754, aff'g 198 Fed. 947, 29 A. B. 1 Sawy. 47, Fed. Cas; No. 10622. B.907. 184 Beandenbubg on Bankruptcy [§ 181 While it lias been lield that an answer to a petition is sufficient which contains a general denial, and states that the respondent has not committed the acts of bankruptcy set forth and avers that he should not be declared bankrupt for any cause alleged,^** the better rule is that the answer should not be limited to a general denial but should reply to each allegation of the peti- tioner; or set up a special and sufficient defense to one or more of the material facts alleged in the petition; nor should it be a simple denial of "insolvency" based solely on opinion as to the value of the estate and not a bona fide issue of fact as to solvency; ®^ nor contain a negative pregnant,®^ nor an averment of an agreement to' compromise which had not been carried out; ^^ nor allege that the notes evidencing the petitioner's claim were given on a wagering contract, in the purchase of stocks, when the contract and rules of the board of trade contradicted respondent.®* Where the petition charges a preferential trans- fer as an act of bankruptcy, an answer denying the commission of an act of bankruptcy is sufficient to put insolvency in issue.*^ An answer alleging that a creditor is not an innocent holder of a claim must allege the facts from which such conclusion can be drawn.®® The allegation by intervening creditors that the respondent is engaged "chiefly in farming and tillage of the soil" sets up a good defense to a petition which fails to show respondent's business or that he was not within the excepted classes.®^ An allegation in the answer reserving the rights "to move to dismiss for irregularities and want of notice" is too indefinite to be considered.®* An informal and improper answer filed before the promulga- 60— In re Hawkeye Smelting Co., 8 N. 64— HUl v. Levy, 2 N. B. N. R. 180, B. E. 385. 98 Fed. 94, 3 A. B. R. 374. 61— Cummins Grocery Co. v. TaUey, 65— Troy Wagon Works v. Vastbinder, 187 Fed. 507, 26 A. B. R. 484; Bray v. 130 Fed. 232, 12 A. B. R. 352. Cobb, 1 N. B. N. 209, 1 A. B. R. 153, 66— In re Eureka Anthracite Coal Co., 91 I'ed. 102. 197 Fed. 216, 28 A. B. R. 758. 63— Cummins Grocery Co. v. Talley, 67— Rise v. Bordner, 140 Fed. 566, 15 187 Fed. 507, 26 A. B. R. 484; Leidigh A. B. R. 297; In re Taylor, 2 N. B. N. Car Co. V. Stengel, 1 N. B. N. 387, 2 A. R. 929, 102 Fed. 728, 4 A. B. R. 515. B. R. 383, 95 Fed. 637. 68— Brinkley v. Smithwiek, 126 Fed. 63— In re Simonson, 95 Fed. 948, s. e. 686, 11 A, B, R. 500. 1 N. B. N. 230, 1 A. B. R. 197, 92 Fed. 904. § 184] Parties, Pleadings and Process 185 tion of the General Orders will not be dismissed but will be retained and amended to conform. ^^ The granting of an extension of the time to answer is dis- cretionary.^" The sufficiency of an answer cannot be raised by a demurrer; but only by setting the case for hearing on bill and answer, as where the answer admitted the transfer alleged in the petition as preferential, but set up facts to show it was not preferential,'^ though if a demurrer is filed and no objection is raised, it should be treated as an application to set the case for hearing on bill and answer. ''* If the case is heard on the petition and answer, the statements in the answer must be taken as true.''* If any allegation is to be taken as true simply because it is not denied, it is only an allega- tion of some fact which is presumed to be within the knowledge of the party answering.''* §182. —Replication. If the petitioning creditors wish to contest the questions raised by the answer they should file a replication denying the allega- tions of the answer, and have a trial before an adjudication is made.''^ § 183. 'Verification of pleadings. § 184. — 'Verification necessary. All pleadings setting up matters of fact shall be verified under oath.''^ The provisions of the act must be strictly followed. It 60— In re Ogles, 1 A. B. E. 671, 93 1 A. B. E. 266, 93 Fed. 182; Barry v. Fed. 426, 1 N. B. N. 326; see In re Kelly, Abbott, 100 Mass. 396. 1 A. B. E. 306, 91 Fed. 504. 73— Jordan v. Downey, 12 N. B. E. 70— Blaekstone v. Everybody's Store, 427; HiU v. Levy> 2 N. B. E. 180, 98 Fed. 207 Fed. 752, 30 A. B. E. 497; Butler & 94, 3 A. B. E. 374. Co. V. Palmenberg, 207 Fed. 705, 30 A. 74— White v. J6nes, 6 N. B. E. 175, B. E. 502. Fed. Cas. No. 17550. 71— Goldman v. Smith, 1 N. B. N. 160, 75— In re Taylor, 102 Fed. 728, 2 N. 1 A. B. E. 266, 93 Fed. 182, citing Gen- B. N. E. 929, 4 A. B. E. 515, citing Geo. ther V. Wright, 23 C. 0. A. 500; Crouch M. West Co. v. Lea Bros., 1 N. B. N. 409, V. Kerr, 38 Fed. 549; Banks v. ManChes- 2 A. B. E. 463, 174 U. S. 590, 43 L. ed. ter, 128 U. S. 244, Travers v. Eoss, 14 1098; Leidigh Car Co. v. Stengel, 1 N. N. J. Eq. 254; Winter v. Claiter, 54 Miss. B. N. 387, 2 A. B. E. 383, 95 Fed. 637; 341; Edwards v. Drake, 15 Fla. 666; Simpson v. Eeadyi 12 Mees & W. 740; Barry v. Abbott, 100 Mass. 396; Brown Grant Co. v. Dawson, 151 XJ. S. 586; V. Mortgage" Co., 110 lU. 235; Stone v. Sturges v. Crowninshield, 4 Wheat. 122, Moore, 36 111. 165. 4 L. ed. 362. 72— Goldman v. Smith, 1 N. B. N. 160, 76— Act of 1898, § 18e. 186 Bbandenbueg on Bankeuptcy [§ 184 is matter of substance and rigM and is not to be dispensed with Tinder cover of an apparent compliance with the act; '''' and when several join in a petition in separate and distinct rights, each stands individually, and a verification by each is required; ''^ and the petition is imperfect if the name of a petitioner which appears in the petition is omitted from the verification.''^ Where the petition is verified by only two out of three creditors, a motion should be made for a rule to require a proper verification, and if it is not complied with, a motion to dismiss would doubt- less lie.*" The schedules attached to a voluntary petition need not be separately verified. It is sufficient that the petition is properly verified.*^ §185. — Corporations. The verifications, like proof of claim, should be made by the treasurer, or, if there be no treasurer, by the officer whose duties most nearly correspond to those of treasurer; ^^ though, as under the act of 1867, such verification may be by an agent,** not an officer of the corporation, or by an attorney personally acquainted with the facts,** but his authority must be set forth in the affi- davit or be otherwise established. § 186. — By agent, attorney or partner. ;An agent or attorney if duly authorized and the facts are within his knowledge may verify pleadings, though if the allega- tions are those of the petitioning creditors and are in positive form, the presumption is that the truth of the allegations is within their knowledge and they should verify the petition in person; but the rule is different when the facts are within the attorney's knowledge and he was authorized by them to make 77— In re Keiler, 18 N. B. B. 10, Fed. 81— In re McConneU, 11 A. B. B. 418. Cas. No. 7647; see In re Bellah, 116 Fed. 82— G. 0. XXI (1). 69, 8 A. B. B. 310. President of corporation may verify 78— In re Simmons, 10 N. B. E. 253, petition. In re Walker, 164 Fed. 680, Fed. Cas. No. 12864; In re SeuU, 10 N. 21 A. B. B. 132 BE. 165, 7 Ben. 371. 83-In re Hannibal, 15 N. B. E. 233, 79-In re Bosenfield, 11 N. B. E. 86, Fed. Cas. No. 6023; In re Bellah, 116 Fed. Cas. No. 12061. Fed. 69, 8 A. B. E 310 iif^^To^^^'T ^^^"'^ ^^°^ "■ ^^'^' S*-^"* ^^ Chequasset Lumber Co., 112 110 Fad. 137, 6 A. B. E. 381. Fed. 56, 7 A. B. E. 87. § 187] Paeties, Pleadings and Process 187 it.^" Hence while it may be preferable that a petition be verified by the creditors personally, neither the statute nor the general orders makes this obligatory, consequently the verification may be by an agent or attorney having knowledge of the facts, '^^ but where the petition is so verified the verification should be in positive terms and not upon mere information and belief, though a defect in this regard is amendable.*'' No other evidence of the attorney's authority need appear than the fact that he is admitted to practice in the federal court.** Where the verification to a petition by an agent or attorney at law is good upon its face, but in fact was without authority, objection should be made before answering to the merits, as otherwise it will be waived.*^ Such ver^cation may be made before one of the attorneys for the petitioning creditors as notary^" and a petition signed by the creditor's attorney and not verified is demurrable.®^ An involuntary petition filed by a partnership may be verified by a partner.®^ § 187. — Defects and objections. A defect in the verification is a mere irregularity and may be cured by amendment; ®* and the failure to verify pleadings may be supplied nunc pro tunc.** 85— In re Neilson, 98 Ped. 76; 1 N. 9 A. E. E. 90; In re Simonson, 92 Fed, B. N. 577, 1 A. B. R. 63; In re Chequas- 904, ;l A. B. E. 197. set Lumber Co., 112 Fed. 56, 7 A. B. E. 90 — In re^indt, 2 N. B. E. 339. 87, see In re Goldberg, 117 Fed. 692, 9 91— In re Carter, 1 N. B. N. 162, 1 A. B. E. 156, where an application for A. B. E. 160. an injunction was verified by an attorney. 92 — ^In re Walker, 164 Fed. 680, 21 A. 86— In re Levingston, 13 A. B. E. 357; B. E. 132. Sogers V. DeSoto Placer Mining Co., 136 93 — ^Armstrong v. Ferhaiid^z, 208 V. Fed. 407, 14 A. B. E. 252; In re Herzi- S. 324, 52 L. ed. 514, 19 A. B. E. 746; kopf, 118 Fed. 101, 9 A. B. E. 90; In re Millan v. Exchange Bank of Manning- Chequasset Lumber Co., 112 Fed. 56, 7 ton, 183 Fed. 753, 24 A. B. E. 889; In re A. B. E. 87; In re Hunt, 118 Fed. 282, Harris, 155 Fed. 216, 19 A. E. E. 204; In 9 A. B. E. 251; see In re Simonson, 1 A. re Keet,- 128 Fed. 651, 11 A. B. E. 117; B. E. 197, 92 Fed. 904. In re Nelson, 98 Fed. 76, 1 N. B. N. 567^ 87— In re Keet, 128 Fed. 651, 11 A. B. 1 A. B. E. 63; In re Brumelkamp, 1 N. E. 117. B. N. 360, 2 A. E. E. 318, 95 Fed. 814; In re Farthing, 202 Fed. 557, 29 A. E. In re Simonson et al., 1 A. E. E. 197; E. 732. Green Eiver Beposit Bank v. Craig Bros., 88— In re Herzikopf, 118 Fed. 101, 110 Fed. 137, 6 A. E. E. 381; In re Sar- 9 A. B. E. 90; G. O. IV.; see In re. Gas-, gent, 13 N. E. E. 144, Fed. Cas. No. ser, 5 A. B. E. 32.' 12361. 89— In re Herzikopf, 118 Fed. 101, 94— In re Wolfstein, 1 N. B. N. 203. 188 Bbandenbxjeg on Banketjptoy [§ 187 A statement in the verification that the petitioners believe the allegations made upon information and belief are true is surplusage, and is no ground for dismissing the petition.®^ Objection to the form of the verification must be seasonably made and if it is not raised until after an answer on the merits it is too late and the defect is thereby waived.^^ A case is pend- ing so as to admit of the offer of composition notwithstanding a defect in the verification, such defect not being jurisdictional.®^ § 188. — Verification of answer. Where the petition is verified on information and belief, the answer may be similarly verified.®* C. PEOCEEDINGS m OE AGAINST PAETNEESHIPS AND MEMBEES THEEEOF § 189. Voluntary petition by partnership or members. § 190. — Form and allegations. The general form of the creditor's petition,®® adapted to the particular case, should be used in partnership proceedings, and the answer in the form prescribed.^ However, .a voluntary pro- ceeding by partners requires no act of bankruptcy to be alleged, but merely an averment that they owe debts and are willing to surrender their estate.^' If the adjudication be against the firm and administration of its assets in bankruptcy is sought, the petition should so state.^ 95— In re Ball, 156 Fed. 682, 19 A. B. 97— Ex p. Jewett, 11 N. B. E. 443, 2 K- 609. Low. 393, Fed. Cas. No. 7303. 96— Leidigh Car Co. v. Stengel, 1 N. 98— Lackawanna Leather Co. v. La- B. N. 296, 387, 2 A. B. B. 383, 95 Fed. Porte Carriage Co., 211 Fed. 318, 31 A. 637; In re Herzikopf, 118 Fed. 101, 9 A. B. B. 658. B. E. 90; In re Baerncopf, 117 Fed. E. 99— Official Form 3, §1683, post. 975; In re Simonson, 1 N. B. N. 230, 1 1— Official Form 6, § 1695, post. A. B. E. 197, 92 Fed. 904; s. c. 95 Fed. 2— In re Penn, 5 N. B. E. 30, 5 Ben. 948; following In re Eaynor, 7 N. B. E. 89, Fed. Cas. No. 10927. 527, 11 Blatch. 43, Fed. Caa. No. 11597; 3— In re Miller, 104 Fed. 764; Davis In re McNaughton, 8 N. B. E. 44, Fed. v. Stevens, 3 N. R. N. E. 131, 104 Fed. Cas. No. 8912; In re Simmons, 10 N. B. 235; In re Blair, 2 N. B. N. E. 364, 99 E. 254, Fed. Cas. No. 12864; and disap- Fed. 76, 3 A. B. R. 588; In re Meyer, proving Hunt v. Pooke, 5 N. B. E. 161, 98 Fed. 976, 3 A. B. E. 559; aff'g 1 N. Fed. Cas. No. 6896; In re Butterfield, B. N. 304, 1 A. B. R. 565, 92 Fed. 896; 6 N. B. E. 257; and Moore v. Harley, 4 In re Bennett, 12 N. B. R. 181, 2 Lowell N. B. R. 71, Fed. Cas. No. 9764. 400, Fed. Cas. No. 1314. § 192] Pabties, Pleadings and Peooess 189 § 191. — Necessity of separate petitions. A voluntary petition, presented in the names of a partner- ship and the individual partners, and accompanied by schedules setting forth the debts and assets of the firm and also of the partners, is sufficient without individual petitions, and the court of bankruptcy may administer upon the separate estates of the partners as well as upon the estate of the firm in a single pro- ceeding, and grant discharges from separate and joint debts.* If there are distinct firms of A and B, and A and C, the three persons cannot be joined in one proceeding, though the latter firm has assumed the debts of the former.^ § 192. — Necessaxy parties. If one or more of the ostensible members of a firm are not made parties, the adjudication will not be made,® and such juris- dictional defect is not cured by a consent signed for the non- joining partners filed after the adjudication.' It has been held that where partners are not named in the petition, the court wiU not order their joinder on a bill filed by the creditors, but the creditors may have the same remedy against them as they would have had before the petition was filed.^ It is not essential, however, to the validity of an adjudication against a partnership that a secret or dormant partner should be made a defendant, since the firm property is bound by an adjudication made against the ostensible partners.^ In the event of the after discoveiy of a dormant partner, an adjudication against the nominal firm will permit the opening of the proceedings and bringing in the dormant partner without requiring a new petition to be filed.^" To charge a person as a 4— In re Gay, 3 A. B. E. 529, 98 Fed. Lewis, 1 N. B. E. 19, 2 Ben. 90, Ted. 870; In re Langslow, 1 N. B. N. 232, 1 Cas. No. 8311; In re Freund, 1 N. B. N. A. B. E. 258, 98 Fed. 869; but see 105, 1 A. B. E. 25; In re Elliott, 2 N. B. Mahoney v. Ward, 2 N. B. N. E. 538, 100 N. E. 350; Citizens' Nat. Bk. v. Cass, 18 Fed. 278, 3 A. B. E. 770; In re Barden, N. B. E. 279, Fed. Cas. No. 2732. 2 N. B. N. E. 741, 4 A. B. E. 31, 101 7— In re Altman, 1 N. B. N. 358, 1 A. Fed. 553; In re Farley, 115 Fed. 359, 8 B. E. 689; s. c. 1 N. B. N 407, 95 Fed. A. B. E. 266; In re City Con. & Bldg. 263, 2 A. B. E. 407. Co., 30 A. B. E. 133. 8— Bank v. Cass, 18 N. B. E. 279, Fed. 5— In re Wallace, 12 N. B. E. 191, Fed. Cas. No. 2732. Cas. No. 17095. 9 — Metcalf v. Officer, 5 Dillons o. c. 6— In re Altman, 1 N. B. N. 358, 1 A. Eep. 565; In re Harris, 2 N. B. E. 868. B. E. 689; In re Pitt, 14 N. B. E. 59, 8 10— In re Seott, 1 N, B. N. 327. Ben. 389, Fed. Cas. No. 11188; In re 190 Beandenbubg on Bankruptcy [§ 192 silent partner, and thus debar him from his claims as a cred- itor, an actual and definite agreement, binding on all parties, must be proved." A member of a defunct partnership, desiring adjudication and discharge from partnership debts, must make the other members parties, and the fact that partnership creditors have filed their claims against his estate does not remove the necessity. A peti- tion may be amended to include the firm and its other members,^^ even after adjudication,^^ since for the purposes of the law a partnership is in existence so long as there are outstanding assets or liabilities and the joint affairs are unsettled, and just so long will a retired partner remain subject to proceedings in bankruptcy.^* I § 193. Proceedings against firm by member thereof. While a creditor cannot compel partners to petition for the adjudication of copartners,^^ yet a partner may file a petition against the partnership without the consent of the other part- ners^ but such other partners cannot be adjudged individual bankrupts where it is not alleged that they committed an act of bankruptcy within the statutory period.^^ A partnership may be adjudicated on a petition filed by one partner though the same does not allege a technical act of bank- ruptcy where the contesting partners fail to prove that the partnership is solvent or has not committed an act of bank- ruptcy." So, a petition praying adjudication agaiast a partner- ship either on the sole ground of insolvency of the partnership and all of its members, or on the sole ground that the partner- ship has, through one or more of the nonassenting partners, committed an act of bankruptcy, may be filed by a single partner.18 In such case, the nonassenting partner cannot set up 11— In re Clark, HI Fed. 893, 7 A. 15— In re Harbaugh, 15 N. B. E. 246, E. E. 96; In re Harris, 108 Fed. 517, 4 Fed. Cas. No. 6045; In re Forbes, 128 A. B. E. 132. Fed. 137, 11 A. B. E. 787. 12-In re Elliott, 2 N. B. N. E. 350; 16-In re Ceballos & Co., 161 Fed. 445, In re Freund, 1 N. B. N. 105, 1 A. B. 20 A. B. E. 459. ■^■,o^' T „ ^ 17— In re Junek & Balthazard, 169 Fed. 13— In re McFaun, 3 A. B. E. 66, 96 481, 22 A. B. E. 298. Ted. 592. 14— In re Grady, 3 N. B. E. 227, Fed. 20 A. B. e"4"59' Cas. No. 5654; Parker v. Phillips, 2 Cush. 175; In re Crockett, 2 Ben. 514, Fed. Cas. No. 3402. 18— In re Ceballos & Co., 161 Fed. 445, § 194] Paeties, Pleadings and Pbocess 191 the want of an act of bankruptcy, but may deny the insolvency of the firm and thus defeat an adjudication.^® Notice must be given the non-petitioning partners the same as in involuntary proceedings,^" and if personal service cannot be had, notice should be given by publication.^^ Any member of a partnership refusing to join in a petition to have the firm adjudicated bankrupt is entitled to resist the prayer of the peti- tion in the same manner as if the petition had been filed by a creditor of the partnership. He has the right to appear at the time fixed by the court for the hearing, and to make proof, if he can, that the partnership is not insolvent or has not committed an act of bankruptcy, and to make all defenses which any debtor proceeded against is entitled to make; and in case an adjudica- tion of bankruptcy is made upon the petition, such partner must file a schedule of his debts and an inventory of his property in the same manner as is required in case of debtors against whom adjudication of bankruptcy is made.^* § 194. Adjudication of individual partners. One or more of the partners may be adjudged bankrupt with- out the others, on the partnership being so adjudged; but, in such case, if a discharge from firm as well as individual debts is sought, the petition should aver individual and firm indebted- ness, ^ving the firm name and the names of the partners, and should ask for a discharge from both firm and individual debts, and be accompanied by schedules, setting out firm debts and property, and other matters required in case all the partners join, and the notices and application for discharge should specifically state that a discharge is asked from both firm and individual debts, and be given to firm creditors and non-joining partners,^ ^ though, when all are insolvent and there are no firm 19— In re Forbes, 12^ Fed. 137, 11 A. 11366; In re Moore, 5 Biss. 79, Fed. Cas. B. B. 787. ' No. 11366; In re Moore, 5 Biss. 79, Fed. 20— G. O. VIII; In re Laughlin, 96 Cas. No. 9750-; In re Hartman, 96 Fed. Fed. 589; In re MeFaun, 96 Fed. 592; 593. In re Meyers, 1 N. B. N. 515, 96 Fed. 2:|^-In re Murray, 1 N. B. N. 532, 3 408; In re Lewis, 1 N. B. E. 19, 2 Ben. A. B. E. 90; In re Eussell, 1 N. B. N. 96, Fed. Cas. No. 8311; In re Penn, 5 532, 97 Fed. 32, 3 A. B. E. 91; In re N. B. R. 30, 5 Ben. 89, Fed. Cas. No. Temple, 17 N. B. E. 345, 4 Saw. 62, Fed 10927; In re Noonan, 10 N. B. E. 330, 3 Cas. No. 13825. Biss. 491, Fed. Cas. No. 10292; In re 22— G. 0. VIIL Prinkard, 1 N. B. E. 51, Fed. Cas. Na 23— In re Hartman, 96 Fed. E. 593; 192 Beandenbueg on Bankruptcy [§ 194 assets whatever, the proceeding may be without reference to the other partners.^* § 195. Involuntary petition against firm or members. §196. —In general. A partnership is a distinct entity requiring a petition specif- ically directed against it, alleging an act of bankruptcy in which it is expressly involved, and resulting in an adjudication of the partnership itself, in addition to any that may be made against the individual members.^'' The converse of this is equally true.^" In a proceeding against a partnership it is not necessary to allege that the solvent partners, if any, consent to the adjudi- cation.2'' Where insolvency is an essential part of the act of bank- ruptcy, the insolvency of the firm and every member must be averred, since a partnership is not insolvent so long as the joint, together with the separate property of the partners liable for the joint debts is sufficient to pay its debts, and this is true though the only partner whose individual estate is sufficient to render the partnership solvent is dead.^* The averment that "the partnership is insolvent," where it seems to be meant thereby that the joint assets are not sufficient to pay the joint obligations, is ambiguous and insufficient, for, In re Laughlin, 96 Ted. 589, 3 A. B. E. E. 35, In re CebaUos & Co., 161 Ped. 445, 1 ; In re McFaun, 96 Fed. 592, 3 A. B. 20 A. B. E. 459. E. 66; In re Eussell, 1 N. B. N. 532, 3 A. A prayer "that said copartnership may B. E. 91, 97 Fed. 32; Amsink y. Bean, be adjudged a bankrupt" is a prayer 11 N. B. E. 495, 22 Wall. 395; G. O. solely for the adjudication of the part- ^^11- nership. In re Wing Yiek Company, 13 24^-In re Hirsch, 2 N. B. N". E. 137, A. B. E. 757. 3 A. B.R. 344, 97 Fed. 571; In re Abbe, 27— In re Everybody's Grocery & 2 N. B. E. 26, Fed. Caa. No. 4; In re Meat Market, 173 Fed. 492, 21 A. B. K. Marks, Fed. Cas. No. 9094; Crompton v. 925. Conkling, 15 N. B. E. 417, 420, 9 Ben. 28— In re Wing Tick Company, 13 A. 225, Fed. Cas. No. 3407-8; In re Meyers, B. E. 757; Vaccaro v. Bk., 2 N B N. E. 1 N. B. N. 515, 96 Fed. 408, 2 A. B. 1037, 103 Fed. 436; In re Blair, 2 N. B. E. 707; In re Winkens, 2 N. B. E. 113, N. E. 364, 99 Fed. 76, 3 A. B. E. 588; Fed. Cas. No. 17875; In re Downing, 3 Davis v. Stevens, 104 Fed. 235; Hanson N. B. E. 182, 1 Dill. 33, Fed. Cas. i^o. v. Paige, 3 Gray 239. ^''*^- Contra: In re Everybody's Grocery & 25— In re Mercur, 115 Fed. 655, 8 A. Meat Market, 173 Fed. 492 21 A. B. B. B. E. 275, and cases cited. 925. ' 26— In re Halej 107 Fed. 432, 6 A. B. §197] Pabties, Pleadings and Process 193 as each partner is liable for all of the debts, a partnership can- not, with strictness, be said to be insolvent while any one of the partners is able to pay all of the firm's liabilities, and the supreme court rules and forms contemplate that an adjudication of the firm imports an adjudication of all its members as well.^® The creditors of a firm being by law also creditors of each member of the firm may join in a petition to have the members of the firm individually adjudged bankrupt.^" § 197. — Partnership creditors. The creditors of a partnership are also the creditors of each individual member and may therefore petition against any one member as well as against the firm.^^ Where the ultra vires acts of a corporation in entering into and executing the contract of partnership induced general creditors to extend credit to a firm, the corporation cannot repudiate such acts, and transform itself into a general creditor.^^ 29— In re Blair, 2 N. B. N. E. 364, 99 Fed. 76, 3 A. B. E. 588. 30— In re Melick, 4 N. B. E. 26, Fed. Cas. No. 9399; In re Mereur, 1 N. B. N. 527, 2 A. B. E. 626, 95 Fed. 634. 31— In re L. Hee, 13 A. B. E. 8. In re Mereur, 1 N. B. N. 527, 2 A. B. E. 626, 95 Fed. 634; In re Lloyd, 15 N. B. E, 257, Fed. Cas. No. 8429; In re Malot, 16 N. B. E. 485, Fed. Cas. No. 9282. 32— In re Ervin, 109 Fed. 135, 6 A. B. E. 356, 3 N. 763, aS'i Wallerstein V. Ervin, 112 Fed. 124, 7 A. B.'E. 256, and cases cited. Brandenburg — 13 CHAPTER VII Provisional Seizure of Peopeety — ^Receiveeships i 198. Jurisdiction of bankruptcy court prior to adjudication. i 199. Eights and duties of marshal. i 200. Appointment of receiver. i 201. — When proper. ! 202. — Property subject to seizure. i 203. — Application, notice and hearing. ( 204. — Bond of petitioners. i 205. — Forthcoming bond of alleged bankrupt. i 206. — Appeal and review. \ 207. — Collateral attack. S 208. Interference with bankrupt's property. i 209. — Before appointment of receiver. ! 210. — After appointment of receiver. \ 211. Powers, duties, rights and liabilities of receiver. I 212. — Outside of district. 5 213. — Title to property. 5 214. — Contracts and leases. 5 215. — Participation in examination of bankrupt. I 216. — Adjustment and compromise of claims against bankrupt. i 217. — Claims against receiver. §218. — Payments, loans and deposits. I 219. — Employment of attorney. i 220. — Eeceiver's sales. § 221. — Surrender of property to receiver. § 222. — Surrender of bankrupt 's books. § 223. — Surrender of property to third persons. § 224. Expenses and compensation of receiver and marshal. § 225. — Jurisdiction to determine. § 226. — Care and preservation of the estate. § 227. — Continuation of bankrupt 's business. § 228. — Examination of books. § 229. — Discretion of court. §230. —Effect of dismissal. § 231. — When compensation withheld. § 232. — Extra compensation. % 233. — Notice of application. § 234. Contempt of receiver. § 235. Accounts of receiver. I 236. Actions by receiver. § 237. Actions against receiver. § 238. Bemoval and discharge of receiver. 194 § 198] Peovisional Seizuee op Peopeety — Receivebships 195 §239. — Bight of removal and discharge. § 240. — Effect of dismissal of proceedings. § 241. — Effect of appointment of trustee. § 242. AncUlarjr receivers. § 198. Jurisdiction of bankruptcy court prior to adjudication. Immediately upon filing the petition in bankruptcy, the whole assets of the bankrupt come within the jurisdiction and control of the bankruptcy court to be applied and disposed of according to the terms of the bankruptcy act for the benefit of the bank- rupt's creditors, provided the proceedings should result in an adjudication of bankruptcy. Pending and prior to the adjudica- tion, title to the bankrupt's property still remains in him.^ But pending the adjudication, the court of bankruptcy has the power, and it is its duty, upon its own motion, in a proper case, to take actual possession of his estate through a receiver or by a direc- tion to the marshal.^ The act expressly provides that: "A judge may, upon satisr factory proof, by affidavit, that a bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bankruptcy, or has neglected or is neglecting, or is about to so neglect his property that it has thereby deteriorated or is thereby deteriorating or is about thereby to deteriorate in value, issue a warrant to the marshal to seize and hold it subject to further orders. " ^ The purpose of section 69a is to enable the creditors to have the bankrupt's property taken into custody by the United States marshal after the petition has been filed, and prior to adjudicar tion, where the bankrupt has committed an act of bankruptcy, and has neglected or is neglecting his property, so that it is deteriorating in value. While the section does not specifically provide for the seizure of property of a bankrupt who is wasting it, it is evidently the intention of congress by this provision to 1 — See. 70a Act of 1898. the district, or to remove or conceal his 2 — ^Whittlesey v. Becker Co., 142 App. goods and chattels or his evidence of Div. (N. Y.) 313, 25 A. B. E. 672. In re property, or make any fraudulent con- Abrahamson & Bretstein, 1 N. B. N. 23, veyanee or disposition thereof, the court 1 A. B. E. 44. may issue a warrant to the marshal of 3— Act of 1898, § 69a. the district . . . and forthwith to Analogous provision of Act of 1867. take possession provisionally of all the "Section 40. . . . If it shall ap- property and effects of the debtor, and pear that there is probable cause for be- safely keep the same until the further Ueving that the debtor is about to leave order of the court. , , ." 196 BeandbNbueg on Bankruptcy [§ 198 prevent not only the deterioration in value but also the wastage and loss of property, pending the adjudication,* The authority of the bankruptcy court to appoint a receiver for the preservation of the estate pending the adjudication, to authorize the receiver temporarily to conduct the business of the alleged bankrupt, and to make all orders necessary for the accomplishment of those objects, applies to the entire estate of the bankrupt, wheresoever it may be situated in the United States, and is not confined to such property as may be within the district wherein the petition in bankruptcy is filed. Wherever the estate is in the United States, there the authority to take precautions for the preservation of the estate pending the adjudi- cation extends.^ A temporary receiver appointed in bankruptcy has no authority, however, to institute in a court other than that of his appointment, an ancillary proceeding to confirm his appointment and secure for him the custody of property in the district.® § 199. Rights and duties of marshal. A marshal has no authority under a warrant issued under a petition asking that the debtor's property be seized provision- ally to seize property outside of his district,'' and, if in executing a warrant for the seizure of property, he seize that of a stranger, he becomes liable to an action for trespass in a state court.^ Since the estate is in custodia legis, the officer appointed to manage it is accountable to the court appointing him and to that court alone.® § 200. Appointment of receiver. §201. —When proper. Upon proper application showing the liability of the estate to deterioration or waste pending action upon the petition and appointment of a trustee, section 2(3) authorizes the court of 4 — ^In re Eockwood, 1 N. B. N. 134. refereee with reference to seizure of prop- 91 Fed. 363, 1 A. B. E. 272. erty. 5— In re Dempster, 172 Fed. 353, 22 7— Carr v. PhiUips, 18 N. B. E. 527. A. B. E. 751. 8— Marsh v. Armstrong, 11 N. B. B. 6— In re Tygarts Eiver Coal Co., 203 125. Fed. 178, 30 A. B. E. 183. 9— In re Carow, 4 N. B. E. 178, Fed. See, also, § 329, post, for power of Gas. No. 2426. § 201] Peovisional Seizure of Pbopeety — Receiveeships 197 bankruptcy to appoint a receiver or the marshal to take imme- diate possession of bankrupt's property." The power to appoint receivers should be exercised not as a matter of course, but cautiously, circumspectly, and always upon proof that the appointment is absolutely necessary. The reasons for the. appointment should be clear, positive and cer- tain, and a receiver should not be appointed prior to the adjudication unless it clearly appears either that the property of the alleged bankrupt is perishable or that it is apt to become wasted, disputed or misappropriated.'^ Unless something is shown to the contrary the presumption is pursuasive that during the interval between the filing of the petition and the appointment of a trustee, the property will be entirely safe in the hands of the assignee, especially if he be enjoined from disposing of it pendente lite.'^ Section 3e does not authorize the appointment of a receiver ia voluntary eases,'^ nor does the act make any provision for the appointment of a receiver by the consent of the alleged bankrupt.'* The appointment, by the terms of the a«t, is only authorized when it is absolutely essential for the preservation of the estate.'^ However, after adjudication of voluntary bank- ruptcy, an application by creditors, in which the bankrupt unites, to appoint a receiver to preserve the assets of the estate, otherwise wholly unprotected, "v^ill usually be granted, especially in the absence of any charge of fraud or collusion, and whete the creditor^ and other persons interested make no objection whatever.'® The appointment of a receiver is proper where the bankrupt confesses judgment upon an agreement and makes a general assignment for the benefit of creditors," or where he makes a general assignment within four months prior to the filing of the petition; '^ or is secretly disposing of the property or the like. 10— See Lansing v. Manton, 14 N. B. 14^T. S. Faulk & Co. v. Steiner, 165 B. 127, Fed. Cas. No. 8077. Fed. 861, 21 A. B. E. 623. 11 — In re Standard Cordage Co., 184 15 — Faulk & Co. v. Steiner, 165 Fed. Fed. 156, 30 A. B. E. 448; In re Oak- 861, 21 A. B. E. 623. land Lumber Co., 174 Fed. 634, 23 A. B. Aet of 1898 § 2 (3). E. 181. 16— In re Huddleston, 167 Fed. 428, 21 12— In re Oakland Lumber Co., 174 A. B. R. 669. Fed. 634, 23 A. B. E. 181. 17— Eautman v. Hopkins, 1 N. B. N. 13— In re Eosenthal, 144 Fed. 548, 16 41. A. B. B. 448. 18— In re Gutwillig, 1 N. B. N. 18; In 198 Brandenbubg on Bankbtjptcy [§201 Upon a proper showing the court is endowed with authority to prevent the loss of good will, trade and depreciation, which follows the closing of a husiness, as well as to prevent a sacrifice of the estate at times of money depression, absence of a market, and the like, by permitting its continuance for a limited period. The court will not appoint a provisional receiver to receive the surrender of a preference,^^ or upon the ground that the debtor removed goods in fulfilment of an existing contract made long before the commencement of the bankruptcy proceedings, as such act is not fraudulent.^" The mere fact that a corporation hag made application to a state court for a voluntary dissolution, with proof of its insolvency or the dissipation of its assets, will not justify the appointment of a receiver by the bankruptcy court, prior to an adjudication.^^ § 202, — Property subject to seizure. Prior to the amendatory act of February 5, 1903, summary process for the seizure of property could be invoked only where the property was in the possession of the bankrupt or his agent, and never where it was in the control of a third party, holding it under an adverse claim of right or title prior to the filing of the petition,^^ but the mere refusal to surrender without other evi- dence was insufficient to constitute an adverse holding.^^ Hence the court would not order possession to be taken of property which may have been illegally transferred to another, nor issue a warrant commanding the marshal to take possession provi- sionally of goods and property so conveyed prior to the filing of the petition,^* but where the conveyance was subsequently re Etheridge Fur. Co., 1 N. B. N. 139, fith, 1 N. B. N. 546; Bardes v. Bank, 178 92 Fed. 329, 1 A. B. E. 112; Sedgwick v. U. S. 524, 44 L. ed. 1175, 2 N. B. N. E. Place, 3 N. B. B. 35, 3 Ben. 36Q, Fed. 725, 4 A. B. E. 163; In re Ward, 104 Gas. No. 12619. Fed. 985; In re Brodbine, 1 N. B. N. 279, 19— In re Thompson, 2 N. B. N. E. 326, 93 Fed. 643, 2 A. B. E. 53; In re 1016. Euntrock Clothing Co., 1 N. B. N. 291, 20— Bk. V. Brady's Bend Iron Co., 5 92 Fed. 886, 1 A. B. E. 454; In re Pear- N. B. E. 491, Fed. Cas. No. 9018. . son, 1 N. B. N. 474, 2 A. B. E. 819; In 21 — In re Standard Cordage Co., 184 re Fowler, 1 N. B. N. 265, 93 Fed. 417, 1 Fed. 156, 30 A. B. E. 448. A. B. E. 555; In re Bender, 106 Fed. 22— In re Kelly, 91 Fed. 504, 1 A. B. 873, 5 A. B. E. 632, and cases cited under E. 306; In re Eockwood, 1 N. B. N. 134, § 23b, Act of 1898; but see Marshall v. 91 Fed. 363. Knox, 8 N. B. E. 97, 16 Wall. 551, 21 23— Mueller v. Nugent, 184 U. S. 1,. 7 L. ed. 481; In re Smith, 1 N. B. N. 61. A. B. I?. 224, 1 A. B, B, 372; InreGrif- S4^Sec, 33b, Act of 1898; la rs § 202] PaovisioiirAL Sbizuee op Pkopeety — Receivbeships 199 avoided by the adjudication, as in the caae of a general assign- ment, the property would be restored upon summary petition in the court of bankruptcy.^^ Under the act as it now reads, however, the receiver is entitled* to possession of whatever is plainly the property of the bank- rupt and against which no third person makes claim with color of title,^® and may take possession of property in the hands of an adverse claimant where necessary for the preservation of the estate,^'' as where the facts clearly show the dishonest, fraudu- lent and corrupt character of the transfer to the claimant and an imminent danger of loss and dissipation of the property trans- ferred.^® Property of the bankrupt upon which a lien is claimed must nevertheless be turned over to the receiver.^ ^ The 'holder of a chattel mortgage is not entitled to possession of the mortgagejd property as against the receiver before the determination of his suit to foreclose, but if the parties agree the property may be sold and the proceeds held by the receiver.^" A receiver appointed by a state court is bound, upon being ordered to do so by the federal court, to turn over the property of the bankrupt in his possession to the federal receiver, unless he is holding it under an honest adverse claim.^^ So, a general assignment gives the assignee no title or right to possession of the bankrupt's property as against the receiver, who may sum- HarthUl, 4 N. B. E. 131, 4 Ben. 488, Fed. But see In re Kolin, 134 Fed. 557, 13 Caa. No. 6161; In re HoUand, 12 N. B. A. B. E. 531. E. 403, Fed. Cas. No. 6605. The court may order the receiver to 25 — Bryan v. Bernheimer, 181 IT. S. take possession of property transferred 188, 45 L. ed. 814, 3.N. B. N. E. 482, 5 shortly before bankruptcy and to hold A. B. E. 623. same pending adjudication and subae- 26 — In re Muncie Pulp Co., 139 Fed. quent suit by the trustee to set aside the 546, 14 A. B. E. 70; certiorari denied 202 transfer through which it was acquired. U. S. 621, 50 li. ed. 1175. In re Michaelis In re Haupt Bros., 153 Fed. 239, 18 A. & Lindeman, 196 Fed. 718, 27 A. B. E. B. E. 585. 299. 28— Horner-Gaylord Co. v. Miller & Eeceiver held entitled to possession of Bennett, 147 Fed. 295, 17 A. B. E. 257. goods of bankrupt as against one claim- 29 — Matter of Eurieh's Ft. Hamilton ing through a fictitious sale made prior to Brewery, 158 Fed. 644, 19 A. B. E. 798. the filing of the petition. In re Siegel, 30 — In re Victor Color & Varnish Co., 164 Fed. 559, 21 A. B. E. 154. 175 Fed. 1023, 23 A. B. E. 177. 27— In re Moody, 131 Fed. 525, 12 A. 31— In re Zeigler Co., 189 Fed. 259, B. E. 718; In re Dempster, 172 Fed. 353, 26 A. B. E. 761. 22 A. B. E. 751. 200 Bbandenbueg on Ban-keuptcy [ § 202 manly take the property from the possession of the^ assignee, or a third party who has tortiously taken it from the assignee/''^ That property is in the hands of the state officer does not pre- vent its seizure.^* § 203. — Application, notice and hearing. A petition for involuntary adjudication in bankruptcy should be confined to that purpose and should not also contain an application for a warrant of seizure, the act indicating by implication that the proceedings are distinct and separate; at any rate, the better practice is to make them such. Under the act a warrant of seizure can issue only after a petition has been filed by the creditor.^* The petition to appoint a receiver should allege that the appointment is absolutely necessary for the preservation of the estate, and the facts should be stated either in a sworn petition, or in laccompanying affidavits showing the necessity.^^ The affidavit required to support a petition for seizure of property should specify all of the essential facts, and it has been held that it should be as fully satisfactory in exhibiting proof of the act of bankruptcy as the testimony to be produced at the hearing of the petition for adjudication in a contested case, in order that the court may be fully apprised of the facts in reach- ing a conclusion as to whether the alleged bankrupt has been neglecting his property as charged. Warrant for the seizure should not be made upon the mere opinions of witnesses that an act of bankruptcy has been committed, but only on a full showing of the facts of the case.^^ The court is not ordinarily justified in appointing a receiver and seizing the property of a defendant without giving him notice and an opportunity to be heard,*'' and except where delay will result in irreparable loss or will defeat the very purpose of 32— Whittlesey v. Becker & Co., 342 36— In re KeUy, 91 Fed. 504, 1 A. B. App. Div. (N. Y.) 313, 25 A. B. E. 672. R. 306. 33 — XJ. S. marshal is entitled to seize 37 — T. S. Faulk & Co. v. Steiner, 165 property of bankrupt, under arrest from Fed. 861, 21 A. B. R. 623 ; In re KeUy, hands of sheriff. LeMaster v. Speneer, 91 Fed. 504, 1 A. B. R. 306; Bauman 203 Fed. 210, 29 A. B. R. 264. Diamond Co. v. Hart, 192 Fed. 498, 27 A. 34— In re KeUy, 91 Fed. 504, 1 A. B. B. R. 632 R. 306. 35— T. 8. Faulk & Co. v. Steiner, 165 Fed. 861, 21 A. B. R. 623. § 205] Pbovisionaii Seizure of Pkopebty — Reoeiveeships 201 the receivership, notice Should be given to the bankrupt.^* How- ever, the appointment of a receiver without notice to him is not a deprivation of property without due process- of law.^® Notice of the application for a receiver should also be given to any other person found in possession of the property of the alleged bankrupt,*" but no notice to creditors of the appointment of a receiver ,is required.*^ § 204. — Bond of petitioners. The creditors petitioning for the appointment of a receiver may be required to furnish a bond conditioned upon the payment of the expenses of the receivership, if sufficient assets applicable to that purpose are not discovered,*^ and upon the payment to the respondent in case the petition is dismissed, or the seizure proves to have been wrongfully obtained, of all costs, expenses aad damages caused by the seizure, taking and detention of the property.*^ An order appointing' a receiver which fixes no time within which the moving creditor must file his bond, and does not require it to be filed before the receiver takes possession, is erroneous.** The fact that a bond has been filed in another proceeding against the same debtor will not excuse a failure to file a bond.*^ Eecovery upon bonds so given is treated in a subsequent chapter.*® § 205. — Forthcoming bond of alleged bankrupt. Property seized prior to the adjudication must be released, if the bankrupt gives bond in a sum which shall be fixed by the judge, with such sureties as he shall approve, conditioned to 38— Latimer v. MoNeal, 142 Fed. 451, 43— Act of 1898, §§ 3 (e), 6?a; In re 16 A. B. E. 43. Sunseri, 156 Fed. 103, 18 A. B. E. 231; 39— Latimer v. MeNeal, 142 Fed. 451, see Beach v. Macon Grocery Co., 116 16 A. B. E. 43; In re Francis, 136 Fed. Fed. 143. 974, 14 A. B. E. 676. 44— In re HafC, 135 Fed. 742, 13 A. B. 40 — ^Bauman Diamond Co. v. Hart, 192 E. 354. Fed. 498, 27 A. B. E. 632; In re Sunseri, 45— In re HafE, 135 Fed. 742, 13 A. 156 Fed. 103, 18 A. B. E. 231, B. E. 354. 41 — ^In re Abrahamson & Bretstein, 1 46 — See Chap. IX. N. B. N. 23, X A. B. B, 44. 42— In re McKane, 152 Fed. 733, 18 A. B. E. 594. 202 Beandenbueg on Bankeuptcy [§205 turn over such, property, or pay the value thereof in money to the trustee, in the event he is adjudged a bankrupt pursuant to such petition.*'' The parties to such bond are estopped from questioning the appointment as receivers of the parties named in the bond as such, and the sureties thereon will not be released by the action of the alleged bankrupt in instituting voluntary proceedings and obtaining a second seizure of the property.** § 206. — Appeal and review. The propriety of the appointment of a receiver and the effect of the dismissal of the proceedings upon the receivership are judicial questions to be determined primarily by the bankruptcy court and are not reviewable by mandamus.*® No appeal lies from an order appointing a receiver, but where a receiver is appointed by the same order which, adjudicated the bankrupt, and such order is reversed and set aside upon the appeal, the appointment of the receiver falls with it.®" § 207. — Collateral attack. The validity or propriety of the receiver's appointment, or the scope of his authority prescribed in the order of his appoint- ment, cannot be questioned in another tribunal or in a collateral proceeding unless the decree or order is void.^^ § 208. Interference with bankrupts' property. § 209. — Before appointment of receiver. The bankrupt's property is within the jurisdiction of the bank- ruptcy court as soon as the petition in bankruptcy is filed, so far as to prevent a seizure of the property in a replevin action after the time of such filing though before the appointment of a receiver or trustee.®^ 47— Act of 1898, § 69a. re Isaacson, 174 Fed. 406, 23 A. B. E. 98. 48— Moore Bros. v. Cowan, 173 Ala. In replevin against the receiyer, neither 536, 26 A. B. E. 902. his official status nor the regularity of 49— Edinburg Coal Co. v. Humphreys, the proceedings leading to his; appoint- 134 Fed. 839, 13 A. B. E. 593. ment may be collaterally atta °'^*«> §§ 55, 56, 57. B. E. 513. ^ — ■'-'^ * proceeding against a partner- 41— In re Ore. Bui. & Pub. Co., 13 N. ^^'P' ^"^ intervening creditor need not B. E. 503, Fed. Cas. No. 10559. See also Pf ^« ^^^^ insolvency of a member there- § 3, Act of 1898, ante, §§ 55, 56, 57. °J Z\'' absent and fails to produce L rr -^^ ■, \, ^ I .V, his books. In re Perlhefter & Shatz, 177 42-KnitteI v. McGowan, 134 Fed. 498, pe^. 299, 25 A B E 576 14 A. B. E. 209; In re Electron Chem- 45_in ^^ DonneUy, 193 Fed. 755, 27 ipal Co., 208' Fed. 954, 31 A. B. E. 471; J^ B, E. 504, § 255] HEAEiiirG ON Petition 229 upon the bankrupt,^® notwithstanding the fact that the failure was neither wilful nor contumacious,*^ and notwithstanding the fact that the bankrupt's books, papers and accounts were in the custody of the marshal.*^ The burden is upon the respondent to disprove the implication of fraud arising from an attempted removal of his property to another country while he was insolvent.*® The fact that a comparatively inconsiderable minority of the creditors desire the administration of the debtor's estate in bankruptcy does not warrant the court in resolving every doubt- ful question of fact or law against the petitioning creditors.^" § 255. — Evidence. The general rules of evidence applicable to suits in equity in federal courts apply to proceedings in bankruptcy. Judgments entered more than four months prior to the filing of the petition are admissible on the issue of insolvency,^ ^ but a judgment against the bankrupt, which has been opened by the court ren- dering it, is inadmissible upon such issue.^^ The creditors oaimot attack the title of the bankrupt to property standing in his name, for the purpose of minimizing his apparent assets and thereby proving him insolvent.^^ An adjudication of insanity of the alleged bankrupt by a state court subsequent to the filing of the petition is admissible on the issue of insanity at the time of the commission of the aft of bankruptcy, but is not conclusive upon such question.®* " The examination of the bankrupt and other witnesses, and the admissibility of evidence upon the questions raised by the peti- tion and answer are treated fully in Chapter XV. 46— Act of 1898, § 3d; Elliott v. 49— HofEscMaeger Company, Li!&., v. Toeppner, 187 TJ. S. 327, 47 L. ed. 200, 9 Young Nap, alias Young Lap, 12 A. B. A. B. E. 50; Cummins Grocery Co. v. E. 517. Talley, 187 Fed. 507, 26 A. B. E. 484; 50— In ro Lewis L Perry & Whitney Bogen & Trummell v. Protter, 129 Fed. Co., 172 Fed. 745, 22 A. B. E. 772. 533,12 A. B. E. 288; Louisiana Nat. Life 51 — Knittel v. MeGowan, 134 Fed. 498, Assur. Society v. Segen, 196 Fed. 903, 28 14 A. B. E. 209. A. B B. 407; In re Shoesmith, 135 Fed. 52— McGowan v. Knittel, 137 Fed. 453, 684, 13 A, B. E. 645. 15 A. B. E. 1. See, also, ante, §§ 55, 56, 57. 53 — ^Blackstone v. Everybody's Store, 47--OnmEuns Grocery Co. v. Talley, 187 207 Fed. 752, 30 A. B. E. 497. Fed. 507, 26 A. B. E. 484. 54— In re Ward, 161 Fed. 755, 20 A. 48— In re Desha & Willfong, 30 A, B, E. 482 ; B. E. 130, 230 Bkandbnbxjbg on Bankeuptoy [§ 256 §256. —Witnesses. A witness is not disqualified by reason of his having been convicted of a misdemeanor though the conviction may be taken as somewhat affecting his credibility.^^ The petitioners are estopped to impeach the testimony of a witness called by them to show that they were creditors entitled to file the petition,^^ but the fact that they call the alleged bank- rapt as a witness will not preclude them from showing that he had a residence different from that testified to by him.®^ § 257. — Questions of law and fact. If the nature of the debt is set forth in the petition with the averment that it is provable under the act, the question whether it is so provable is a question of law and not of fact.^^ The question of what business the alleged bankrupt was prin- cipally conducting is one of fact, but the classification, of that business, under the statute, is one of law.^^ §258. — Instructions. The court's instructions are entitled to a reasonable construc- tion, and, if correct, when applied to the facts submitted to the jury, will be sustained in an appellate court, though, if standing alone, they would be incomplete in respect to some matter suffi- ciently explained in the evidence ; ^* and it is not error to direct the jury's attention to the distinction between reasonable cause to believe and actual belief.®^ §259. — Directing verdict. j The fact that each party asks for a peremptory instruction does not submit the issues of fact to the court, so as to deprive eithei^ party of the right to ask for further instructions, or to have the questions of fact submitted to the jury.^* -q^^ jf ^jje evidence is of such a conclusive character that upon it as a whole 55 — Morris v. Taunenbaum, 26 A. B. E. 294, 23 A. B. E. 701 ; Hill Co. v. Con- 368. tractors' Supply & Equipment Co., 156 56 — In re San Miguel Gold Mining Co., 111. App. 270, 24 A. B. E. 84. 197 Fed. 126, 27 A. B. E. 901. 60— Willis v. Carpenter, 14 N. B. E. 57— In re Hurley, 204 Fed. 126, 29 A. 521, Fed. Cas. No. 17770. B. E. 567. 61 — Lawrence v. Graves, 5 N. B. K. 58— Sigaby v. Willis, .3 N. B. E. 51, 279, Fed. Cas. No. 8138. 3 Ben. 371, Fed. Caa. No. 12849. 62— In re Iron Clad Mfg. Co., 197 Fed. 59— In re Excelsior Oafe Co., 175 Fed. 280, 28 A. B. E. 628. § 262] Heaeing on Petition 231 the court would be constrained to set aside a verdict in favor of the one party, it may direct a verdict in favor of the other party, although there be conflicting evidence as to details not essential to the conclusion.®^ §260. —Rehearing. A rehearing should not be granted for the purpose of reviving the right to appeal unless the facts clearly warrant it.®* An application for a rehearing cannot be sustained where there has been an order of adjudication which has been affirmed on appeal and the case has been sent back with a mandate that further proceedings be had in the district court in conformity with the judgment of the appellate court. ®^ §261. Jury trials. § 262. — Decision of issue with or without jury. The district courts, as courts of bankruptcy, have jurisdiction both at law and in equity; ^^ and so it would seem that, under the present act, if the matter in controversy is of legal cogni- zance, the fact that it is in a bankruptcy proceeding will not prevent the rule as to a jury trial from applying, and that the holding under the former act that bankruptcy proceedings were of equitable cognizance and a jury trial not allowable ®^ does not now apply unless the matter in controversy is of equitable cognizance. This distinction seems to have been overlooked in several cases.®* It is the province of the judge to hear and determine without the intervention of a jury all issues in cases of contested bank- ruptcy, unless the alleged bankrupt shall make seasonable application for a jury trial, in which, case he is entitled as of right to a jury trial in respect to his insolvency, and any act of bankruptcy alleged to have been committed by him.®' Any 63— In re Iron Clad Mfg. Co., 197 Fed. 68— Moras v. Franklin Coal Co., 125 280, 28 A. B. E. 628. Fed. 998, 11 A. B. B. 423; In re Chris- 64— In re Hudson Clothing Co., 140 tensen, 101 Fed. 243, 4 A. B. E. 99. Fed. 49, 15 A. B. E. 254. ' 69— Act of 1898, § 18d. If the bank- 115 — In re Lennox, 181 Fed. 428, 24 A. rupt, or any of his creditors, shall appear, B. E. 922. within the time limited, and cohtiovert 66— Act of 1898, § 2. the facts alleged in the petitioh, the 67 — Barton v. Barbour, 104 IT. S. judge shall determine, as soon as may (14 Otto) 126, 26 L. ed. 672. , be, the issues presented by the pleadings. 232 Beandenbubg on Bankeuptcy li otlier question of fact involved may in tlie discretion of the court also be submitted to the jury, and the issues upon which the court desires the jury to pass, formulated; but the findings o^ the jury upon such an issue, as in cases submitted to a jury by the chancellor in a court of chancery, is merely advisory, and not binding on the court.''» In such case the verdict of the jury being purely advisory, the court may select its own jury.''^ § 263. — Questions submitted. In a case of involuntary bankruptcy, a jury trial may be. had as to the commission of the acts of bankruptcy alleged and the fact of insolvency ''^ as a matter of right, and cannot be denied if seasonably demanded.''* A jury trial upon other issues can- not be demanded as of right.''* Accordingly the debtor is not entitled to a jury trial to determine whether he was a person without the intervention of a jury, ex- cept in cases where a jury trial i^ given by this act, and make the adjudication or dismiss the petition. Analogous provision of Act of 1867. "See. 41. And te it further enacted, That on such return day or adjourned day, if the notice has been duly served or published, or shall be waived by the ap- pearance and consent of the debtor, the court shall proceed summarily to hear the allegations of the petitioner and debtor, and may adjourn the proceedings from time to time, on good cause shown, and shall, if the debtor on the same day so demand in writing, order a trial by jury at the first term of the court at which a jury shall be in attendance, to ascertain the fact of such alleged ban}£- ruptcy. ' ' Carpenter v. Cudd, 174 Fed. 603, 23 A. B. E. 463. 70^In re Neasmuth, 147 Fed. 160, 17 A. B. E. 128; Carpenter v. Cudd, 174 Fed. 603, 23 A. B. E. 463; Oil Well Supply Co. V. Hall, 128 Fed. 875, 11 A. B. E. 738. 71— Oil Well Supply Co. v. Hall, 128 Fed. 875, 11 A. B. B. 738. 72— Act of 1898, § 19a, provides: "A person against whom an involuntary peti- tion has been filed shall be entitled to have a trial by jury in respect . to the question of his insolvency, except as here- in otherwise provided, and any act of bankruptcy alleged in such petition to have been committed, upon filing a writ- ten application therefor at or before the time wdthin wMeh an answer may be filed. If such application is not filed within such time, a trial by jury shall be deemed to have been waived. ' ' Analogous provision of Act of 1867. "Sec. 41. . . . The court shall pro- ceed summarily to hear the allegation of the petitioner and debtor, and may ad- journ the proceedings from time to time, on good cause shown, and- shall, if the debtor on the same day so demand in writing, order a trial by jury at the first term of court at which a jury shall be in attendance, to ascertain the fact of, sueh alleged bankruptcy." Bray v. Cobb, 1 N. B. N. 209, 1 A B. E. 153, 91 Fed. 102; Day v. Beck & Gregg Hardware Co., 114 Fed. 834, 8 A- B. E. 175. Schloss V. A. Strellow & Co., 156 Fed. 662, 19 A. B. E. 359.; , 73— Duncan v. Landis, 106 Fed. 839, 5 A. B. E. 649. 74 — Mprss V. Franklin Coal .Co., 125 Fed. 998, 11 A. B. E. 423. § 263] Heabing on Petition 233 chiefly engaged in fanning; ''^ nor to try the question of pref- erence where a bankrupt had allowed creditors to take goods from his store and hadTuade a general assignment for the benefit of creditors just preceding his bankruptcy and no explanations of such acts were offered, the preference being conclusively pre- sumed; ''^ nor the question whether a judgment is or is not ren- dered for fraud, that being a question to be determined by an inspection of the record; ^'^ nor the issue as to the debtor's inten- tion in mailing a preference J* So, questions as to whether the petitioners are in fact creditors and entitled to maintain the proceedings need not be submitted,'^" though it would seem that a jury trial should be allowed to decide if debts included in the petition to make up the requisite number and amount of cred- itors are fraudulent, since it is a question of fact, and on it depends the important question whether the debtor is to be ruined by a petition filed by trumped-up creditors; and this is especially true if the question of insolvency is4nvolved; as a man is only insolvent when the aggregate value of his property is not equal to his bona fide debts.*" The question of insanity should ordinarily be submitted.*^ Whether a partnership existed may be submitted instead of charged as matter of law,*^ especially where the question of solvency hinges thereon.*^ Where a petition is filed by some of the members of a firm and referred by the clerk to a referee, thus being in its inception a voluntary proceeding, but the non- petitioning partners contest the adjudication,®* the case must be certified to the judge for hearing and a jury trial will be had if a written demand therefor was filed with the referee at or before the time fixed for the hearing.®^ A jury trial should not be allowed to try the issues, raised by 75— Stephens v.* Merchants 'Nat. Bank, 81— In re Ward, 161 Ped. 755, 20 A. 154 Fed. 341, 18 A. B. E. 560. B. E. 482. 76— In re Seeley, 19 N. B. E. 1, Fed. 82— In re Jelsh, 9 N. B. E. 4l2, Fed. Gas. No. 12628. Cas. No. 7257. 77 — ^Flanagan v. Pearson, 14 N. B. E. 83 — Buffalo Milling Co. v. Lewisburg 37. ' Dairy Co., 159 Fed. 319, 20 A. B. E. 78— In re Harris, ~155 Fed. 216, 19 A. 279; In re Neasmith, 147 Fed. 160, 17 B.^E. 204. ' A. B. E. 128. *r9— Morss V. Franklin Co^ Co., 125 84— G. O. VIII. Fed. 998, 11 A. B. E. 423. 85— In re Forbes, 128 Fed. 137, 11 A. 80— Consult In re Eogers, 10 N. B. E. B. E. 787; In re Murray, 1 N. B. N. 570, 444, Fed. Cas. No. 12008. 96 Fed. 600, 3 A.- B. E. 601. 234 Bbandbnbubg on Bankettptoy [§ 263 a general answer and a denial of all the acts of bankruptcy- alleged, on defendant's demand, after a demurrer filed by such defendant to the whole petition is overruled.**' § 264. — On insufScient petition. The insufficiency of a petition may be taken advantage of by motion to dismiss or answer; but, if the defect is amendable, it is waived by demanding an issue on the merits and requiring the petitioner to prepare for trial on the disputed facts, and objection is too late at the trial, or later, so that a debtor may waive such defect and demand a jury trial on such petition." § 265. — On intervening petitions. There is nothing in the act which specifically gives a creditor appearing in opposition to the prayer of the petition of interven- tion the right to a jury trial as to matters of fact alleged in the petition, but it would seem that such right would not be denied.** § 266. — Jury not in attendance. Section 19b of the act provides that : " if a jury is not in attend- ance upon the court, one may be specially summoned for the trial, or the case may be postponed, or, if the case is pending in one of the district courts within the jurisdiction of a circuit court of the United States, it may be certified for trial to the circuit court sitting at the same place, or by consent of parties when sitting at any other place in the same district, if such circuit court has or is to have a jury first in attendance." This provision is in line with the general purpose of the act which is to secure a prompt settlement of a bankrupt's estate. It provides for a special venire, if necessary, or in case no advantage is to be gained by postponement until there is a jury in attendance, or for trial in the circuit court sitting at the same place on certificate, or by consent of parties sitting at another place in the district, if such circuit court has a jury in attend- ance, so that the earliest possible trial may be had. So great is the desire for promptness in these proceedings that, though the act of 1867 made no express provision therefor, the courts never- 86— In re Benham, 8 N. B. B. 94. . 88— Act of 1898, § 19. 87— In te Cliffe, 1 N. B. N. 509, 2 A. B. R. 317, 94 Fed. 354. § 267] Hearing on Petition 235 theless held that a special venire might issue at any date to try an issue,®® even during the vacation of the district court proper.®" So much of section 19b as relates to the certifying of the case to the circuit court is now obselete in view of the abolishment of that court by act of Congress. § 267. — Waiver of right. In a case of involuntary bankruptcy, a demand for a trial by jury, as to the commission of the alleged acts of bankruptcy and the fact of insolvency, must be in writing ®^ and made by the debtor at or before the expiration of the time allowed for answer, which is five days after the return day, or within such further time as the court may allow,®^ the subpoena which is issued at the time the petition is filed being returnable in fifteen days, unless the time is extended by the judge.®^ This provision is mandatory and must be strictly observed and, if the demand is not made in the manner and within the time prescribed, it is deemed to be waived.®* So, if the debtor fails to appear on the return day he cannot afterwards demand a jury trial; ®^ nor, if he appear by attorney but neither files an answer or other plea nor demands trial by jury, and secures a continuance, can he demand a trial by jury on the adjourned day, the continuance being general and no enlargement of the time for filing the demand having been granted.®® So the submission of the case to the referee "to hear, take proofs, and report his conclusions" is a waiver of the right to a jury trial.®'' The revised statutes provide that issues of fact in civil cases in a circuit court may be tried by the court without a jury, whenever the parties file a stipulation in writing waiving the jury. In such case the finding of the court, which may be either 89— In re Pindlay, 9 N. B. E. 83, 5 smith, 147 Fed. 160, 17 A. B. B. 128; Bias. 480, Fed. Caa. , No. 4789; In re Bray v. Cobb, 1 N. B. N. 209, 1 A. B. p. Hawkeye Smelting Co., 8 N. B. E. 385. 153, 91 Fed. 102 ; In re Heydette, 8 N. 90— Lehman v. Strasaberger, 2 Woods, B. E. 332, Fed. Caa. No. 6444; In re 554, Fed. Caa. No. 8216. Sherry, 8 N. B. E. 142; Clinton v. Mayo, 91— Act of 1898; § 19a, Official Form 12 N. B. E. 39, Fed. Caa. No. 2899. 7, § 1700, post. 95— In re Gebhardt, 3 N. B. E. 63, Fed. 92--Aet of 1898, §§ 18b, 19a; Day v. Caa. No. 5294. Beck & Gregg Hardware Co., 114 Fed. 96 — In re Sherry, 8 N. B. E. 142. 834, 8 A. B. E. 175; Duncan v. Landia, 97— Chicago Motor Vehicle Co. v. 106 Fed. 839, 5 A. B. E. 649. American Oak Leather Co., 141 Fed. 518, 93— Act of 1898, § 18a. 15 A. B. E. 804. 94— Act of 1898, § 19a; In re Nea- 236 Beandenbueg on Bankeuptcy [§ 267 general or special, will have the same effect as the verdict of a jury,®^ the appellate court being confined in the latter case to questions of law, except that, on a special finding, the sufficiency of the facts to support the judgment may be inquired into. There is no similar provision as to waiver in the district court; ** but, if the parties agree on a statement of facts, they can togetiier waive a jury,^ and judgment in either event may be reviewed by writ of error.^ §268. —Verdicts. The court has the same power over verdicts rendered in bank- ruptcy cases, whether for or against the debtor, as courts of common law, and while it cannot enter judgment contrary to the verdict, the verdict may be set aside and a new trial ordered or the judgment may be reversed for error of law as in common- law cases.^ If the case is not svibmitted under section 19a, the verdict is wholly advisory.* § 269. Action on voluntary petition. 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 forthwith refer the case to the referee,^ who should make the adjudication or dismiss the petition.^ 98— IT. S. Eev. Stat., § 649; Packer v. 5— Act of 1898, § 18g. Whittier, 1 A. B. E. 621. Analogous provision of Act of 1867. 99— Blair v. AUen, 3 DUl. 101, Fed. "See. 42. . . . That if the facts set Cas. No. 1483 ; Kearney v. Case, 12 Wall. forth ia the petition are found to be true, 275, 20 L. ed. 395, R. S. § 700. or if default be made hj the debtor to l^upervisors v. Kennicott, 103 U. S. appear pursuant to the order, upon due (13 Otto) 554, 26 L. ed. 486. proof of service thereof being made, the 2 — Campbell v. Boyreau, 21 How. 223, court shall adjudge the debtor to be a 16 L. ed. 96; Rogers v. TJ. S., 141 U. S. bankrupt, and, as such, subject to the 548, 35 L. ed. 853, 556; Perego v. Dodge, provisions of this act, and shall forthwith 163 TJ. S. 160, 41 L. ed. 113. issue a warrant to take possession of the 3 — In re Neasmith, 147 Fed. 160, 17 estate of the debtor. The warrant shall A. B. R. 128; In re Corse, Fed. Cas. No. ^^ directed, and the property of the 3254; In re Deforrest, 9 N. B. R. 278, ^^^*'"" ®''*" ^^ *^*®" thereon, and shaU Fed. Cas. No. 3745; Elliott v. Toeppner, ^^ assigned and distributed in the same 187 U. S. 327, 47 L. ed. 200, 9 A. B. E. 50. T^^l' ^"^^^^^ «™"*^ proceedings to An J. ^ J, ,-, -r, - „„„ '""S® hereinbefore provided for the tak- A V rr, ;• .x* ^''- '''• '' >°g PO-^^^^-. assignment, and distribu- f«n ;, ; f ' "" ^''™"^' '*^ ^'^- ««"^ "* the property of the debtor upon 160, 17 A. B. E. 128 ; Oil Well Supply Co. his own petition. " V. Hall, 128 Fed. 875, 11 A. B. R. 738. 6-Act of 1898, § 38a. § 271] Heabing on Petition 237 A voluntary bankrupt may withdraw his petition where there is no estate and no claims are proved and no trustee appointed; '' but before entertaining a motion for dismissal, the court must require the bankrupt to file a list, under oath, of all his creditors, with their addresses, and must cause notice to be sent to all creditors of the pendency of the application for dismissal and delay the hearing thereon for a reasonable time to allow all creditors and parties in interest an opportunity to be heard.* The jurisdictional facts appearing in a voluntary petition, the court cannot refuse an adjudication, though a creditor objects.® Where a petition schedules no debt which would not be affected by a discharge, the court in its discretion may dis- miss the petition. The court, however, need not in every case, upon a motion to dismiss, determine the nature of the liabilities scheduled, the matter being one wholly within its discretion-^" A voluntary petition will not be dismissed on the ground that the bankrupt has obtained a discharge in bankruptcy within six years of the filing thereof, where the six years will have elapsed by the time the bankrupt is entitled to apply for his discharge.^^ § 270. Partnership cases. § 271. — Nature of proceedings. Where the petition is filed by one or more of the partners, it is, in its initiation, voluntary, and will remain so in its entirety if, on notice, the other partner, or partners, actively join with the petitioners or by acquiescence consent to the adjudication of the partnership, but, if the non-petitioning partner, or partners, refuse to join in the proceedings and contest the adjudication, it becomes as to him, or them, involuntary, and subject to the rules governing involuntary bankruptcy. ^^ 7— In re Hebbart, 5 A. B. B. 8. In re Borden, 2 N. B. N. E. 741, 4 A. B. 8— Section 56g as am'd June 25, 1910. B. 31, 101 Fed. 553; In re Meyers, 2 N. 9— In re Carbone, 13 A. B. B. 55. B. N. E. Ill, 3 A. B. B. 260, 97 Fed. 757; 10— In re Colaluca, 133 Fed. 255, 13 In re Webster, 2 N. B. N. B. 54; In re A. B. E. 292. Murray, 1 N. B. N. 570, 96 Fed. 600, s, c. 11— In re Smith, 155 Fed. 688, 19 A. 1 N. B. F. 532, 3 A. B. B. 90; In re B. E. 63. Eussell, 1 N. B. N. 532, 3 A. B. E. 91, 12— G. 0. VIII. In re Junek & Bal- 97 Fed. 32; In re Altman, 1 N. B. N. thazard, 169 Fed. 481, 22 A. B. B, 298; 358, 1 A. B. B. 689, s. C; 1 N. B. N. 407, Medsker v. Bonebrake, 108 U. S. 66; In 2 A. B. E. 407, 95 Fed. 263; In re Meyer, re Forbes, 128 Fed. 137, 11 A. B#B. 787; 98 Fed. 976; aff'g 1 N. B. N. 304, 1 A. 238 Bbandenbueg on Bankeuptoy [§272 § 272. — Proof of partnership. It is necessary that a partnership in fact be proved in order to sustain an adjudication. Such a partnership may be proved by circumstantial as well as direct evidence.^^ § 273. — Partnership as a question of law or fact. In the absence of a written agreement of partnership, if the fact of partnership be denied, the court will, on demand, sub- mit to the jury the finding of facts " necessary to establish the relation, render instructions from the court as to what in law ^^ will constitute a partnership; but if the facts be undisputed, whether the members are in fact partners, is a question of law for the court. § 274. — Defenses. A proceeding instituted by one partner for the purpose of vex- ing and harassing his copartner,^® or merely to dissolve the part- nership," wiU be dismissed, but the adjudication of a partner- ship will not be refused because of fraud practiced on one partner inducing him to enter the firm.^^ The non-assenting partner cannot set up the want of an act of bankruptcy as a defense to a petition brought by his partner and against the firm and its members, but may set up the defense of solvency.^^ § 275. — Consent and default adjudication. An order by consent will not authorize the adjudication of other parties than those against whom the petition is filed, though they be connected with the latter as partners.^" B. E. 565, 92 Fed. 896; In re Wilson, 13 15— Chisholm v. Cowles, 42 Ala. 179; N. B. E. 253, 2 Lowell, 453, Fed. Cas. Kingsbury v. Tharp, 61 Mieh. 216. No. 17784; Medsker v. Bonebrake, 108 16— In re Hamlin, 16 N. B. E. 522, 8 TJ. S. 66, 27 L. ed. 654; In re Henry, Biss. 122, Fed. Cas. No. 5994. 17 N. B. E. 463, 9 Ben. 449, Fed. Cas. No. 17— Amsinck v. Bean, 11 N. B. E. 496, 6370; In re Pieree, 2 N. B. N. E. 979; In 22 Wall. 395, 22 L. ed. 801. re Noonan, 10 N. B. E. 330, Fed. Cas. No. 18— In re Mitchell & Co., 211 Fed. 778, 10297; In re Daggett, 8 N. B. E. 433, Fed. 31 A. B. E. 814. Cas. No. 3536; In re Carleton, 115 Fed. 19^In re Forbes, 128 Fed. 137, 11 A. 246, 8 A. B. E. 270. B. E. 787. 13— In re Hudson Clothing Co., 148 20— In re Elliott, 2 N. B. N. E. 350; Fed. 305, 17 A. B. E. 826. Mahoney v. Ward, 2 N. B. N. E. 538, 14— McDonald v. Matney, 82 Mo. 358; 100 Fed. 278, 3 A. B. E. 770; In re Meriden Nat. Bank v. Gallaudet, 120 N. Kruegar, 5 N. B. E. 539, 2 Lowell, 66, Y. 298. Fed. Cms. No. 7941; In re Prankard, 1 §277] Hearing on Petition 239 A judgment by default in a proceeding by a partner against the partnership is conclusive upon the other partner.*^ § 276. — Separate adjudication of firm and members. The court of bankruptcy may administer upon the separate estates of the partners as well as upon the estate of the firm in a single proceeding, and grant discharges from separate and joint debts.^* It is not necessary, however, to sustain an adjudi- cation that botb. the partnership and its members be adjudicated in the same proceeding." The partnership may be adjudicated without an adjudication of its members and vice versa.^* § 277. Adjudication or dismissal on failure to plead. "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 prac- ticable, make the adjudication or dismiss the petition." ^* But' if the judge is absent the case must be referred to the referee forthwith,^^ who must make the adjudication or dismiss the petition.*^ In a case of failure to plead, or of a plea made improperly or out of time, it is the imperative duty of the court to make the adjudication as soon as practicable after five days from the return day, but an adjudication before the expiration of this time is premature.^'' This time cannot be extended by agree- N. B. E. 51, Ped. Cas. No. 11366; In re A. B. E. 576; Francis v. McNeal, 186 Preimd, 1 N. B. N. 105, 1 A. B. E. 25; Fed. 481, 26 A. B. B. 555, afC'd 30 A. In re O'Brian, 2 N. B. N. E. 312; but B. E. 244; Mills v. Fisher & Co., 159 see as to secret partners, In re Manden- Fed. 897, 16 L. E. A. (N. S.) 656, 20 hall, 9 N. B. E. 497, Fed. Cas. No. 9425; A. B. E. 237. In re Harris, 2 N. B. N. E. 868, 4 A. 24— Act of 1898, § 18e. In re Billing, B. E. 132. 145 Fed. 395, 17 A. B. E. 80. 21— In re Gorman, 15 A. B. E. 587. 25— Act of 1898, § 18f . 22— In re Gay, 3 A. B. E. '529, 98 26— Act of 1898, § 38a. Fed. 870; In re Langslow, 1 N. B. N. 27— -Day v. Beck & Gregg Hardware 232, 1 A. B. E. 258, 98 Fed. 869; but see Co., 114 Fed. 834, 8 A. B. E. 175. Mahouey v. Ward, 2 N. B. N. E. 538, 100 An adjudication made less than five Fed. 278, 3 A. B. E. 770; In re Barden, days after the filing of an involuntary 2 N. B. N. E. 741, 4 A. B. E. 31, 101 petition is voidable at the' instance of Fed. 553; In re Farley, 115 Fed. 359, creditors though the bankrupt appears 8 A. B. E. 266. and consents thereto. B.-E. Electric & 23 — ^American Steel & Wire Co. v. Telephone Mfg. Co. v. Aetna Life Ins. Coover, 27 Okla. 131, 25 A. B. E. 58; In Co., 206 Fed. 885, 30 A. B. E. 424. re Perlhefter & Shatz, 177 Fed. 299, 25 240 Bbandenbubg on Bankeuptcy [§ 277 ment between counsel for the petitioning creditors and the bank- rupt without leave of the court and without the consent of other creditors, especially in a case where the allegations of the peti- tion are simple and easily answered, and the court, if applied to for that purpose, would not have extended the time,^* and where the answer is filed after the time specified, the case should be adjudicated as in case of a failure to plead.^^ Where the subpoena is not served until long after the five days, but an answer is made within the time by a creditor, the jurisdiction is not lost by reason of the delay in the service or in the adjudi- cation.^" A judgment by default is as conclusive an adjudication between parties of whatever is essential to support the judgment, as one rendered after answer and contest, and in such case facts are not open to further controversy if they are necessarily at variance with the judgment on the pleadings.^^ An application to set aside an adjudication by default should be made to the court, not the referee,*^ and should be made within a reasonable time ; ^* and, in order that a hearing may be had and an oppor- tunity given 4o determine whether there has been inexcusable laches, or whether reasons appear which are recognized as giv- ing authority for refusing the motion, the respondent should apply by motion for leave to file a supplemental answer, and such leave must be granted unless the papers present a case in which the court may exercise a discretion as to granting or with- holding it.** § 278. Dismissal after hearing. § 279. — Grounds of dismissal. After a petition in involuntary bankruptcy has been filed and the court has acquired jurisdiction of the case, it should not be 28— In re Simonson, 1 N. B. N. 230, 92 Chance Min. Co. v. Tyler Min. Co., 157 U. Fed. 904, 1 A. B. E. 197. S. 683, 39 L. ed. 859; In re Hatcher, 29— Bray v. Cobb, 1 N. B. N. 153, 1 N. B. K. 91, Fed. Cas. No. 6210. 91 Fed. 102, 1 A. B. E. 153. 32— In re Imperial Corp., 133 Fed. 73, 30 — In re Freischberg, 8 A. B. E. 607; 13 A. B. R. 199. In re Stein, 105 Fed. 749, 5 A. B. E. 33— In re Neilson, 7 N. B. E. 505, 288. Fed. Cas. No. 10090. 31— In re Billing, 145 Fed. 395, 17 A. 34— Holyoke v. Adams, 13 N. b! K. B. E. 80; In re American Brewing Co., 413. 112 Fed. 752, 7 A. B. E. 463; Last § 279] Heabing on Petition 241 permitted to be made either inept or inoperative by an agree- ment between the bankrupt and the attorneys for the petitioning creditors, or by dismissing the action on motion of the peti- tioners, unless all the creditors agree or, after due notice, fail to object.^^ Tn determining the propriety of refusing adjudication and dis- missing the petition, the exact amount due the petitioning cred- itors is not material,^^ and though the proceedings should be dismissed where practically all of the creditors assent to dis- missal, either affirmatively or by failure to oppose, and the statutory three creditors are not found insisting on a continu- ance,*'' yet, if one of the petitioning creditors insists upon an adjudication where the statutory grounds therefor exist and there is no fraud, oppression or mistake, the court cannot dig- miss the petition although it would be for the best interests of the creditors that the bankrupt should be allowed to settle with them out of court.** A petition otherwise sufficient confers jurisdiction and will not be dismissed on the ground that it was filed by attorneys who had not been admitted to practice in the United States courts ; *' nor on the ground that the attorney for the petitioning creditors agreed personally to pay a creditor's claim if he joined in the petition,*" nor is the pendency of proceedings in insolvency under a state law, on the debtor's voluntary petition, begun before the passage of the bankruptcy act, ground for dismissing 35— In re Simonson, 1 N. B. N. 230, 1 E. 213, Ted. Cas. No. 6321; In re Sar- A. B. E. 197, 92 Fed. 904; In re Shea- gent, 13 N. B. E. 144, Fed. Cas. No. han, 8 N. B. E. 353, Fed. Cas. No. 12738; 12361; see In re Ind. C. & L. E. Co., 5 In re Williams, 3 N. B. E. 285; In re Bias. 287, Fed. Cas. No. 7023; CoJntra, Quimette, 3 N. B. E. 140, Fed Cas. No. In re Miller, 1 N. B. E. 105, Fed. Cas. 10622; In re Ind. Cin. & LaFay. E. E. No.. 9553 Co., 8 N. B. E. 302, Fed. Cas. No. 7023. The fact that the majority of the 36— In re Hughes, 183 Fed. 872, 25 creditors, in number and amount, do not A. B. E. 556. desire th& administration of the debtor's 37 — In re Jemison Mercantile Co., 112 estate in bankruptcy, does not require a Fed. 966, 7 A. B. E. 588; In re Sala- dismissal. In re Lewis F. Perry & Whit- berry, 107 Fed. 95, 5 A. B. E. 847; In ney Co„ 172 Fed. 745, 22 A. B.' E. 772. re Heffron, 6 Biss. 156, Fed. Cas. No. In re Jaeobson, 21 A. B. E. 921. 632; In re Sig. H. Eoaenblatt & Co., 193 39— In re Kindt, 2oN. B. N. E. 373, Fed. 638, 28 A. B. E. 401. 98 Fed. 867, 3 A. B. E. 546. ■ 38— In re Lewis, 129 Fed. 147, 11 A, 40— Bernard v. Fromme, 182 App. Div. B. E. 683; In re Cronin, 98 Fed. 584, (N. Y.) 922, 22 A. B.E. 585. 3 A. B. E. 552; In re HefEron, 10 N. B. Brandenburg — 16 242 Brandenburg on Bankruptcy [§ 279( the debtor's subsequent voluntary petition in bankruptcy,, although he has contracted no new debts, and it appears that one or more of the creditors scheduled by the bankrupt are citizens of states other than that in which the insolvency pro- ceedings were instituted.*^ Where it appears by affidavit or otherwise that at the time the petition was filed the creditors who filed it knew they did not constitute the requisite number, the court must dismiss the petition.*^ A raotion for an adjudication on the pleadings admits all the averments of fact properly pleaded in the answers, and upon a denial thereof the petition for an adjudication should be dis- missed.*^ § 280. — Voluntary abandonment. If a creditor proves his claim in proceedings under a voluntary petition subsequent to the institution of involuntary proceed- ings ,by him, he will be deemed to have waived his right to continue the involuntary proceedings.** § 281, — Dismissal after adjudication. While ordinarily a motion for leave to dismiss the proceed- ings and to settle with the debtor comes too late if filed after the debtor has been adjudged a bankrupt,*^ yet, while the sole purpose of a proceeding is shown to be to obtain a discharge which a prior-proceeding has conclusively determined the bank- rupt is not entitled to, the proceedings may be dismissed even after adjudication.*^ The fact that the bankrupt may be able to pay creditors in full is no ground for dismissing the proceed- ings after adjudication.*'' §282. — Hearing upon motion. Where the status of a petitioner objecting to a withdrawal, as a creditor, is dependent upon the outcome of litigation in a state 41— In re Mussey, 2 N. B. N. E. 113, 45— In re Sherburne, 1 N. B. E. 155, aff'd 99 Ted. 71, 3 A. B. E. 592. Fed. Cas. No. 12758. 42— In re Scammon, 11 N. B. E. 280, 46— Kuntz v. Young, 131 Fed. 719, 6 Bias. 195, Fed. Cas. No. 12429. 12 A. B. E. 505. 43— In re Waugh, 133 Fed. 281, 13 47— In re Jamaica Slate Eoofing & A. B. E. 187. Supply Co., 197 Fed. 240, 28 A. B. E. 763. 44 — In re Nounan & Co., 6 N. B. E. 579. § 286] Heaking on Petition 243 court, action upon a motion to dismiss should be deferred until the determination of such litigation.** § 283. — Right to contest. The trustee has authority to answer a petition to dismiss the proceedings though he is elected after the fiUng of the same.*^ § 284. — Amendment of order of dismissal. An order of dismissal may be amended nunc pro tunc after the expiration of the term in which it was rendered where through mistake it fails to conform to the motion for dismissal ^° and a failure to give the required notice of the motion to amend will be held immaterial where the objecftiiig parties are in no way injured by the amendment.*^ § 285. — Reinstatement of petition. If the petition is dismissed by final decree, it cannot be rein- stated by an application to join in it.^^ An order dismissing a petition because it stated no act of bank- ruptcy will not be set aside and the filing of an amended petition be permitted setting up other acts of bankruptcy, unless good excuse be shown for the omission to assign them in the original petition.^* A decree refusing to adjudicate a debtor bankrupt entered after a full hearing on the merits will not be set aside on appeal because of a confession in the alleged bankrupt's answer that he should be declared a bankrupt or because of the insufficiency of the verification attached to the answer.^* § 286. Notice of dismissal before and after hearing. The bankruptcy act provides that 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 48— In re Quincey Granite Quarries 52 — In re Lewis P. Perry & Whitney Co:, 147 Ped. 279, 16 A. B. E. 823. Co., 172 Pad. 744, 22 A. B. B. 770. 49— In re Pennsylvania Con. Coal Co., 53— White v. Timber Co., 116 Ped. 768. 163 Ped. 579, 20 A. B. E. 872. 54 — Lackawanna Leather Co. v. La- 50— Bernard v. Abel, 156 Fed. 649, Porte Carriage Co., 211 Ped. 318, 31 19 A. B. R. 383. A. B. E. 658. 51— Bernard v. Abel, 156 Ped. 649, 19 A. B. E. 383. 244 Bbandenbukg on Bankeuptcy [§ 286 notice to the creditors, and to that end the court shall, before entertaining the application for dismissal, require the bankrupt to file a list, under oath, of all his creditors with their addresses, and shall cause notice to be sent to all creditors of the pendency of .the application for dismissal and shall delay the hearing thereon for a reasonable time to allow all creditors and parties in interest an opportunity to be heard.^^ Creditors must have at least ten days' notice by mail of the proposed dismissal of bankruptcy proceedings,^® and the duty of sending out such notices in an involuntary proceeding devolves upon the referee." Under the act of 1867 it was held that a petitioning creditor might at any time before adjudication, discontinue the proceed- ings and have his petition dismissed without notice to the creditors, who, if they desired to continue the proceedings, should apply on the day to which the proceedings were adjourned, for leave to be substituted or file a new petition.^^ Notice of dismissal need not be given where it would be an idle ceremony, as where all the creditors except those who have joined in the petition have in writing objected to the debtor's being adjudged a bankrupt, and have agreed not to participate in any effort to that end.^* It has also been held that in the- case of a dismissal on the request of all of the known creditors or upon default of the petitioning creditors, the proceedings will be held valid although there are other creditors who were not known at the time and who did not receive notice.®" Where a composition agreement provides that the proceedings may be discontinued without notice to creditors, the court is not bound to grant the application.®^ While the notices referred to in section 59g relate to the with- drawal of cases without submission to the court,®^ and not to dismissals by order of the court after a hearing on the merits, it would seem that notice is essential where the proceedings are 55 — Act of 1898, § 59g, as amended 60 — ^In re Jemison Mercantile Co., 112 June 25, 1910. Fed. 966, 7 A. B. B. 588; In re Levi, 56— Act of 1898, § 58a. 142 Fed. 962, 15 A. B. R. 294, certiorari 57— Act of 1898, § 58c. But see In re denied, 203 U. S. 596, 51 L. ed. 333. Barrett Pub. Co., 2 N. B. K. R. 80. 61— In re McNat, etc., Mfg. Co., 18 58— In re BoUing MiU Co., 2 N. B. N. B. R. 388. R. 146, Fed. Cas. No. 2338. 62— Neustadter v. Dry Goods Co., 1 59— Cummins Grocery Co. v. Talley, N. B. N. 552, 3 A. B. R. 96, 96 Fed. 187 Fed. 507, 26 A. B. R. 484. 830. §290] ' Heabing on Petition 245 dismissed after such hearing,^* especially where there has been an adjudication.®* The court may refuse to withold its decision dismissing the petition for want of sufficient number of petitioning creditors until certain creditors not named in the bankrupt's answer are notified, where it appears that such creditors had notice of the proceedings but failed to appear or intervene, and there was nothing to indicate that they could be induced to join in the proceeding.®^ § 287. Notice of adjudication. An adjudication which is necessarily an implied judgment that the court has jurisdiction, follows upon the filing of the petition. No notice is necessary that an adjudication will be made, but afterward by notice creditors become parties and if they do not they are precluded from thereafter objecting for the first time to the jurisdiction over the person.®* §288. Date of adjudication. If there is no appeal from the decree adjudicating the defend- ant a bankrupt, it dates from rendition of same. If there is an appealj and it is finally confirmed, the adjudication dates from the confirmation, but the mere taking of an appeal and the dis- missal of the same either by the appellant or the appellate court is not a final confirmation so as to change the date of the adjudi- cation from the time it is made to the dismissal of the appeal.®^ § 289. Effect of adjudication. §290. —In general. The adjudication is a judgment in rem, binding against all the world, so far as it determines that the defendant therein is a bankrupt and that his property is subject to administration in bankruptcy.®* All persona interested in the res are regarded as 63— Neustadter v. Chicago Bry Goods 66— In re Mason, 2 N. B. N. B. 425, 99 Co., 1 N. B. N. 552, 3 A. B. E. 96, 96 Fed. 256, 3 A. B. B. 599. Fed. 830; In re Plymouth- Cordage Co., 67— Moore Bros. v. Cowan, 173 Ala. 135 Fed. 1000, 13 A. B. E. 665. ^36, 26 A. B. R. 902. 64^In re Jamaica Slate Eooflng & 68 — Corbett v. Eiddle, 209 Fed. 811, Supply Co., 197 Fed. 240, 28 A. B. E. 31 A. B. R. 330; Silvey & Co. v.. Tift, 763. 65— In re Tribelhorn, 137 Fed. 3, 14 A. B. E. 491. 123 Ga. 804, 17 A. B. E. 9. 246 Beandenbubg on Bankbtjptcy [§ 290 parties thereto, including the bankrupt and trustee as well as the creditors, secured and unsecured.®^ '■;, Upon adjudication whether in voluntary or involulijtary cases, the court acquires complete jurisdiction for all purposes.'^*' An adjudication of bankruptcy is not a conclusive finding of a fact which tends to defeat the jurisdiction of the court over the alleged bankrupt; '^ but it is in the nature of a statutory execu- tion, for all the creditors and the trustee, as their representative, may enforce against the debtor every right a judgment creditor could enforce.''* x The adjudication is conclusive on the issue of insolvency for all purposes of bankruptcy administration.''^ § 291. — Parties bound. An adjudication does not establish the facts upon which it is founded, no matter how necessary the connection, except as against parties entitled to be heard,''* but creditors who have full knowledge of the pendency of the proceedings and have failed to intervene, thereby waive their right to attack the adjudication.''' § 292. — As evidence of bankruptcy. A certified copy of the adjudication is the best evidence of the fact of bankruptcy.''® § 293. ^ Title to property. The adjudication vests in the trustee, or temporary receiver, the title of the bankrupt's property '''' and stays all seizures made within four months,''^ and terminates the right of the bankrupt to dispose of his property.''® The adjudication, however, will not estop third persons from denying that the bankrupt ever had title to the property,®** or from denying the fraudulent character «9— Garter 7. HobbS) 1 N. B. N. 191, 22 A. B. E. 22, afE 'g 153 Fed. 52.'?, 18 1 A. B. E. 215, 92 Fed. 594. A. B. E. 674. 70 — In re Arehenbrown, 11 N. B. E. ^5 — In re Marian Contract & Construe- 149, Fed. Cas. No. 504. *^°^ Co., 166 Fed. 618, 22 A. B. E. 81. 71-In re Goodfellow, 3 N. B. E. 114, !^~^''"''' ^- ^^*«'^' ^^ ^' ^- ^ ""• 1 Lowell 510(; Fed. Cas. No. 5536. ll~l^ P'^' |J„\3. .70 T, 11 T 1.1 w -D T> 78— See j)o«*, § 878. o.?Zr^ J- ZT' 79-In re Dillard, 9 N. B. R. 8, 2 278, Fed. Cas. No. 1027, Hughes, 190, Fed. Cas. No. 3912; 1^- 73-In re Witherbee, 202 Fed. 896, ^ell v. Faxton, 4 N. B. E. 60. 30 A. B. E. 314. 80— Savey & Co. v. Tift, 123 Ga. 804, 74— Hansen v. Williams, 213 TJ. S. 453, 17 A. B. E. 9. § 296] Heaeing on Petition , , 247 of a transfer of property alleged as an ao4; of bankruptcy, where although the petition alleges several acts of bankruptcy, the order of adjudication is general in its terms.* ^ § 294. — Contracts and claims. The adjudication does not dissolve or terminate contract rela- tions®^ nor operate to discharge a defendant nor as a stay of the prosecution of a claim.** The adjudication is conclusive as to validity of the creditors' claims passed upon as against the objection of the bankrupt and creditors not appearing.** § 295. — Partnerships and corporations. An adjudication in bankruptcy does not dissolve 9, corpora-, tipn, or work a forfeiture or loss of its franchise.*^ A partnership, however, is dissolved immediately on the adjudication of bankruptcy of the firm, or any of its members ; **• but, the assets of the firm can be administered in bankruptcy only when the partnership is so adjudged,*'^ or by consent of the partner or partners not adjudged bankrupt.** The rights of the firm creditors are not affected by a dissolution of the firm,*^ and where one partner only is bankrupt, the settlement of the joint > affairs is intrusted to the solvent partner.*" § 296. — Collateral attack. The adjudication cannot be attacked in a collateral action or proceedings,®^ upon the ground that the proceedings were insti- 81— In re Letson, 157 Fed. 78, 19 A. B. 87-T-In re Lentz, 2 N. B. N, B. 190, B. 506. 97 Fed. 486; Iq re Shepard, 3 N. B. B. 82— Watson V. MerriU, 136 Fed. 359, 172, 3 Ben. 347, Fed. Gas. No, 12754; 69 L. E. A. 719, 14 A. B. B. 453. Amsinc^ v. Bean, 22 Wall. 395, 22 L. ed. 83- Maas v. Enhn, 130 App. Div. (N. 801, 11 N. B. B. 495', 10 Blatch, 361, Y.) 68, 22 A. B. B. 91. 8 N. B. B. 228; Forsith v. Merritt,,3 84— In re Ulfelder Clothing Co., 98 N. B. B. 48, 1 Lowell 336. Fed. 409, 3 A. B. E. 425; Ayres v. Cone^ ' 88— Sec. 51i. of Act of 1898. 138 Fed. 935, 14 A. B. E. 739. ^9— Hudgins v. Lane, 1,1 N. B. B. 462, Contra, In re Continental Corporation, 2 Hughes, 361, Fed. Cas. No. 6827; In 14A. B. B. 538. re McFarland, 10 N. B. E. 381, Fed. 85— National Surety Co. of New York Cas. No. 8788. V. Medloek, 2 Ga. App. 665, 19 A. B. 90— See. 5h, Act of 1898; Wilkins v. B. 654; In re Imperial Brewing Co., Davis, 15 N. B. E. 60, 2 Lowell 511, 143 Fed. 579, 16 A. B. B. 110. Fed. Cas. No. 17664; Blackwell v. Clay- 86— New Yofrk Inst, for Deaf & Dumb well, 15 N. B. E. 300. V. Crockett, 117 App. Div. (N. Y.) 269, 91— Corbett v. Biddle, 209 Fed. 811, 17 A. B. E. 233. 31 A. B. E. 330; Moore Bros. v. Cowan, 248 Bbandenbukg on Bankkuptcy [§296 tuted in the wrong district,®^ nor upon the ground that a sub- poena to the bankrupt was not issued, he having voluntarily made an appearance,^* nor upon the ground of defects in the petition which are not jurisdictional; ®* nor for contradiction or impeachment of the record.*^ The presumption that there was sufficient evidence to support the adjudication is conclusive in the absence of fraud.®® Where the answer filed by a corporation to an involuntary petition which waives process, admits the allegations of the petition, and declares its willingness to be adjudged bankrupt, is signed in the name of the corporation by its president, an objection that he was acting beyond his power is waived by the acquiescence of the bankrupt and its creditors in the adjudica- tion, and, as against strangers, is concluded by the adjudi- cation.*'^ An erroneous final adjudication, or even a correct adjudica- tion, that the alleged bankrupt does not come within the statutory class, does not operate to nullify all intermediate 173 Ala. 536, 26 A. B. E. 902; In re Dempster, 172 Fed. 353, 22 A. B. R. 751; Gilbertson v. United States, 168 Fed. 672, 22 A. B. E. 32; In re Hecox, 164 Fed. 823, 21 A. B. E. 314; In re TuUy, 156 Fed. 634, 19 A. B. E. 604; Sloan V. Lewis, 12 N. B. E. 173, 22 Wall. 150, 22 L. ed. 832; Wilson v. Parr, 8 A. B. R. 230. Adjudication cannot be attacked upon the application for a discharge. In re Ordway Bros., 19 N. B. E. 171, Fed. Cas. No. 10552. Adjudication cannot be attacked col- laterally in prosecution for false oath. United States v. Brod, 176 Fed. 165, 23 A. B. E. 740. Adjudication cannot be attacked in a proceeding by the trustee to annul a pref- erence. Edwards v. Hutting Mfg. Co., 160 Fed. 619, 20 A. B. R. 349. 92— In re Worsham, 142 Fed. 121, 15 A. B. R. 672. 93— In re Worsham, 142 Fed. 121, 15 A. B. R. 672; In re Western Inv. Co., 170 Fed. 677, 21 A. B. R. 367. 94— In re First Nat. Bank of Belle Foufohe, 152 Fed. 64, 18 A. B. E. 265. Failure of the petition to allege that the bankrupt was not a wage earner or a person chiefly engaged in farming or the tillage of the soil is ndt a jurisdic- tional effect rendering the adjudication subject to attack. In re Worsham, 142 Fed. 121, 15 A. B. R. 672. If the petition is against a corpora- tion which is not principally engaged in manufacturing, trading, printing, pub- lishing, mining, or mercantile pursuits, and that fact appears in the course of the proceedings, there will be such a juris- dictional defect on the face of the record as to make the adjudication and all pro- ceedings under it void. . In re Hudson River Elec. Co., 167 Fed. 986, 21 A. B. E. 915. 95— Gilbertson v. United States, 168 Fed. 672, 22 A. B. E. 32. An erroneous recital in the record of the absence of the district judge held not to render adjudication open to attack. Id. 96— In re Billings, 145 Fed. 395, 17 A. B. E. 80. 97 — In re Columbia Real Estate Co., 101 Fed. 965, 4 A. B. E. 411. § 300] Heaeing on Petition 249 orders of the court, and does not determine that the court had no jurisdiction of the subject matter.®® ' § 297. Setting aside adjudication. § 298. — Who may apply. The bankrupt and his creditors who have provable claims against his estate are the only persons who can make an applica- tion to set aside an adjudication in involuntary proceedings.^® A creditor who, by proving his claim, has acquiesced in the adjudication, cannot move for vacation of the adjudication.^ The petition of a creditor to set aside an adju,dication on a voluntary petition, will not be entertained.^ § 299. — Who may oppose application. Any person affected by an adjudication and interested in sus- taining it may oppose such application, as the receiver of a corporation adjudged bankrupt on a trustee's petition,^ and it will be so set aside on grounds similar to those which authorize the review or vacation of a judgment; though if the ground is want of jurisdiction it is in the court's discretion to allow a stranger to be heard as amicus curiae.* § 300. — When set aside. The fact that the creditor petitioning for the vacation of an adjudication states in his application that he appears specially and does not submit himself to the jurisdiction of the court will not prevent the setting aside of the adjudication.^ Th6 order of adjudication may be vacated if entered within three months after the bankrupt took up his residence in the 98— T. E. Hill Co. v. Contractor's Sup- Fed. 284, 21 A. B. E. 531; In re Hintze, ply & Eqvup. Co., 156 111. App. 270, 24 134 Fed. 141, 13 A. B. E. 721. A. B. E. 84. .2— In re Ives, 113 Fed. 911, 7 A. B. A tort claimant has no standing to con- B. 692 ; In re Carleton, 115 Fell. 246; 8 test the adjudication. In re New York A. B. E. 270. Tunnel Co., 166 Fed. 284, 21 A. B. E. 3— In re Atlantic Mutual Ins. Co., 16 531, N. B. E. 541, 9 Ben. 280, Fed. Gas. No. 99— In re New England Breeder 's Club, 628. 169 Fed. 586, 22 A. B. E. 124, rev'g 165 4— ^In re Columbia Eeal Estate Co., 101 Fed. 517, 21 A. B. E. 349; In re Colum- Fed. 965, 4 A, B. E. 411. bia Eeal Estate Co., 112 Fed. 643, 7 5— In re Altonwood Park Co., 160 Fed. A. B. E. 441. * 448, 20 A. B. E. 31. 1— In re New York Tunnel Co., 166 250 Bbandenbueg ON Bankbuptoy [§300 district, but where the three months have since elapsed and the bankrupt still retains his residence in the district, ihe proceed- ings will not be dismissed, but a second order of a,djudiQation will be entered nunc pro tunc upon proper application.^ Where two of four members of a firm file a petition for the adjudication of the firm bankrupt and no notice is given the other partners and they do not appear, the adjudication should be set aside, notwithstanding a consent signed by such other partners' attorneys and filed after the adjudication; '^ or if made against an infant who did not appear by guardian ad litem; * or where a proceeding is reinstated without notice to or appear- ance of the debtor; ^ or where the debtor failed to comply with the requirements of an act passed the day the petition was filed.^* An adjudication in voluntary proceeding will be set aside where an involuntary petition had been previously filed to the knowledge of the debtor's attorney and had not been disposed of ►at the time of the adjud.ication, upon the voluntary petition,^' or where it subsequently develops that there are no discharge- able debts.^^ § 301. — When not set aside. A motion to set aside an adjudication will not be entertained on the application of one guilty of laches.^^ An adjudication will not be set aside because of a creditor's want of knowledge or notice of the proceeding,^* nor on the ground that the petition and schedule were not filed for two months after verification; ^^ nor on the ground that the proper proportion of creditors did not unite in the petition, unless there 6— In re TuUy, 156 Fed. 634, 19 A. B. tl-aeting Co., 127 Ted. 782, 11 A. B. E. E- 604. 643; In re Ives, 113 Fed. 911, 7 A. B. 7— In re AltinaH, 1 N. B. N. 358, 1 A. E. 692; In re Bait. Co. Dairy Ass'n, 11 B. E. 689. N. B. E. 253, 2 Hughes 250, Fed. Gas. 8— In re Derby, 8 N. B. E. 106, Fed. No. 8281; In re Griffith, 18 N. B. E. 510, Cas. No. 3815. Fed. Cas. No. 5820. 9 — Gage v. Gage, 15 N. B. E.' 145. Four months delay in asking to have 10— In re Carrier, 13 N. B. E. 208, adjudication set aside not laches. In re Fed. Cas. No. 2443. - Altonwood, 160 Fed. 448, 20 A. B. E. 11— Gleason v. Sfliith, Perkins & Co., 31. 145 Fed. 895, 16 A. B. B. 602. 14r-In re Billing, 145 Fed. 395, 17 12— In re Maples, 105 Fed. 919, 5 A. A. B. E. 80. B. E. 426. ■ 15— In re Berner), 2 N. B. N. E. 330, 13— In re Urban & Suburban, 132 Fed. 3 A. B. R. 325. 140, 12 A. B. E. 687; In re Niagara Con- § 302] Heabinq on Petition 251 be fraud, bad faith or collusion in obtaining it; ^^ nor beeanse of the co-operation of the debtor in securing creditors, by lawful means, to unite in an involuntary petition; ^'' nor for the reason that, on the filing of an involuntary petition, debtor defaulted, whether such default was voluntary or due to the solicitation, of creditors,^* nor because the petition fails to, show upon its face, that the corporation, adjudged a bankrupt was not excepted from the provisions of the act,^® nor because all the acts of bankruptcy alleged were not proved.^" An adjudication made where respondent ■waived process, entered appearance and admitted the alleged acts of bankruptcy will not be set aside for want of jurisdiction on the application of a stranger when neither the bankrupt nor any of his creditors object to the decree.^^ An adjudication that a corporation is a bankrupt will not be set aside because the authority of the board of directors thereof to ask for an adjudication does not appear on the face of the petition.^* An adjudication against a partnership will not be set aside upon the ground that the caption of the petition made no refer- ence to the partnership, where the body of the petition contains the necessary reference and all partners have been duly served,^^ but, upon the after discovery of a dormant partner, an adjudica- tion against the nominal firm would permit the opening of the proceedings and bringing in the dormant partner without requir- ing a new petition to be filed.^* § 302. — Proceedings for vacating. The court has jurisdiction to consider an application to set aside an adjudication at any time until the estate is closed, although the actual term of the court has passed.^^ On a motion 16— In re Funkenstein, 14 N. B. E. 20— In re Lynan, 127 Fed. 123, 11 A. 213, 3 Sawy. 605, Fed. Gas. No. 5158. B. K. 466. ' 17— In re Duncan, 14 N. B. H. 18, 8 21— In re Columbia Eeal Estate Co., Ben. 365, Fed. Cas. No. 4131. ^O^ ^'^- ^^''J ^- ^- ^- ^^^- ,,„ ^ , ,„ ^ „ ,^„ , „„, ,„ . 22— In re Kenwood Ice Co., 189 Fed. 18-In re BiUing, 145 Fed. 395, 17 A. ^^^ 26 A B E 499 B. E. 80; In re GiU, 195 Fed. 643, 28 gS-In re Gorman, i5 A. B. E. 587. A. B. E. 333; In re Hopkins, 18 N. B. 24_j^ j.e Scott, 1 N. B. N. 327. E. 396, Fed. Caa. No. 6684. 25— In re Ives, 113 Fed. 911, 7 A. B. 19— In re Urban & Suburban, 132 Fed. E. 692; reversing 111 Fed. 495, 6 A. B. B. 140, 12 A. B. E. 687. 653. 252 Beandbnbukg on Bankruptcy [§ 302 to vacate an adjudication in a voluntary proceeding because of want of residence, while the moving creditor is required to introduce evidence, after that is in, the burden of proof is upon the bankrupt."* 26— In re Seott, 111 Fed. 144, 7 A. B. E. 39; Waxelbaum, 97 Fed. 562, 3 A. B. B.392. CHAPTER IX Liability foe Wbongftjl Institution of Pboceedings ob Seizubb OF Peopeety § 303. Malicious prosecution. § 304. Libel. § 305. Liability of maTshal. § 306. Eeeovery of costs iudependent of bond. § 307. Liability under bonds. §308. —Practice. § 303. Malicious prosecution. There is no liability for filing a petition in bankruptcy which is subsequently dismissed except for the usual costs unless the petitioners acted without probable cause and maliciously, in which case the remedy is by an action for malicious prosecution,^ nor will trespass on the case lie to recover damages resulting from the appointment of a receiver unless the appointment was procured maliciously and without probable cause.^ In a proper case, however, an action for damages for the malicious institu- tion of bankruptcy proceedings without probable cause will lie though there has been no seizure of property of the alleged bankrupt.* A suit commenced by the trustee at the request of stock- holders of the bankrupt to recover damages for throwing it into bankruptcy should not be compromised where the compromise offer if carried out will leave nothing for the stockholders, but upon furnishing the necessary security, the stockholders should be allowed to cany on the suit at their own cost.* §304. Libel. Material allegations in the petition for adjudication are abso- lutely privileged and an action of libel cannot be based thereon.^ 1 — ^In re Moehs & Rechnitzer, 174 Fe3. 4 — ^In re Woodbury Dermatological In- 165, 22 A. B. E. 286. stitute, 191 Fed. 819, 27 A. B. E. 497. 2 — Hill Co. V. Supply & Equip. Co., 5 — Rosenberg v. Dworetsky, 139 App. 156 111. App. 270, 24 A. B. R. 84. Div. (N. Y.) 517, 24 A. B. E. 583. 3 — ^Wilkinson v. Goodfellow-Brooks Shoe Co., 1,41 Fed. 218, 15 A. B. E. 554. 253 254 Bbandenbubg ON Banketjptcy [§305 § 305. Liability of marshal. In executing a warrant for the seizure of property, the respon- sibility rests upon the United States marshal of determining the ownership of the property seized, and if he take that of a stranger, he renders himself liable to an action for trespass.^ He has no authority to seize property provisionally; outside of his district,'^ and where property is unlawfully taken by him its actual value may be recovered.^ § 306. Recovery of costs independent of bond. Where the court of appeals sets aside an order of adjudica- tion, the costs and expenses of the receivership are to be borne by the petitioning creditors where it appears that the receiver- ship was not absolutely necessary to the preservation of the estate,^ but the nioving party cannot be held for the costs and expenses of a receivership over and above the assets of the same where the proceedings resulting in receivership have not been instituted improvidently and without reasonable cause.'? Where the appointment of a receiver has had the effect of avoiding impending loss, and the restraints resulted in actual gaiii, the costs and expenses incident to the receivership should be charged against jparty applying for receiver.^' The alleged bankrupt cannot recover costs growing out of its failure to raise and litigate a jurisdictional question. '^ § 307. Liability under bonds. During the pendency of bankruptcy proceedings and until adjudication in bankruptcy, the defendant retains control and title to the property,'* unless the petitioning creditors file an application to take charge of and hold the property pending the adjudication, in which event they must accompany it with 6 — Marsh v. Armstrong, 11 N. B. R. 9— In re Joseph Lavoo, 142 Fed. 960, 125; In re MuUer, 3 N. B. R. 86; Deady, 15 A. B. R. 290; In re Wentworth Lunch 513, Fed. Cas. No. 9912; In re Marks, 2 Co., 191 Fed. 821, 27 A. B. R. 515. N. B. R. 175, Fed. Cas. No. 9095; but see 10— In re Metals Extraction & Refining Stevenson v. McLaren, 14 N. B. R. 403; Co., 195 Fed. 226, 27 A. B. R. 11. In re Briggs, 3 N. B. R. 157, Fed. Cas. 11— In re Ward, 203 Fed. 769, 29 A. B. No. 1869; Vogel, 3 N. B. R. 198, 7 R. 547. Blatchf. 18, Fed. Cas. No. 16982. 12— In re Imperial Film Exchange, 198 7— Carr v. Phillips, 18 N. B. R. 527. Fed. 80, 28 A. B. R. 815. 8— Doll V. Harlow, 11 N. B. R. 350. 13— Sec. 70a Act of 1898. § 307] Wrongful Institution op Pboceedings 255 a bond; " or, if upon satisfactory proof it is shown that the bank- rupt against whom an involuntary petition has been filed and is pending, has committed an act of bankruptcy, or is neglecting, or permitting his property to deteriorate in value, the judge may issue a warrant under which the marshal may seize and hold such property subject to further orders. Before such war- rant is issued, however, the petitioner applying therefor must enter into a bond conditioned upon indemnifying the bankrupt for any damages that may result from such seizure if wrong- fully obtained.^^ i If the petition be dismissed or withdrawn, the debtor may recover such costs as are allowed to a party recovering in a suit in equity against the petitioning creditoifs, oiEcers' fees" biit not counsel fees,^'^ or damages ^* unless the debtor's property has been seized and detained.^^ The costs, counsel fees and expenses for which the bondsmen are liable are those which are strictly incident to the seizure proceedings,^" and they are not liable for counsel fees incurred by the alleged bankrupt in defending and successfully resisting bankruptcy.^^ Costs and attorney's fees 14_gee. 3e Act of 1898. Fed. 5^7, 16 A. B. E. 474; In re Smith, . 15_See Sees. 50 and 69 Act of 1898, 16 A. B. E. 478. see Beach V. Macon Grocery Co., 116 Fed. 21-r-SeIkregg v. Hamilton Bros.,, 144 143, 8 A. B. E. 751. Fed. 557, 16 A. B. E. 474. 16— G. O. XXXIV. But see In re Smith, 16 A. B. E. 478. See in re Philadelphia & Lewes Trans. "Under section 3e, only such costs, Co., 127 Fed. 896, 11 A. B. E. 444. counsel fees, expenses and damages as are 17 — In re Ghiglione, 93 Fed. 186, 1 N. occasioned by the seizure and detention B. N. 351, 1 A. B. E. 580; Dundon v. of the bankrupt's property can be re- Coats, 6 N. B. E. 304, Fed. Caa. No. covered. The recovery of other costs and 4142; InreSheeham, 8N. B. E. 353, Fed. expenses depends upon their being Cas. No. 12738. brought within section 2, cl. 18, and G. O. 18— In re Moehs & Eechnitzer, 174 34, which are but declaratory of the gen- Fed. 165, 22 A. B. E. 286; In re Morris, eral equity power in relation to such 115 Fed. 591, 7 A. B. E. 709. ^°^^' ^^''■" I" ^^ ^^''^' ^03 Fed. 769, Damages caused to firm credit or busi- „ •°- • ; _ . „ , ,, ... . ... . . „. .,„ Where the petition was successfully de- ness as a result of the institution of the , , „, ^ ^ , ,.^. ^. .. ^ fended after protracted litigation on the bankruptcy proceeding are not recover- ^^^^^^ ^^ ^^^ .^^^.^^ ^^ ^^^ defendant able under the bond. Selkregg v. Hamil- ^^^^^ ^^j^ properly proportioned or ton Bros., 144 Fed. 557, 16 A. B. E. 474. ^j^^^^ between the parties. Id. And see In re Smith, 16 A. B. E. 478. Guardian ad litem not entitled to com- 19— See 3e Act of 1898; Hoffschlaeger pensation in ease of dismissal on ground Company, Ltd. v. Toun^ Nap, alias Young of insanity where general guardians come Lap, 12 A. B. E. 526. in and defend but he must look to the 20— Selkregg v. Hamilton Bros., 144 estate of the ward. Id. 256 Beandenbubg ON Bankbuptcy [§307 incurred in procuring an injunction preventing the parties to an attachment suit from disposing of the property not allowable.'f^ Witness fees will be allowed though no subpoena was issued, it appearing that the attendance of the witnesses was procured in good faith,2* but will not be allowed unless the affidavit attached to the memorandum of costs shows that they have been actually paid.2* Where the alleged bankrupt has been allowed the value of the property seized and sold by the receiver in bankruptcy, he can- not in addition thereto be allowed the expenses of the receiver- ship.2^ The relief provided by section 3e can only be had upon the bond contemplated by that section.^^ The fact that the second paragraph provides that all costs, etc., shall be allowed is based upon the assumption that a bond sufficient to cover all costs will be taken.^^ There is no liability under the bond to persons who become respondents after the execution of the bond. Such per- sons may if they desire move for a new bond.^® Nor are petition- ing and intervening creditors liable under the bond unless they cause the seizure.^® A bankrupt cannot recover under both sections 69a and 3e. A judgment under section 3e allowing him costs and disburse- ments is a bar to a proceeding to recover damages under sec- tion 69a.3o The right to recover damages upon dismissal of the petition, given by section 3e is not dependent upon the existence of either malice or want of probable cause. The right given by that sec- tion is not to sue for damages but to have the damages allowed in the bankruptcy proceedings by the bankruptcy court.^^ §308. —Practice. Where an involuntary petition is dismissed at the cost of the petitioners, they are entitled to a hearing upon the question of 22— In re Hines, 144 Ted. 147, 16 A. 28— In re Spalding, 150 Fed.. 120, 17 B. E. 538. A. B. E. 667. 23—24 — Hoifschlaeger Co., Ltd. v. 29 — In re Ward, 203 Fed. 769, 29 A. Young Nap, alias Young Lap, 12 A. B. B. E. 547. B. 526. 30— Nixon v. Fidelity & Deposit Co., 25— In re Smith, 16 A. B. E. 478. 150 Fed. 574, 18 A. B. E. 174. 26— In re Hines, 144 Fed. 147, 16 A. 31— Hill Co. v. Contractors Supply & B. E. 538. Equip. Co., 156 111. App. 270, 24 A. B. 27— In re Spalding, 150 Fed. 120, 17 E. 84. A. B. K. 667. §308] Wbongful Institution of Phoceedings 257 amount, and costs will not be awarded until the bill of costs is filed with the clerk, and the petitioning creditors notified of the filing of the same and the amount thereof .^^ An order requiring the petitioning creditors to pay the expenses of a receivership where, after the creation thereof, the petition is dismissed may be enforced by contempt proceedings.*^ Upon dismissal of the petition and vacation of the receiver- ship, the court may, in its discretion assess the expenses of the receivership against the petitioning creditors in the first instance, instead of out of the property in the hands of the receiver.^* 32 — ^In re Haeseler-Kohlhoff Carbon 34 — In re Charles W. Aschenbaoh Co., Co., 135 Ped. 867, 14 A. B. E. 381. 183 Ped. 305, 25 A. B. E. 502. 33— In re Lavoe, 142 Ped. 960, 15 A. B. E. 290. Brandenburg; — 17 CHAPTER X Repebees in Bankbuptcy and Theib Jubisdiction i 309. Creation and nature of office. i 310. Number and districts of referees. I 311. Appointment of referees. I 312. — Who may appoint. i 313. — Appointment in case of vacancy. I 314. — Notice of appointment. I 315. Qualifications of referee. ] 316. Tenure of office. 5 317. Oath of office. , . i 318. Eeferees ' bonds. ! 319. Eemoval of referee. ^ 320. Eeference before .adjudication. j 321. Eeference after adjudication. ] 322. Order of reference. § 323. Transfer from one referee to another. 5 324. Jurisdiction of referees. 5 325. — In general. ] 326. — Consent will not confer jurisdiction. i 327. — Territorial limits. I 328. — Dismissal of petition. i 329. — Seizure and release of property. 5 330. — Adverse claimants. I 331. — Surrender of preference and collection of assets. S 332. — Sale and appraisal of property. I 333. — Injunctions. §334. — Discharges and compositions. 5 335. — Administration of oaths. 5 336. — Costs and fees. § 337. — Examinations and depositions. S 338. — Waiver of objections. § 339. Duties of referees. § 340. — Presiding at first meeting of creditors. § 341. — Declaration of dividends. § 342. — Notices. § 343. — Examination and amendments of schedules and lists. § 344. — Preparation and filing of schedules. § 345. — Furnishing information. § 346. — Accounts of receivers and trustees. § 347. Use of mails by referee. i 348. Orders of referees. 258 § 309] Eefeeees and Thbib Jubisi^iction 259 § 349. Becords of referees. § 350. — Preparation and preservation. § 351. — Records as evidence. § 352. Semi-annual reports. § 353. Conclusiveness of findings. § 354. Beview of orders and findings. § 355. — Bight of review. § 356. — Practice. §357. — Time for applying for review. § 358. — Scope of review. § 359. — Action on petition. § 360. — Beview by referee. § 361. —Effect of appeal. § 362. Certification of hypothetical questions. § 363. Fees for filing petition and claims. § 364. Expenses of referee. § 365. — In general., S 366. — Stenographic and clerical help. § 367. — Account of expenses and manner of payment. i 368. — Exceptions to charges. § 369. Compensation in pauper eases. § 370. Commissions on disbursements. § 371. Extra compensation. § 372. Compensation when case transferred. § 373. Compensation when reference revoked. § 374. Eeview of allowance of fees. § 375. Compensation of special master. § 376. Offenses by referees. § 309. Creation and nature of office. The oflace of referee is created by section 33 of the Bankruptcy Act. The referee occupies an office corresponding to that of register under the act of 1867. He exercises much of the judicial authority of the courts of bankruptcy; ^ and is essentially an assistant to the judge in the district for which appointed. He sits in a judicial capacity in all proceedings originally instituted before him in the course of the proceedings after reference, — such as a general examination, a proceeding to turn over assets, to allow or reject, or expunge a claim, etc. He sits in his capacity as a special comraissioner or special master when in the course of the bankruptcy, a specific proceeding, instituted before another referee or before the district court is referred to him to take testimony and report. When acting in a judicial capacity 1— White V. Schloerb, 178 U. 8. 542, 44 178; Mueller v. Nugent, 184 U. S. 1, h, ed. 1183, 2 N. B. N. E. 721, 4 A. B. K. 46 L. ed. 405, 7 A. B, B, 284. 260 Bkandenbukg on Bankbuptcy [§309 he is clothed with the same powers and duties in bankruptcy matters as the district court.^ § 310. Number and districts of referees. Section 34a of the act oledrly contemplates that each county where the service of a referee is needed should constitute at least one district, and there should be at least one referee for each county, although, owing to the scarcity of business in some localities, many of the courts have appointed one referee for several counties. The number that may be appointed for each county is without limit, but there should be as many as are neces- sary to expeditiously transact the business.^ The district of each referee should be clearly defined, in order that there may be no conflict of jurisdiction. This requirement is emphasized by section 18 (f), (g), relative to the reference of cases "to the referee," as well as section 35, requiring a resi- dence or office in the territorial district for which appointed, and the definition of the term "Referee," * as meaning "the referee who has jurisdiction of the case," all of which would seem to indicate a purpose of limiting the appointments to a single referee for each district. § 311. Appointment of referees. § 312. — Who may appoint. The power to appoint referees is vested in the court of bank- ruptcy.5 Where there are several judges in the same district,, either has full power to appoint a referee without the concur- rence of the other.« A judge who is a judge of two districts may make an appointment of a referee in one district though not 2— In re Harrison Bros., 197 Fed. 320, said districts upon the nomination and 28 A. B. B. 293. recommendation of the Chief Justices of 3— Act of 1898, § 37; In re Steele, 156 the Supreme Court of the United States, Fed. 853, 19 A. B. R. 671. one or more registers in bankruptcy, to 4— Act of 1898, § 1 (21). assist the judge of the district court in 5 — Act of 1898, § 34. Analogous pro- the performance of his duties under this vision of Act of 1867. "Sec. 3. . . . act. That it shaU be the duty of the judges 6— Birch v. Steele, 165 Fed. 577, 21 A, of the district courts of the United States, B. E. 539; In re Steele, 156 Fed. 853, 19 within and for the several districts, to A. B. E. 671. appoint in each congressional district in § 315] Repeeees and Their Jueisdiction 261 present in the court thereof, if he is at the time in either dis- trict." § 313. — Appointment in case of vacancy. Whenever the office of referee is vacant, or its occupant is absent, or disqualified, the judge may act, or appoint another referee,* or another referee holding an appointment under the same court may be specifically designated.^ This may be done before the answer of the bankrupt is filed and does not require the consent or approval of the respondent or his attorney." § 314. — Notice of appointment. No notice is required of the appointment of a special or gen- eral referee.^^ §315. Qualifications of referees. Section 35a of the act provides that: "Individuals shall not be eligible to appointment as referees unless they are respectively (1) Competent to perform the duties of that office; (2) Not holding any office of profit or emolument under the laws of the United States or of any state other than commis- sioners of deeds, justices of the peace, masters in chancery, or notaries public; (3) Not related by consanguinity or affinity, within the third degree as determined by the common law, to any of the. judges of the courts of bankruptcy or circuit courts of the United States, or of the justices or judges of the appellate courts of the districts wherein they may be appointed; and (4) Residents of, or have their offices in, the territorial dis- tricts for which they are to be appointed." ^^ 7— Ex parte Steele, 162 Ted. 694, 20 Bray v. Cobb, 1 N. B. N. 209, 1 A. B. A. B. E. 575. R- 153, 91 Fed. 102. 8— Act of 1898, 8 43a. Analogous pro- 9— Act of 1898, §43. vision of Act of 1867. "Sec. 5. . . . 10-Bray v. Cobb, 1 N. B. N. 209, 91 Such register shall be subject to removal ■'^®^- "^"f' ^ ^- ^- ^- ■^^^■ y.^4.x. ■ ;, * *i. J- i ■ 1 . An 11— Bray v. Cobb, 1 N. B. N. 209, 91 by the judge of the district court, and all ^^^ ( ^ ^ ^' ^^^ vacancies occurring by such removal, or i2_Analogous provision of act of by resignation, change of residence, death jgg^^ ..g^^ g^ _ _ _ No person shall or disability, shaU be promptly filled by ^g eUgible to such appointment unless he other fit persons, unless said court shall be a counselor of said court, or of some deem the continuance of the particular one of the courts of record of the state unnecessary. ' ' in which he resides. ' ' 262 Brandenbueg ok Bankeuptcy [| 315 Consanguinity is the relation existing between persons descending from a common ancestor; affinity is the connection existing in consequence of marriage between the husband or wife and the- kindred of the other. The degrees in either case are computed alike, thus according to the canon law, which is adopted in the common law, the computation is made by begin- ning at the common ancestor and reckoning downward to the party related, and in whatever degree the most remote party is distant from the common ancestor that is the degree in which they are related, counting each person as one degree and exclud- ing the common ancestor. A referee would not be qualified to act in a case in which he is directly or indirectly interested,^^ although the fact that he owes a debt to the bankrupt would not operate as a disqualification. The interest here indicated must be either in the proceedings in bankruptcy or the estate of the bankrupt, but, on being apprised of the fact that the referee is indebted to the bank- rupt a court -in the exercise of its discretion would doubtless revoke the order of reference.^* The fact that the referee had been attorney or counsellor for any of the parties prior to the filing of the petition in matters not directly connected with the bankruptcy proceedings, would not necessarily disqualify him from acting as referee,^^ though if there is any doubt as to the existence of a bias or influence, ■ the court should transfer the case to another referee. § 316. Tenure of office. Eeferees are appointed for a term of two years, unless sooner removed.^® While there is authority for the proposition that an officer's functions cease immediately at the expiration of his term of office ^'^ the rule supported by the weight of authority is, in the absence of any restrictive provision, that the officer is entitled to hold until his successor is duly chosen and quali- fied.'^^ This rule conserves the public good by conserving the 13— Act of 1898, §39b. 599, 23 L. ed. 991; People v. Tillman, 3 14— Bray v. Cobb, 1 N. B. N. 209, 91 Barb. 193; U. S. v. Green, 53 Fed. 771. Fed. 102, 1 A. B. R. 153. 18— State v. Harrison, 113 Ind. 440; 15— Carr v. Fife, 156 U. S. 494, 39 L. Tuley v. State, 1 Ind. 500; State v. Wella, ed. 508. 8 Nev. 105; Stratton v. Oulton, 28 Cal. 16— Act of 1898, § 34a. 44, 382; State y, Fagan, 42 Qova, 38. 17— Badger v. United States, 93 TJ. §, § 318] Eefebees and Theie Jubisdiction 263 methods and instrumentalities by which alone public business can be transacted; while the opposite rule, when pushed to its consequences, might result in a suspension of business in every department of the public service. In the case of a United States attorney the law specifically provides that his commission shall cease and expire at the expiration of the term ■ for which appointed,^® but there is no such provision with reference to a referee. It is to be presumed, therefore, that Congress intended that the referee should hold his office until the appointment and qualification of his successor. § 317. Oath of office. Referees shall take the same oath of office as that prescribed for judges of United States courts.^" The Revised Statutes of the United States provide as f oUpws : The justices of the supreme court, the circuit judges, and the district judges, hereafter appointed, shall take the following oath before they proceed to perform the duties of their respec- tive offices: "I — ^ , do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as , according to the best of my abilities and under- standing, agreeably to the constitution and laws of the United States: So help me God."2i The form of the oath prescribed by the supreme court to be taken by a referee in bankruptcy would seem to indicate that it should be administered by the district judge only.^^ §318. Referees' bonds. Referees, before assuming the duties of their offices, and within such time as the district courts of the United States having jurisdiction shall prescribe, shall respectively qualify by enter- 19 — TJ. S. Eev. Stat., § 769. will not, during his continuance in oSicfi 20— Act of 1898, § 36a. be, directly or indirectly, interested in or Analogous provision of Act of 1867. benefited by the fees or emoluments aiis- "See. 3. . . . And he shall, in open ing from any suit or matter pending in court, take and subscribe the oath pre- bankruptcy, in either the district or cir- scribed in the act entitled 'An act to pre- ouit court in his district." scribe an oath of office, and for other pur- 21— TJ. S. Eev. Stat. §712; OflSeial poses,' approved July second, eighteen Form No. 16, §1714, post. hundred and sixty-two,, and also that he 22— Official Form No. 16, § 1714, post. 264 ' Bbandenbtjkg on Bankeuptcy [§318 ing into bond to the United States in such sum as shall be fixed by such courts, not to exceed five thousand dollars, with such sureties as shall be approved by such courts,' conditioned for the faithful performance of their official duties.^* Corporations organized for the purpose of becoming sureties upon bonds, or authorized by law to do so, may be accepted as sureties whenever the courts are satisfied that the rights of all parties in interest will be thereby amply protected.^* There should be at least two sureties on each bond in case individuals seek to qualify,^^ though only one is required where a regularly organized bonding corporation is accepted.^® The court shall require evidence as to the actual value of the property of sure- ties,^'' and such value over and above liabilities and exemptions, on each bond, shall equal at least the amount of such bond.^* The bond must be filed of record in the office of the clerk of the court and may be sued upon ^^ at any time within two years after the alleged breach of the bond,^" in the name of the United States for the use of any person injured by a breach of its conditions.*'^ The failure of a referee to give bond is equivalent to a refusal to accept the appointment and creates a vacancy in his office,''' to be filled by the court of bankruptcy.** § 319. Removal of referee. The referee may be removed from office by the court either, because his services are not needed, or for other cause; in other words, the power of removal rests in the discretion of the court.'* While the weight of authority sustains the proposition that the power to remove "for cause" can only be exercised after notice and a reasonable opportunity to make defense,*^ it is a corollary .23— Act of 1898, § 50a. Analogous 26— In re KaJter, 2 A. B. E. 590. provision of Act of 1867. "Sec. 3. 27— Act of 1898, § 50d. . . . Before entering upon the duties 28 — Act of 1898, § 50f. of his office, every person so appointed a 29 — Act of 1898, § 50h. register in bankruptcy shall give a bond 30 — Act of 1898, § 501. to the United States, with condition that 31 — Act of 1898, § 50h. he will faithfully discharge the duties of 32 — ^Act of 1898, § 50k. his office, in a sum not less than one thou- 33 — Act of 1898, § 34a. sand dollars, to be fixed by said court, 34— Act of 1898, §34a; Act of 1867, with sureties satisfactory to said court, § 5. or to either of the said justices thereof . " 35— State v. St. Louis, 90 Mo. 19; 24— Act of 1898, § 50g. ^ Gaskins case, 8 Term Eep. 209; Field v. ; 25— Act of 1898, § 50e. Com., 32 Pa. St. 478; State v. Briee, 8 §320] Eefeeees and Theik Jueisdiotion 265 of this rule that the appointing power having authority to remove, is the sole judge of the existence of the cause.^® Where there are two judges in the same district, either may, in the ahsence of the other, appoint a referee, and an appoint- ment so made cannot be vacated by the other judge without the consent of the judge making the appointment.^'' § 320. Reference before adjudication. If the judge is absent from the district or the division of the district in which an involuntary 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 must forthwith refer the case to the referee,®^ who must make the adjudication or dismiss the petition. The absence here referred to means from the judicial district or division of such district as established by law, and not the county or bankruptcy division of a district. Upon the filing of a voluntary petition, if the judge is absent from the district or the division of the district in which the peti- tion is filed, at the time of the filing, the clerk must forthwith refer the case to the referee,*® who must make the adjudication or dismiss the petition. A special reference before adjudication to inquire into matters pertaining to the business and conduct of the alleged bankrupt is premature*" and is superseded by an adjudication and an order of general reference.*^ A reference to the referee may be made by the clerk only when the judge is absent from the division of the district within which the petition is filed, and then only in case of default in involun- tary cases. It cannot be made by him on the written admission Ohio St. 82; Com. v. Slifer, 1 Casey, 23; The appointment and qualification of Haight V. Love, 39 N. J. Law 14. the receiver and his exercise of oflcial 36 — State v. Doherty, 25 La. Ann. 119; functions before the adjudication of the Patton V. Vaughan, 39 Ark. 211; Birch debtor as a bankrupt is not "process oi V. Steele, 165 Fed. 577, 21 A. B. E. 539. administration" authorizing an order of 37 — In re Steele, 156 Fed. 853, 19 A. reference to throw light on "the acts, B. E. 671. conduct or property of the bankrupt " 38— Act of 1898, § 18f. Id. 39— Act of 1898, § 18g. 41— In re Buos, 164 Fed. 749, 21 A. B. 40— Skubinsky v. Bodek, 172 Fed. 332, E. 257. 24 L. E. A. (N. S.) 985, 22 A. B. E. 266 Bbandenbueg on Bankruptcy [§ 320 by the respondent of the acts of bankruptcy charged and a waiver of service and of the time of appearance.*^ The reference may be made by the deputy clerk.*^ §321. Reference after adjudication. Section 22a of the act provides that: "After a person has been adjudged a bankrupt the judge may cause the trustee to proceed with the administration of the estate, or refer it (1) Generally to the referee or specially with only limited authority to act in the premises or to consider and report upon specified issues; or (2) to any referee within the territorial jurisdiction of the court, if the convenience of parties in interest will be served thereby, or for cause, or if the bankrupt does not do business, reside, or have his domicile in the district." Under this section the trustee is required to proceed with the administration by collecting and reducing to money the property of the estate under the direction of the court, and close it up as expeditiously as compatible with the best interests of the parties in interest,** or the case may be referred to the referee for his action. The convenience of the parties in interest may be con- sulted and the case referred to any referee in the judicial district of the court, although there may be another referee in the bank- ruptcy district in which the petition was filed, and for cause, or at the instance of parties, the court may change the reference from one referee to another.*^ The court has no power, how- ever, to refer a case to a referee appointed by and residing in another district.*® The bankruptcy proceedings may be referred to the referee by a generaV order, or to him as referee upon special issues, his power depending upon the order of reference. For the most part the duties of the referee are those of a special master, and a special master cannot be appointed to do the proper business of a referee.*'^ Sometimes it is necessary for the court to refer. 42— Bray v. Cobb, 1 N. B. N. 209, 1 45— Act of 1898, i 22b; In re Western A. B. R. 153, 91 Fed. 102; In re L. Hiun- Inv. Co., 170 Fed. 677, 21 A. B. B. 367. bert Co., 100 Fed. 439, 4 A. B. R. 76. 46— In re Schenectady Engineering & 43— Gilbertson v. United States, 168 Construction Co., 147 Fed. 868, 17 A. B. Fed. 672, 22 A. B. R. 32; contra: Bray E. 279. V. Cobb, 91 Fed. ,102, 1 A. B. B. 153. 47— In re Sweeney, 168 Fed. 612, 21^. 44^Act of 1898, § 47. B. E. 866. § 323] Eefekees and Theib Jubisdiction 267 the case to the referee to take and report testimony, as where answers are filed to a petition in involuntary bankruptcy, and it is no objection to such a course that questions of law are involved, as the action of the referee is in all respects subject to the control of the court.*® Eeclamation proceedings instituted to recover property in the possession of the trustee may be referred to a special master rather than to the referee,*" as may the subject of a direction to the bankrupt to turn over assets.^" § 322. Order of reference. The order referring a case to a referee, a copy of which must be forthwith sent by mail, or delivered personally, to the referee, must name a day on which the bankrupt shall attend before the referee and from that day the bankrupt shall be subject to the order of the court in all matters relating to the bankruptcy pro- ceedings, and thereafter all proceedings, except those required to be had before the judge, must be had before the referee; and the referee must perform his duties at such times and in such places as shall be fixed by special order of the judge or referee.^^ § 323. Transfer from one referee to another. The judge may, at any time, for the convenience of parties or for cause, transfer a case from one referee to another. ^^ A case may be removed where it is shown that the referee has attempted to influence the choice of a trustee,®* or otherwise conducted him- \ ■ * self in a manner unbecoming a judicial officer, though the fact that a referee is indebted to the bankrupt is not such a dis- qualification as will be grounds for removing the case to another referee.®* A case cannot be transferred to a referee appointed by the court of another district.®® 48— Clark V. Am. Man 'g. Co., 101 Fed. 52— Act of 1898, § 22b. In re Western 962, 4 A. B. E. 351; In re Lavoc, 134 Inv. Co., 170 Ted. 102, 1 A. B. E. 153. Fed. 237, 13 A. B. E. 400. 53— In re Smith, 1 N. B. E. 25, 2 Ben. 49— In re Tracy, 179 Ted. 366, 24 A. 113, Fed. Gas. No. 12971. B. B. 539. 54r— Bray v. Cobb, 1 N. B. N. 209, 1 50— In re Herskovitz, 152 Fed. 316, 18 A. B. E. 153, 91 Fed. 102. A. B. E. 247. 55 — In re Schenectady Engineering & 51- G. 0. XII (1) ; Official Form No. Construction Co., 147 Fed. 868, 17 A. B. 14, § 1712, post, gives the terms of refer- E. 279. ^ ence. 268 Bbandenbueg on Bankexjptcy [§324 § 324. Jurisdiction of referees. § 325. — In general. "Section 38 of the act provides that: Eeferees respectively are hereby invested, subject always to a review by the jiidge, within the limits of their districts as established from time to time, with jurisdiction to (1) Consider all petitions referred to them by the clerks and make the adjudications or dismiss the petitions ; (2) Exercise the powers vested in courts of bankruptcy for the administering of oaths to and the examination of persons as witnesses and for requiring the production of documents in proceedings before them, except the power of commitment; (3) Exercise the powers of the judge for the taking posses- sion and releasing of the property of the bankrupt in the event of the issuance by the clerk of a certificate showing the absence of a judge from the judicial district, or the division of the dis- trict, 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 bank- ruptcy and as shall be prescribed by rules or orders of the courts of bankruptcy of their respective districts, except ^ as herein otherwise provided; and (5) Upon the application of the trustee during the examina- tion of the bankrapts, 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 proceedings. " ^® This section limits the jurisdiction of the referee and nothing here stated can be construed to enlarge his power or to give 56 — Analogous provision of act of by the opposing parties in wiitiiig, and 1867. "See. 4. . . . That nothing he shall adjourn the same into court for in this section contained shall empower decision by the judge, a register -to commit for contempt or to "Sec. 5. . . . and such register, hear a disputed adjudication, or any ques- so acting, shall have and exercise all pow- tion of the allowance or suspension of an ers, except the power of commitment, order of discharge; but in all matters vested in the district court for the sum- where an issue of fact or of law is raised moning and examination of persons or and contested by any party to the pro- witnesses, and for requiring the produe- ceedings before him, it shall be his duty tion of books, papers and documents." to cause the question or issue to be stated § 325] Eefeeees and Their Jueisdiotion 269 any authority to hear and determine any question whidi. the court of bankruptcy appointing him could not determine. He is a part of such court and performs all of its functions, except when the case is referred to him for a special purpose, or where the bankrupt asks to be adjudged a bankrupt or applies for a dis- charge or composition,^'' and interlocutory motions, affecting such proceedings except when related to these specified excep- tions, should be addressed to him.^® The bankrupt is subject to the order of the court or referee from the day he is required to attend before the referee, and he may receive from the latter a protection against arrest. After the petition has been referred, all proceedings except such as are specifically required to be had before the judge, must be had before the referee.^' The referee is an officer of the court and takes judicial notice of its judgment and decrees,®" and exercises much of the judicial authority of that court,®^ with the exercise of legal discretion, he has jentire control over proceedings pending before him,*^ but he has no power to vacate, modify or set aside any order duly made by the court of bankruptcy, or to deny himself of the jurisdiction granted by such orders.®^ All his acts are presumed to be legal within the scope of his authority,®* and the validity of any order made by him, except such as the judge alone has power to make, cannot be collaterally attacked in the absence of a showing that it was disproved by the court.®® The referee is required ®® to furnish interested parties with any desired information as to proceedings before him, but Hot copies of such proceedings, and his refusal to furnish a copy of a petition and order of reference will not affect his jurisdic- tion to proceed under such order.®^ 57— In re Carter, 1 N. B. N. 162, 1 A. Nugent, 184 V. S. 1, 46 L. ed. 405, 7 A. B. B. E. 160; In re Huddleston, 1 N. B. N. E. 224. ^ 214, 1 A. B. E. 572; In re Brenner, 190 62— Hyman, 2 N. B. E. 107, 3 Ben. 28, Ted. 209, 26 A. B. E. 646; In re Over- Fed. Gas. No. 6984. holzer, 23 A. B. E. 10. 63— In i-e Franklin Syndicate, 2 N. B. 58— In re Huddleston, 1 N. B. N. 214, N. E. 522, 101 Fed. 402, 4 A. B. E. 511. 1 A. B. E. 572. Anon. 1 N. B. N. 252. 64— Conti v. Sunseri, 18 A. B. E. 891. 59— G. O. XII (1). 65— Kiigore v. Barr, 75 S. E. 76^, 28 60— In re Scott, 15 N. B. E. 73, Fed. A. B. E. 860; Geisreiter v. Sevier, 33 Ark. Gas. No. 12519. 522. 61— WUte V. Sehloerb, 178 U. 8. 542, 66— Act of 1898, 139a (3). 44 L. fed. 1183, 4 A. B. E. 178; Mueller v. 67— In re Lewin, l03 Fed. 850. 270 Beandenbueg on Bankruptcy [§326 § 326. — Consent will not confer jurisdiction. If the subject matter of a controversy is not within the juris- diction of the referee, consent wiU not confer it.®® § 327. — Territorial limits. The jurisdiction of a referee is confined to the limits of the district for which he is appointed, and does not extend to cases outside except where specially appointed to fill a vacancy cause by another absence or disability.^® In partnership cases, it would seem, where the place of busi- ness of the partnership and the residence of each of the part- ners are in different counties, the court has discretionary power to refer the proceedings to the referee of any one of the counties.''* § 328. — Dismissal of petition. The referee clearly has power to dismiss a petition in bank- ruptcy, though a petitioner cannot, either for want of prosecution or by consent of parties, until after notice to the creditors.''^ The referee has no power, however, to dismiss proceedings after the adjudication'^^ § 329. — Seizure and release of property. This power of taking possession and releasing property of the bankrupt can only be exercised, in case of the absence of the judge from the judicial district, or the division of the district, or his sickness or inability to aet.'^^ The provision in section 38a (3) was obviously intended to cover cases of the taking possession of property where the bankrupt is permitting it to deteriorate in value, as provided in section 69,''* or where appli- cation is made to take charge of and hold the property of a bankrupt prior to the adjudication under section 3e of the law.''^ 68— In re Walsh Bros., 163 Ted. 352, 72— In re Elby, 157 Fed. 935, 19 A. B. 21 A. B. E. 14. E. 734. 69 — In re Schenectady Engineering & 73 — Subd. 3, ante § 674. Construction Co., 147 Fed. 868, 17 A, B. 74— In re Florcken, 107 Fed. 241, 5 E. 279. A. B. E. 802; In re Carter, 1 A. B. B. 70— In re Alden, 205 Fed. 145, 30 A. 160, 1 N. B. N. 162. B- E. 48. 75— Mueller v. Nugent, 184 U. S. 1, 71— Act of 1898, § 59g. In re Mussey, 46 L. ed. 405, 7 A. B. B 224 2 N. B. N. E. 113; 99 Fed. 71, 3 A. B. E. 592; In re Scott, 7 A. B. E. 35; see 111 Fed. 144, 7 A. B. E. 39. §330] Eefekees and Theie Jubisdiction 271 As distinct and independent of the power referred to above, courts of bankruptcy may appoint receivers to take charge of a bankrupt's property whenever the exigencies of the case demand, and after the petition has been referred to the referee, he has the like power. ''^ A referee has jurisdiction of an application by a trustee in bankruptcy for an order requiring the bankrupt to surrender money or property alleged to be in his possession or control, and withheld or concealed from the trustee, although belong- ing to the estate, or to appear before him, and show cause why he should not be ordered to surrender such property; '''' and to make an order in accordance with his findings on such applica- tion, but the enforcement of the order devolves upon the reviewing courts* The court, upon review, will not set aside such order where it is not plain that the referee was mistaken in his judgment, or that the testimony was insufficient to support the order.^* § 330. — Adverse claimants. Until the amendment of 1903 neither the bankruptcy court nor the referee had jurisdiction to decide questions as to the status of property not within the possession of the court. The prop- erty itself not being in court, the trustee was relegated to suits in the same tribunals which were open to the bankrupt before adjudication, and could not resort to the United States courts unless on account of diversity of citizenship. By the amend- ment of 1903 it was provided that suits by the trustee to set aside such transfers might be brought either in any court of bankruptcy, or in the courts in which the bankrupt might have brought them, but the referee has been held not to constitute a court of bankruptcy within the meaning of the amendment.^" Where, however, the property concerned, the res, is in the posses- 76— In re Ploreken, 107 Fed. 241, 5 78— In Mayer, 2 N. B. N. E. 257, 98 A. B. E. 802; see In re Scott, 7 A. B. E. Fed. 839, 3 A. B. E. 533; In re Eosser, 710. 1 N. B. N. 469, 96 Fed. 305, 2 A. B. E. 77— Mueller v. Nugent, 184 XJ. S. 1, 46 755, 3 A. B. E. 533. L. ed. 405, 7 A. B. E. 224; In re OUver, 79— In re Tudor, 2 N. B. N. E. 168, 1 N. B. N. 329, 96 Fed. 85, 2 A. B. E. 96 Fed. 942, 2 A. B. E. 808. 783; In re Miller, 105 Fed. 57; In re 80— In re Overholzer, 23 A. B. E. 10; Speyer, 6 N. B. E. 255, Fed. Cas. No. contra. In re O'Brien, 21 A. B. E. 11. 13239; but see In re Green, 108 Fed. 616, .6 A. B. E. 270. 272 Brandenbueg on Banketjptcy [§330 sion of the court, the referee has full power to deal with its status, and can consider the validity of claims thereto," and can set aside any transfers or incumbrances invalid under the act.8'' Where a third party holds property at the time of the bank- ruptcy merely as agent or bailee of the bankrupt, he may be summarily required by the referee to turn the property over to the trustee; but where he acquires the possession prior to the bankruptcy, and claims the right to hold the property as against the bankrupt or the trustee, then the authority of the referee is limited to determining whether the claim is colorable merely, or is in fact adverse to the bankrupt, and according as he determines that question wiU he deny or retain jurisdiction of the controversy^*^ The referee has authority to make an order permitting the trustee to intervene in a suit tp set aside a fraudulent convey- ance.** § 331. — Surrender of preference and collection of assets. Thfe referee has no authority whatever in respect to the collec- tion of an estate administered before him, nor to handle the money thereof; *^ accordingly a creditor cannot surrender a pref- erence to him in order to enable such creditor to prove his claim.*^ § 332. — Sale and appraisal of property. Since the word "court," as used in the act, means the court of bankruptcy in which the proceedings are ending and may include the referee *'' a petition for an order of sale of the bank- rupt 's property may be presented to and granted by the latter,*' 81— In re Drayton, 135 Fed. 883, 13 A. B. E. 14; In re Knopf, 144 Ted. 245, A. B. R. 602; In re Elletson Co., 174 16 A. B. E. 432. Fed. 859, 23 A. B. B. 530j aff 'd 183 Fed. 84— Conti v. Sunseri, 18 A. B. B. 891. 715, 24 A. B. E. 893. 85— In re Pierce, 111 Fed. 516, 6 A. 82— In re Overholzer, 23 A. B. E. 10. B. E. 747. 83— In re Famous Clothing Co., 179 86— In re Thompson, 2 N. B. N. B. Fed. 1015, 24 A. B. B. 780; In re Shults 1016; see In re Pierce, 111 Fed. 516, 8 & Mark, 11 A. B. E. 690; In re Cohn, 18 A. B. E. 747. A. B. E. 786; In re CarlUe, 199 Fed. 612, 87— Act of 1898, § 1 (7). 29 A. B. E. 373; In re Holbrook Shoe & 88— In re Fisher & Co., 135 Fed. 223, Leather Co., 165 Fed. 973, 21 A. B. E. 14 A. B. E. 366. 511; In re Walsh Bros., 163 Fed. 352, 21 §333] Eepeeees and Theib Jurisdiction 273 and he has authority to appoint appraisers to value the estate of the bankrupt. But if the property is in the hands of a receiver before adjudication, appraisement or sale can be ordered only by the court of bankruptcy.®* Although a sale should not be ordered before the adjudication unless it is neces- sary to preserve the value of the property, an order of sale made by a referee before the adjudication, while exercising the powers of the judge, will not be disturbed, where it was by consent and no prejudice is shown.®" A referee sitting as a court of bankruptcy, has power to order and to approve a sale of property free of liens or incumbrance,®^ in possession of the trustee, on notice to the incumbrancer, if in his judgment it is desirable, which would be the case where there was doubt as to the property covered by the mortgage.®^ Where the bankrupt is the vendee in a contract for the sale of property, the referee may direct the trustee to execute a quit claim deed to same, the bankrupt having failed to perform his part of the contract.®* §333. — Injunctions. * By section 720 of the Eevised Statutes of the United States, federal courts can only grant the writ of injunction to stay pro- ceedings m. a state court, when such an injunction is authorized by any law relating to proceedings in bankruptcy. This section remains still in force notwithstanding the act repealing the fed- eral bankruptcy law of 1867 and its amendments. In view of which, together with the fact that courts of bankruptcy have such jurisdiction at law and in equity, as will enable them to exercise original jurisdiction in bankruptcy proceedings,®* the power to grant injunctions under the present law is indisputable. As the word "court," when used in the law, is defined as mean- ing "the court of bankruptcy ir which the proceedings are 89— In re Styer, 2 N. B. N. E. 205, 92— In re Sanborn, 96 Fed. 551, 3 A. 98 Fed. 290, 3 A. B. E. 424. B. E. 54; see also In re Christy^ 3 How. 90— In re Kelly Dry Goods .Co., 102 292, 11 L. ed. 603 ; Houston v. Bk., 6 How. Fed. 747, 4 A. B. E. 528. 486, 12 L. ed. 526; Eay v. Norseworthy, 91— In re Sanborn, 96 Fed' 551, 3 A. 23 Wall. 128, 23 L. ed. 116. B. E. 54; In re Worland, 92 Fed. 893, 93— Kenyon v. Mulert, 184 Fed. 823, 1 A. B. E. 450; In re Styer, 98 Fed. 290, 26 A. B. E. 184; In re Sonnabend, 18 A. 3 A. B. E. 424; In re Matthews, 109 Fed. B. E. 117. 603, 6 A. B. E. 96; In re EeUogg, 113 94— Act of 1898, § 2. Fed. 120, 122, 7 A. B. E. 623. Brandenburg — 18 274 Beandbnbtjkg on Bankruptcy [§333 pending and may include the referee," ^^ and, as by subdivision -4 of section 38, in addition to the specifically enumerated duties of the referee within the limits of their district, and subject to review, they are invested with jurisdiction "to perform such part of the duties except as to questions arising out of applica- tions of bankrupts for compositions or discharges, as are by this act conferred on courts of bankruptcy," the conclusion is irre- sistible that a referee may also grant an injunction.®^ This has been held to be true, although the object of the injunction was to restrain foreclosure proceedings affecting property outside of the referee 's district.®'' After adjudication, the injunction is discretionary, provided the cause of action is one dischargeable in bankruptcy and may be granted: (1), if the bankrupt is threatened with an arrest, or will be needlessly harassed; (2), if the suit is not yet in judg- ment, and (3), even after judgment, if the rights of the general creditors, not parties to the suit, will be jeopardized by further proceedings in the state court, or the judgment is founded on a transaction which is an act of bankruptcy, or a fraud on the creditors or the law, and it has been%eld that, in the absence of either or both of the latter elements, it should never be granted after the judgment has ripened into an execution salOj provided the state court has or can be given jurisdiction of all parties interested in the distribution, including the general cred- itors represented by the trustee in bankruptcy.®* This power of the referee to grant an injunction is considered true notwithstanding the evident conflict between the act giving the referee concurrent jurisdiction with courts of bankruptcy, except as to questions affecting discharges and compositions, and General Orders XII-3, which provides that "application for 95— Act of 1898, § 1 (7). re WUkes, 112 Fed. 975, 7 A. B. E. 574; 96 — In re Northrop, 1 A. B. E. 427; contra, In re Siebert, 133 Fed. 781, 13 A. In re Adams, 1 N. B. N. 167, 1 A. B. E. B. E. 348; In re Adams, 134 Fed. 142, 14 94; In re Rogers, 1 A. B. E. 541, 1 N. B. A. B. E. 23; In re Berkowitz, 143 Fed. 211; In re Killian, 1 N. B. N. 267; In 598, 16 A. B. E. 251; In re Benjamin, 140 re Kerski, 2 A. B. R. 79 ; In re Mussey, 2 Fed. 320, 15 A. B. E. 351. N. B. N. E. 213 ; In re Matthews, 109 See, also, § 1041. Fed. 603, 6 A. B. R. 96; Keegan v. King, 97— In re Sabine, 1 N. B. N. 45, 1 96 Fed. 758, 3 A. B. R. 79 ; In re Booth, A. B. R. 315. 96 Fed. 943, 2 A. B. R. 770; In re Steuer, 98— In re Globe Cycle Wks., 1 N. B. 104 Fed. 976, 980, 5 A. B. R. 209 ; In re N. 421, 2 A. B. R. 447. Martin, 105 Fed. 753, 5 A. B. R. 423; In §334] Eepebees and Thbib Jubisdiction 275 an injunction to stay proceedings of a court or officer of the United States, or of a state, shall be heard and decided by the judge, but he may refer such an application or any specified issue arising thereon to the referee to ascertain and report the facts." § 334. — pischaxges and compositions. Though questions arising out of applications for compositions or discharges are expressly excepted from a referee's jurisdic- tion *® nevertheless the judge may refer such application, or any specified issue arising thereon, to the referee to ascertain and report the facts,^ but such reference is made to him in the capacity of special master, not as referee in bankruptcy, and for duties independent of the latter office, and in no sense incom- patible; in sTieh a case his report is only advisory, the final hearing being before the judge.^ Whenever legal questions arise in considering a composition before a referee, the better practice is for him to appoint a day for bringing the composition before the court and issue the required notices to creditors, if requested to do so, suggesting in his report to the judge any questions arising or doubts as to the procedure adopted.^ He may rule upon the sufficiency of specification of objections and should not take evidence on such as are clearly insufficient.* The referee does not lose his powers in the administration of the estate because of the pendency of a composition offer. The pendency of a petition to set aside a composition does not operate to prohibit the referee from exercising his right inde- pendently of, or in conjunction with, such application to reopen the estate, and such reopening is not an interference with the administration of the estate. It is his duty to pass upon the truth or falsity of evidence on hearings in opposition to the dis- charge and, if a specification discloses valid objections to the 99— Act of 1898, § 38a. 3— In re Hilbora, 3 N. B. N. R. 62, Eeferee has no jurisdiction to confirm 104 Fed. 866. or reject a composition. In re Sonna- 4 — In re Kaiser, 2 N. B. N. E. 123, 3 bend, 18 A. B. E. 117. A. B. E. 767, 99 Fed. 689; contra, In re 1— G. 0. XII. Leszynsky, 2 N. B. N. R. 738. 2— Fellows V. Freudenthal, 102 Fed. 731, 4 A. B. E. 490; In McDufE, 101 Fed. 241, 4 A. B. E. 110. 276 Bbandenbubg on Bankbttptcy [§ 334 disoliarge, prima facie, the case will be referred back to the referee for rehearing.^ § 335. — ^.Administration of oaths. Eeferees are also authorized to administer such oaths as are required by the act, except upon "hearings in court." The power to administer oaths by referees is, therefore, restricted to proceedings in bankruptcy.® The adjudication made by a referee upon a petition duly referred to him is in no sense a "hearing in court," but is purely an esK parte proceeding,'' § 336. — Costs and fees. The statute is silent upon the right of a referee to tax costs in proceedings before him, but in explicit terms authorizes the court of bankruptcy "to tax costs whenever they are allowed by law, and render judgment 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 bank- ruptcy. " ^ In view of the fact that the referee exercises much of the judicial authority of that court ^ there is a clear implica- tion that he exercises a like power to make a taxation of costs, or to order the taxation to be made by the clerk of the court of bankruptcy.^" The referee has the right, and it is his duty, to reduce the amount allowed by the trustee as fees for the attorney of the bankrupt, where excessive. ^^ § 337. — Examinations and depositions. The examination of the banktupt and other witnesses before the referee is fully treated in Chapter XV. § 338. — Waiver of objections. Unless objections are raised to the jurisdiction at an early stage of the proceedings, they will be considered as having been 5— In re Wolfstein, 1 N. B. N. 202. Sohloerb, 178 U. S. 542, 44 L. ed. 1183, 6— In re Kindt, 2 N. B. N. R. ^39. 4 A. B. R. 178. And see United States v. Liberman, 176 ' 10 — In re Scott, 7 A. B. R. 710; In le Fed. 161, 23 A. B. R. 734. Todd, 109 Fed. 265, 6 A. B. B. 88; see 7— In re Kinot, 2 N. B. N. R. 339. In re Ott, 95 Fed. 274, 2 A. B. E. 637. 8— Act of 1898, § 2a (18). 11— In re Fureri, 188 Fed. 675, 26 A. 9— Mueller v. Nugent, 184 U. S. 1, 46 B. E. 658. L. ed. 405, 7 A. B. R. 224; White v. § 341] Eefekees and Their Jxteisdiction 277 waived and cannot be raised for the first time on tlie application to grant the discharge," although it has been held that entire want of jurisdiction over the subject-matter may be taken advantage of at any time.^* Where the referee takes jurisdic- tion of the subject matter, a party, submitting his person thereto and inviting action on his rights, cannot for the first time object to the jurisdiction and the way he was brought into court, on appeal and after an adverse decision.^* § 339. Duties of referees. § 340. — Presiding at first meeting of creditors. ' At the first meeting of creditors, the judge or referee must preside.^^ If the referee presides he acts instead of the judge, and accordingly must pass upon judicial questions arising at the meeting, included within which is the power to determine the qualification and right to vote.^^ He should be punctually present at the time and place specified in the notice. Since his duties are judicial, he does not otherwise participate.^^ § 341. — Declaration of Dividends. The act specially makes it the duty of the referee to declare dividends and prepare and deliver to trustees dividend sheets showing the dividends declared and to whom payable.^* The referee must declare the first dividend within thirty days after the adjudication, if there is money sufficient to pay the debts entitled to priority and five per centum on claims which probably Vill be allowed. Subsequent dividends may be declared as often as the amount equals ten per cent or more and upon closing the estate.^^ He must in all cases ascertain the 12— In re Mason, 2 N. B. N. E. 425, B. E. 224; In re Matthews, 109 Fed. 603, 99 Fed. 256, 3 A. B. R. 599; In re Polak- 6 A. B. E. 96. off, 1 N. B. N. 232, 1 A. B. E. 358; In Objection to jurisdietion of referee in re CUsdell, 2 N. B. N. R. 638, 101 Fed. summary proceeding waived by failure to 246, 4 A. B. E. 95; Allen v. Thompson, object. In re Hall & Sons, 208 Fed. 578, 10 Fed. 116; In re Thomas, 11 N. B. E. 31 A. B. R. 434. 330; See apparently contra, In re Little, 15 — Act of 1898, § 55b. 2 B. E. 298; In re Penn, 3 B. E. 582. 16— In re MoGill, 106 Fed. 57, 5 A. B. 13— In re Mason, 99 Fed. 256, 2 N. B. E. 155. N. E. 425, 3 A. B. E. 599. ' 17— Eagles & Crisp, 2 N. B. N. E.. 14r-In re Emrich, 2 N. B. N. E. 656, 462, 3 A. B. E. 733, 9 Fed. 696. 4 A. B. E. 89, 101 Fed. 231; Mueller v. 18— Act of 1898, § 39a. Nugent, 184 U." S. 1, 46 L. ed. 405; 7 A. 19— Act of 1898, § 65b. 278 Beandenbueg on Bankruptcy [§ 341 dividends to be paid to creditors entitled to priority, as well as to others, and place them all upon the dividend sheets,^" which must be delivered to the trustee,^^ and which services involve a computation of the percentage to which creditors are entitled, as well as the amount to which each is entitled, according to such percentage.^^ He may be required to countersign all checks for dividends and other payments by the trustee,^^ which duty is judicial in its character and not miuisterial.^* §342. —Notices. All notices shall be given by the referee, unless otherwise ordered by the court.^^ Section 58a requires the referee to give creditors at least ten days' notice, by mail, of (1) all examina- tions of the bankrupt, (2) applications for compositions, (3) creditors' meetings, (4) proposed sales, (5) dividends, (6) filing of final accounts, (7) compromises, and (8) proposed dismissal of proceedings,^^ but the notices which the referee is required to give are not restricted to the particular cases enumerated in clause "a" of that section, but he is required to give all notices, unless the court should otherwise order.^'^ Thirty days' notice is required in cases of applications for a discharge.^''* This section is mandatory and requires that creditors shall have at least ten days ' notice by mail of certain steps in the bankruptcy proceedings unless waived in writing,^^ and, if such notice has not been given, the fact that they were represented on the occa- sion, or even personally present, would doubtless, as was held under the act of 1867,^® do away with the necessity'for notice. These notices must be addressed to such places as are desig- nated by the creditors, otherwise they should be addressed as specified in the proof of debt,^" and where proof has not been 20— Official Form No. 40, § 1742, post. 27— In re Stoever, 105 Fed. 355, 5 A. 21— In re Barber, 1 N. B. N. 559, 97 B. R. 250. Fed. 547, 2 A. B. E. 307. G. 0. XVI requires the referee to notify 22 — In re Fort Wayne Electric Cor- trustees of their appointment, poration, 1 N. B. N. 356, 94 Fed. 109, 1 27a— Act of 1898, § 58a, as amended A. B. E. 706. June 25, 1910. 23— G. O. XXIX. 28— In re Gilbert, 2 N. B. N. E. 378. 24— In re Clark, 9 N. B. E. 67, Fed. 29— In re Campbell, 17 N. B. E. 4, 3 Cas. No. 2810. Hughes 276, Fed. Cas. No. 2348. 25— Act of 1898, §§ 39a (4), 58c. 30— G. O. XXI-2. 26— Act of 1898, § 58a. § 344] Eefebees And Theib Jurisdiction 279 made, then as they appear in the list of creditors filed with the papers in the case.^^ Notice's and orders which are not by the act or by the General Orders required to be served on the party personally may be served upon his attorney. The creditor may request that all notices to which he is entitled be sent him at any designated place, and all notices shall be so' addressed until otherwise directed; ^* but before incurring any expense in publishing or maihng notices, indemnity may be demanded therefor of the person for whom the service is rendered.*' As official forms ^* are provided and the referee required to give the notices, the questions as to the sufficiency of the notices ** or of their serv- ice *® which arose under the act of 1867 are not likely to arise now, and the referee's official records will furnish evidence of service, of which the court takes judicial notice, and renders unnecessary the affidavit of service held sufficient ordinarily in case of service by mail under the act of 1867.*'^ §343. — Examination and amendments of schedules and lists. The provision requiring the referee to examine schedules and lists of creditors and cause such as are incomplete or defective to be amended '* is inandatory, and this seems to be true, although no interested party moves in the matter.*^ In partic- ulars in which he finds them defective, it is within his discretion to order them to be amended and to refuse to call the first meet- ing of creditors until such amendments are made; *" and he may allow the petition to be amended so as to allege additional acts of bankruptcy, originally omitted upon reasonably fair excuse; though it might be improper to abandon the original allegations and substitute entirely new ones.*^ § 344, — Preparation and filing of schedules. It is the duty of the bankrupt, in the first instance, to prepare and file, within ten days after an adjudication, in case of invbl- 31— Act of 1898, § 58a. 37— In re Speneer, 18 N. B. K. 199, 32— G. O. IV; XXI. Ped. Cas. No. 13229. 33—6. O. X. 38— Act of 1898, § 39a (2). 34— Official Forma No. 18 and 41, 39— In re Mackey, 1 A. B. E. 593. §§ 1723, 1744, post. 40— In re Brumelkamp, 1 N. B. N. 360, 35— In re Jones, 2 N. B. E. 20, Fed. 95 Fed. 814, 2 A. B. E. 318. Cas. No. 7447. 41— In re Strait, 1 N. B. N. 354, 2 A. 36— In re Sehepeler, 3 N. B. E. 43, B. E. 308. 3 Ben. 346, Fed. Cas. No. 12452. 280 Bbandbnbubg ON Bankbuptcy [§344 untary bankruptcy, and with the petition if voluntary, a correct schedule of his property,*^ and should an involuntary bankrupt fail to do so, the referee is required by the law to prepare and file the same, or cause it to be done,** though the supreme court, by its General Orders, places this duty upon the petitioning creditor, who is required to file the same within five days after the adjudication.** In order that this duty may be properly performed, the referee should be required to give creditors access to the records of the bankrupt, or furnish them with the necessary information to enable the preparation of the schedules and lists, as it is not to be presumed that this information is otherwise within their cognizance. The preparation of the schedules and lists by others than the debtor is not required until all necessary steps to compel the performance of this duty have proven futile, for which purpose an attachment may issue against the debtor, in case of his failure, after proper notice.*^ §345. — Furnishing information. The referee is required to furnish interested parties any desired information as to proceedings before him, but not copies of the proceedings,*® though there appears to be no reason why copies should not be furnished upon suitable reimbursement to cover the expense incident thereto. § 346. — Accounts of receivers and trustees. The referee must, pass on the accounts of the receivers and trustees and be satisfied as to their correctness. He should in no case assume that an account is correct or that payments made are proper simply because no exceptions are filed thereto.*^ § 347. Use of mails by referee. The referee is an officer of the United States, and, as ^uch, is' entitled to transmit through the mails, free, in penalty envelopes, exclusively official mail matter, in accordance with the provi- sions of the postal laws and regulations.** 42— Act of 1898, § 7 (8). ' 47— In re rulliek, 201 Fed. 463, 28 43— Act of 1898, § 39 (6). A. B. E. 634. 44— G. 0. IX. 48— Act of July 5, 1884, p. 159, § 368. 45— G. O. IX. 46—^1 re Lewin, 103 Fed. 850, 4 A. B. B. 632. §350] Eefebees and Theie Jueisdiction 281 § 348. Orders of referees. In all orders made by a referee, it must be recited, according as the fact may be, that notice was given, together with the manner thereof, or that the order was made by consent, or that no adverse opinion was represented at the hearing or that the order was made after hearing adverse opinion.*^ "Where there is an appearance and a contest the referee should notify the parties of his decisions.^" The referee has power to annul or set aside an order founded on admitted mistake of facts.®^- The doctrine of laches is not applicable to a motion to set aside an order of a referee made without jurisdiction, especially where no rights have become vested thereunder. ^^ No orders of the referee can properly go on the bankruptcy record,®* nor can an order of the referee be reviewed by a court in an action by the trustee.®* The order of a referee, if affirmed on review, is enforceable, not after the manner of courts of law, but by the process of com- mitment.®® A party to an order made by the referee cannot ignore the order until the referee, under section 41, certifies his disobedience to the judge and then bring forward again, in his defense, matter contested before the referee prior to the making of the order, provided the order itself is not void. § 349. Records of referees. § 350. — Preparation and preservation. The records of all proceedings in a case before a referee should be kept as nearly as may be in the same manner as records are now kept in equity cases in the circuit fcourts of the United States. The records in each case should be kept in a separate book or books, and, when the case is concluded before the • referee, it must be certified to by him, and, with such papers as are on file before him, be transmitted to the court of bank- ruptcy and there remain a part of the records of the court.®® 49—6. 0. XXIII. 53— In re Johnson, 158 Fed. 342, 19 50— In re Nichols, 166 Fed. 603, 22 A. A. B. E. 814. B. B. 216. 54 — Clendening v. Red- Eiver Valley 51— In re Brenner, 190 Fed. 209, 26 A. Nat. Bank of Fargo, 12 N. Dak. 51, 11 B. E. 646. A. B. E. 245. 52— In re Willis W. Eussell Card Co., 55— In re Gottardi, 114 Fed. 328,, 341. 174 Fed. 202, 23 A. B. E. 300. 56— Act of 1898, § 42 provides, 282 Beandenbueg on Bankruptcy [§350 The referee is required to indorse on eacli paper filed the day and l^our of filing, and a brief statement of its character,^^ and should file it with the written authority from a creditor to an attorney, agent or proxy to represent and vote for him,^^ The referee is required to make up a record embodying the evidence or the substance thereof as agreed upon by the parties in all contested matters arising before him, whenever requested by either of the parties, which must be transmitted to the judge, together with the findings made therein.^^ Upon application of any party in interest, he is required to presei^e the evidence taken before him or the substance thereof as agreed upon by the parties when a stenographer is not in attendance; ^° or if in attendance a transcript of his notes ; ®^ and these, with any orders or notices, made by the referee, constitute the record of the proceedings, and should be neatly bound together as the record when the case is closed. On the closing of an estate the records should be sufficiently full and complete, to enable- one to ascertain the full facts in regard to any given transaction without recourse to extrinsic explanation.^^ Whenever papers on file before the referee are needed in any proceeding in court he should transmit them to the clerk and secure their return after they have been used, or transmit certi- fied copies by mail when necessary.^* § 351. — Records as evidence. A certified copy of the proceedings before a referee, or of papers when issued by the clerk or referee, will be admitted as ' ' The book or books containing a ree- matters of record, but the same shall not eord of the proceedings shall, when the be required to be recorded at large, but case is concluded before the referee, be shall be carefully filed, kept, and num- certified to by him, and, together with bered in the ofSce of the clerk of the such papers as are on file before him, be court, and a docket only, or short memo- transmitted to the court of bankruptcy randum thereof, kept in books to be pro- and shall there remain as a part of the Tided for that purpose, which shall be records of the court." open to public inspection." Analogous provision of Act of 1867. 57 — G. O. II. "See. 5. . . . Provided, always, That 58 — In re Eagles & Crisp, 2 N. B. N. all depositions of persons and witnesses E. 462, 3 A. B. B. 733, 99 Fed. 696. taken before said register, and aU acts 59 — ^Aet of 1898, §39 (5). done by him, shall be reduced to writing, 60 — Set of 1898, § 39 (9) ; G. 0. 22. and be signed by him, and shall be filed 61 — Act of 1898, § 38 (5). in the clerk 'a offtce as a part of the pro- 62 — In re Carr, 116 Fed. 556, 8 A. B. ceedings. ... K. 635. "See. 38. . . . the proceedings in 63— Act of 1898, §39 (8). all cases of bankruptcy shall be deemed § 353] Ebfebees and Their Jubisdiction 283 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.®* A record cannot be impeached without previous notice by proper form of pleading.®^ The referee's entries will as a rule prove what proceedings have taken place before him,®® but as to the number of days that a witness was in attendance before him the clerk's certificate would be prima facie evidence.®'' The referee's record must be taken as a true report of the proceedings and on an application to confirm a composition, notwithstanding that opposing creditors offer afiftdavits to show that he omitted to record objections and other proceedings and misstated what took place.®^ ,S 352. Semi-annual reports. In order to enable the attorney general to report annually to congress as required by section 53 the referees are required to furnish him semi-annually statistics as to the business trans- acted by them.®^ § 353. Conclusiveness of findings. There is no arbitrary rule for determining the weight to be given findings of a referee as special master, the weight to be given theu depending upon their character. ''" However, the findings of a referee or master concurred in by the district court, are to be taken as presumptively correct, and will be permitted to stand imless some obvious error has intervened in the applica- tion of the law, or some serious or important mistake has been made in the consideration of the evidence, but they are not bon- clusive.''^ So, upon an application to review an order made by 64^Act of 1898, § 21d. 71— In re Lawrence, 134 Ted. 843, 13 65— Sloan v. Lewis, 12 N. B. E. 173, A. B. E. 798; In re Noyes Bros., 127 Ted. 22 Wall. 150, 22 L. ed. 832. 286, 11 A. B. E. 506; In re Dorr, 196 Fed. 66— In re Crane, 15 N. B. E. 120, Ted. 292, 28 A. B. E. 505; Houek v. Christy, Gas. No. 3352. 152 Fed. 612, 18 A. B. E. 330; Bueking- 67— In re Crane, 15 N. B. E. 120, Fed. ham v. Estes, 128 Fed. '584, 12 A. B. E. Gas. No. 3352. 182; Southern Pine Co. of Georgia v. 68— In re Spencer, 18 N. B. E. 199, Savannah Trust Co., 141 Fed. 80^5 15 A. Fed. Cas. No. 13229. ' B. E. 618; Salsburg v. Blackford, 204 69— Act of 1898, §54. Fed. 438, 29 A. B. E. 320; Lumpkin v. 70— Baumhauer v. Dustin, 186 Fed. Foley, 204 Fed. 372, 29 A, B. E. 673, 260, 26 A. B. E. 385. In re McCrary Bros., 169 Fed. 485, 22 A. B. E, IQl, 284 Beandenbueg on Bankeuptct [|35S a referee or special master, the court will neither vacate nor modify it, where it rests upon a matter within the referee's or master's discretion,''^ unless abused, nor will it interfere with his decision upon questions of fact, unless convinced that it is manifestly against the weight of evidence, or there is clear error, though the court might have reached a different con- clusion.''^ However, the referee's findings of fact are not conclusive, as is the verdict of a jury, or the findings made by the judge in an action at law when a jury has been waived.''* And where the evidence is not in serious conflict, and the referee's conclusions are based principally upon inferences to 72— In re Brumelkamp, 1 N. B. N. 360, 95 Fed. 814, 2 A. B. E. 318. 73 — In re Malsehick v. Levin, 206 Fed. 71, 30 A. B. E. 237; In re Hodge, 205 Fed. 824, 30 A. B. B. 522; In re Sehwarz, 200 Fed. 309, 29 A. B. E. 700; In re Doyle, 199 Fed. 247, 29 A. B. R. 102; In re Geiver, 198 Fed. 128, 28 A. B. E. 413; In re Brenner, 190 Fed. 209, 26 A. B. E. 646; In re Boner, 189 Fed. 93, 26 A. B. E. 321; In re Atcherley, 25 A. B. R. 827; In re HutcMns Co. 179 Fed. 864, 24 A. B. R. 647; Neumann v. Blake, 178 Fed. 916, 24 A. B. E. 575; In re McDon- ald & Sons, 178 Fed. 487, 24 A. B. R. 446; In re Landsberger, 177 Fed. 443, 24 A. B. E. 107; Canner v. Webster Tapper Co., 168 Fed. 519, 21 A. B. R. 872; In re Hoff- man, 173 Fed. 234, 23 A. B. B. 19; Fouche V. Shearer, 172 Fed. 592, 22 A. B. R. 828; Westall v. Avery, 171 Fed. 626, 22 A. B. R. 673; In re Braselton, 169 Fed. 960, 22 A. B. R. 419; In re Sweeney, 168 Fed. 612, 21 A. E. R. 866; First Nat. Bank of Philadelphia v. Abbott, 165 Fed. 852, 21 A. B. R. 436; In re Hatem, 161 Fed. 895, 20 A. B. E. 470; In re Littman, 159 Fed. 233, 20 A. B. E. 300; In re Ken- yon, 156 Fed. 863, 19 A. B. E. 194; In re Simon %. Sternberg, 151 Fed. 507, 18 A. B. E. 204; In re Billing, 145 Fed. 395, 17 A. B. E. 80; In re Harr, 143 Fed. 421, 16 A. B. R. 213; Chicago Motor Vehicle Co. v. American Oak Leather Co., 141 Fed. 518, 15 A. B. R. 804; In re Nas- sau, 140 Fed. 912, 14 A. B. R. 828; In re Eomine, 138 Fed. 837, 14 A. B. E. 785; In re Shults, 135 Fed. 623, 14 A. B. E. 378; In re Eoyee Dry Goods Co., 133 Fed. 100, 13 A. B. E. 257; Couts v. Townsend, 126 Fed. 249, 11 A. B. E. 126; In re West, 116 Fed. 767, 8 A. B. E. 564; In re Stephens, 114 N. R. 192, 8 A. B. R. 153; In re Boorstin, 114 Fed. 696, 8 A. B. E. 89; In re Stout, ]09 Fed. 794, 6 A. B. E. 505; In re Covington, 110 Fed. 143, 6 A. B. E. 373; In. re Waxelbaum, 101 Fed. 228, 4 A. B. R. 120; In re Ryder, 96 Fed. 811, 3 A. B. E. 193; In re Richard, 1 N. B. N. 487, 94 Fed. 633, 2 A. B. E. 506; In re Miner, 117 Fed. 953, 9 A. B. E. 100; see In re S-wift, 118 Fed. 348. Presumption in favor of referee's finding of fact. In re Cox, 199 Fed. 952, 29 A. B. E. 456; In re Starkweather & Albert, 206 Fed. 797, 30 A. B. E. 748. Finding of special master presump- tively correct. Peterson v. Mettler, 198 Fed. 938, 29 A. B. E. 158. Doubts resolved in favor of referee's determination of questions of fact. In re Charles Town L. & P. Co., 199 Fed. 846, 29 A. B. E. 721. It will be presumed that referee per- formed his duty and that his report is based upon competent testimony only. In re Kramer & Muchnick, 209 Fed., 627, 31 A. B. E. 377. 74^In re Hawks, 204 Fed. 309, 30 A. B. R. 365. §355] Refeeees and Theib Jxjeisdiction 285 be drawn therefrom, the referee's decision is entitled to no pre- sumption in its favor.'"' Where the assignee of the bankrupt consents to a judicial examination of the items of his account by the referee and the court, he is bound by their determination.'® \§ 354. Review of orders and findings. § 355. — Right of review. Only final orders of the referee can be reviewed by petition.'''' The district court cannot review mere opinions of the referee upon questions of law where no order or judgment has been entered.''* All rulings pertaining to questions arising in the course of administration ''^ may, however, be reviewed, includ- ing an order of the referee approving the appointment of a trustee *" or allowing fees to himself.®^ General Order XXVII does not give a creditor an unlimited right of petition for review of an allowed claim, the mention of creditors not being intended to cover cases where the order complained of is one affecting creditors generally and which calls for action by the trustee.** One who has filed his claim is entitled to petition for a review although the claim has been neither allowed or disallowed by the referee.** The refusal of the referee to accept a claim because not filed within the year is not a judicial act, requiring an order and a petition of review.** A bill of review can be filed for errors of law apparent on the face of the record, or because of the discovery of new evidence since the hearing, which could not have been discovered prior to the hearing by the use of due diligence. The evidence must 75— In re Big CahaUa Coal Co., 26 A. 78— In re Schneider, 203 Fed. 589, 29 B. E. 910; Id., 183 Fed. 662, 25 A. B. E. A. B. E. 469. 761. 79— In re Cariile, 199 Fed. 612, 29 A. And see, In re People 's Dept. Store Co., •^- ^- ^'^^• 159 Fed. 256, 20 A. B. E. 244. ^O- In re Hanson, 156 Fed. 717, 19 A. 76— In re Banzai Mfg. Co., 183 Fed,, •^' ^" ^^^^ 298 25 A E E 497 81— In re Albert, 173 Fed. 691, 23 A. 77— In re Sohimmel, 203 Fed. 181, 29 ^'^' ^°^" ,, . _ , _ ,._ A -R -p OCT ^^ — ^^ ^^ Mexico Hardware Co., 197 * .. r Fed. 650, 28 A. B. E. 736. Action of referee in overruling bank- 83-See AUgair v. Fisher & Co., 143 Tupt s petition to dismiss a petition to ^eS. 962 16 A. B. B. 278. show cause for want of proof held not 84— In re Baker Notion Cp., 180 Fed. ^°*'- M- 922, 24 A. B. E. 808. 286 Bbandbnbtjbg ON Bankeuptoy [§355 be relevant, material, and such as would have produced a dif- ferent result if introduced at the hearing. It must have been unknown to the party at the time of the hearing, and such as by due diligence could not have been known. In case newly dis- covered evidence is set up, such a bill can only be filed by express leave of court, and great caution is to be used in grant- ing such leave.*^ Eulings of the referee excluding evidence not taken anil returned to the appellate court are not reviewable there. The remedy for the refusal of a referee to take and preserve sucli evidence is an application to the district court, and failing there to the circuit court of appeals, for an order that it be taken and preserved.®® § 356, — Practice. General Order XXVII prescribes the only method of review of orders and findings of the- referee.®^ It provides that when a bankrupt, creditor, trustee, or other person desires a review by the judge of. any order made by the referee, he must file with the referee his petition therefor setting out the error complained of.®* Merely filing exceptions to a referee's rulings in the court of bankruptcy does not properly bring before the court for review such rulings, but the requirements of the law must be complied with,®^ and in default of a petition, the application for review will be dismissed.®" Upon the filing of a petition for review, the referee must forth- with certify to the judge the question presented, a summary of the evidence relating thereto and his finding and order thereon,** 85— In re Mclntire, 142 I'ed. 593, 16 B. R. 631 ; Dressel v. North State Lum- A. B. E. 80. ber Co., 119 Fed. 531. 86— First Nat. Bank of Philadelphia v. 90— In re Schiller, 96 Fed. 400, 2 A. B. Abbott, 165 Fed. 852, 21 A. B. E. 436. R. 704; In re Russell, 105 Fed. 501, 5 87— In re Clark Coal & Coke Co., 173 A. B. R. 566. Fed. 658, 23 A. B. R. 273, rev 'g in part 91— Act of 1898, §39 (5); G. 0. 22 A. B. R. 843; In re T. M. Lesher & XXVII. In re Samuel Kurtz, 125 Fed. Son, 176 Fed. 650, 25 A. B. R. 218; In 992, 11 A. B. R. 129; In re Marengo Co. re Carlile, 199 Fed. 612, 29 A. B. R. 373; Mercantile Co., 199 Fed. 474, 29 A. B. In re Home Discount Co., 147 Fed. 538, R. 46; Crim v. Woodford, 136 Fed. 34, 14 17 A. B. E. 168. ' A. B. R. 302. 88 — Error relied on must be clearly Sending up stenographer's transcript pointed out. In, re Harnden, 200 Fed. in extenso disapproved. In re Hamden, 175, 29 A. ^ R. 507. 200 Fed. 172, 29 A, B.B. 504. §9— In re Hawley, 116 fed- 429, 8 A. §357] Eepebees akd Their Jueisdiotion 287 whose duty it is to consider, confirm, modify, overrule or return with instruction for further proceedings such records and find- ings.®^ Whei-e the referee fails to send a summary of the evidence, the judge may direct him to prepare and submit it, and either party may move for an order to that effect.®^ The certificate should state clearly and distinctly the precise question for review,®* and the referee should not confine him- self to a summary of the testimony and a statement of his belief therein, but should make definite findings of fact.®^ A certificate of the referee which contains neither a ruling nor an order made by him cannot be considered as a petition to review his find- ings.®* A certificate concerning an order to sell property discharged of liens should affirmatively show that notice has been given creditors and lienholders. A general statement that such notice has been given will not suffice.®^ Specific questions arising in a proceeding, may be presented for review of the court, on certificate setting forth the question involved, which should be signed by the referee, or in case of orders entered, on petition for review, and not in the form of assignment of errors.®® Exceptions to a. determination by the referee may be taken by any party in interest. Exceptions to the decisions and rulings of the referee need not, however, be filed in the absence of a rule or order of the court requiring such filing,®® and where the specific question of the correctness of a referee's findings is certified to the court for decision on petition of a party, no formal exceptions to such findings are required to render them reviewable.* § 357. — Time for applying for review. After the time within which an act is required to be done by parties "to proceedings in bankruptcy has expired, rights are thereby conferred by law, and the courts will not ordinarily 92— Act of 1898, § 2 (10). 98— See In re Kelly Dry Goods Co., 102 93— Grim v. Woodford, 136 Fed. 34, Fed. 747, 4 A. B. K. 528; In re Eelianee 14 A. B. E. 302. Storage and Warehouse Co., 100 Fed. 619, 94— In re Milgran & Ost., 133 Fed. 802, 4 A. B. R. 49. 13 A. B. E. 337. 99— In re People 's Dept. Store Co., 159 95— In re Turetz, 29 A. B. R. 752. Fed. 286, 20 A' B. E. 244. 96— Craddoek-Terry Co. v. Kaufman, 1— In re Miner, 117 Fed. 953 ; but see 175 Fed. 303, 23 A. B. E. 724. In re Carver, 113 Fed. 138, 7 A. B. E. 97— In re Saxton Furnace Co., 136 Fed. 539; In re Lane Lumber Co., 206 Fed. 697, 14 A. B. E. 483. 780, 30 A. B. E. 749. 288 Bbandenbubg on Bankbuptot [§357 deprive of such rights the party who may be entitled thereto by reason of the neglect or omission on the part of his adversary .* While the power of the court in this respect is quite broad,^ it is held that delay in filing exceptions to a referee's rulings until after the expiration of ten days, unless the time is enlarged by the court, will prevent their consideration.* While neither the statute nor general orders contain any pro- vision fixing the time within which an application for a review of the referee's decisions must be made, if exceptions are not promptly taken, but there is an apparent acquiescence ia a decision, some good reason should appear for permitting objec- tions to be made that are out of season. The circumstances in each case must therefore determine whether the right to review is deemed to have been waived.^ In the absence of a rule fixing the time within which an appli- cation to review an order of the referee shall be made, the same should be made within a reasonable time.® The application for review, in such case, is addressed to the sound discretion of that court, and the exercise of that discretion will not be disturbed except in case of abuse thereof.' The time fixed for an appeal from the same class of orders will be regarded as a reasonable time.^ A rehearing on the merits will not be allowed for the sole purpose of reviving a right to review.^ 2 — ^In re Scott, 99 Fed. 404, 2 N. B. Delay of four months held unreason- N. B. 440, 3 A. B. E. 625. able. In re Grant, 143 Fed. 661, 16 A. 3— G. O. XXXVII. B. K. 256. 4 — ^In re Greek Mfg. Co., 164 Fed. 211, Belay of five months held unreasonable. 21 A. B. E. Ill; In re Marks, 171 Fed. In re Verdon Cigar Co., 193 Fed. 813, 27 281, 22 A. B. E. 568. A. B. E. 56. 5 — In xe Nippon Trading Co., 182 Fed. Delay of 25 days not nnreasonable. 959, 25 A. B. E. 695; In re Scherir, doing Crim v. Woodford, 136 Fed. 34, 14 A. B. business as Scherr Bros., 138 Fed. 695, E. 302. 14 A. B. E. 794; In re Koenig & Van Delay of 30 days held reasonable. In Hoogenhuyze, 127 Fed. 891, 11 A. B. E. re Foss, 147 Fed. 790, 17 A. B. E. 439. 617; InreMilgraum&Ost, 133 Fed. 802, Twenty days allowed in District of 13 A. B. E. 337; In re Chambers, Calder Columbia. In re Maloney, 37 Wash. L. & Co., 6 A. B. E. 709; In re Kelly Dry Eep. 147, 21 A. B. E. 502. Goods Co., 102 Fed. 747, 4 A. B. E. 528; 7— Bacon v. Eoberts, 146 Fed. 729, 17 In re Eeliance Storage & Warehouse Co., A. B. E. 421. 100 Fed. 619, 4 A. B. E. 49. 8— In re Nichols, 166 Fed. 603, 22 A. 6— In re Foss, 147 Fed. 790, 17 A. B. B. E. 216. E. 439; In re Verdon Cigar Company, 9— In re Girard Glazed Kid Co., 129 193 Fed. 813, 27 A. B. E. 56; In re Fed. 841, 12 A. B. E. 295. Nichols, 166 Fed. 603, 22 A. B. E. 216. §359] Eefebees and Their Jubisdictioit 289 §358. —Scope of review. A general review of the proceedings before the referee, or rulings not directly affecting an order made, is not intended ^^ and ordinarily only questions involved in issues before the referee are to be reviewed.^^ The provision as to the petition is mandatory, and, conse- quently, on a review of the referee's decision, the court will not consider exceptions not duly filed with the referee.^^ It has .been held, however, that a court will notice manifest errors in a record that is certified to it, although not raised by counsel; " or considered by the referee; but it will not look through volu- minous depositions and records for errors which are not plainly pointed out.^* Irrelevant issues raised by a party not in court should be returned without decision. ^^ The power of review being unlimited,^® questions of fact as well as of law may be considered; " in the court's discretion the inquiry may be restricted to the report of the referee and the evidence to which he refers therein, and to snch evidence as the petitioner for review has set forth in his exceptions to the finding.^* § 359. — Action on petition. The record and findings of the referee may be modified, over- .ruled or returned by the court with instructions for further proceedings by the referee.^® Upon reversal of an order of the referee disallowing a claim upon motion of the referee, the dis- trict court should remand the case with directions to allow the 10— In re KeUy Dry Goods Co., 102 13— In re Wilde 's Sons, 144 Fed. 972, Fed. 747, 4 A. B. B. 528; In re Home 16 A. B^ E. 386, aff 'g 137 Fed. 517, 13 A. Discount Co., 147 Fed. 538, 17 A. B. B. E. 217; In re Clay, 192 Fed. 830, 27 B- 168. A. B. E. 715; In re Woodard, 95 Fed. 11— In re Sam Z. Loreh & Co., 199 Fed. 955, 1 N. B. N. 430, 2 A. B. E. 692. d 944, 28 A. B. E. 784. 14— In re Eiehard, 1 N. B. N. 487^ 94 12— In re Scott et al., 99 Fed. 404, 2 Fed. 643, 2 A. B. E. 506; In re Carver, N. B. N. E. 440, 3 A. B. E. 625; In re 113 Fed. 138, 7 A. B. E. 539. Gottardi, 114 Fed. 328, 333; In re Car- 15— Haskell v. Jones, 4 N. B. E. 481, . ver, 113 Fed. 138, 7 A. B. E. 539. Fed. Cas. No. 6191. Objections to evidence received by the 16 — See. 38a. referee cannot be made for the first time 17— In re Gottardi, 114 Fed. 328, 333. upon review of Ms order. In re MeCann 18— In re Stokes, 185 Fed. 994, 26 A. Bros. lee Co., 171 Fed. 265, 22 A. B. E. B. E. 255. ^^S- 19— Act of 1898, § 2 (10). Brandenburg — 19 290 Beandenbueg on Bankbxjptcy [§359 trustee to put in his proofs,^'' so, where the referee, ignoring the rule that the sworn proof of claim is prima facie evidence of its allegations disallows a claim, on the ground that no evi- dence has been introduced in support thereof, the district court in reversing the ruling of the referee should remand the pro- ceedings to the referee for a new hearing.^ ^ § 360. — Review by referee. An order of a referee once entered is not subject to be reviewed or altered by the referee himself.*^ § 361. — Effect of appeal. The proceedings will not be stayed merely because an appeal has been taken from a referee's decision, but the estate will be protected and the administration proceeded with.^^ In the absence of statutory provisions or rules of court, a petition to review an order of the referee does not in and of itself act as a supersedeas of the order, and whether or not it shall have that effect rests in the discretion of the court.^* § 362. Certiiicatioa of hypothetical questions. A question, in order to be certified to the judge, must arise in the course of the proceedings before the referee and between parties having a right to raise it,^^ as an opinion will not be given on an abstract question.^^ The judge cannot be compelled to answer questions before the referee himself takes action.'" § 363. Fees for filing petition and claims. The referee is entitled to a fee of fifteen dollars deposited with the clerk at the time the petition is filed in each ease, except 20 — A decree reversing the referee 's 25 — In re Wright, 1 N. B. E. 191, Fed. order and allowing the claim is improper. Caa. No. 18069; In re Bray, 2 N. B. B. In re Livingston Co., 144 Fed. 971, 16 53, Fed. Cas. No. 1818; In re Freeden- A. B. E. 385. burg, 1 N. B. B. 34, 2 Ben. 133, Fed. Cas. 21— Moore v. Crandall, 205 Fed. 689, No. 5075. 30 A. B. E. 517. 26— In re Reukauff, Sons & Co., Inc. 22— In re Marks, 171 Fed. 281, 22 A. 135 Fed. 251, 14 A. B. E. 344; In re B. E. 568; In re Greek Mfg. Co., 164 Fed. Sturgeon, 1 N. B. B. 131, Fed. Cas. No. 211, 21 A. B. E. 111. 13564. 23— In re Brown, 2 N. B. N. B. 590. 27 — Craddock-Terry Co. v. Kaufman, 24— In re Home Discount Co., 147 Fed. 175 Fed. 303, 23 A. B. B. 724. 538, 17 A. B. E. 168. §365] Ebfeeees and Theib Jubisdiction 291 when a fee is not required from a voluntary bankrupt, and twenty-five cents for every proof of claim filed for allowance, to be paid from the estate, if any, as a part of the cost of administration.^ 8 The clerk is required to collect the referee's fee of $15 in each case instituted before filing the petition, except the petition of a proposed voluntary bankrupt accompanied by a pauper affi- davit,®* such fee to be in full for all services performed by the referee under the act, or general orders.*" In any case in which such fee is not required to be paid, before filing the petition, the judge may at any subsequent time order it paid out of the estate, or, after notice and proof of bankrupt's ability, require him to pay it.*^ Prior to the amendatory act of February 5, 1903, the practice with reference to the fee charged by referees for this service varied, in some states no fee was allowable, while in others it was permitted by rule of court. Eeferees are now entitled to charge for every proof of claim filed for allowance twenty-five cents, though there appears to be no warrant for exacting an additional fee on filing an amended or substituted proof of claim. This fee is not to be paid by the creditor on filing the proof, but the referee is entitled to charge it against the estate, if any there be, as with other expenses incurred, as part of the cost of administration.^^ § 364. Expenses of referee. §365. — In general. The compensation of the referee does not include expenses of publishing, or mailing, notices, traveling, or perpetuating testi- mony, or other expenses necessarily incurred and allowed by the judge; *^ and actual expenses so incurred may be allowed him over and above his percentage. Money advanced for this pur- pose will be repaid out of the estate as a part of the cost of administering the same.** Before incurring any of these 28— Act of 1898, § 40a. 33— G. O. XXXV; In re Dixon, 114 29— Aet of 1898, § 51a (2). Fed. 675, 8 A. B. E. 145; In re Pierce, 30— In re Bafker, 111 Ped. 501, 7 A. Ill Fed. 516, 6 A. B. B. 747; In re Dan- B. E. 132. iels, 130 Fed. 597, 12 A. B. E. 446. 31—6. O. XXXV. 34;— 6. O. IV. 32— See In re Stewart, 193 Fed. 791, 27 A. B. E. 529. 292 Bbandenburg on Bankbuptcy £§365 expenses, the referee may require indemnity from the person for whom the service is to be rendered.*^ § 366. — Stenographic and clerical help. A referee has authority, upon the application of the trustise, during the examination of the bankrupt, or other proceedings, to authorize the employment of a stenographer at the expense of the estate at ten cents a f olio,^^ but it has been held that he is not required to take notes of testimony personally or incur the expense of clerical or stenographic aid, but should supervise the taking of testimony at the expense of the parties, or permit them to take it.^'' In the absence of any other provision with reference to the employment of a stenographer than as thus provided,^* no further charge for such fees can be imposed even though it be for a copy of the deposition for use of the court, except it be in pursuance of some stipulation by the parties to the cause.*^ . The provision as to the employment of a stenographer has been held inapplicable where the hearing was not a statutory hearing before a referee *" as where at the request of the creditors or of the receiver a special hearing was had before a special com- missioner,*^ or where the expenses were incurred at the tastance of counsel, for the purpose of taking testimony necessary because of his negligence, which invited inquiry concerning the accuracy of his accounts ; *^ or where an examination is undertaken, at the suggestion of trustee's attorney, to discover concealed assets, against the objection of labor claimants, whose claims would absorb the admitted assets, and which resulted in no benefit to the estate.*^ A referee may employ a clerk for the performance of these services and the expense so incurred is properly allowable.** 35— G. O. X. 40— In re Stark, 155 Fed. 694, 18 A. 36— In re Todd, 109 Fed. 265, 6 A. B. B. R. 467. E. 88; see also In re Mammoth Pine 41 — In re Stark, 155 Fed. 694, 18 A. Lumber Co., 116 Fed. 731, 8 A. B. E. 651. B. E. 467. 37— In re Warszawiak, 1 N. B. N. 135. 42— In re Gerson, 2 N. B. N. E. 493; 38— See. 38a (5). 1 A. B. E. 251. 39— In re Todd, 109 Fed. 265, 6 A. B. 43— In re Eozinsky, 2 N. B. N. E. 787, R. 88. But see In re EUett Elee. Co., 196 101 Fed. 229, 3 A. B. E. 830. Fed. 400, 28 A. B. R. 453, in which the 44r-In re Warszawiak, 1 N. B. N. 135; court approved an allowance of forty In re Price, 91 Fed. 635, 1 A, B. E. 419; cents per page, three copies having been In re Tebo, 101 Fed. 419, 4 A. B. B. made, 235; contra, In re CarQlin^ Coopei;ag§ §370} Befebees and Theib Jueisdiotion 293 § 367. — Account of expenses and manner of payment. The referee must keep an accurate account of his traveling and incidental expenses and of those of any clerk or other officer attending him in the performance of his duties in any case which may be referred to him and must make return of the same, under oath, to the judge with proper vouchers, when they can be pro- cured, on the first Tuesday in each month,*" and, if approved, they will be paid or allowed out of the estates in which they were incurred.*^ § 368. — Exceptions to charges. . Exceptions to the referee's charges against an estate in bank- ruptcy for his expenses therein will not be heard by the court, when his account therefor has been duly kept and returned to the court, mider oath, with vouchers,*'^ and approved; espe- cially when distribution has been made before such exceptions were presented-** § 369. Compensation in pauper cases. No provision is made for the payment of compensation or necessary expenses in cases where the bankrupt files his petition in forma pauperis,*® but if, at any time during the pendency of the proceedings, assets should be developed, the court may order those fees to be paid put of the esta.te, or may, after notice to the bankrupt and satisfactory proof that he has or can obtain the money, order him to pay such fees, and, on default, dismiss the petition."" § 370. Commissions on disbursements. The referee is entitled to one per centum on all moneys dis- bursed to creditors by the trustee in the bankruptcy proceed- ings, and to one-half of one per centum on the amount paid under a composition."^ He is only entitled to commissions upon such moneys as have been under his authority disbursed to cred- Co., 2 N. B. N. B. 23, 3 A. B. R. 154, 96 48— In re Tebo, 101 Fed. 419, 4 A^ B. Fed. 950. E. 235, but see In re Mammoth Pine Lum- .45—6. O. XXVI; In re Daniels, 130 ber Co., 116 Fed. 731, 8 A. B. E. 651. Ped. 597, 12 A, B. E. 446. 49— Act of 1898, § 51. (46— Act of 1898, § 62; In re Stewart, 50— G. O. XXXV-4; see also Act of 193 Fed. 791, 27 A. B. E. 529. 1898, § 51. 47-Gf. 0. XXVI, ' 51— Act of 1898, i 40a. 294 Bbandenbtjeg on Bankeuptoy [§370 itors and cannot credit himself with a percentage upon the entire amount of claims and liabilities scheduled.^^ The present act establishes a new rule for the determination of the compensation due to officers charged with the administra- tion of bankrupt estates, differing from the preceding acts, and, consequently, there is an absence of precedent touehing the right of commissions upon secured claims. It was held prior to the amendatory act that the use of the term "dividend" in this section limited the commission to unsecured claims and those not entitled to priority of payment,^^ and that priority claims with reference to commissions, stood on a different foot- ing from secured claims, and that the term "dividends," as used in section 65a, could have no application to the former for the reason that the statute directed them to be paid out of the estate in full, seriatim, before the matter of declaring and pay- ing dividends arose, and the referee was denied a commission thereon.^* The amendment, however, removes all doubt, and the referee is now clearly entitled to ' ' commissions on all moneys lawfully disbursed" by the trustee, and held by him as suoh, whether to creditors, secured or unsecured or having priority, or to other persons. If to creditors it is immaterial whether the amounts lawfully paid them from the funds in court are paid as dividends or in satisfaction of liens upon the fund.^^ There seems now to be no question in view of the change of phraseology that the provision comprehends the case of a secured creditor who submits his securities to the federal jurisdiction, the avails of the property being disbursed by the trustee in bank- ruptcy, in which event a commission should be allowed thereon.'* Commissions are to be allowed upon all sums which would . 52— Fiedling V. Philips, 210 Fed. 889, re Gerson, 1 N. B. N. 384, 2 A. B. E. 31 A. B.'R. 542. 352; In re Muhlhauser Co., 9 A. B. E. 80. 53 — In re Fort Wayne Electric Cor- 55— Varney v. Harlow, 210 Fed. 824, poration, 1 N. B. N. 356, 94 Fed. 109, 1 31 A. B. B. 339; In re Meadowy, 199 Fed. A. B. R. 706; In re Fielding, 2 N. B. N. 304, 29 A. B. R. 165; In re Cramon^, 145 B. 735, 96 Fed. 800, 3 A. B. R. 135; In Fed. 966, 17 A. B. R. 22; In re Iowa re TTtt, 105 Fed. 754, 5 A. B. R. 383; In Falls Mfg. Co., 140 Fed. 527, 15 A. B. re Mammoth Pine Lumber Co., 116 Fed. R. 384. 731, 8 A. B. R. 651; see In re Smith, 108 56— See In re Barber et al., 1 N. B. Fed. 39, 5 A. B. R. 559; In re Barker, K. 559, 97 Fed. 547, 3 A. B. R. 307; In 111 Fed. 501, 7 A. B. R. 132. re Sabine, 1 N. B. N. 312, 1 A. B. B. 54— In re Fielding, 2 N. B. N. R. 735, 322; In re Coffin, 1 N. B. N. 507, 2 A. B. 96 Fed. 800, 3 A. B. R. 135; In re Sabine, R. 344; see In re Muhlhauser Co., 9 A. B. 1 N. B. N. 312, 1 A. B. R. 322; contra. In R. 80. §371] Eepeeees and Theib Jubisdiction 295 have been paid through the trustee but for an outside agree- ment between the parties, and when property subject to liens is sold by consent of the parties hplding such liens, the referee is entitled to commissions on the purchase price in fuU.^^ Where mortgaged property is sold by the trustee and the latter ^ is credited with the amount of his mortgage, such credit is a ponstructive payment upon which the referee is entitled to a oommission.^^ When, however, a secured creditor has recourse to a state court to foreclose his lien, or when personal property coming into the custody of the bankruptcy court, is sold by the pledgee thereof under a specific contract of sale, and the pledgee does not participate in the bankruptcy proceedings, no commis- sions are computed on the amount realized.®' So, the setting apart to the bankrupt of a homestead exeniption from proceeds of property sold by the trustee is not the making of a dividend nor such a disbursement as would entitle the referee to a com- mission upon the same.®" A referee cannot be allowed his statutory percentages out of property which comes into the possession of the trustee through the fraud of the bankrupt and is adjudged to be returned to the real owner.*^ Wiere he authorizes the continuation of the busi- ness of the bankrupt, without express authority from the court, he is not entitled to commissions on all funds paid out by the trustees in the conduct of such business, but a decree awarding the referee compensation on that basis will not be disturbed as to payments already made thereunder where the referee and the court acted in good faith and the circumstances were fully known by all parties in interest.®^ The judge may order the commissions paid immediately after they are earned.®* §371. Extra compensation. The commission with the filing fee is to be in full compensa- 57— In re Sanford Furniture Mfg. Co., 61— Gillespie v. Piles & Co., 178 Fed. 126 Fed. 888, 11 A. B. E. 414. 886, 44 L. E. A. (N. S.) 1, 24 A. B. E. 58— Vamey v. Harlow, SlO Fed. 824, 502. 31 A. B. B. 339. 62— Bray v. Johnson, 166 Fed. 57, 21 59— In re Meadows, 199 Fed. 304, 29 A. B. E. 383. A. B. B. 165. 63— G. O. XXXV (4) as amended De- 60— In re Gardner, 2 N. B. N. E. 796, cember 11, 1905. 103 Fed. 932, 4 A. B. E. 420. 296 Brandenburg on Bankruptcy [§371 tion for all servicfes rendered. Section 72 of the act expressly provides that "the referee shall not in any form or guise receive, nor shall the court allow him, any other or further compensa- tion for his services than that expressly authorized and pre- scribed in the act." This provision is a clear" and explicit limitation upon the charges of the referee and trustee for serv- ices, and the charges allowed are in full for the services rendered. The use of the expression "for their services" is an evident indication that congress meant services rendered by the referee or trustee as such. Accordingly services rendered by a referee when sitting as a special master in the hearing of objections to a discharge and the like, would not be comprehended by this provision and compensation may be allowed therefor, since the service is not rendered in the capacity of referee,^* A special allowance to a referee for services performed, in addition to the fees fixed by law, cannot be made, even with the consent of the attorneys for the parties in interest."^ § 372. Compensation when case transferred. Whenever a case is transferred from one referee to another the judge shall determine the proportion in which the fee and commissions therefor shall be divided between the referees.^' §373. Compensation when reference revoked. In the event of the reference of a case being revoked before it is concluded, and when the case is specially referred, the judge shall determine what part of the fee and commissions shall be paid to the referee." § 374. Review of allowance of fees. The allowance of fees by a referee to himself is reviewable."' 64— In re Hart & Co., 18 A. B. E. Fed. 178, 14 A. B. E. 617; In re Sweeney, 137; Fellows v. Freudenthal, 102 Fed. 168 Fed. 612, 21 A. B. E. 866. 731, 4 A. B. E. 490; In re Grossman, 111 65— Dressel v. North State Lumber Fed. 507, 6 A. B. E. 510; In re Steed, Co., 119 Fed. 531. 107 Fed. 682, 6 A. B. E. 73; In re Troth, 66— Act of 1898, § 40b. 4 A. B. E. 780, 104Fed. 291; Bragassa V. 67— Act of 1898, § 40o. St. Louis Cycle Co., 107 Fed. 77, 5 A. B. 68— In re Allert, 173 Fed. 691, 23 A. E. 700. Contra: In re Wilcox, 156 Fed. B. E. 101. 685, 19 A. B. E. 241; In re Talton, 137 , , § 376] Eefeeees and Their Jurisdiction 297 § 375. Compensation of special master. A special master appointed to hear the application for a dis- charge is entitled to a reasonable compensation to be fixed by the court in accordance with the circumstances of the particular case.*® The referee may be allowed extra compensation for services performed as special master.''" § 376. Offenses by referees. See post, Chapter XXVII. 69— In re Gillardon, 187 Fed. 289, 26 r, . A. B. E. 103. -- 70— See ante, §371. , : CHAPTER XI Death or Insanity op the Bankrupt § 377. Death of bankrupt. § 378. — In general. §379. — Disposition of estate among creditors. §380. — Proceeds of insurance. § 381. — Statutory allowance to widow and children. § 382. — Bights of next of kin. § 383. Insanity of bankrupt. § 384. — Insanity prior to filing of petition. § 385. — Insanity after commission of act of bankruptcy. § 386. — Guardian ad litem. § 387. — Examination as to sanity. § 388. — Burden of proof. § 389. — Eights of wife. § 390. — Effect upon receivership. § 391. Death or insanity of partner. § 392. Dissolution of corporation. § 377. Death of bankrupt. § 378. — In general. Unless a petition has been filed against the insolvent during his lifetime, the court of bankruptcy has no jurisdiction to administer or settle his estate upon a petition filed against his representatives for an act of bankruptcy committed by the deceased, nor has it jurisdiction to entertain a petition filed in his behalf by his representative after his decease for the pur- pose of having the estate adjudged bankrupt.^ In comparing the section under the present act,^ with that under the former,* it will be observed that the first covers death 1 — See In re Funk, 4 A. B. E. 96. children shall be entitled to all rights of 2— Act of 1898, §8a: "—The death dower and allowance fixed by the laws or insanity of a bankrupt shall not abate of the state of the bankrupt's residence." the proceedings, but the same shall be 3 — Act of 1867. Sec. 12. ... H conducted and concluded in the same man- the debtor dies after the issuing of the ner, so far as possible, as though he had warrant, the proceedings may be con- not died Or become insane : Provided, tinned and concluded in like manner as if That in case of death the widow and he had lived. 298 §378] Death or Insanity of the Bankeupt 299 at any stage of the proceedings, as immediately after the filing of the petition, while the second fixes the time as after the issu- ing of the warrant. Hence the decisions that the death of the bankrupt prior to the adjudication,* or between the entry of the order of adjudication and the physical issuing of the warrant,? or of one partner prior to the adjudication,® would not abate the proceedings, become immaterial. Since the present act has no similar provision to that found in section 29 of the act of 1867, with reference to bankrupt's oath before discharge, the decisions that a discharge could not be granted where the bankrupt had died before doing what he was personally required to do, do not now apply.'' As illustrative of tne effect of the difference between the former and the present section, the English decisions under their act of 1869 (section 80) that death hetween the filing of the jJeti- tion and the adjudication would abate * and under the act of 1883 (section 108) which is similar to section 8 of the law in force in this country that it would not,^ are valuable. The death of the bankrupt after the filing of the petition, althoi^h prior to the adjudication,^" will have no effect upon the proceedings, but they will be conducted and concluded so far, as possible as though he had not died. Hence, a court of bank- ruptcy, or the referee to whom an application for discharge is referred, has the right to proceed with the hearing upon objec- tions thereto and to conduct and conclude the same, although by reason of bankrupt's death it is impossible to comply with the provision requiring his presence at the hearing upon such appli- (iiation." Where the death occurs before the adjudication the 4— Frazier v. McDonald, 8 'N. B. B. Eidenbaugh, 11 A.B. B. 563, 3 DUl. 239, 237, Fed. Cas. No. 5073. Ted. Cas. No. 18, 173. 5— In re Litchfield, 9 N. B. B. 506, 7 8— Ex p. Obbard, 24 L. T. n. s. 145. Ben. 259, Fed. Cas. No. 8385; Adams v. 9— In re Walker, 54 L. T. n. s. 682. TerriBll, 4 Fed. 796. 10— In re Larkin, 168 Fed. 100, 21 A. 6— Hunt V. Pooke, 5 N. B. B. 161, Fed. B. B. 711; In re Spalding, 139 Fed. 244, Cas. No. 6896. 14 A. B. R. 129, rev'g 134 Fed. 507, 13 7— In re Miller, 133 Fed. 1017, 13 A. A. B. B. 223; In re Hicks, 107 Fed. 910, B. E. 345; In re O'Farrell, 2 N. B. B. 6 A. B. E. 182; Shute v. Patterson, 147 484, Fed, Cas. No. 10; 446, 3 Ben. 191; Fed. 509, 17 A. B. E. 99. In re 6unike, 4 N. B. E.'92, 2 Biss. 354, 11— In re Parker, 1 N. B. N. 261, 1 A. Fed. Cas. No. 5868; contra, Young v. B. E. 615. 300 Bkakdenbubg on Bankruptcy ' [§378 heirs and representatives of the alleged bankrupt should be brought in before the adjudication.^^ Where the debtor appears and confesses the acts of bankruptcy charged in a creditor's petition and a trustee is appointed^ a creditor who has proved his debt can not have the adjudication set aside after the death of the bankrupt and after the right of third parties have intervened.^^ § 379. — Disposition of estate among creditors. Where the bankrupt dies during the pendency of the proceed- ings, the disposition of his estate among creditors is controlled by the bankruptcy act, and not by the laws of the state of his last domicile.^* • § 380. — Proceeds of insurance. Where "the bankrupt dies before the adjudication, his executor may become entitled to the proceeds of the insurance on the bankrupt's life by tendering to the trustee the cash surrender value of the policies at the date of the filing of the petition." Where the bankrupt dies after the adjudication, the proceeds of a policy having no surrender value or actual value at tile date of the filing of the petition do not pass to the trustee.^* Where the permanent disability resulting in death of the bankrupt after his adjudication existed prior to the filing of the petition, it has been held that the proceeds of an insurance policy insuring him against permanent disability passed to the trustee." § 381. — Statutory allowance to widow and children. The bankruptcy' court has exclusive jurisdiction to determine a widow's right to dower in the property of her bankrupt hus- band deceased during the pendency of the bankruptcy pro- ceedings. ^^ The proviso in section 8 preserves the rights of the 12— Shute V. Patterson, 147 Ped. 509, contra, Partridge v. Andrews, 191 Ted. 17 A. B. E. 99. 325, 41 L. R. A. (N. S.) 123, 27 A. B. E. 13— In re Thomas, 11 N. B. R. 330, 388. Fed. Cas. No. 13, 891. 16— Gould v. New York Life Ins. Co., 14— In re Devlin, 180 Fed. 170, 24 A. 132 Fed. 927, 13 A. B. E. 233. B. R. 863. 17— In re Matsohke, 193 Fed. 284, 27 15— In re Judson, 192 Fed. 834, 27 A. B. R. 770. A. B. R. 704, 188 Fed. 702, 26 A. B. R. 18— Hurley, v. Devlin, 151 Fed. 919, 775, aff'd 228 U. 8. 474, 46 L. R. A. 18 A. B. E. 627. (N. S.) 154, 57 L. ed. 927, 30 A. B. R. 1; §381] Death ob Insakity of the Bahkrupt 301 wife and children in case of bankrupt's death but leaves the dower and allowances to be determined by the laws of the state of banknlpt's residence." It does not establish a new rule but is declaratory of the existing law. The trustee takes the bank- rupt's property subject to the same burdens it bore in the bank- rupt's hands, one of which is the wife's right to dower, and such right will not, ordinarily, be divested by a sale under order of the court of bankruptcy,^" and, where the wife joins in a deed to release dower and the deed is avoided as made to hinder, delay and defraud creditors, her right thereto is not lost.^^ It has been held that the widow is not entitled to dower in real estate held as partnership assets,^^ though clearly the true rule is that the question whether the statutory allowances claimed by the widow and children of one of the partners dying during* the pendency of the proceedings may be set aside to them ' from the assets of the partnership, depends upon the law of the state of such partner's last domicile. In such case the law of the state furnishes the guide to the bankruptcy court, and if such allowance be authorized thereby, it should be set apart to the widow and children in the bankruptcy proceeding.^* A statute providing that a widow shall be entitled to one- third of the personal estate whereof her husband died seized or possessed does not entitle her to a dower interest in unexempt personal property or its proceeds in the possession of the trustee in bankrnptcy.^* Under a statute providing that a wife divorced from her husband shall be entitled to one-third of his personal property absolutely, her interest after the commencement of a 1&— In re MeKenzie, 142 Fed. 383, 15 In re Seabolt,113 Fed. 766, 8 A. B. E. 57; A- B. E. 679; aff'g 132 Fed. 986, 13 A. contra, lu re Freedman, '29 A. B. E. 135, B. E. 227; Hurley v. Devlin, 151 Fed. aff 'd 31 A. B. E. 53. See also, In re Co- 919, 18 A. B. E. 627. But see Thomas v. dori, 207 Fed. 784, 30 A. B. E. 453, Woods, 173 Fed. 585, 23 A. B. E. 132. decided under amendment of 1910. Widow held entitled to year's support 21— Cox v. Wilder, 7 N. B. E. 241, 2 provided for by Georgia Code, such sup- DiU. 45, Fed. Gas. No. 3308, rev'g 5 N. port being an allowance within the mean- B. E. 443, Fed. Cas. No. 3309. ing of the bankruptcy act. In re Dicks, 22 — Hiscoek v. Jayeox & Green, 12 N. 198 Fed. 293, 28 A. B. E. 845. B. E. 507, Fed. Cas. No. 6531. 20— In re MeKenzie, 142 Fed. 383, 15 23— In re F. Eobert & Son, 165 Fed. A. B. E. 679, aff'g 132 Fed. 986, 13 A. 749, 21 A. B. E. 634. B. E. 227; Porter v. Lazear, 109 XJ. 8. 84, 24— In re MeKenzie, 142 Fed. 383, 15 27 L. ed. 865; In re Schaeffer, 5 A. B. A. B. E. 679, aff'g 132 Fed. 986, 13 A. E. 248; In re Slack, 111 Fed. 523, 7 A. B. B. B. 227. E. 121; In re Forbes, 7 A. B. E. 42; see 302 Beandenbueg on Bankeuptct [§381 divorce suit but before decree is not sucb as is provable against the husband's estate nor as will authorize the enjoining of the distribution of one-third of the proceeds of such property.^^ § 382. —Rights of next of kin. A brother is not a party in interest and is not entitled to file 9, petition for leave to dispose of the bankrupt's property in case of his death.^^ §383. Insanity of bankrupt. § 384. — Insanity prior to filing of petition. The court of bankruptcy has no jurisdiction to entertain the petition of a lunatic, or of his committee,^'' nor of a petition filed against either,^* and it has been held that a person so unsound of mind as to be wholly incapable of managing his affairs can- not in that condition commit an act for which he can be forced into bankruptcy ,2* regardless of the fact that there has been no adjudication of lunacy at the time of the filing of the petition.^" § 385. — Insanity after commission of a>ct of bankruptcy. Insanity of the bankrupt after the commission of the act of bankruptcy *^ or after the filing of the petition,®* wiU have no effect upon the proceedings, but they will be conducted and con- cluded as far as possible as though he had not become insane, and he may nevertheless be granted his discharge.®^ § 386. — Guardian ad litem. An idiot pr lunatic must in equity, as well as at law, be made a defendant to a suit against him. He must defend by his com- mittee who is also a necessary party to the suit, and it is the 25— Hawk v. Hawk, 102 Fed. 679, 2 30— In re Ward, 161 Fed. 755, 20 A. N. B. N. R. 940, 4 A. B. E. 463. B. E. 482. 26— Karr v. Whittaker, 5 N. B. E. 123, 31— In re Kehler, 159 Fed. 55, 19 A. Fed. Cas. No. 7613. B. E. 513. 27— In re Eisenberg, 117 Fed. 786, 8 32— In re MUler, 133 Fed. 1017, 13 A. A. B. B. 551; compare In re Burka, 107 B. E. 345. Fed. 674, 5 A. B. R. 843. 33— In re Miller, 133 Fed. 1017, 13 A. 28— In re Funk, 4 A. B. R. 96. B. R. 345. 29— In re Ward, 194 Fed. 174, 28 A. B. E. 29; In re Marvin, 1 Dill. 178, Fed. Cas. No. 9178. § 388] Death ob Insanity of the Bankrupt 303 duty of the committee to apply for appointment as guardian ad litem for the purpose of making the defense. If there be no com- mittee, or if the committee be antagonistic, a guardian ad litem should be appointed on the application of either the plaintiff or defendant.^* Accordingly a guardian ad litem should be appointed to defend an involuntary petition against a lunatic when he has no regular guardian or committee appointed for him or for his estate by competent authority of the state having control of his affairs. If he have such committee or guardian he must be brought in by process as well as the lunatic to defend the petition in behalf of the lunatic.^^ A court of bankruptcy has the same power and duty that courts of equity have always had toward incompetents who are interested in proceedings pending before it and such duty is to be exercised by the appointment of a guardian ad litem.^® The authority of a guardian ad litem to defend on behalf of an insane debtor ceases upon the intervention of the debtor's general guardian and the filing of an answer by him.^'' § 387. — Examination as to sanity. The bankrupt cannot be compelled to submit to an examina- tion before trial as to his sanity, against the objections of his guardians, but the issue of insanity at the time of the commis- sion of the act of bankruptcy may be submitted to a jury at the hearing.*^ § 388. — Burden of proof. While the presumption is in favor of sanity, yet where an inquisition in lunacy held after the filing of the petition finds that the bankrupt was insane with lucid intervals at the time of the commission of the alleged act of bankruptcy the burden is upon the petitioning creditors to show his sanity at the time of the alleged act.^^ 34—1 DanieU Ch. Pr. 219, 600; 2 37— In re Ward, 203 Ted. 769, 29 A. DanieU Ch. Pr. 287, 302, 403; In re MU- B. E. 547. ler, 133 Fed. 1017, 13 A. B. E. 345. 38— In re Ward, 161 Fed. 755, 20 A. B. 35— In re Burka, 107 Fed. 674, 5 A. B. E. 482. E. 843; Equity Eule, 87. 39— In re Kehler, 159 Fed. 55, 19 A. 36— In re O 'Brian, 2 N. B. N. E. 312; B. E, 513. In re Burke, 107 Fed. 674, 5 A. B. E. 843; 1 DanieU Ch. Pr. 8. 304 Bbandenbueg on Bankeuptoy [§389 §389. — Rights of wife. An application by the wife of an alleged bankrupt who has been held to have been insane at the time of the commission of the alleged act of bankruptcy, for a division of the assets in the hands of the receiver for the support of the alleged bankrupt pending an appeal from the decision of the district court will not be entertained where she continues to hold property trans- ferred to her adversely to the receiver.*" § 390. — Effect upon receivership. A receiver will not be discharged pending an appeal from a decision of the district court that the alleged bankrupt was insane at the time of the commission of the alleged act of bank- ruptcy. f^ § 391. Death or insanity of partner. After the filing of a petition, the death or insanity of a partner will not abate the proceedings, but they are continued in the same manner, so far as possible, as though he had not died or become insane.*^ A surviving partner who commits an act of bankruptcy with respect to the joint property can be adjudged' bankrupt individually,*^ and it has been held that where the firm is dissolved by the death of one partner, the firm cannot be adjudicated,** though the survivor may be individually and as surviving member of the firm,*^ and the individual estate of the deceased would still be liable for the partnership debts.*® It has been held that the guardian of a partner who becomel insane before adjudication, may consent to the administration of the estate in bankruptcy,*^ though this position does not seem tenable, if the party became insane before the petition was filed. In a case where a partner not adjudged bankrupt becomes ' 40— In re Ward, 194 Fed. 179, 28 A. 896; In re Stevens, 5 N. B. E. 112, 1 B. R. 36. Sawy. 397, Fed. Gas. No. 13393. 41— In re Ward, 194 Fed. 179, 28 A. 44— In re Temple, 17 N. B. E. 345, 4 B. R. 36. Sawy. 92, Fed. Gas. No. 13825; conlia, 42— Act of 1898, § 8. Hunt v. Pooke, In re Goe, 157 Fed. 308, 19 A. B. E. 618. 5 isr. B. E. 161,Fed. Gas; No. 6896; In re 45— In re Stevens, 5 N. B. E. 112, 1 L. Stein & Co., 127 Fed. 547, 11 A. B. Sawy. 397, Fed. Gas. No. 13393. B. 536; In re Goe, 157 Fed. 308, 19 A. 46— Vaccaro Bank, 2 N. B. N. E. 1037, B. E. 618. 103 Fed. 436; - 43— In re Meyer, 98 Fed. 976; aff'g 47--Iu re -.0 'Brian, 2 H': B.-.N.. E. . 1 N. B. N. 304, 1 A. B. E. 565, 92 Fed. 312. ,392] Death oe Insanity of the Bankeupt 305 insane and thereafter cannot himself speak or act in the pro- ceedings, he can do so through a guardian appointed for him, and it has been held that by such guardian he may give consent to the administration of the partnership property in bank- ruptcy.** Upon the death of a partner, the surviving member takes the property of the firm for the purpose of closing the estate,*® and the assets are to be marshalled as if all the partners were liv- ing; 5" the joint assets going to partnership creditors and the separate assets to separate creditors,^^ though in some states the debts are severed upon the death of the partner. ^^ § 392. Dissolution of corporation. The dissolution of a corporation by a state court does not end its existence so as to prevent the jurisdiction of the bank- ruptcy courts from attaching,^^ nor will it deprive the bank- ruptcy court of jurisdiction, or abate the proceedings.®* 48— In re 'Brian, 2 N. B. N. R. 312. 49— In re Stevens, 5 N. B. E. 112, 1 Sawyer 397, Fed. Gas. No. 13393. 50 — ^Ex parte Leaf, 4 Dea. 287; ex p. Morley, L. E. 8 Ch. 1026; ex p. Dea. 1 Ch. D. 514; ex p. Manchester Bk., 12 Ch. D. 917; In re Clap. 2 LoweU, 168 Fed. Cas. No. 2783; Farley v. Moog, 79 Ala. 148; Tellinghast v. Champlin, 4 E. I. 173. 51— Craft V. Pyke, 3 P. Williams, 180; Addis V. Knight, 2 Mer. 117; Lodge v. Priehard, 1 D. G. J. & S. 610; Gray v. Chiswell, 9 Ves. 118; Hills v. McEae, 9 Hare 297; In re Gray, 111 N. Y. 404. 52— Pearce v. Cooke, B. E. I. 184 j Sparhawk v. EusseU, 10 Met. 305; changed by Statute in Mass.; Jewett v. PhUlips, 5 Allen 150. 53 — White Mountain Paper Co. v. Morse, 127 Fed. 643, 11 A. B. E. 633, aff'g 127 Fed. 180, 11 A. B. E. 491; In re Independent Ins. Co., 6 N. JB. E. 260, Fed. Cas. No. 7017; Id., 6 N. B. E. 169, 2 Lowell 97, Fed. Cas. No. 7018. 54— Piatt V. Archer, 6 N. B. E. 465, 9 Blatoh. 559, Fed. Cas, No. 11213. Brandenburg — 20 CHAPTEK Xn Eights and Duties of Bankbxtpt § 393. Attendance at meetings. i 394. Compliance with orders. § 395. Disclosure of assets. § 396. Examination of claims. § 397. Schedules. §398. —Filing. i 399. — Partnership cases. § 400. — Form and contents in general. §401. — Verification. § 402. — Assets to be listed. § 403. — Creditors and claims listed. § 404. — Claims for exemptions. § 405. — Errors and omissions in schedules. § 406. — Amendment. § 407. — Effect of including claim. § 408. — False oath to schedule. § 409. — Schedules as evidence. § 410. — Relation of schedule to composition proceedings. § 411. Examination of bankrupt. § 412. Payment of money to creditors by bankrupt. § 413. Surrender of property to trustee. § 414. Duty to join in application for license. I 415. Production of books and papers. § 416. Duty to disclose combination to safe. § 417. Duty to assist receiver. § 418. Waiver of protest on notes. § 419. Bight to reclaim property. § 393. Attendance at meetings. At the first meeting of the creditors, the judge or referee shall preside and may publicly examine the bankrupt or cause him to be examined at the instance of any creditor, but the place of such meeting should be one most convenient for the parties in interest; and it must be held not less than ten nor more "than thirty days after the adiudication.^ The bankrupt is required to be and should be actually present at the first meeting,'' and, if 1— Act of 1898, § 55a. , & Crisp, 2 N. B. N. B. 62, 99 Fed. 695, 3 2— Act of 1898, § 7a (1) ; In re Eagles A. B. B. 733. 306 §396] Rights and Duties of Bankrupt 307 called upon, to testify fully, fairly and truthfully.^ His ina- bility to attend the meeting due to sickness,* or confinement in an insane asylum,? may be a sufficient excuse, though, the cred- itors are to determine as to the sufficiency of the excuse and the court will not disturb their decision without good cause shown.* The bankrupt must appear in person or by representative at the creditors' meeting in composition,'' if required so to do, and may be required to attend the hearings upon his application for a discharge.® If in involuntary proceedings against the bankrupt he neither enters appearance nor denies by answer the allegations of the petition, he may be ordered to state in writing the number of his creditors and the amount due them,® and a failure to comply with such order renders him liable to proceedings in contempt. § 394. Compliance with orders. The bankrupt is enjoined by express provision of the act,*" to comply with all lawful orders of the court. Obedience may be enforced by fine or imprisonment, or both; ** or by proceedings for contempt. If the contempt is committed before the referee, he certifies the facts to the judge,*^ and, after a hearing, the latter is authorized to impose punishment.*^ § 395. Disclosure of assets. Should the bankrupt, while such, or after his discharge, con- ceal from his trustee any property belonging to his estate in bankruptcy, he is liable to imprisonment.** §396. Examination of claims. The bankrupt is bound to examine the correctness of all proofs of claim filed against his estate.*^ 3— In re Tudor, 100 Fed. 796, 2 N. B. 9— Clinton v. Mayo, 12 N. B. K. 39, N. B. 168, 4 A. B. E. 78. Fed. Gas. No. 2899; see also Meetings of 4 — In re Carpenter, 1 N. B. B. 51, Creditors, post, § 489. Fed. Cas. No. 2427. 10— Act 1898, §7 (2). 5— In re Thaw, 166 Fed. 71, 21 A. B. ll^Aot of 1898, § 2 (13). E. 561. ' 12— Act of 1898, § 41b. 6— In re Wronkow, 18 N. B. E. 81, 13— Act of 1898, § 2 (16). Fed. Cas. No. 18105. In this connection reference should he 7— In re Scott, 15 N. B. E. 73, Fed. had to chapter XXXVI which deals fully Oas. No. 12519. with contempts. 8— Act of 1898, §7 (1). In re 14— Act of 1898, § 29b. Shanker, 138 Fed. 862, 15 A. B. E. 109. 15— Act of 1898, § 7 (3>. 308 Bbaktdenbubg on Bankruptcy [§ 396 Any person presenting under oath, a false claim for proof against the estate of a bankrupt, or using any such claim in com- position, personally or by agent, is liable to imprisonment,^® and if knowledge thereof comes to the bankrupt it is his duty to disclose the fact immediately to his trustee, and if no trustee has been appointed, it becomes not only the right but the duty of the bankrupt to move to set aside and expunge the proof and to object to the allowance of such claim." If a claim omits one of the essential facts required by good pleading, but complies apparently with the forms, orders and statute, a referee can only allow it as requested since he is required merely to see that the formal requisites are complied with, but it is the bankrupt's duty or the trustee's, if one is appointed, in such case to file objection to the claim, or petition for a re-examination.^* §397. Schedules. §398. —Filing. In voluntary cases a schedule of the bankrupt's property and list of creditors must be filed with the petition. In involuntary cases such schedule must be filed within ten days after the adjudication, unless further time is granted. The schedules must be in triplicate, one for the clerk, one for the referee and one for the trustee.^* If the bankrupt fails to file the schedule of property and list of creditors required, the referee must do so; ^" but, if the debtor is notified to furnish the schedule and fails, the creditor may apply for an attachment against him.^^ An order directed to the bankrupt to show cause why he should not be compelled to file his schedules may be granted without notice to him.^^ While the bankrupt cannot be compelled to file schedules con^ taining incriminating evidence, he must make a bona fide effort to, comply with the provisions of the act and file a schedule that obeys the act up to the point where the court can see that further obedience would violate the constitutional privilege.^' 16— Act of 1898, § 29b. 22— In re Brady, 169 Fed. 152, 21 17— In re Ankeny, 2 N. B. N. E. 349, A. B. B. 364. 100 Fed. 614, 4 A. B. E. 72. In re Brockton Ideal Shoe Co., 200 Fed. 18— In re Ankeny, 1 N. B. N. 511. 745, 29 A. B. E. 76. 19— Act of 1898, §7a (8). 23— In re Podolin, 202 Fed. 1014,20 20— Act of 1898, § 39 (6). A. B. E. 406. 21—6. 0. IX. ..i. §400] Eights and Duties of Bankexjpt 309 Tlie court of a district other than that in which proceedings are pending has jurisdiction to order the treasurer of the bank- rupt corporation, who is within its jurisdiction, to file sohed- ules.2* §399. — Partnership cases. When all the members of a firm file a petition, they are jointly and severally bound to make the required statements of their debts, whether copartnership or individual, or due them jointly with other persons not parties to the petition;*^ but the fact that one member does not file a schedule of debts or inventory of effects, nor deliver his property into the hands of the trustee, does not affect the right of the other members to receive a dis- charge.^® In proceedings by a partnership and certain members thereof, the objecting partner may be compelled to file schedules of his individual property and liabilities in manner and form as required of one who has been adjudicated.*'' In involuntary proceedings against a partnership the solvent partner may be required to file schedules.** A judgment recovered on a partnership obligation is properly scheduled as a debt against an individual bankrupt partner.*® § 400. — Form and contents in general. The schedule must be printed or typewritten, or written plainly, without abbreviation, or interlineation,, except it be for the purpose of reference.^"' Schedules conforming in all respects with the act are sufficient, though not containing all the allegations and statements required by the forms.*^ It has been held, however, that a petition, or other pleading, neither type- 24 — ^In re Brockton Ideal Shoe Co., 200 need not file schedules of his individual Fed. 745, 29 A. B. R. 76. assets and liabilities. In re City Con. & 25— In re Leland, 5 N. B.»E. 222, 5 Bldg. Co., 30 A. B. E. 133. Ben. 168, Fed. Cas. No. 8228. 28— In re Solomon & Carvel, 163 Fed. 26— In re Schofleld, 3 N. B. K. 137, 140, 20 A. B. E. 488. Fed. Cas. No. 12509. 29— New York Inst, for Deaf & Dumb 27— G. O. VIII. V. Crockett; 117 App. Div. (N. T.) 269, In re Funek & Balthazard, 169 Fed. 17 A. B. E. 233. 481, 22 A. B. E. 298; In re Ceballos & 30— G. O. V. Co., 161 Fed. 445, 20 A. B. E. 467. Con- Sutherland v. Lasher, 41 Misc. (N. T.) tra: In a partnership bankruptcy, a part- 249, 11 A. B. E. 780. ner who is not himself adjudged bankrupt 31 — In re Soper, 1 A. B. E. 198. ' i 310 Bbandenbukg on Bankkuptcy [§400 written ^^ nor on the prescribed printed ^^ form, should be dis- missed by the court on its own motion. The schedules should contain detailed information. A bare statement of assets and liabilities is not enough; the bankrupt should go through every item of the official form of schedules and show the facts relating thereto.** .. §401. —Verification. The schedules attached to a voluntary petition need not be separately verified. It is sufficient that the petition is propierly verified.*^ § 402. ^ Assets to be listed. The schedule should include all property which, prior to the filing of the petition, the bankrupt could have transferred, or which might have been levied upon and sold on judicial process; but not property acquired after such filing.** The amount and kind of property, the location thereof, and its money value in detail should be given.*'' Failure to list a cause of action as an asset will not operate as an estoppel in a subsequent suit thereon commenced after the bankrupt's discharge.*® § 403. — Creditors and claims listed. The schedules should include a list of his creditors and the amount of their respective claims,*^ including his wife if a cred- itor; *" and all the papers upon which he may be liable, with proper explaliations in regard thereto should be set down.*^ The existence of a difference between the list of creditors filed by the debtor and the list filed by the petitioning creditors con- stitutes an issue to be tried and determined as a result of evidence.** 32— Mahoney v. Ward, 2 N. B. N. E. 39— Act of 1898, § 7a (8). Sav. Bk. v. 538, 100 Fed. 278, 3 A. B. B. 770. Palmer, M N. B. E. 239, Fed. Cas. No. 33-^Anon. 1 N. B. N. 239. 17207. 34— In re City Con. & Bldg. Co., 30 40— In re Eosenfield, 2 N. B. E. 49, A. B. E. 133. Fed. Cas. No. 12057. 35— In re MeConnell, 11 A. B. E. 418. 41— In re Henry, 17 N. B. E. 463, 9 36— Act of 1898, § 70a; In re Harris, Ben. 449, Fed. Cas. No. 6370. 1 N. B. N. 384, 2 A. B. E. 359. 42— In re Hymes, 10 N. B. E. 433, 7 37— Act of 1898, § 7a (8). Ben. 427, Fed. Cas. No. 6986. 38— Irion v. Knapp, 132 La., 60, 31 A. B. E. 891. § 405] Eights and Duties of Bankrupt 311 Where the creditor is a partnership and the same is dissolyed by the death of one of the partners, the surviving partner may be described in the schedules as the creditor.** The legal names of creditors, that is, the Christian name as well as the surname, should appear in the schedule; and in giving the addresses of creditors, while the ordinary and common abbreviations for the names of states may be used, the abbre- viations of the names of cities and villages, not being in common use, should not, nor is the use. of ditto marks to be encouraged; and wherever possible the street number should be given in large cities.** The residence address of the creditors, if ascertain- able, rather than the office address, should be given.*^ § 404. — Claim for exemptions. See Exemptions, post, Chapter XXTV, § 985. § 405. — Errors and omissions in schedules. The correctness of the schedule of creditors, or whether a creditor received notice of the proceedings, does not determine the jurisdiction of the proceedings or of a discharge,*® nor will a clerical mistake in the name of a creditor which prevented his receiving a notice invalidate the proceeding.*'' The omission toi place a claim on the list of creditors is merely a circumstance of suspicion.** But any debt which was not duly scheduled in time for proof and allowance, with the name of the creditor, if known to the bankrupt will not be affected by a discharge unless such creditor had actual notice or knowledge of the pro- ceedings.*® It is the province of the court to pass on all questions of con- cealment of assets and failure to name creditors.^" The omission of a debt contracted with a creditor in his individual capacity, 4ia— Kaufman v. Sehrejer, 108 App. 46— In re Archenbrown, 11 N. B. K. Div. (N. Y.) 298, 17 A. B. E. 314. 149. ^ed. Cas. No. 504. 44-In re Maokey, 1 A. B. R. 593; In 47-Thornton v. Hogan, 17 N. B. B. re Brumelkamp, 1 N. B. R. 360, 2 A. B. E. 318, 95 Fed. 814. Haaok v, Thiese, 277. 48— In re Mendelsohn, 12 N. B. E. 533, « ,,. ,^T -„,„,„. ^ ^ „„„ 3 Sawy. 342, Fed. Cas. No. 9420. 51 Misc. (N. T.) 3, 16 A. B. E. 699; ^^^^^^ ^^ .g^g^ g ,,^. ^^^^^^ ^_ Sutherland v. I^asher, 41 Mise. (N. Y.) ^Oore, 2 N. B. E. 174; Lamb v. Brown, 249, 11 A. B. E. 780. 12 N. B. E. 522, Fed. Cas. No. 8011. 45— Weidenfeld v. Tillinghast, 54 Mise. 50— In re Scott, 15 N. B. B. 73, Fed. (N. Y.) 90, 18 A. B. E. 531. Cas. No. 12519. 312 Bbandenbueg on Bankruptcy LiHO^ and subsequent to tlie date of the partnersMp, under which partnership name he claimed notice as a creditor, has been held not to be a fraudulent or wilful omission.^^ Where an involuntary bankrupt omits a certain claim from his schedule, his trustee cannot be said to have elected to aban- don it, in the absence of any evidence of his knowledge or sufficient means of knowledge of its. existence.^^ The bankrupt has a standing to oppose the allowance of claims even though he has omitted them from his schedules.^* A depo-. sition of a creditor setting forth a claim against the bankrupt for unliquidated damages for breach of a contract, omitted from the schedule, is not proof thereof, unless the amount is liquidated in the manner prescribed, application for which must have been made by the creditor.^* For a further discussion of the effect of omissions from the schedules upon the discharge, see Chapter XXXV, §§ 1501, 1569. Omissions from schedules as constituting an offense, see Chapter XXXVII, §§ 1611, 1612. §406. — Amendment. In case the schedule and list are defective, it is the duty of the referee to see that they are amended ;^^ but this only refers to defects in complying with the formal requisites of the forms, orders and statute, as the referee's duty to examine the schedule and list extends only to such matters.^® Schedules filed prior to the promulgation of the general orders by the supreme court should be allowed to be amended and supplemented to conform to the requirements of such rules, and such amended schedules, should be filed as of the date of the filing of the original sched- ules.^^ In case of ignoremce or mistake, either of fact or law, the court has power in its discretion and, in a proper case, to allow amendments and will in general exercise that power in the absence of fraud and when all the parties can be placed in the 51— In re Pierson, 10 N. B. E. 107, Fed. 55— Act of 1898, § 39 (2) ; In re Cas,No. 11153. Mackeyj 1 A .B. E. 593; In re Brtimel- 52— Dushane v. BeaU,. 161 U-. S. 513, kamp, 1 N. B. N. 360, 2 A.B. E. 318, 95 40 L. ed. :791. ■ Fed. 814. 53— 'In re I'reneh, 181 Fed. 583, 25. A. 56— In re Ankeny, 1 N. B. N. 511. ; ' B. E. 77; 57— In re Harris, 1 N.B.N. 384,2 A. ■5,4^InreCtough,5 N. B.E, 59, 2 Ben. B. E, 359. : • ,,.,.? 508, Ted. Cas. No. 2905. • • , , .... §406] Eights and Duties of Bankbtjpt 313 same situation they would have occupied if the error had not occurred and where justice seems to demand such amendment,"^ which may be done on application of the petitioner. The failure to file a complete schedule originally is not fatal provided it is afterwards corrected by an amended schedule, and, if the balnk- rlipt has filed such amended schedule and it is accepted both by the court and by the objecting creditors, neither having objected to it at the time it was filed or to the manner of its filing, it is sufScient.^* The amendments should be written or printed, signed and verified, like the originals, and, if made to separate schedules, must be made separately, with proper references; and the appli- cation must state the cause of the error in the paper originally filed.8» Where the case has been referred to the referee, he may pass upon the application to amend, his action being subject to review by the judge.®^ In either case the power exists but its exercise rests in the sound judicial discretion of the court. The application to amend may be made ex parte, and unless good reasons are shown, the bankrupt may be allowed to amend his schedule to include additional property ;^^ and to correct material mistakes, as the entire omission of a debt, or the name of a creditor,^* in which event it has been held that the amend- ment would relate back to the time of the filing of the petiton.^* Amendments should not be allowed, except upon such condi- tions as to prevent injustice, and hence, if new creditors are introduced, or application to amend is made after adverse parties have appeared in the case, notice should be given to all interested parties and, in proper cases, conditions should be imposed on the allowance of the amendment.®^ When the bank- 58 — In re Bean, 100 Fed. 262, 4 A, B. Motion to open a discharge made with- M. 53 ; In re Meyers, 3 A. B. R. 760 ; In in one year after the granting thereof for ie Wildet, 2 N. B. N. E. 629, 101 Fed. the purpose of including in the schedules 104, 3 A. B. E. 761. a claim against the bankrupt omitted by 59— In re Mudd, 2 N. B. N. E. 710. mistake granted. In re Me^ee, 165 Fed. 60— G. O. XI. 269, 21 A. B. E. 306. 61-^. O. XXVII. 64^In re Beerman, 112 Fed. 662, 7 A. 62— In re Watts, 2 N. B. E. 145, 3 Ben. B. E. 434. 166, Fed. Cas. No. 17293. 65— In re Perry, 1 N. B. E. 2, Fed. 63— Beebe v. Pyle, 18 N. B. B. 162; Cas. No. 10998; In re Eatcliff, 1 N. B. In re Heller, 5 N. B. E. 46, Fed. Cas. No. E. 98, Fed. Cas. No. 11578 ; In re Mor- 6339. ganthal, 1 N. B. R. 98, Fed. Cas. No. 9813. 314 Bbandbnbubg on Bankruptcy [§406 rupt amends Ms schedules after a trustee has been chosen, so as to include an additional creditor, notice to creditors already named in his schedules or a call for a new meeting has been held unnecessary.®® A bankrupt may, even after consideration of specifications in opposition to discharge, amend his schedule, by order of the court,®'' or before the distribution of the estate where the purpose is to claim further exemptions.®® An application to amend the schedules so as to bring in an omitted creditor may be denied where it is made within a few days of the end of the year after his adjudication, since at the expiration of such time claims cannot be filed for allowance.®* § 407. — Effect of including claim. Including a claim in his schedule is not equivalent to a new promise by the bankrupt or sufficient to revive a debt already barred by the statute of limitations;'''' but wherever any doubt exists as to whether a claim is barred in any jurisdiction other than the one in which proceeding is pending, it should be included in order that it may be discharged. The classification in the schedule as partnership assets of real estate held by the part- ners as tenants in common will not convert the separate property of the individual partners into firm property in derogation of the rights of the separate creditors.''^ § 408. — False oath to schedule. The making of a false oath to a schedule constitutes an offense under the law which would operate as a bar to a discharge.''* § 409. — Schedules as evidence. The schedules of the bankrupt are not testimony within the meaning of section 7 (9), and are admissible against him in 66— In re Preston, 3 N. B. E. 27, Fei. 69— In re Kittler, 176 Fed. 655, 23 A. Cas. No. 11392. B. R. 585. 67— In re. Carson, 5 N. B. B. 290, 5 70— In re Lipman, 1 N. B. N. 310, 94 Ben. 277, Fed. Cas. No. 2460. Fed. 353, 2 A. B. R. 46; In re Eesler, 1 68— In re Fisher, 142 Fed. 205, 15 A. N. B. N. 280, 95 Fed. 804, 2 A. B. E. 166, B. E. 652; In re Berman, 15 Ohio Fed. 602. Dee. 110, 15 A. B. R. 463; In re Kauf- 71— In re Zug, 16 N. B. E. 280, Fed. man, 142 Fed. 898, 16 A. B. E. 118; In Cas. No. 18222. re White, 128 Fed. 513, 11 A. B. E. 556; 72— See OfEenses, Chap. XXXVII, In re Moran, 105 Fed. 901, 5 A. B. E. 472. post, § 1612. § 412] Rights and Duties of Bankeupt 315 criminal proceedings instituted in' the state courts.^' However, such schedules are inadmissible agsiinst the bankrupt in criminal proceedings for concealment of assets under the banklniptcy act, by virtue of R. S. § 860 (U. S. Comp. St. 1901. p. 661 ).t* It has been held that use of the schedules of the bankrupt by the grand jury in determining whether to indict or not is a violation of section 7a (9) and is ground for the dismissal of the indictment, but this seems doubtful under the recent decision of the supreme court.''® § 410. — Relation of schedule to composition proceedings. In cases of composition the statement should conform to the schedule;''® but a mistake without fraud, made by the debtor in his statement of the amount due to the creditor, will not vitiate the composition.'''' Where the facts relating thereto are brought out and considered by the creditors in coming to a conclusion as to the composition, it is not a good objection that property standing in the bankrupt's wife's name was omitted from the schedule; nor that the schedules stated the debtor's reial estate as of unknown or uncertain value.''® § 411. Exajuination of bankrupt. The examination of the bankrupt is fully treated in Chapter XV. § 412. Payment of money to creditors by bankrupt. The bankrupt will not be permitted to pay money which he has collected and which belongs to his estate after the petition was filed, as for interest on mortgages, unless such payment is beneficial to the estate.''* 73— Commonwealth v. Ensign, 40 Pa. Fed. 1023, 13 A. B. E. 708; Ensign v. Super Ct. 157, 22 A. B. B. 797; Ensign Commonwealth of Pennsylvania, 227 XJ. V. Commonwealth of Pennsylvania, 227 U. S. 592, 57 L. ed. 658, 30 A. B. R. 408. S. 592, 57 L. ed. 658, 30 A. B. E. 408. 76— In re Haskell, 11 N. B. E. 164, But see Cohen v. United States, 170 Fed. Cas. No. 6192. Fed. 715, 22 A. B. E. 333. 77— In re Trafton, 14 N. B. R. 507, 74— Ensign v. Commonwealth of Penn- 2 Lowell 505, Fed. Cas. No. 14133; sylvania, 227 U. S. 592, 57 L. ed. 658, 30 Beebe v. Pyle, 18 N. B. E. 162. A. B. R. 408; Johnson v. United States, 78— In re Welles, 18 N. B. E. 525, Fed. 163 Fed. 30, 18 L. E. A. (N. S.) 1194, Cas. No. 17377. 20 A. B. R. 724; Cohen v. United States, 79— In re EUinger, 18 N. 'B. E. 222, 170 Fed. 715, 22 A. B. R. 333. Fed. Cas. No. 4543. 75 — United States v. Chalmers, 135 316 Beandenbubg on Bankruptcy [§413 § 413. Surrender of property to trustee. On being adjudged bankrupt, it is tbe duty of the bankrupt to deliver into tbe possession of the trustee all such property as he may have, other than such as is exempt by law,®" notwith- standing there may be a prospect of settlement with his crei itors.*^ The bankrupt is not excused from the duty to produce property in his possession at the institution of the proceedings,^^ because of having disposed of it while the proceedings were pending. He will not, however, be ordered to turn over hia property to the trustee in the absence of a hearing upon a peti- tion making definite averments and offering a definite issue.^* Furthermore, an order to turn over certain assets should not be made except -vyith caution and upon convincing evidence lest a commitment for disobedience on contempt proceedings to follow should in effect be nothing more than imprisonment for debt, which would not be justified.®* Where the bankrupt admits having had possession of property a short time before his bankruptcy, which is not shown in his schedules, the burden is upon him to satisfactorily account for the same.®^ § 414. Duty to join in application for license. The bankrupt may be compelled to join in an application for the renewal of a liquor license sold by the court.®® § 415. Production of books and papers. This subject is fully discussed in another chapter.®'' § 416. Duty to disclose combination of safe. The bankrupt may be required to disclose to the trustee the combination of his safe.®® 80— In re Peacock, 178 Fed. 851, 24 See, in this connection, Chapter XXVn, A. B. E. 159. dealing fully with proceedings to compel 81— In re Shaffer, 2 N. B. E. 178, Fed. the bankrupt to turn over property to the Cas. No. 12694. trustee. 82— In re Lesaius, 163 Fed. 614, 21 86— In re Doyle & Son, 209 Fed. 1, 31 A. B. E. 23. A. B. E. 571, rev'g 205 Fed. 543, 30 A. 83— In re Euos, 164 Fed. 749, 21 A. B. E. 58. B. E. 257. And see. In re Wiesel & Knaup, 173 84— In re Lesaius, 163 Fed. 614, 21 Fed. 718, 23 A. B. E. 59. A. B. B. 23. 87— See post, Chapter XV. 85— In re Eichards, 183 Fed. 501, 25 88-^In re Hooks Smelting Co., 138 A. B. E. 176; In re DeGottardi, 114 Fed. Fed. 954, 15 A. B. E. 83. 328, 7 A, B. E. 723, §419] Eights akd Duties of Bankbupt 317 § 417. Duty to assist receiver. Up to the time of his discharge, the banlcrupt can be compelled, by summary order of court, to give the receiver any information he may possess or render him any assistance he can in the trans- fer of possession of property belonging to the bankrupt estate. Accordingly it has been held that the bankrupt may be com- pelled to join in a petition with the receiver in an application for a transfer of the bankrupt's liquor license to the purchaser thereof at the receiver's sale.*® The mere assertion of the bank- rupt that his books will tend to incriminate him will not justify his refusal to turn the same over to the receiver for use in con- tinuing the business.®" § 418. Waiver of protest on notes. Where bankrupt is endorser on a note which falls due after adjudication and before the trustee is appointed, it has been held that he may waive demand and notice.®^ § 419. Right to reclaim property. The bankrupt cannot reclaim property which constitutes part of his estate, simply because he has been deprived thereof by unlawful search and seizure.®* 89— In re Wiesel & Knaup, 173 Fed. 92— In re Musica & Son, 205 Fed. 413, 718, 23 A. B. E. 59. 30 A. B. R. 555, aff'd 211 Fed. 326, si 90— In re Rosenblatt, 143 Fed. 663, A. B. R. 687. 16 A. B. R. 306. 91— In re Battey, 16 N. B. R. 397, 2 LoweU 409, Fed. Cas. No. 14, 169. CHAPTER Xm Aekest, Detention and Extradition of Bankktjpt §421. Bankrupt's exemption from arrest. § 422. -^When exempt. § 423. — Exemption applies to bankrupt only. § 424. — When not exempt. § 425. — Period during ■which exemption continues. § 426. — Scope of inquiry into state court proceedings. § 427. ■ — Manner of procuring release. § 428. Detention of bankrupt for examination — Writ of me exeat. § 429. — Release upon bond. § 430. Extradition of bankrupt. § 431. — Power to extradite. § 432. — Manner of extraditing. § 421. Bankrupt's exemption from arrest. § 422. — When exempt. The bankruptcy act provides that: "A bankrupt shall be exempt from arrest upon civil process except in the following cases: (1) When issued from a court of bankruptcy for con- tempt or disobedience of its lawful orders; (2) when issued from a state court having jurdisiction, and served within such state, upon a debt or claim from which his discharge in bank- ruptcy 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. "^ This exemption is given to protect a bankrupt from arrest on claims from which his discharge will be a release and to prevent interference with the bankruptcy proceedings and render them effectual. A bankrupt is entitled to exemption from arrest on 1 — Act of 1898, Sec. 9a. Act of 1867, action, unless the same is founded on Sec. 26. . . . No bankrupt shall be liable some debt or claim from which his dis- to arrest during the pendency of the charge in bankruptcy would not release proceedings in bankruptcy in any civil him. 318 §424] Aebest, Detention and Exteadition 319 civil i)roeess for a claim from which his discharge in bankraptey would release him;'* as in contempt proceedings for failure to obey a state court's order to pay costs.* The bankrupt is also expressly exempted from arrest on civil process issued by a state court even in actions on claims from which his discharge would not be a release when in attendance on the bankruptcy court or in the performance of a duty imposed by the act,* to continue until the final adjudication on the application for a discharge.^ All courts insist upon this right as to parties and witnesses before them, since it is necessary to the orderly conduct of business.^ The bankrupt is exempt from arrest on civil process issued by a federal court other than the court of bankruptcy.'' § 423. — Exemption applies to bankrupt only. The exemption is given only to "a bsmkrupt," which includes any person against whom an involuntary petition or an applica- tion to set aside or revoke a discharge has been filed or who has filed a voluntary petition.^ § 424. ^ When not exempt. A bankrupt is liable to arrest where the proceeding is based oh a claim which would not be released by his discharge, except when in attendance on the bankruptcy court or in the perform- ance of a duty imposed by the act which is construed to be from the day his attendance before the referee is required until the final adjudication on his application for discharge;^ as in 2— Kavanaugh v. Melntyre, 74 Mise. 7 — In re Wenman, 153 Fed. 910, 16 (N. Y.) 222, 27 A. B. E. 278; In re A. B. E. 690. Baker, 1 N. B. N. 547, 3 A. B. E. 101, 8— Act of 1898, § 1 (4). 96 Fed. 954; In re Fife, 109 Fed. 880, 9— G. O. XII (1); In re Lewensohn, 6 A. B. E. 258; Knott v. Putnam, 107 2 N. B. N. E. 381, 99 Fed. 73; In re Fed. 907, 6 A. B. E. 80; see also debts Vaft, 3 N. B. E. 73, 3 Ben. 431, Fed. disehargable, Chapter XXXV. Cas. No. 16814; In re Alsberg, 16 N. B. 3— In re Summers, 1 N. B. N. 60; In E. 116, Fed. Cas. No. 261; In re Walker, re Borst, 2 N. B. N, 62, Fed. Cas. No. 1 N. B. E. 60, 1 Lowell, 222, Fed. Cas. 1665. No. 17060; In re Eobimson, 2 N. B. E. 4— See tJidted States v. Flynn, 179 108, 6 Blatch. 256, Fed. Cas. No. 11939; Fed. 316, 23 A. B. E. 294 In re Patterson, 1 N.' B. E. 58, 2 Ben. 5— G. 0. XII (1). See § 425. 155, Fed Cas. No. 10817; In re White- 6— See Matthews v. Tufts, 87 N. Y. house, 4 N. B. E. 15, 1 Lowell, 429, Fed. 568; 8. c. 62 How. Fr. 508; and cases Cas. No. 17564. cited. 320 Bbandenbueg on Bankeuptcy [§424 the case of a judgment for tlie support of a bastard child; " or in the case of costs adjudged against him after adjudica- tion;" or in proceedings in certain states, on a judgment for a labor claim; '^ or under a state statute for failure to pay the balance due on goods sold on commission, the balance of sales being payable monthly; ^^ or in an action for conversion of funds coming into his hands as ticket agent of a railroad company; M or on a judgment in trespass.^^ So, the exemption does not apply in an action to set aside a fraudulent conveyance of prop- erty prior to the bankruptcy act; " or on attachment in proceedings in a state court to discover assets to satisfy a lien ■estiablished prior to bankruptcy; " and the nature of the process does not affect the question whether mesne or final.^*, Nor is the bankrupt exempt where the bankruptcy proceedings were instituted between the service of summons and time of appear- ance and he failed to appear,^^ or where after being sent to jail bankrupt applied for the poor debtor's oath and on the last day of the examination filed a petition in bankruptcy,^" or in an action for fraud,** or if surrendered in discharge of bail, it being then as if he had never been bailed; ^* or if recaptured after an escape;^* but a civil action for fraud will be stayed until the determination of the bankruptcy proceedings,^* though the mere filing charges of fraud in a pending civil suit does not act as such stay.*^ 10— In re Baker, 1 N. B. N. 547, 3 19— In re Graham, 1 N. B. N. 59. A. B. R. 101, 96 Fed. 954. 20— In re Casey, 1 N. B. N. 166. 11 — In re Marcus, 104 Fed. 331, 5 A. 21- In re Devoe, 2 N. B. E. 11, 1 B. E. 19; Id., 105 Fed. 907, 5 A. B. R. Lowell, 251, Fed. Cas. No. 3843. 365. 22-4-In re Hazelton, 2 N. B. E. 12, 1 12— In re Grist, 1 A. B. E. 89. Lowell, 270, Fed. Cas. No. 6287; In re 13— Glover v. Clinton, 8 N. B; R. 312, Cheney, 5 Law, Eep. 19, Fed. Cas. No. Fed. Cas. No. 5845. Contra, In re Kim- 2636; In re Rank, Crabbe, 493, Fed. Cas. ball, 2 N. B. R. 114, 6 Blatch. 292, Fed. No. 11566; FoxaU v. Levi, 1 Cranch C. Cas. No. 7769; aff'g 2 N. B. R. 74, 2 C. 139, Fed. Cas. No. 5015; Lingan v. Ben. 554, Fed. Cas. No. 7768. Bayley, 1 Cranch C. C. 112, Fed. Cas. No. 14^-In re Wenman, 153 Fed. 910, 16 8370. A. B. R. 690. 23- Anderson v. Hampton, 1 B. & A. ' 15-^In re Simpson, 2 N. B. R. 17, Fed. 308. Cas. No. 12879. 24-^In re Migel, 2 N. B. R. 153, Fed. 16 — Goodwin v. Sharkey, 3 N. B. R. Cas. No. 9538; In re Lewensohn, 2 N. 138. B. N. R. 381, 99 Fed. 73. 17— Ex p. Taylor, 16 N. B. R. 40, 1 25— Minon v. Van,Nostrand, 4 I^. B. Hughes, 617, Fed. Cas. No. 13773. • R. 28, 1 LoweU, 458, Fed. Cas. No. 9642. 18 — ^lu re Wiggers, 2 Bias. 71; In re Mifflin, 1 Penu. L. J. 146. §425] Arbest, Detention and Extradition 321 Considerable question arose prior to the amendment of 1903, whether a bankrupt would be exempt from arrest upon a claim for alimony, and while it was held that if under the state law the judgment awarding the alimony, created a debt, as to the accrued instalments the discharge would be a release,^^ in view of the law which now specifically exempts alimony, the bankrupt would be liable to arrest. If the court of bankruptcy has for any reason stayed proceedings in such suit the bankrupt will be released from arrest without regard to whether the claim would be released.^'' Imprisonment for debt being generally abolished in this country, neither the bankruptcy nor state courts can order one confined therefor, but there are many circumstances arising in the prosecution of cases in which imprisonment is authorized, generally in the nature of contempts for failure to comply with the court's orders, or for fraud.^* A bankrupt may commit a contempt against a state court with which the court of bank- ruptcy would have no power to interfere, as a positive indignity offered to that court in its presence, and in other ways.^® § 425. — Period during which exemption continues. The exemption begins with the filing of the petition and may exist where there is no adjudication of bankruptcy, and where there may never be, the filing of the petition fixing the time,*" and appHes to arrest after the institution of bankruptcy pro- ceedings only, but does not render the institution of such proceedings a cause for release from prior arrest.'^ 26 — Act of 1898, § 63, post, Appendix; court's authority as such and not merely In re Houston, 1 N. B. N. 305, 2 A. B. for the collection of a debt. In re Fritz, E. 107, 94 Fed. 119 j In re Van Orden, 152 Fed. 562, 18 A. B. E. 244. 1 N. B. N. 475, 2 A. B. E. 801, 96 Fed. 29— In re Houston, 94 Fed. 119, 1 N. 86; In re Shufeldt, 2 N. B. N. E. 517; In B. N. 305, 2 A. B. E. 107. re Nowell, 99 Fed. 931, 3 A. B. E. 837; 30— State v. EoUina, 13 Mo. 179. In re Smith, 1 N. B. N. 471, 3 A. B. E. 31— In re Walker, 1 N. B. E. 60, 1 67; In re Shepard, 97 Fed. 187; Barclay Lowell, 222, Fed. Cas. No. 17060; In re T. Barclay, 2 N. B. N. E. 552; but see In Hazelton, 2 N. B. E. 12, 1 Lowell, 270, re Challoner, 2 N. B. N. E. 105, 98 Fed. Fed. Cas. No. 6287; In re Claiborne, 109 82, 3 A. B. E. 442. Fed. 74, 5 A. B. E. 812, 3 N. B. N. E. 27— Wagner v. U. S., 2 N. B. N. E. 622; but see Brandon Nat. Bk. v. Hatch, 1116, 104 Fed. 133, 4 A. B. E. 596. 16 N. B. E. 468. 28 — Bankrupt may be committed as Contra, People ex rel. Taranto v. punishment for contempt where the con- Erianger, 132 Fed. 883, 13 A. B. E. 197; tempt proceedings prosecuted solely as Turgeon v. Emery, 182 Fed. 1016, 25 A. punishment for contempt of the state B. E. 694. Brandenburg — 21 322 BeaNdenbubg on Bankbuptcy - [§425 The term "when in attendance upon a court of bankruptcy or engaged in the performance of a duty imposed by this act," is not to be restricted to the particular occasions when the bank- rupt is physically present in attendance in court, or actually engaged in performing a required duty, but is extended ^^ to the whole period of time during which his performance of the duties imposed by the act may be ordered, that is, until the final adjudi- cation on his application for discharge, or until the time limited for such application has expired,^* and continues during the pendency of an appeal from an order refusing to revoke a dis- charge.^* § 426. — Scope of inquiry into state court proceedings. The exemption is conferred because the party becomes amen- able to the court of bankruptcy the moment the petition is filed against him, and the enforcing of the exemption by affirmative action is an act "to be done under and in virtue of the bank- ruptcy." The court of bankruptcy will not go behind the face of the papers in the case in the state court but will release the bankrupt if on their face it appears that the order was made on a claim that is dischargeable; or remand him if the contrary appears,^^ although the right to go behind the face of the papers is maintained in certain cases.^® § 427. — ^Manner of procuring release. If at the time of filing his petition, a debtor is imprisoned, the court, on application, will order him to be produced on habeas corpus for the purpose of examination but will not order his 32— G. O. Xn. 7768, disapproving In re Glaser, 1 N. B. 33— In re Lewensohn, 99 Fed. 73, 2 E. 73, 2 Ben. 180, Fed. Gas. No. 5474, N. B. N. 381. See eases eited under and In re Kimball, 1 N. B. E. 193, 2 § 424, note 9. Ben. 38, Fed. Gas. No. 7767. 34— In re Chandler, 135 Fed. 893, 13 36 — Electoral College Case, 1 Hughes, A. B. E. 614. 571, Fed. Cas. No. 4336; In re Alsberg, 35— In re Robinson, 2 N. B. R. 108, 16 N. B. R. 116, Fed. Gas. No. 261; In 6 Blatch. 253, Fed. Cas. No. 11939; In re re Williams, 11 N. B. R. 145, 6 Bias. Devoe, 2 B. R. 27, 1 Lowell, 251, Fed. 233, Fed. Cas. No. 17700; In re Glaser, Gas. No. 3843; In re Migel, 2 N. B. E. 1 N. B. R. 73, 2 Ben. 180, Fed. Cas. No. 153, Fed. Cas. No. 9538; In re Valk, 3 5474; In re Kimball, 1 N. B. E. 193, N. B. R. 73, 3 Ben. 431, Fed. Gas. No. 2 Ben. 38, Fed. Gas. No. 7767; In re 16814; In re Kimball, 2 N. B. R. 114, Smith, 18 N. B. R. 24, Fed. Cas. No. 6 Blatch. 292, Fed. Cas. No. 7769; a. c. 12976. 2 N. B. R. 204, 2 Ben. 554, Fed. Cas. No. §427] Aerest/Detentiok and Extbadition 323 release.^^ If during the pendency of the proceedings the peti- tioner is arrested or imprisoned on process in any civil action, a habeas corpus will issue on his application to ascertain if the basis of the arrest is a provable debt and, if it is, he will be dis- charged, otherwise he will be remanded.^* The use of the term "provable" claim in the general orders is in evident conflict with the act which says "dischargeable" debt and must accord- ingly yield thereto. If the cause of action is dischargeable, an injunction after adjudication is discretionary and should be granted (1) if the bankrupt is threatened with arrest; (2) if the suit is not yet in judgment, and, even after judgment, if the rights of the general creditors, not parties to the suit, will be jeopardized by further proceedings; or (3) if the judgment is founded on a transaction which is an act of bankruptcy, or a fraud on creditors or the law; but it should never be granted after the judgment has ripened into an execution sale, provided the state court has or can be given jurisdiction of all interested parties.*' Application is usually made to the bankruptcy court for a writ of habeas corpus and if on the hearing- bankrupt appears entitled an order for his release will be made. The motion may be addressed to the state court issuing the process whtfse duty it is to order the bankrupt's release in a proper case, but a failure or refusal to perform such duty does not deprive the bankruptcy court of its power to release him;*" but the consideration of such application may properly be postponed until the state court has had an opportunity to pass on the federal question.*^ When a court of bankruptcy has no power to discharge a judgment, 37— In re Claiborne, 109 Fed. 74, 5 No. 13773; In re Migel, 2 N. B. E. 153, A, B. E. 812. Fed. Cas. No. 9538; In re Wiggers, 2 38— G. 0. XXX; In re Fife, 109, Fed. Biss. 71, Fed. Cas. No. 17623; In re 880, 6 A. B. E. 258; Barrett v. Prince, O'Mara, 4 Biss, 506, Fed. Cas. No. 10509. 143 Fed. 302, 16 A. B. E. 64. 41— Scott v. McAleese, 1 N. B. N. 39— S. L. & T. Co. V. Benbow, 1 N. 265, 1 A. B. E. 605; Ex p. Eoyall, 117 B. N. 499, 3 A. B. E. 9, 96 Fed. 514. U. S. 254, 29 L. ed. 872; Whitten v. 40— In re WiUiams, 11 N. B. E. 145, Tomlinson, 160 U. S. 241, 40 L. ed. 412; 6 Biss. 233, Fed. Ca^. No. 17700; In re Ex p. Fonda, 117 U. S. 516, 29 L. ed. Glaser, 1 N. B. E. 73,, 2 Ben. 180, Fed. 994; In re Duncan, 139 U. S. 449, 35 L. Gas. No. 5474; In re Simpson, 2 N. B. ed. 219; N. Y. v. Eno, 155 ,U. S. 89, 39 B. 17, Fed. Cas. No. 12879; In re Taylor, L. ed. 80, 16 N. B, E, 40, 1 Hughes, 617, Fed, Cas. 324 BEANDENBrCTEG ON BaNKBUPTCT [§427 it cannot interfere to prevent its enforcement by imprisonment, unless necessary to the exercise of its jurisdiction.^^ The bankruptcy court of one district has the power to order the release of a bankrupt from arrest in another district, if the the jailor is within its jurisdiction,* ^ and such order fully pro* tects the officer holding him and he will not thereafter be Uable to punishment by the State court nor to an action for an escape." As the court may suspend or vacate the protection from arrestj it may grant it on terms, and hence may require the bankrupt to furnish a bond with sureties conditioned that duriig its con- tinuance he will obey all orders of the court, and not meanwhile depart from its jurisdiction.*^ A composition satisfies the debt, though based on a sale pro- cured through false representations, and avoids an arrest on civil process.*® § 428. Detention of bankrupt for examination— Writ of ne exeat. Section 9b of the bankruptcy act provides that: "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 quali- fication 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 busi- ness to avoid examination, and that his departure will defeat the proceedings in bankruptcy, issue a warrant to the marshal, directing him to bring such bankrupt forthwith before the court for examination. If upon hearing the evidence of the parties it shall appear to the court or a judge thereof that the allega- tions are true and that it is necessary, he shall qrder 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 exam- ination, from time to time, not exceeding in all ten days, as 42— In re Pettis, 2 N. B. R. 17, Fed. 8109, 91 U. S. (1 Otto) 516, 23 L. ed. Gas. No. 11076. 414. 43— In re Seymour, 1 N. B. E. 29, 1 44— In re Kimball, 1 N. B. B. 193, Ben. 348, Fed. Gas. No. 12694; Hazel- 2 Ben. 38, Fed. Gas. No. 7767. ton V. Valentine, 2 N. B. E. 12, 1 Lowell, 45— In re Lewensohn, 2 N. B. N. E. 270, Fed. Gas. No. 6287; Lathrop v. 381, 99 Fed. 73; Act of 1898, § 2 (15). Drake, 13 N. B. R. 472, Fed. Gas. No. 46— Bamberg v. Stern, 18 N. B. B. 74. § 428] Aebest, Detention and Extbadition 325 required by the court, and for his obedience to all lawful orders made in reference thereto."*'' The present law gives the court greater power than that under the act of 1867, but the time within which the debtor may be detained is limited to ten days. The marshal should be directed simply to bring the debtor before the court as the power to hold him ten days depends on the necessary facts being established by evidence at the hearing. Under its broad law and equity powers,** the bankruptcy court may issue an order in the nature of a me exeat as broad as that provided by sections 717 and 5024 of the Eevised Statutes of the United States, whenever necessary for the enforcement of the provisions of the law, and may there- under arrest the bankrupt whenever the facts warrant the belief that he is about to abscond with or without his property to the embarrassment of the bankruptcy proceedings, and the fact that such order is not in the form provided in this subdivision, requir- ing the bankrupt to be brought before the court for examination, but in the form usually employed under section 717 of the Bevised Statutes does not make the writ void, especially where the arrested parties are immediately brought before the judge and do not ask for an examination or object that none was given, but offer bail which is accepted.*® The right of arrest given by this provision of the law confers no authority upon the court of bankruptcy to issue a warrant for the arrest of a bankrupt who is not within the district at the time, but who removed there- from prior to the commencement of the bankruptcy pro- ceedings.^" 47' — Analogous provision of Act of session provisionally of all the property 1867, See. 40. . . . If it shall appear and effects of the debtor, and safely keep that there is probable cause for believ- the same until the further order of the ing that the debtor is about to leave court. the district, or to remove or conceal his 48 — Act of 1898, § 2 (15) ; In re goods and chattels or his evidence of Schenkein et al., 113 Fed. 421, 7 A. B. property, or make any fraudulent con- E. 162; In re Cohen, 136 Fed. 999, 14 veyance or disposition thereof, the court A. B. E. 355. may issue a warrant to the marshal of 49 — In re Lipke, 2 N. B. N. E. 347, 98 the district, commanding him to atrest Fed. 970, 3 A. B. E. 569; Comp. Usher the alleged (bankrupt) and him safely v. Pease, 12 N. B. E. 305, 116 Mass. 440; keep, unless he shall give bail to the In re McKibben, 12 N. B. E. 97, Fed. satisfaction of the court for his appear- Cas. No. 8859; In re Hale, 18 N. B. ance from time to time, as required by E. 335, Fed. Cas. No. 5911. the court, until the decision of the court 50 — In re Ketchum, 108 Fed. 35, 5 A. upon the petition or the further order of B. E. 532. the court, and forthwith to" take pes- 326 Bbandenbubg ON Bankkuptoy ' [§428 The application for a writ of ne exeat should be supported by an affidavit made by the complainant or some person conversant with the facts which contain positive allegations that there is an equitable debt due and that the defendant intends to go abroad or has declared his intention to go, and that the debt will be in danger by the defendant's going abroad.^^ An irregularity in the omission of a formal order authorizing the issue of a writ of ne exeat may be cured by signing such order nunc protunc.^^ The writ of ne exeat will not be vacated until the examination is fully completed.''® § 429. — Release upon bond. A defendant, arrested upon a writ of ne exeat may obtain a discharge of the writ upon giving bond with surety to answer and be amenable to the process of th?i court.^* The court of bankruptcy has power to chancer a bond so giveii.®^ A tempo- rary absence from the distri'ct is a breach of such bond.^' § 430. Extradition of bankrupt, § 431. — Power to extradite. Under section 2, clause 14 and section 10 of the act, after a warrant, or order, of arrest has been issued for a bankrupt for the commission of an offense under the bankrupt law,^'' or on a charge of contempt,^® he may be extradited if found within the jurisdiction of a court other than the one issuing the warrant, or order. These provisions do not deal with or concern the jurisdiction or power of the court in which the bankruptcy case is pending to issue a warrant for the apprehension of the banfc rupt for the purpose of examination, but only confer power on a court other than the one issuing the warrant to extradite the bankrupt.^* 51— Hoffschlaeger Co., Ltd., v. Young 55— In re Appel, 163 Fed. 1002, 20 Nap, alias Young Lap, 12 A. B. E. 510. L. E. A. (N. S.) 76, 20 A. B. E. 890. 52^In re Bprkowitz, 173 Fed. 1012, 56— In re Appel, 163 Fed. 1002, 20 L. 22 A. B. E. 231. R. A. (N. 8.) 76, 20 A. B. E. 890. 53— In re Berkowitz, 173 Fed. 1013, 57— See. 29b, act of 1898. 22 A. B. E. 227, 233. 58— See. 2 (14), and 41a, act of 1898. 54— Griswold v. Hazard, 141 TJ. S. 260 ; 59— In re Ketohum, 108 Fed. 35, 5 35 L. ed. 678; In re Appel, 163 Fed. A. B. E. 532. 1002, 20 L. E. A. (N. S.) 76, 20 A. 9, B. §90, § 432] AkREST, DEfTENTIOK AND ExTEADITION 327 § 432. — Manner of extraditing. The bankrupt is to be extradited in tbe same manner in wbich persons under indictment are now extradited from one district witbin which a district court has jurisdiction to another.®" The Eevised Statutes ®^ provide that for any offense against the United States, the offender may be arrested and imprisoned, or bailed, as the case may be, for trial before the court having cog- nizance of the offense; by any United States judge, United States commissioner, chancellor, judge of the supreme, superior or com- mon pleas court, mayor of a city, justice of the peace or other magistrate, of any state where he may be found, and agreeably to the usual mode of process in such state, and at the expense of the United States; and, where any offender is committed in any district other than the one where the offense is triable, the judge of the district where the offender is imprisoned shall seasonably issue, and the marshal execute, a warrant for his removal to the trial district. Though there may be slight differences in the mode of procedure in different states, the usual course is to pre- sent a sworn complaint to a United States commissioner, or other committing magistrate, who thereupon issues a warrant toi the marshal to arrest and bring the bankrupt before him. When brought before such officer, the bankrupt makes his plea, and, if it be guilty, he is bailed to appear for trial in the proper court, or committed to await the order of removal as the case may be. Otherwise he waives examination or demands a hear- ing. In the former case, the same disposition is made of him as on a plea of guilty. At the examination evidence is introduced for and against, counsel heard and the identity of the offiender and his probable guilt must be established. If this is done he is bailed or committed as before stated. Thereupon the district attorney, accompanied by the marshal and the prisoner, go before the judge and apply for an order of removal, and the judge after satisfying himself of the prisoner's identity, his probable guilt, and that he is charged with an offense within the jurisdiction of the trial court, should issue an order direct- ing the marshal to remove the prisoner to the trial district, or may admit him to bail; or, if it appears the removal should not be made, discharge him.®^ 60— Act of 1898, § 10. 62— In re Dana, 68 Ped. 886; Horner 61— Rev. Stat. tJ. S., § 1014, v. U. S. 143 U. S. 207, 36 L. ed. 126. 328 Bbandenbubg on Bankeuptcy [§ 432 When a bankrupt has once been extradited, he may be detained ** and obedience to all lawful orders enforced by fine or imprisonment, or both.** 63— Sec. 9, act of 1898. 64— Sec. 2 (13), act of 1898. CHAPTER XIV Meetings op Cbeditoks § 433. Pirst meeting. § 434. — Nature and purpose. § 435. — Time and place of meeting. §436. — Notice. §437. — Adjournments. i 438. — Judge or referee to preside. §439. — Bankrupt's attendance. § 440. — Allowance or disallowance of claims. § 441. — Appointment of trustee. § 442. Subsequent meetings. § 443. — When caUed. §444. — Notice. § 445. — Dividend and final meetings. § 446. Duties of creditors at meetings. § 447. Voting at creditors ' meetings. § 448. — In general. § 449. — Individual and partnership creditors. § 450. — Assigned claims. § 451. — Secured, priority and preferred creditors. § 452. — Belation of creditor and bankrupt as affecting vote. § 453. — Fraudulent voting. ' § 454. — Voting by attorney or proxy. § 455. — Change of vote. §456. — Objections to claim and effect thereof. § 457. Majority in ntmiber and amount required. §433. First meeting. §434. — Nature and purpose. The term "first meeting" does not necessarily mean the first; assembling of, the creditors, but refers to the meeting called to choose a trustee; for there may be adjournments if ret^uired as may readily happen where the creditors are numerous and the interests involved large, but all adjournments are the same meeting in contemplation of law; and an objection to the appoint- ment of a particular trustee made at that stage is ieonsidered as continuing unless it appears to have b§en withdrawn. The 329 330 Beandenbukg ON Bankeuptoy [§434 meeting is for business and must be held in strict accordance with, the notice, at tbe time and place specified, not at some other time, sooner or later, or another place, though near by; and, if no creditors appear, the meeting is as effectual as if they were present or represented, the judge or referee not being authorized or required to wait for or "count a quorum;" and, in such case, if the schedules disclose no assets, the court may order that no trustee be appointed.* § 435, _ Time and place of meeting. The first meeting of the creditors of the bankrupt should be held, not less than ten nor more than thirty days after the adjud- ication, at the county seat of the county in which the bankrupt has had his principal place of. business, resided, or had his domicile; or if that place would be manifestly inconvenient as a place of meeting for the parties in interest, or if the bankrupt is one who does not do business, reside, or have his domicile within the United States, a place for the meeting should be fixed 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 soon as may be thereafter, when it shall be held.2 §436. —Notice. - Creditors are entitled to at least ten days' nbticfe by mail, from the referee to their respective addresses, of all meetings of creditors, in addition to which notice of the first meeting must be published at least once, and as many times additional as the court may direct, the last publication to be at least one. wgek, prior to the date fixed for the meeting.^ Courts of bankraptcy are required to designate a, newspaper published within, their respective districts, and in the county in which the bankrupt resides or the major part of his property is situated, in which notices shall be inserted and* for the con- venience of parties in interest, additional newspapers. taay be designated.* Failure to give such notice as required, would 1— G. 0. XV; In re Eagles & Crisp, 2— Act of 1898, § 55a. 2 N. B. N. R. 462, 3 A. B. R. 733, 99 . 3— Act of 1898, § 58.' . ,.' ' Fed. 696 ; In re Phelps, ' 1 N. B. R. 139, ' ?--Aet of 1898, § 28. ^ - Fed. Cas. KTb. 11071; In re. ISTorton, 6 '■'-■ -: -.V ::: .-' N. B. R. 297, Fed. Cas. No. 10348. iic-c § 437] Meetings of Ckeditoks 331 render all subsequent proceedings void." The form of notice is prescribed and the meeting must be held in strict accordance with the notice given,^ Where notice. of the first meeting of creditors does not reach creditors, and the court is satisfied that their votes would have changed the result, and that they did not attend through failure to receive notice, on their application the meeting should be reopened and each vote received, but, if one waits until a later meeting, he caimot have the first reassembled without good cause for the delay.^ The objection of the bank- rupt to the first meeting of creditors because the notice was mailed from a list prepared by the referee, the bankrupt failing to file a list within the time required and with the necessary data, as a result of which many creditors appearing on bankrupt's list failed to receive notice, will be overruled.^ One claiming to be a creditor to the knowledge of the referee is entitled to notice of the first meeting though he is not sched- uled by the bankrupt as a creditor.® §437. — Adjournments. With the exercise of proper legal discretion a referee has entire control over proceedings pending before him, including the power to grant or refuse adjournments and postponements; ^^ but it has been held that he could not adjourn a meeting fixed for a certain day, on which he was prevented from attending, by orders of adjournment sent his assistant, while he remained absent." An adjournment wiU not be granted on the, ground of surprise where the surprise relied upon is not as to a fact, but arises from an oversight of a provision of law.^^ The meeting may be postponed to enable a creditor to restate or perfect his proof of debt.^^ Where the majority of creditors 5— In re Hall, 2 N. B. E. 68, Fed. Chemy, 19 N. B. E. 16, Ted. Cas. No. Cas. No. 5922. 2637; In re Kaufman, 179 Fed. 552, 24 6— Form 18; In re Eagles & Crisp, 3 A. B. E. 117. N. B. N. E. 462, 3 A. B. E. 733, 99 Fed. 11— In re Dickinson, 18 N. B. E. 514, 696. •' Fed. Cas. No. 3895. 7— In re Spencer, 18 N. B. E. 199, Fed. 12— In re Finlay, 104 Fed. 675, 3 A. Cas. No. 13229. B. B. 738, 3 N. B. N. E. 78; see In re 8— In re Schiller, 2 A. B. E. 704, 96 Blankfein, 2 N. B. N. E. 49, 97 Fed. 91, Fed. 400. 3 A. B. E. 165. 9— In re Evening Standard Pub. Co., 13— In re Morris, 154 Fed. 211, 18 164 Fed. 517, 21 A; B. E. 156. A. B. E. 828; In re Spencer, 18 N. B. 10— In re Hyman, 2 N. B. E. 107, 3 E. 199, Fed. Cas. No. 13229. Ben. 28, Fed. Cas. No. 6984; In re 332 Bbandbitbueg on Bankbtjptcy [§ 437 are represented by an attorney wlio was formerly attorney for the bankrupt, the proper practice is to postpone the election for a few days in order to get at the exact fact," but it has been held that the refusal of a referee to postpone the first meeting, after holding certain proxies invalid, is not an abuse of his discre- tion.^8 § 438. — Judge or referee to preside. Either the judge or referee presides and should be punctually present at the time and place specified in the notice. The ref- eree's duties being judicial, he does not otherwise participate in the meetings, but should conduct himself with dignity and impartiality as most familiar with the matters in question.^* § 439. — Bankrupt's attendance and examination. A bankrupt should attend the first meeting, if required by the court to do so, and when present at such meeting and at such other time as the court shall order, he must submit to an examination concerning the conduct 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 affecting the administration and settle- ment of his estate." The examination should be under oath.^^ A writ of habeas corpus ad testificandum to produce the bank- rupt for examination, while allowable in the discretion of the court, need not be allowed regardless of circumstances or con- dition. Thus where the alleged bankrupt was confined in the hospital for criminal insane of another state, it was held that an order quashing the writ was properly quashed.^^ The scope and conduct of exarhinations, generally, is treated elsewhere.^ ° 14— In re Kaufman, 179 Fed. 552, 24 17— Act of 1898, § 7a. A. B. R. 117. 18— Edelstein v. United States, 149 15— In re McGill, 106 Fed. 57, 5 A. B. Fed. 636, 9 L. R. A. (N. S.) 236, 17 A. E. 155. B. R. 649. 16— Act of 1898, § 55b. 19— In re Thaw, 166 Fed. 71, 21 A. Analogous provision of act of 1867. B. R. 561. "Sec. 4. . . . Every register in bank- 20 — See post, Chapter XV. ruptcy shall . . . hold and preside at meetings of creditors." §443] Meetings op Cbeditoes 333 • § 440. — Allawance or disallowance of claims. Before proceeding with other business the presiding officer may allow or disallow claims of creditors presented.^^ The court should be able without difficulty or delay to pass on all or most of the claims with the assistance of the schedules, the jjankrupt, creditors and others interested. Claims of secured creditors and of those who have priority, may be allowed to enable such creditors to participate in the proceedings at the " meetings held prior to the determination of the value of their securities of priorities.^^ If a particular claim is objected to, the question should be heard as soon as feasible, and, if the judge or referee is not satisfied with the weight of evidence, the hearing may be t)ost'poned and heard at some subsequent time and, if the creditor objects to such postponement, he should have the objection entered and the question certified to the judge in case the postponement was by the referee ; ^^ or if claims are presented which do not appear on the bankrupt's schedules in an involuntary proceeding action on them may be postponed until after the election of the trustee.^* § 441. — Appointment of trustee. At the first meeting of the creditors after the adjudication or after a vacancy has occurred in the office of trustee, or after the estate has been reopened, a composition set aside or dis- charge revoked, they should appoint one or three trustees of such estate,^^ and fix the amount of their bond, which may at any time be increased.^® § 442. Subsequent meetings. §443. —When called. Section 55d of the act provides that: "A meeting of cred- itors, subsequent to the first one, may be held at any time and place when all of the creditors who have secured the allowance 21— Act of 1898, § 55b. See also proof and Allowance of 22— Act of 1898, § 57e. Claims, post, § 660. 23— In re Jackson, 14 N. B. E. 449, 7 25— Act of 1898, § 44. Biss. 280, Fed. Caa. No. 7123; see In re 26— Act of 1898, § 50e. Stevens, 4 N. B. R. 122, Fed. Cas. No. See also post, Chap. XIX. 13391. 24— In re Milwain, 12 N. B. R. 358, Fed. Cas. No. 9623. 334 BEANDElfBUaG ON BanKBTJPTOT [§443 of their claims sign a written consent to hold a meeting at such time and place." ^'^ Section 55e provides that: "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 su%h meeting to be held at a desig- nated place, the court shall call such meeting at such place within thirty days after the date of the filing of the request." In the event that no trustee is appointed by reason of the fact that the schedule of a voluntary bankrupt discloses no assets, and if no creditor appears at the first meeting, the court may order that no meetings other than the first meeting shall be called.^^ Whenever by reason of a vacancy in the office of trustee, or for any other cause, it becomes necessary to call a special meet- ing, the court may call such meeting.^^ 27 — ^Analogous provision of act of 1867. "See. 27. . . . At the expiration of three months from the date of the adjudication of bankruptcy in any case, or as much earlier as the court may direct, the court, upon request of the assignee, shall call a general meeting of the creditors, of which due notice shall be given, and the assignee shall then re- port, and exhibit to the court and to the creditors just and true accounts of all his receipts and payments, verified by hia oath, and he shall also produce and file vouchers for all payments for which vouchers shall be required by any rule of the court; he shall also submit the schedule of the bankrupt's creditors and property as amended, duly verified by the bankrupt, and a statement of the whole estate of the bankrupt as then ascertained, of the property recovered and of the property outstanding, specifying the cause of its being outstanding, also what debts or claims are yet undetermined, and stating what sum remains in his hands. At such meeting the majority in value of the creditors present shall determine whether any and what part of the net proceeds of the estate, after deducting and retaining a sum sufficient to provide for all undetermined claims which, by reason of the distant residence of the creditor, or for other sufficient reason, have not been proved, and for other ex- penses and contingencies, shall be divided among the creditors; but unless at least one-half in value of the creditors shall attend such meeting, either in person or by attorney, it shall b6 the duty of the assignee so to determine. . . . "See. 28. . . . If by accident, mistake, or other cause, without default of the assignee, either or both of the said second and third meetings should not be held within the times limited, the court may, upon motion of an interested party, order such meetings, with like effect as to validity of the proceedings as if the meet- ing had been duly held. ' ' 28— G. O. XV. 29— G. O. XXV. § 446] Meetings of Cbeditobs 335 §444. —Notice. Notice must be given of all meetings.^" Notices of special meetings called upon the petition of creditors for the puipose of re-examiaing certain claims, should be sent out by the referee unless otherwise ordered by the judge.*^ § 445. — Dividend and final meetings. Whenever the affairs of the estate are ready to be closed a final meeting of creditors must be ordered.^^ The trustee must lay before the final meeting a detailed state- ment of the administration of the estate ; and make final reports and file final accounts with the court fifteen days before the day fixed for such meeting,** of which ten days' notice must be given ail creditors.** The meeting for the declaration of a dividend may properly and conveniently be combined ordinarily with the meeting for the payment of such dividend; and, where there is but one divi- dend, there can be no objection to a further consolidation in ■ the interest of economy, both of time and expense, proper notice being given.*^ § 446. Duties of creditors at meetings. The creditors should at each meeting take such steps as may be pertinent and necessary for the promotion of the best inter- ests of the estate and the enforcement of the act.*^ 30 — ^In re Stein, 1 N. B. N. 339, lA. shall, as soon as may be, convert such B. B. 662, 94 Fed. 124. state or effects into money, and within 31 — G. O. XXI (6) ; In re Stoever, two months after the same shall be so 3 N. B. N. E. 314, 105 Fed. 355. converted, the same shall be divided in 32 — Act of 1898, § 55f . manner aforesaid. Further dividends Analogous provision of act of 1867. shall be made in like manner as often as "Sec. 28. . . . That the like pro- occasion requires; and after the third ceedings shaU be had at the expiration of meeting of creditors no further meeting the next three months, or earlier, if prac- shall be called, unless ordered by the ticable, and a third meeting of the credit- court. ' ' ors shall then be called by the court, and 33^Aet of 1898, § 47a. a final dividend then declared, unless any 34 — ^Act of 1898, § 58a. action at law or suit in equity be pending, 35 — In re Smith, 1 N. B. N. 404, 2 Or unless some other estate or effects of A. B. R. 648. the debtor afterwards come to the hands 36 — Act of 1898, § 55c. of the assignee, in which case the assignee 336 Beandenbueg on Bankbuptcy [§ 447 § 447. Voting at creditors' meetings. § 448. — In general. To entitle creditors to participate in and vote at meetings of creditors, they must own claims, provable in bankruptcy, wHich are neither secured, entitled to priority of payment, nor pre- ferred, and must not only have proved such claims but have had them allowed,^'' and be in actual attendance.** Such cred- itors as are prohibited from proving their debts will not be allowed to vote.*® Claims proved after the election of a trustee will not entitle claimant to vote thereon to change the result though an appeal has been taken from the election.*<' The creditors' powers are limited to voting for the trustee.*^ The vote for trustee should be taken at the earliest practicable moment, but creditors who have proved their claims may, if they choose, postpone action until others have proved, though they are not compelled to do so.*^ § 449. — Individual and partnership creditors. Creditors who have proved a debt against a part;ner of a firm in bankruptcy have no right to vote for a trustee for the firm, only partnership creditors being so entitled;** though,. in case of the separate bankruptcy of one member of a firm, both indi- vidual and joint creditors are entitled to prove their claims and vote for the trustee, but the joint creditors do not compete in the separate assets.** 37— In re Eagles & Crisp, 2 N. B. N. 41— In re Campbell, 17 N. B. E. 4, 3 E. 462, 3 A. B. E. 733, 99 Ted. 696; In Hughes, 276, Fed. Caa. No. 2348. re Walker, 1 N. B. N. 510, 3 A. B. E- 35, 42— In re Lake Superior, etc., 7 N. B. 96 Fed. 550; In re Eichards, 2 N. B. N. E. 376, Fed. Cas. No. 7997. E. 1027, 103 Fed. 849; In re Brown, 2 43— In re Scheiffer, 2 N. B. E. 179, N. B. N. E. 590; In re Briseo, 2 N. B. E. B'ed. Cas. No. 12445; see In re Beok, 110 78, Fed. Cas. No. 1886; In re Hill, Fed. ^ed. 140, 6 A. B. E. 554; In re Cas. No. 6481;. In re Altenheim, Fed. * <^"sp, 2 N. B. N. E. 462, 3 A. B. E. Cas. No. 268. 733, 99 Fed. 696; In re Phelps, 1 N. B. 38— In re Kaufman, 179 Fed. 552, 24 ^- ^^^' ^®^- ^^^- ^°- ^^^'^^> ^ec 5b, act of 1898. A. B. E. 117; In re Eichards, 2 N. B. N. ,, ^ E. 1027, 103 Fed. 849, 4 A. B. E. 631. ^ t^^" '^ ^'^^^^' ^^ ^- ^- ^- 5°^, 90 T Q. a\.t t, ^ 7^„ -i , ^^^- Cas. No. 4624; In re Webb, 16 N. 39— In re Stevens, 4 N. B. E. 122, Fed. -r -r 9«;9 a a^' ooc t- j r. -vr Caa No I'S'^qi ' B. E. 258, 4 Sawy. 326, Fed. Cas. No. ,: °- "t ; c 17317; Wilkins v. Davis, 15 N. B. E. 60, 2 40-In re Lake Superior, etc., 7 N. B. LoweU, 511, Fed. Cas. No. 17664; see E. 376, Fed. Cas. No. 7997. Partnership, ante, § 97, et seq. § 451] Meetings of Ceeditoes 337 § 450. — Assigned claims. Tlie owner of a mere beneficial interest in a claim is not entitled to vote. Hence when the claims of a number of cred- itors have been assigned to a trustee, the creditors lose their right to vote separately," but the fact that bankrupt's friends have endeavored to buy up the debts against him and stop the bankruptcy proceedings constitutes no reason for not voting upon the debts.*^ Claims secured through the bankrupt's dis- closure of the contents of his schedules prior to the filing of the same should not be allowed any part in the selection of the tinistee.*'' The mere fact that an attorney was formerly in the employ of the bankrupt and filed his petition in bankruptcy, will not pre- vent him from accepting claims in good faith for the purpose of voting on them for trustee, it appearing that the relation' between the attorney and bankrupt has ceased.** Claims prpved before the election and sold and assigned after proof must be voted upon by the owner and not by the original creditor, the owner being entitled to one vOte. ,49 § 451. — Secured, priority and preferred creditors. A creditor whose claim is secured or has priority cannot vote unless such claim exceeds the security, and then only for the excess ®° or for so much of his debt as is unsecured, when tho' security applies only to a specific portion of the debt;.^^ and a preferred creditor can only vote by surrendering such prefer- ence.^'' A "secured creditor" includes a creditor who has a security for his debt npon the property of the bankrupt pf a 45 — In re Columbia Iron Works, 142 provisions of this act shall vote for or Fed. 234, 14 A. B. E. 526; Ik re Kenney be eligible as assignee." In re Milne, & Co., 136 Fed. 451, 14 A. B R. 61i: TurnbuU & Co., 159 Fed. 280, 20 A. B. 46— In re Frank, 5 N. B. K. 194, 5 E. 248; In re Campbell, 17 N. B. E. 4, Ben. 164, Fed. Cas. No. 5050. 3 Hughes, 276, Fed. Cas. No. 2348. 47— In re Lloyd, 148 Fed. 92, 17 A. B. 51— In re Parker, 10 N. B. E. 82, Fed. E. 96. Cas. No. 10754. 48— In re Cooper, 135 Fed. 196, 14 A, 52— Sees. 56, 57, act of 1898; In re B. E. 320. Eagles & Crisp, 2 N. B. N. E. 462, 3 A. 49— In re Frank, 5 N. B. E. 194, 5 Ben. B. E. 733, 99 Fed. 696; In re Eiohards, 164, Fed. Cas. No. 5050., 2 N, B. N. B. 1027, 103 Fed. 849, 4 A. 50— Act of 1898, |§ 56b, 57e. B. E. 631; In re, Malirio, 118 Fed. 368, 8 ..,;Analogous provision ' of act of 1867. A. B. E. 205; Brown v. City National "Sec. 18. . . ,; No peijson who has re- Bank, 72 Misc. (N. Y.) 201, 26 A. B. E. ceived any preference contrary to the 638. Brandenburg— 22 338 Bkandenbueg ON Bankruptot [§451 nature to be assignable under tbe act, or wbo owns such a debt for which some indorser, surety or other person, secondarily liable for the bankrupt, has such security upon bankrupt's assets;^* and so far as concerns voting, does not include cred- itors holding securities on the property of third persons, or on exempt property.^* A secured creditor who has sold his secur- ity, bid it in himself and proved his claim for the difference between the face of the claim and the amount bid at the sale cannot vote.^^ Firm creditors are entitled to vote the full amount of their claims if otherwise proper, except as for such securities as are held upon partnership assets, while the value of any securities upon property of individual members of the firm are not securi- ties which need be deducted in order to ascertain the value of claims against the firm.^® Creditors having claims which are secured or entitled to priority may, if they so desire, under the terms of the act, prove and have their claims allowed for the amount of the estimated excess over the security or priority and to that extent vote for the trustee,^^ or in case of preferred creditors, they may surren- der the preference, prove their debts and participate to the full amount.^^ A creditor, who received a payment under an assign- ment more than a year before the bankruptcy proceedings, is entitled to have his claim counted and to vote on it in the amount less the credit.^® A sworn proof of claim negatives a preference and throws the burden of proof upon the creditors objecting on that ground to the voting power of a claim.^" 53— Act of 1898, § 1 (23). & Crisp, 2 N. B. N. R. 462, 3 A. B. R. < 54— in re Stillwell, 7 N. B. E. 226, 733, 99 Fed. 695; In re Parkes, 10 N. Fed. Cas. No. 13448. B. E. 82, Fed. Cas. No. 10754; In re Bol- 55— In re Hunt, 17 N. B. R. 17205, ton, 1 N. B. E. 83, 2 Ben. 189, Fed. Cas. Fed. Cas. No. 6881. No. 1614; In re Parham, 17 N. B. R. 56— In re Coe, Powers & Co., 1 N. B. 300, Fed. Cas. No. 10712; Contra, In re N. 294, 1 A. B. E. 275; In re Thomas & Stillwell, 7 N. B. E. 266, Fed. Cas. No. Siryer, 8 Biss. 139. 13448. 57— Act of 1898, § 57e. In re Colvim- 59— In re Folb, 1 N. B. N. 134, 1 A^ bia Iron . Works, 142 Fed. 234, 14 A. B. E. 22, 91 Fed. 107. B. E. 526. , 60— In re Milne, TurnbuU & Co., 159 58— Act of 1898, § 57g. In re Eagles Fed, 280, 20 A, B, R. 248. §454] Meetings of Ceeditoes 339 §452. — Relation of creditor and bankrupt as affecting vote, A creditor holding a valid claim cannot be barred from voting because he is a relative of or the attorney for the bankrupt ®^ or in case of a bankrupt corporation because he is a stockholder, officer or attorney thereof.®* However, where a vote is cast by a relative of the bankrupt, the court should convince itself before approving thte election, that the trustee so elected is not in the interest of the bankrupt, but will perform his duties with- out feai" or favor.®* §453. — Fraudulent voting. A corrupt vote should be rejected; and if the result is not affected by such rejection, a new election need not be ordered.®* §454. — Voting by attorney or proxy. While the act does not in so many words provide for repre- sentation at creditors' meetings otherwise than in the person of the creditor, yet in view of the fact that the term "creditor" comprehends any one who owns a demand or claim provable in bankruptcy, and may include his duly authorized agent, attorney or proxy, ®^ it is clear that the law-makers intended to sanction a mode of representation through a duly authorized agent, attorney or proxy and this was so understood by the supreme court.®® This is further borne out by the fact that a penalty is provided for any person presenting under oath any false claim for proof against the estate of a bankrupt, or using any such claim in composition, personally or by agent, proxy or attorney, or as agent, proxy or attorney.®'' An attorney, agent or proxy should be required, before being permitted to vote, to produce and file written authority from the creditor, which should be filed by the referee as part of his record.®^ While the authority of an attorney in good standing 61— In re Ployd, 183 Fed. 791, 25 A. 64— In re Pfromm, 8 N". B. R. 357, Fed. B. R. 194. Cas. No. 11061. 62— In re Day & Co., 174 Fed. 164, 23 65— Act of 1898, § 1 (9). Matter of A. B. R. 56; In re Stradley & Co., 187 Kaufman, 179 Fed. 552, 24 A. B. R. 117. Fed. 285, 26 A. B. R. 149; In re Syracuse 66— G. O. IV. Paper & Pulp Co., 164 Fed. 275, 21 A. B. 67— Act of 1898, § 29b (3). R. 174. 68— In re Eagles & Crisp, 2 N. B. N. 63— In re McGill, supra; In re Day- R. 462, 3 A. B. R. 733, 99 Fed. 695'; In ville Woolen Co., 114 Fed. 674, 8 A. B. R. re Blankfein, 2 N. B. N. R. 49, 3 A. 85. See In re Ployd, 183 Fed. 791, 25 B. R. 165, 97 Fed. 191; In re Richards, A. B. E. 194. 340 Beandejstbueg on Bankbuptcy [§454 to appear and act for a client, whom he assumes to represent,: is presumed and may be presumed in the ordinary matters arising in bankruptcy proceedings,^^ this presumption is limited to an attorney's ordinary duties, and voting for a trustee in bank, ruptcy is an act so essentially different in its nature and char- acter from an attorney's ordinary duties and the considerations entering into the choice of a trustee are so foreign to a lawyer's ordinary functions or presumed knowledge or skill, that the right to vote cannot be deemed to be a part of his implied' author- ity nor presumed to be conferred upon him from his mere retainer.''*' The power of attorney should be acknowledged.''^ In states where justices of the peace are expressly authorized to take oaths, they may take the acknowledgment.''^ While the execu- tion of a letter of attorney by one member of a firm for the firm is sufficient,''^ it must contain the oath of the person executing it showing that he is a member of the partnership.''* A letter of attorney appointing three substitutes acknowledged^ before one of them would be irregular as to the one taking the acknowl- edgment, but would doubtless be valid as to the other two.''^ The court does not look with favor upon the practice of can- vassing creditors to secure votes,''^ and no attorney should be permitted to vote any claim that has come to him through the instrumentality of the bankrupt or his attbmeys.''^ The referee 2 N. B. N. E. 1027, 103 Fed. 849; but see Contra: In re Crooker Co., 27 A. B. In re Pauly, 1 N. B. N. 405, 2 A. B. E. E. 241. 334; In re Brown, 2 N. B. N. E. 590. 71— In re Chistley, 10 N. B. E. 268, 69— In re Paulj, 1 N. B. N. 405, 2 FeA. Cas. No. 272; Contra, In re Powell, A. B. E. 833. 2 N. B. E. 17, Fed. Cas. No. 11354. 70— In re Eagles & Crisp, 2 N. B. N. 72— G., O. XXI C5). In re Eoy, 185 E. 462, 3 A. B. E. 733, 99 Fed: 695; In Fed. 551, 26 A. B. E. 4. re Sugenheimer, 1 N. B. N. 59, 1 A. B. 73— In re Barrett, 2 N. B. E. 165, 2 E. 425, 91 Fed. 744; In re Blankfein, ' Hughes, 444, Fed. Cas. No. 1043; see In 2 N. B. N. E. 49, 3 A. B. E. 165, 97 Fed. re Finlay, 3 A. B. E. 78. 191; In re Eichards, 2 N. B. N. E. 1027, 74-G. O. XXI. In re Blue Eidge 103 Fed. 849, 4 A. B. E. 631; In re Packing Co., 125 Fed. 619, 11 A. B. E. Scully, 108 Fed. 372, 5 A. B. E. 717; In 36; In re Finlay, 3 A. B. E. 738. re Finlay, 3 N. B. N. E. 78; In re Purvis, 75— In re Sugenheimer, 1 N. B. N. 59, 1 N. B. E. 163, Fed. Cas. No. 11476; In 135, 1 A. B. E. 425, 91 Fed. 744 re Knoepfel, 1 N. B. E. 23, 1 Ben. 330, 76— In re Fisher, 193 Fed. 104, 26 Fed. Cas. No. 7891; s. c. 1 N. B. E. 70, A. B. E. 793. Fed. Cas. No. 7892; Contra, In re Brown, 77— Falter v. Eeinhard, 104 Fed 292 2 N. B. N. E. 590. 2 N. B. N. E. 1119; In re Law, 13 A. §454] Meetings of Cbeditoes 341 is warranted, therefore, when presiding at the first meeting of creditors to determine whether one holding a proxy obtained, in the interest of the bankrupt should be perraitted to vote: for a trustee of his choice^ and if convinced that the party offering to qualify as a voter does so in the interest of the bankrupt, he may be refused permission to vote, and should not be counted as present and necessary for a choice of trustee.''^ However, claims of creditors who have employed the attorney of the bank- rupt in a regular way should not be disallowed merely because the attorney has acquired other claims unprofessionally.''^ Where the referee determines that the attorneys representing^ the majority in number and amount of the creditors improperly procured their proxies or are improper persons t6 vote the claims of such creditors the meeting should be postponed for a reasonable time to enable such creditors to appoint proper rep- resentatives.®" "Where, however, he allows the minority cred- itors to elect a trustee, the person so elected may serve until another person is elected in his place.®^ There is no statutory provision which forbids a creditor to have as his agent or attorney the person who acted as the attor- ney for the bankrupt in the preparation of his consent to an adjudication, but judicial policy greatly discourages a practice of attorneys at law acting as attorneys at the same time both for the bankrupt and for his creditors.®^ If, however, by want of proper advice creditors exercise their right to name and do name as their agent to act for them such attorney, they should not, for that reason alone, be absolutely denied the right to a voice in the selection of a trustee, but the election should be postponed in order to determine whether such attorney has ceased to be attorney for the bankrupt, or whether the creditors B. R. 650; In re Lloyd,' 148 Fed. 92, 17 81— In re Walker & Co., 204 Fed. 132, A. B. E. 96. See also, post, Chapter XIX. 29 A. B. E. 499. 78— In re McGill, 106 Fed. 57, 5 A. 82— In re Kaufman, 179 Fed. 552, 24 B. R. 155, aff'g 104 Fed. 292, 4 A. B. E. A. B. E. 117. 782; In re Day ville Woolen Co., 114 Fed. Attorneys who filed the bankrupt's 674, 8 A. B. E. 85. voluntary petition but who ceased to 79 — In re Lloyd, 148 Fed. 92, 17 A. B. represent him after the petitioii was filed, B. 96. and who solicited, while acting for the 80 — In re Walker & Co., 204 Fed. 132, bankrupt, a part of the claims held by 29 A. B. E. 499 ; Matter of Kaufman, them, held improper proxies. In re Walker 179 Fed. 552, 24 A. B. E. 117. & Co., 204 Fed. 132, 29 A. B. E. 499. 342 Bbandenbubg on Bankeuptcy [§454 appointed him without any thought of the interest of the bank- rupt.®' That the representative of a creditor who had mislaid his power of attorney was barred from participating in the elec- tion will not invalidate the same.®* The general rule is that a creditor whose claim has been allowed should be permitted to vote for trustee in person or by proxy, and any question as to whether his vote was improperly influenced should be reserved until the referee is called upon to approve the election, though he will not be held to have abused his discretion in refusing to allow one offering to qualify to vote, where he is convinced that the claims are not proven in good faith, or when the votes are in the interest of the bankrupt.®^ § 455. — Change of vote. A creditor has a right to change his mind after voting pro- vided he does so in time, but he cannot change his vote on the ground of his own mistake, after the meeting has adjourned, and thereby give the court of bankruptcy the power to appoint a trustee; but such creditor may explain his mistake, or make other objection as to the choice of trustee to the court having to approve the selection.®*" § 456. — Objections to claims and effect thereof. Upon objection to a claim, a referee should require satisfac- tory evidence of a creditor's right to vote for a trustee.®'^ The mere filing of objections to a claim should not exclude a creditor from voting, if he is otherwise qualified,®® but the creditor whose claim is questioned has a right to be heard; ®^ and, when a party is aggrieved by the ruling on his application for an opportunity to prove his right to vote, the meeting may be adjourned, and 83— In re Kaufman, 179 Fed. 552, 24 87 — In re Northern Iron Co., 14 N. B. A. B. E. 117. E. 356, Fed. Cas. No. 10322. 84^In re Blue Eidge Packing Co., 125 88 — In re Kelly Dry Goods Co., 102 Fed. 619, 11 A. B. E. 36. Fed. 747, 4 A. B. E. 528. 85— Falter v. Eeinhard, 2 N. B. N. E. 89— In re Columbia Iron Works, 142 1119, 104 Fed. 292; In re Henschel, 109 Fed. 234, 14 A. B. E. 526. Fed. 861, 6 A. B. E. 305. 86— In re Soheiffer, 2 N. B. N. E. 179, Fed. Cas. No. 12445. §456] Meetings of Ceeditobs 343 provision made for the determination of his right before the final vote is taken.®" However, the action of the referee so excluding him will not be reviewed when no objection is made to the election and no facts presented raising the question of the rights of creditors in such cases.®^ The referee is not required, as was the register under the act of 1867, to certify all questions of fact and law to the judge for decision and hence the holding that a register could not, without special order, hear testimony as to creditor's right to vote, no longer applies.^^ When objection is made to the proof of a claim, it should be heard in order to determine if made in good faith, and if well founded, the claim should not be allowed for voting purposes. It does not rest in the discretion of the referee to allow claims as voting bases when an apparently genuine objection is made, though in proper cases a provisional allowance or disallowance may be made in order that a trustee may be expeditiously elec^ted, but the proceedings should not be so summary as to exclude consideration of all objections.®* So, in a proper case, a claim proved and filed with the referee may be postponed for investi- gation by the trustee, and not allowed to be voted/* and such course, for instance, should be taken where the officers of a bankrupt corporation present large claims against it.®^; The court should not, however, permit the selection of a trustee to be indefinitely tied up by obstructive tactics, and which are obviously for purpose of delay.®® The effect of allowing or postponing the hearing on a par- ticular claim affects only the creditor's right to vote at the first meeting, and, if it appears that his vote would not have affected 90 — In re Spencer, 18 N. B. B. 199, creditor may be suspended ,untU his Ted. Caa. No. 13229. claim is investigated. In re Columbia ■ 91— In " re KeUy Dry Goods Co., 102 Iron Works, 142 Fed. 234, 14 A. B. E. Fed. 747, 4 A. B. E. 528. 526. 98— In re Noble, 3 N. B. E. 25, 3 Ben. 95— In re Lake Superior, 7 N. B. R; 332, Fed. Gas. No. 10282. 376, Fed. Cas. No. 7997- see I^ re Her^ ■ -93— in re Maliflo, 118 Fed. 368, 8 A. man, 3 N. B. E. 153, Fed. Cas. No. 6425; B. E. 205, In re Milne, Turnbull & Co., In re Chamberlain, 3.N..B. R. 173, Fed. 159 Fed. 280, 20 A. B. E. 248. Cas. No. 2574.: 94^In re Frank, 5 N. B. E. 194, 5 96— In re Dui^ea Powder Co,, 159 Fed. Ben. 164, Fed. Cas. No. 5050; but see In 783,: 20 A. B..E..219.; .In re Malino, 118 re Barbusch, 9 N. B. E. 478, Fed, Cas. Fed. 368, 8 A. B. E..205; In re-Siimnet, NoilOSe. '-'- .: J 4 A..B: E. 123, 101F.ed.224. . . -- ; The right of an alleged- preferred • . - - -• 344 Bbandenbtjkg on Bankkuptoy [§45G the result, the proceedings will not be disturbed to permit him to exercise a barren right; but, if the result would have been affected by his vote, the judge or referee may set aside the result, and order a new vote to be taken.*^ The fact that part of a claim is contested will not destroy a creditor's right to vote for the trustee, where the balance thereof is separable and uncontested.®* § 457. — Majority in number and amount required. Section 56a of the act provides that for voting purposes a majority in number and amount of claims of all creditors whose claims have been allowed and "are present" controls,®® The purpose of /this clause is to vest the power of voting in those creditors who are present and not to allow a delay of the pro- ceediiigs by those who are not sufficiently interested to partici- pate or attend. If a claim is allowed, but not represented by proxy or by the creditor in persoii, or if allowed, but excluded from voting because of defective proxies, they are not to be treated as present, in computing the number and amount of qlaims for voting purposes.^ Creditors are not to be counted as present simply because their claims have been allowed. They must attend in person or by duly authorized agent or attorney, and those creditors who do so attend constitute the meeting, whether they constitute a maiority in number and value of the claims allowed or not.^ If there is a majority in number voting for one person and a majority in amount for another there is no election,^ as where fifty creditors representing about $1,000 of claims vote for one and twenty creditors representing about $10,000 voted for another.* If only one creditor prove his debt, he has the right to choose the trustee.^ 97— In re Eagles & Crisp, 2 N. B. N. 443, 7 A. B. E. 662; In re MoGill, 106 E. 462, 3 A. B. E. 733, 99 Ted. 696; In Fed." 57, 45 C. C..A. 218, 5 A. B. E. 155; re Lake Superior Ship Canal, E. E. & In re Maokellar, 116 Fed. 547, 8 A. B. Iron Co./ 7 N. B. E. 376, Fed. Cas. No. E. 669. 'SS''. 2— In re Kaufman, 179 Fed. 552,. 24 98 — In re Wenatehee-Stratford Orchard A. B. E. 117. " Co., 205 Fed. 964, 30 A. B. E. 540. 3— In re Eiohards, 2 N. B. N. E. 1027, 99— See, In re Maokellar, 116 Fed. 547, 103 Fed. 849, 4 A. B. E. 631. 8 A. B. E. 669; In re Henschel, 113 Fed. 4— In re Pearson, 2 N. B. E. 151, Fed. 443, 7 A. B. E. 662. Cas, No. 10878. 1— In re Kaufman, 179 Fed. 552, 24 5— In re Haynes, 2 N. B. B. 78, Fed. A. B. E. 117; In re Henschel, 113 Fed. Cas. No. 6269. § 457] Meetings of Ceeditoes 345 An attorney or committee to whom a number of claims have been assigned is entitled to but a single vote on all.® Votes offered in favor of a candidate who was formerly an attorney for the bankrupt cannot be rejected entirely, so as to necessitate the appointment of another candidate who, were such votes disregarded, would have received a majority of the votes in number and amount.'' , 6 — ^And see, In re Kinney & Co., 136 7 — In re Machin and BrowH, 128 Fed. Fed. 451, 14 A. B. E. 611; In re Colum- 315, 11 A. B. B. 449. bia Iron Works, 142 Fed. 234, 14 A. B. R. 526. CHAPTER XV Affidavits, Examinations and Evidbnob i 458. Oaths and affirmations. i 459. — Who may administer. I 460. — Administration of oath by counsel. \ 461. — Affirmations. ! 462. — I'orm of oath. \ 463. Certificate of acknowledgment. i 464. Who may be examined. i 465. — In general. i 466. — Trustee, assignee or receiver. ] 467. — Wife of bankrupt. 5 468. — Officers of bankrupt corporation. ! 469. — Creditors and tliird persons. § 470. General rules applying to all examinations. i 471. — Who may apply for examination. \ 472. — Time and manner of making examination. i 473. — Order for examination and subpoenas. i 474. — Before whom examination held. i 475. — Penalty for refusal to appear. i 476. — Right to counsel. I 477. — Scope of examination. ! 478. — Conduct of examination. j 479. — Revenue law establishes rule of evidence. i 480. — Privileged communications. i 481. — Weight of evidence. i 482. — Variance. i 483. Examination of bankrupt. i 484. — Propriety. ( 485. — Notice to bankrupt and creditors. i 486. — Attendance of imprisoned bankrupt. i 487. — Period during which examination may be had. i 488. — Length of examination. i 489. — Adjournments and second examinations. i 490. — Scope of examination. i 491. — Manner of examination. i 492. — Admissibility of evidence. i 493. — Answers compulsory. i 494. — Incriminating evidence. i 495. — Weight of evidence. \ 496. — Effect of incomplete examination. ! 497. Depositions. ] 498. — Federal law governs. 346 § 460] Affidavits, Examinations and Evidence 347 § 499. — Notice. § 500. — Grounds for taking depositions. § 501. — Manner of taking depositions. § 502. — Original exhibits as part of depositiODi § 503. Production of books and papers. § 504. Powers and duties of examiners, masters and referees. § 505. Exemption of witness from service of process. § 506. Fees and compensation. § 458. Oaths and affirmations. § 459. — Who may administer. Oaths required by the Act, except upon hearings in court, may be administered by (1) referees; (2) officers authorized to admin- ister oaths in proceedings before the courts of the United States or under the laws of the state where the same are to be taken; and (3) diplomatic or consular officers of the United States in any foreign country.^ In addition to the referees, and officers specified, the federal courts, their clerks,^ United States commissioners,* and justices of the peace, and notaries public * of the various states and terri- tories and of the District of Columbia^ are authorized to administer oaths, take affidavits and depositions. Acknowledge ments or depositions abroad should be taken before diplomatic or consular officers of the United States, although no provision is made therefor in the general orders prescribed by the supreme! court.* § 460. — Administration of oath by counsel. While in the strict equity practice the general rule is that affidavits taken before an attorney of record will be deemed 1— See. 20a, act of 1898. Analogous 2— TJ. S. Rev. Stat., See. 725, Act of provision, Act of 1867. "Sec. 11. . . . May 28, 1896, 2 Supp. E. S. 486. And shall annex to his petition a schedule, 3 — In re Sheppard, 1 N. B. R. 115; verified by oath before the court, or be- Fed. Gas. No. 53, Act of May 28, 1896, fore a register in baix.iruptey or before 2 Supp. R. S. 486. one of the commissioners of the circuit 4 — ^In re Bailey, 15 N. B. R. 48, Fed. court. . . . Cas. No. 727. "Sec. 22. . . . To entitle a claimant 5 — U. S. Rev. Stat., Sec. 1778; 1 Supp. against the estate of a bankrupt to have B. S. 123. his demand allowed, it must be verified 6 — In re Sugenheimer, 1 N. B. N. 59, by a deposition in writing on oath or 135, 1 A, Bi I?. 425, 91 Fe^r 744, solemn affirmation, before the proper register or commissioner. . , ," ^ 348 Beandenbueg ON Bankruptcy [§460 defective, in the majority of cases it is held to apply only to attorneys of record, that is, the person who at the time the affidavit was taken before him then appeared as attorney of record for the litigant in whose interest the affidavit was Inade, and, therefore, would not be applicable to an affidavit taken pre- paratory to the commencement of proceedings, as in the swearing to a bankrupt's petition and schedules ; '^ nor does it apply to the case of proof of debt sworn to before the creditor's attorney.^ §461. — Affirmations. 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,^ § 462. — Form of oath. The form of oath or acknowledgment prescribed by the gen- eral orders and forms should be carefully followed, and under the forjner law provisions as to the verification of the petition were held to be matters of substance to be strictly followed and could not be dispensed with,^° though the form of oath prescribed for proving debts need not be followed in voting upon resolu- tions for compositions." § 463. Certificate of acknowledgment. When a deposition or proof of debt is taken before an officer authorized to administer oaths, he must authenticate the same by his seal as well as his signature, provided he is required to have one by law, and a seal used in common with others will not answer.^* In those cases where the party administering the oath is not required by law to have a seal, his signature should be certified to by the proper officer. The requisites of the seal are fixed by the laws of the power making the appointment and 7— In re Kindt, 2 N. B. N. E. 306, 339, 9— Sec. 20b, act of 1898. Analogous 98 Fed. 403, 3 A. B. R. 443; contra, In provision, Act of 1867. "Sec. 48. . . . re Brimielkamp, 1 N. B. N. 360, 2 A. B. The word 'oath' shall include 'affirma- E. 318, 95 Fed. 814. tion.' " 8^— In re Kimball, 2 N. B. N. R. 46, 100 10— In re Keeler, 18 N. B. E. 10, Fed. Fed. 777, 4 A. B. E. 144; McDonald v. Cas. No. 7647. Willis, 143 Mass. 542; contra. In re 11— Ex p. Morris, 12 N. B. R. 170. Nebe, 11 N. B. E. 289, Fed. Cas. No. 12— In re Nebe, 11 N. B. E. 289, Fed. 10073 ; In re Keyser, 9 Ben. 224, Fed. Cas. No. 10073. Cas. No. 7748. §466] Affidavits, Examinations and Evidence 349 iinlGss expressly required Ms name need not appear on it since it is the seal and not its composition or character of words and devices which raises the presumption of the official character of which the courts take notice^ the presumption being that it is the seal of the person it purports to be and who signed the jurati" A notary's certificate of acknowledgment is sufficient although it contains no venue where his official character appears in his certificate, and this is specially true in the case of a power of attorney to vote as a proxy at a creditor's meeting, where it follows the form prescribed by the supreme court." § 464. Who may be examined. §465. — In general. Before the amendment of 1903, the competency of witnesses, other than the bankrupt who was required ^^ to submit to exami- nation, was determined by the laws of the state in which the proceedings were pending, provided the state laws were not repugnant to the constitution of the United States,^® but now any officer, bankrupt or creditor, including the bankrupt's wife, are made competent witnesses," and the competency of witnesses is to be tested by the federal statutes.^* § 466. — Trustee, assignee or receiver. Under the act of 1867, an assignee might be subpoenaed and required to testify in the same manner as any other witness, but he was not subject, as of course, to an examniation by any cred- itor whenever the latter might desire it, but was protected from unnecessary annoyance by the refusal of an application for his exa:miiiatiOn, unless upon some issue regularly referred to the register.^^ The trustee is a competent witness under the present law and the foregoing rule with reference to the course of the register's examination would doubtless now apply to the tnistee ,.>"f!-'M '. . 13— In re Phillipsj 14 N. B. E. 219, 17— Sec. 21a, act of 1898, as amended Fed. Cas. No. 11098. by act of 1903. 14— In re Henschel, 113 Fed. 443, 7 18— Smith : v. Township of An Ores, A. B. B. 662, reversing 109 Fed. 861, 6 150 Fed. 257, 9 L. B. A. (N. S.) 876, A. B. B. 305; Carpenter v. Dexter, 8 Wall. 17 A. B. B. 745. 513, 19 L. ed. 426. 19— In re Smith, 14 N. B. B. 432, Fed. 15— See. 7 (9), act of 1898. Cas. No. 12988; contra, In re Hicks, 19 16— In re JefEei^aon, 1 N. B. N. 558, N. B. E. 449, Fed. Cas. No. 6457. 3 A. B. E. 174, 96 Fed. 826. 350 Bbandbnbubg on Bankruptcy [§466 with equal propriety. A trustee might decline to answer with reference to a bankrupt's estate where his answer may tend to incriminate him.^" The trustee may examine a receiver appointed by a state court,^^ as w-ell as a trustee in insolvency appointed more than four months prior to bankruptcy.^* § 467. —Wife of bankrupt. Under the amendment of 1903, the wife may be examined only touching business transacted by her or to which she is a party, and also for the purpose of determining the fact whether she has transacted or been a party to any business of the bankrupt.** Under the act of 1867, for good cause shown, the wife of any bankrupt might be examined as a witness and, if she. failed to attend when ordered, he was refused a discharge, unless he proved his inability to secure her attendance, while she was liable to punishment for contempt. In the event she did appear and was examined, she was not at liberty to decline to answer because the matters inquired of were her private business.** Prior to the amendment of 1903 there was no specific provision requiring or permitting a wife to attend as a witness either for or against her husband in any bankruptcy proceeding, but the matter was to be determined by the laws of the state in which the proceedings were pending;*® thus, in Wisconsin,*^ Wash- ington,*'^ Tennessee,*® and Missouri,*® among other states, she was held in contempt for refusing to testify.*" 20— In re Smith, 112 Fed. 509, 7 A. 25— In re Jefferson, 1 N. B. N. 558, 3 B. E. 213. A. B. E. 174, 96 Fed. 826. 21— In re Hulse, 7 Ben. 40, Fed. Cas. 26— In re Fowler, 1 N. B. N. 265, 93 No. 9864. Fed. 147, A. B. E. 555; In re Mayer, 3 22— In re PurseU, 114 Fed. 871, 8 A. A. B. E. 222, 97 Fed. 328. B. E. 96. 27— In re Jefferson, 1 N. B. N. 558, 23— See. 21a, aet of 1898, as amended 3 A. B. E. 174, 96 Fed. 826. by act of 1903. 28— In re Griffith, 1 N. B. N. 546. 24 — In re Anderson, 23 Fed. 482, a. c. 29 — In re Cohn, 104 Fed. 328, eontra, 9 N. B. E. 360, 2 Hughes 378, Fed. Cas. In re Lynch, 1 N. B. N. 182, 1 A. B. E. No. 351; In re Campbell, 17 N. B. E. 4, 245; citing, Steffen v. Bower, 70 Mo. 399; 3 Hughes 276, Fed. Cas. No. 2348; In Landy v. Kansas City, 58 Mo. App. 141; re Woodford, 3 N. B. E. 113, 4 Ben. 9, Brownlee v. Fenwick, 103 Mo. 420; Me- Fed. Cas. No. 18029; In re Bellis, 3 N. Kee v. Spiro, 107 Mo. 452. B. E. 65, Fed. Cas. No. 1276; In re Craig, 30 — Under the act before the amend- 4 N. B. E. 50, Fed. Cas. No. 3323; In re ment of 1903, it was held that where the Van Tuyl, 2 N. B. E. 177, 3 Ben. 237, wife was a creditor of the bankrupt and a Fed. Cas. No. 16879, party to the proceedings, though shf § 469] Affidavits^ Examinations, and EvDdence 351 The evident intent of the amendment of 1903, is to restrict the scope of the examination to business relations of the wife with the bankrupt, though the law as worded is not clear upon, this point. § 468. — Officers of bankrupt corporation. Testimony of the officers of the bankrupt corporation taken under sections 7, subdivision 9, and 21a is admissible in any proceedings against them other than criminal, as admissions against themselves.^^ § 469. — Creditors and third persons. Under the law as enacted in 1898, any person who was a competent witness under the laws of the state in which the petition was pending might be examined in the bankruptcy pro- ceedings; and an order made by a referee requiring such person to appear and be examined as a witness concerning the acts, conduct and property of the bankrupt, was valid without a formal application showing what questions were to be asked upon the examination, or as to what particular facts the witness was to be inteirogated, the simple application or demand for such an order being all that was required to support it.^^ Under the act as amended any competent witness may be examined concerning the bankrupt 's acts, conduct or property,^* although he may be a party to the proceedings instituted or to be instituted by the trustee to set aside liens procured by him, or preferential transfers made to him.^* The trustee may examine a creditor, whose claim he disputes, concerning the might not be compelled as the wife of the purpose was to secure her evidence as to bankrupt to testify as to the property property fraudulently conveyed to her obtained directly or indirectly from her (In re Fowler, 1 N. B. N. 265, 93 Fed. husband, as a creditor she could be fully 417, 1 A. B. R. 555; In re Post, 1 N. B. examined as to her claim (In re Post, N. 527). 1 N. B. N. 527; In re Gilber,t, 3 N. B. 31— In re Alphin & Lake Cotton Co., B. 37, 1 LoweU 340, Fed. Cas. No. 5410; 131 Fed. 824, 12 A. B. E. 653. In re Eichards, 17 N. B. E. 562, Fed. 32— In re Howard, 1 N. B. N. 488, Cas. No. 11770). If she were not a 2 A. B. E. 582, 95 Fed. 415; In re Blake, creditor or did not file any claim against 2 N. B. E. 10, Fed. Cas. No. 1492. the estate or was not competent as a 33 — ^In re Cliffe, 97 Fed. 540, 3 A. witness under the laws of the state, the B. E. 257. proper proceeding was for the trustee to 34 — In re Feinberg, 2 N. B. E. 137, 3 file a bill of discovery, under which she Ben. 162, Fed. Cas. No. 4716. could be compelled to testify when the 352 Beandenbtjeg ok Bankeuptcy [§469 extent and nature of the bankrupt's indebtedness to bim; ^^ or as to the location, situation and condition of the bankrupt's property, and its fraudulent disposition,^** and, if he has pur- chased claims against the bankrupt's estate, he is bound on pain of contempt to state where he obtained the money paid therefor, though he may say it did not come from the bankrupt.®'' He may be examined as to bankrupt's right and possible interest in property at the time of filing his petition in bankruptcy; ** but he is not compelled to testify for his surety on a note in a suit by an administrator against him as principal and his surety,^® nor can he be compelled to testify as to Ms private affairs which have no relation to the acts, conduct or property of the bankrupt.**' The words "concerning the property of the bankrupt" in sec- tion 21 mean the discovery of the existence, whereabouts or disposition of the property, and cannot be extended so as to draw from unwilling outsiders evidence as to the value of what the bankrupt owns and had in possession. So, an officer or a cor- poration in which the bankrupt owns stock, who is a stranger to the bankruptcy proceedings can only be compelled to answer questions concerning the acts, conduct or property of the bank- rupt, and cannot be compelled to answer questions as to the value of such stock.*^ § 470. General rules applying to all examinations. §471. — Who may apply for examination. The act expressly provides that the application for the exami- nation of persons in bankruptcy proceedings may be made by the bankrupt, a creditor or any officer,*^ the latter term including the clerk, marshal, receiver, referee and trustee.*® A receiver, whether appointed under the express grant of authority contained in the bankrupt law** or in the exercise of 35— In re Cfliffe, 97 Fed. 540, 3 A. B. 40— In re Carley, 106 Fed. 862, 5 A. E. 257. B. B. 554. 36— In re Blake, 2 N. B. E. 2, Fed. 41— In re Seligman, 192 Fed. 750, 26 Cas. No. 1492. A. B. E. 664. 37— In re Lathrop, 4 N. B. E. 93, Fed. 42— Sec. 21a, aet of 1898, as amended Caa. No. 8106. by act of 1903. 38— In re Dole, 7 N. B. B. 538, Fed. 43— Sec. 1 (18), aet of 1898. Cas. No. 3965. 44— In re Etheridge Fur. Co., 92 Fed. 39— Jenks v. Opp, 12 N. B. E. 19. 329, 1 N. B. N. 139, 1 A. B. B. 112; In § 471] Affidavits^ Examinations and Evidence 353 the general equity powers possessed by tte court of bank^ ruptcy*® to take charge of the property of a person against whom a petition in bankruptcy has been filed,*® or any person who shows that he is actually* a creditor of the bankrupt, as by being so named in the schedule, or by any other satisfactory evidence is entitled to an order for the examination of the bank- rupt, although he has not formally proved his claim,*'' or one creditor has already examined him; *® or objection has been made to the claim; *^ or bankrupt claims an offset thereto.^" If the trustee refuses to undertake the examination of a third person at the request of a creditor, the court may, in its discre- tion grant the application of the creditor for such examination.^^ The creditor, however, has no unqualified right to such exami- nation. A creditor's right to an examination is suspended when opposed on the ground that a resolution of composition has been confirmed after adoption by the requisite number of creditors.^^ A party in interest, objecting to a composition ^^ or to a claim proved against a bankrupt's estate, is entitled in support of his objection to examine claimant and other witnesses if their attendance can be procured without embarrassing delay, but the proceeding should not be suspended to obtain the evidence of witnesses beyond the court's jurisdiction, unless it is satisfied that ?he objection is interposed in good faith and that the evi- re Sievers, 91 Fed. 366, 1 N. B. N. 68, 9939; In re Price, 91 Fed. 635, 1 A. B. 1 A. B. R. 117; aff'd in Davis v. Bohle, E. 419. 34 C. C. A. 372, 92 Fed. 325. 48— In re Lanier, 2 N. B. R. 59, Fed. 45— Blake v. Francis-Valentine Co., 89 Cas. No. 8070. Fed. 691, 1 N. B. N. 47, 1 A. B. E. 372; 49— In re Belden, 4 N. B. R. 57, Fed. see Keenan v. Shannon, Fed. Cas. No. Cas. No. 1241; In re Kay, 1 N. B. R. 203, 7640; Lansing v. Manton, Id. 8077. 2 Ben. 53, Fed. Cas. No. 11589; see also 46-In re Fixen & Co., 1 N. B. N. 568, 1° '^ Schwab, 8 Ben. 353, Fed. Cas. No. 2 A. B. R. 822, 96 Fed. 748. 47— In re Samuelsohn, 174 Fed. 911, 12499. 50— In re Kingsley, 7 N. B. E. 558, 6 „„ . „ „ ^ „ ,„„-„, Ben. 300, Fed. Cas. No. 7818. 23 A. B. E. 528; In re Rose, 163 Fed. ^^_^; ^^ ^ ^30 j,^^ 333 ,3 636, 19 A. B. E. 169; In re Kuffler, 153 ^ g r 267 Fed. 667, 18 A. B. R. 587; In re Jehu, 1 '521.111 re TifEt, 18 N. B. R. 177, Fed. N. B. N. 509, 2 A. B. R. 498, 94 Fed. 638; q^ n^, 14032; g. c. 17 N. B. R. 550, In re Walker, 1 N. B. N. 510, 3 A. B. B. jigd. Cas. No. 14030. 35, 96 Fed. 550; see also In re Smith, 53 in re Ash, 17 N. B. R. 19, Fed. Fed. Cas. No. 12977; In re Murdock, Id. Cas. No. 571. Brandenburg — ^23 354 Bbandenbtjbg on Bankruptcy [§471 dence desired is of substantial value and necessary' to a just determination of the case.^* § 472. — Time and manner of making application. The application for an order of examination should be addressed to the court of bankruptcy or to the referee, and as a rule to the latter after the case has been referred,^* and no notice, thereof need be given.^^ It is usually made by petition or motion, no particular form being prescribed therefor, and need not be in writing or under oath, nor show the questions to be asked, or the particular facts to be proven, nor any cause what- ever,^^ nor be supported by the referee's certificate as to the propriety therefor where made to the judge,^^ but a certificate of the referee that the petitioning creditors endeavored to examine the alleged bankrupt cannot be sustained as an applica- tion for an order to examine the bankrupt.^^ , § 473. — Order for examination and subpoenas. An order of the referee for the, examination, reciting that it is made on the application of a party claiming to be interested in the estate, is in correct form; ®" and is in the nature of a summons.®^ The order requiring the tvitness to appear may be issued by the clerk ^^ and should be made returnable within fifteen days, unless the judge fixes a longer, time.^* The absence of a seal on a subpoena is a defect which may be waived by the appear- ance of the witness without objection on that ground.^* 54— In re Sumner, 101 I'ed. 224, 2 N. 58— In re Brands, 2 N. B. E. 109, B. N. E. 681, 4 A, B. E. 123. Fed. Gas, No. 1813. ^5 — Sec. 38, act of 1898; Abbey Press, 59 — Craddock-TeiTy Co. v. Kaufmaii, 134 Fed. 51, 13 A. B. E. 11. 175 Fed. 303, 23 A. B. E. 724. 56— In re Mclntyre, 1 N. B. E. 11, 1 60— Vetterlein, 4 N. B. E. 194, Fed. Ben. 277, Fed. Cas. No. 8811. Cas. No. 16926. 57— In re Abbey Press, 134 Fed. 51, 61— In re Bellamy, 1 N. B. E. 64, 1 13 A. B. E. 11 ; In re Fixen, 1 N. B. N. Ben. 390, Fed. Cas. No. 12€6. 568, 96 Fed. 748, 2 A. B. E. 822; In re 62— In re Abbey Press, 134 Fed. 51, Howard, 1 N. B. N. 488, 95 Fed. 415, 2 13 A. B. E. 11. A. B. E. 582; In re MoBrien, 2 N. B. E. 63— Act 1898, § 18, as amended in 1903. 73, 2 Ben. 513, Fed. Cas. No. 8665; In re Sundays and holidays included. In re Lanier, 2 N. B. E. 59, Fed. Cas. No. Levy Outfitting Co., 29 A. B. E. 13. 8070; In re Solis, 4 N. B. E. 18, Fed. 64— In re Abbey Press, 134 Fed. 51, Cas. No. 13165; contra, In re Adams, 2 13 A. B. E. 11. N. B. E. 33, 2 Ben. 503, Fed. Cas. No. 39. §476] Affidavits, Examinations and Evidence 355 § 474. — Before whom examination held. The act gives full opportunity to all parties concerned in bank- ruptcy proceedings to obtain desired testimony. If the witnesses cannot appear before the court or referee having jurisdiction of the case, they may be required to appear befote a referee or judge of a state court vrhere they may for the time be residing. § 475. — Penalty for refusal to appear. The refusal of one to appear after being subpoenaed, to be sworn after appearing,^^ or to testify after being sworn renders such an one liable to contempt proceedings and punishment; ®® since courts of bankruptcy may punish contempts whether com- mitted by failing to obey their lawful orders or those of referees; ®^ but a witness cannot be required to attend at a place outside of the state of his residence or more than a hundred miles therefrom. The failure of a party to produce a witness within his power raises a presumption that the testimony would be "unfavorable.^® The subject of Contempts is fully treated in Chapter XXXVI. § 476. — Right to counsel. The bankrupt, or a creditor, is entitled to be represented by an attorney at his examination, but not a mere witness undergoing examination unless he is made a party to a new collateral pro- ceeding by being cited to answer for an alleged contempt.*® The examination by the trustee of witnesses other than the bank- rupt is taken solely for the trustee's information to enable him to act intelligently in the premises and to take such steps as may be necessary for the protection and preservation of the estate, and the bankrupt's attorney has no right to take part therein.''"' 65— In re Seott, 1 N. B. N. 161, 1 A. 69— In re Abbey Press, 134 Fed. 51, B. E. 49, 95 Fed. 815. 13 A. B. E. 11 ; In re Howard, 1 N. B. 66— Sec. 41, act of 1898. In re Auto- N. 488, 2 A. B. R. 582, 95 Fed. 415; In matic Musical Co., 204 Fed. 334, 30 A. re Comstoek, 13 N. B. R. 193, 3 Sawy. B. E. 328. 517, Fed. Cas. No. 3080; In re Stuyvesant 67-r-Secs. 2 (13), 2 (16), act of 1898; Bk., 6 Ben. 33, Fed. Cas. No. 13582; In In re Howard, 1 N. B. N. 488, 2 A. B. re Cobb, 7 A. B. E. 104; In re Freden- B. 582, 95 Fed. 415. burg, 1 N. B. E. 268. 68— In re Kellogg, 113 Fed. 120, 7 A. 70— In re Adler & Co., 21 A. B. E. B. E. 623; Graves v. U. S., 150 IT. S. 118, 302; In re Cobb, 7 A. B. E. 104; see 37 L. ed. 1021; Eunkle v. Burnham, 153 In re Fixen, 1 N. B. N. 568, 2 A. B. R. V. 8. 217, 38 L. ed. 695. 822. 356 Bkandenbubg on Bankbuptcy [§476 An attorney at law appearing before a referee is to be recog- nized unless put to the proof by a rule tberefor; all others must produce formal powers of attorney " which need not, however, be acknowledged.''* "Whether the bankrupt shall be allowed, during his examina- tion, to consult with his counsel must be determined by the referee according to the circumstances of the case,''* and of which the referee should be the judge.''* § 477. — Scope of examination. The examinations provided for by section 21 of the act, are intended as means of obtaining full information ''^ touching the bankrupt's estate, in order that necessary steps may be taken for its possession and preservation.''® A large latitude of inquiry should be allowed in the examination of persons closely con- nected with the bankrupt in business dealings, or otherwise, for the purpose of discovering assets and unearthing frauds, upon any reasonable surmise that they have property of the bank- rupt.'''' The examination is largely for the purpose of discovery, and its extent must be determined by the sound judgment of the officer before whom it is taken, and the exercise of such court's discretion is not to be interfered with in an appellate court unless clearly abused.''* Where questionable proceedings are disclosed, greater latitude should be allowed.''^ Unless a foundation is laid for the belief that property of the bankrupt was withheld by him at the time of making an assign- ment long before the bankruptcy proceedings, and was still held by him at the time of the enactment of the bankruptcy law, an 71— In re Scott, 15 N. B. E. 73, Fed. Fed. 748; In re Earle, Fed. Cas. No. Caa. No. 12519. 4244; In re Kreuger, Id. 7942; In re 72— In re Powell, 2 N. B. E. 17, Fed. Lathrop, Id. 8106; In re Stuyvesant Bk., Cas. No. 11354. Id. 13582; In re MendenhaU, Id. 9423; 73— In re Lord, 3 N. B. E. 58, Fed. In re Lathrop, HasMns & Co., 184 Fed. Cas. No. 8502; In re Collins, 1 N. B. E. 534, 24 A. B. E. 911. 153, Fed. Cas. No. 3008. 77— In re Lathrop, Haskins & Co., 184 74— In re Tanner, 1 N. B. E. 59, 1 Fed. 534, 24 A. B. E. 911; In re Luber, Lowell 215, Fed. Cas. No. 13745. 152 Fed. 492, 18 A. B. E. 476. 75— In re Carley, 106 Fed. 862, 5 A. 78— In re Forest, 1 N. B. N. 258, 93 ^- ^- 554. Fed. 190, 1 A. B. E. 259. 76— In re Horgan, 2 N. B. N. E. 233, 3 79— In re Foerst, 1 N. B N 258 1 A. B. E. 253, 98 Fed. 414; aff'g 2 N. A. B. E. 259; In re Horgan, 2 N. B. N. B. N. E. 53, 97 Fed. 319; In re Fixen & E. 233, 3 A. B. E. 253, 98 Fed. 414- In Co., 1 N. B, N. 668, 2 A, B. E. 822, 96 re Pittner, 2 N. B. N. E 915 § 479] , Affidavits, Examinations and Evidence 357 inquiry into tlie circumstances under wliiclj such assignment was made is not material or proper; «" but the inquiry is not limited to facts and transactions occurring within four month^ prior to the bankruptcy and may be directed to matters anterior to that if so doing will throw light on the issues involved.*^ § 478. — Conduct of examination. There is no reason why a witness may not be examined prior to the bankrupt.*^ The referee need not allow the counsel to ask and permit wili- nesses to answer the same question over and over again, but uponinoting the fact that the question has once been answered, or the demand to answer has once been refused, he may prevent vain repetition.®^ Unreasonable discursiveness may be checked by making the examining party pay for it; and, if plainly frivo- lous, prolix, to gratify malice or mere curiosity, it should be Mopped.®* A witness should always be allowed to correct erroneous state- ment previously made by him.®^ It is error for the court on the hearing of a controversy to refuse to take or to consider evidence which either party desires to offer,, and to close the; hearing before such evidence is pre- sented to the court so that it can consider it and determine itg admissibility,®® but after a party has had an opportunity to call and examine his witnesses and the matter before the referee is closed, the case need not be reopened in the absence of a special showing.®'' § 479. — Revenue law establishes rule of evidence. The court of bankruptcy is essentially a federal institution. The revenue laws are essentially federal also. The laws laid down by congress regarding what may or may not be 80— In re Hayden, 1 N. B. N. 265, 1 84— lu re Salkey, 9 N. B. E. 107, 5 A. B. E. 670, 96 Fed. 199. Biss. 486, Fed. Cas. No. 12252. 81— In re Bmndage, 100 Fed. 613, 4 85— In re Hark Bros., 136 Fed. 986, 14 A. B. E. 47; In re PuTsell, 114 Fed. 371, A. B. E. 624. 8 A. B.,E. 96; Knittel V. MoGowan, 134 86— Missouri- American Elec. Co. v. Fed. 498, 14 A. B. E. 209. Hamilton-Brown Shoe Co., 165 Fed. 283, 82— In re Frendenberg, 1 N. B. E. 34, 21 A. B. E. 270. 2 Ben. 133, Fed. Cas. No. 5075. 87— In re Booss, 154 Fed. 494, 18 A, ;S3-rIn re Epmino, 138 Fed. 837, 14 B. E. 658. A. B. E. 785. 358 Bbandenbueg on Bankbuptcy [§479 evidence "in any court" must, in the nature of things, be pecul- iarly applicable to courts existing under federal statutes. Hence unstamped notes while that law was in force will not be received in bankruptcy proceedings.^* § 480. — Privileged, communications. While a bankrupt's communications to his attorney are privileged and cannot be brought out in evidence, counsel may be required to testify as to acts and things which have come to his knowledge by reason of his position as counsel, which were not communicated to him by the bankrupt or by some one through his direction.*^ An attorney cannot decline to testify concerning his own acts done in behalf of his client,®** nor refuse to be sworn on the ground that he had acted as counsel for the bankrupt and is still his legal advisor; ®^ hence he may be com- pelled to answer questions concerning a conveyance to him by the bankrupt of land and a subsequent conveyance by the former of the same land to the wife of the latter."^ § 481. — Weight of evidence. The general rule applies with reference to the weight to be given to the evidence of the bankrupt and others, and a witness may be as thoroughly discredited by the inherent improbability of his testimony as by the direct testimony of other witnesses.®* §482. — Variance. The general rule that the proofs must agree with the allega- tions applies equally to proceedings in bankruptcy.®* §483. Examination of bankrupt. §484. —Propriety. The bankrupt may be examined concerning his acts, conduct and property,®^ but an examination of bankrupt should not be 88— In re Dobson, 2 N. B. R. 514. 92— In re Bellis, 3 N. B. R. 49, 3 Ben. 89— In re Ruos, 159 Fed. 252, 20 A. 386, Fed. Caa. No. 1274. B. R. 281 ; In re Aspinwall, 10 N. B. 93— In re Leslie, 119 Fed. 406. N. 448, Fed. Cas. No. 591. 94— In re Musto, 2 N. B. N. R. 577; 90— In re O'Donohoe, 3 N. B. R. 59, In re Devoe, 2 N. B. R. 27, 1 Lowell, Fed. Cas. No. 10435. 251, Fed. Caa. No. 3843. 91— In re Woodward, 3 N. B. E. 477, 95— Act of 1898, § 21a, as amended in 4 Ben. 102, Fed. Caa. No. 17999. 1903. §486] Affidavits, Examinations and Evidence 359 allowed when it is sought for the purpose of gratifying curiosity, or prying into the business of the debtor, or any purpose other than the furtherance of justice and the protection of the rights of creditors.'^ The bankrupt is not a competent witness in a criminal pro- ceeding against himself.^'' § 485. — Notice to bankrupt and creditors. The provision that creditors shall have at least ten days' notice of all examinations of the bankrupt, unless they waive notice in writing, is mandatory; ®® but the examinations intended are those occurring in the regular course of the proceeding. The bankrupt may be examined solely for the purpose of pre- paring the schedules,®' or to furnish information to aid the court and its officer or the receiver, in the preservation of the estate for the benefit of the creditors,^ without notice to the creditors. If the bankrupt is in court there seems to be no reason why he may not be examined without further notice,^ or if in attend- ance at a meeting to show cause against his discharge,^ or upon summons as a witness in respect to the heariiig of a motion to expunge proof of claim,* or where it is desired to discover his estate in proceedings to satisfy a lieii established prior to' ba,nk- ruptcy.^ In lieu of the subpoena or summons, an order of examination signed by the referee ® should be delivered forthwith to the banknipt, proof of service being made by affidavit or written acceptance of the bankrupt. § 486. — Attendance of imprisoned bankrupt. An imprisoned bankrupt may be produced for examination on a writ of habeas corpus ad testificandum made by a judge, pos- 96— In re Salkey, 9 N. B. E. 107, 5 1 — In re Abrahamson & Bretstein, 1 Biss. 486, Fed. Cas. No. 12252. N. B. N. 23, 1 A. B. E. 44. 97— U. S. V. Black, 12 N. B. E. 340, 1 2 — In re Bromley, supra. Hask. 570, Fed. Cas. No. 14602. 3— In re Brandt, 2 N. B. E. 76, Fed. 98— Sec 58a, act of 1898. In re Gil- Cas. No. 1812. bert, 2 N. B. N. E. 378. 4— Canby v. McLear, 13 N. B. E. 22, 99— In re Franklin Syndicate, 2 N. B. Fed. Cas. No. 2378. N. B. 022, 101 Fed, 402, 4 A. B. E. 511; 5— Ex p. Taylor, 16 N. B. E. 40, 1 In re Bromley, 3 N. B. E. 169; In re Hughes 617, Fed. Cas. No. 13773. Salkey, 9 N. B. E. 107, 5 Biss: 486, Fed. 6— Official Form No. 28, § 1748, post. Cas. No. 12252; In re Patterson, 1 N. B. E. 100, 1 Ben. 448, Fed. Cas. No. 10814. 360 Bbandenbubg on Bankruptcy [§486 sibly by a referee.'^ However, sucli writ need not be allowed regardless of circumstances or condition and, where the alleged bankrupt is confined in the hospital for the criminal insane of another state, the writ is properly quashed.* § 487. — Period during which examination may be had. The act provides that a bankrupt "whose esta.te,is in process of administration" may be examined.^ The decisions are conflicting as to whether this clause will per- mit an examination prior to the adjudication,^" but the rule has been recently settled in favor of such right of examination by a decision of the supreme court, holding that a receiver having bden placed in possession prior to adjudication, the estate was in the process of administration and the right of examination existed.^* The decisions, however, leave in doubt the question whether an examination is proper subsequen|; to the filing of the petition but prior to the time the court takes possession by the appointr ment of a receiver, though adopting the reasoning of the supreme court, the right would seem to exist. In announcing its deei^ sion the supreme court said, "The object of the examination of the bankrupt and other witnesses to show the condition of the estate is to enable the court to discover its extent and where- abouts, and to come into possession of it, that the rights of creditors may be preserved. If such examination is postponed until after adjudication, which may not take place for twenty 7 — In re Gilbert, 2 N. B. N. R. 378. mit to an examination before trial as to 8 — In re Thaw, 166 Fed. 71, 21 A. B. his sanity, against the objections of his E. 561, 172 Fed. 288, 22 A. B. E. 687. guardians. In re Ward, 161 Fed. 755, 20 9— Act of 1898, § 21a. A. B. E. 482. , : 10 — Banlcrupt can he examined priot to An order directing a bankrupt to sub- ad judication. In re Fleischer, 151 Fed. mit to an examination prior to adjudieai- 81, 18 A. B. E. 194; Cameron v. United tion, upon two days notice held improper States, 192 Fed. 548, 27 A. B. E. 657. where more than a year had elapsed since Banlcrupt cannot he examined prior to the filing of the petition, and the applica- adjudication. In re Thompson, 179 Fed. tion for the order did not show an 874, 24 A. B. E. 655; Skubinslsy v. emergency that called for immediate and Bodek, 172 Fed. 332, 24 L. E. A. (N. S.) exceptional action. In re Wilkes-Barre 985, 22 A. B. R. 689 ; In re Davidson, Light Co., 208 Fed. 539, 31 A. B. E. 451. 158 Fed. 678, 19 A. B. E. 833; In re 11— Carneron v. United States, 231 IT. Crenshaw, 155 Fed. 271, 19 A. B. E. 266. 8. 710, 58 L. ed. 448, 31 A. B. E. 604, Bankrupt cannot be compelled to sub- rev'g 192 Fed. 548, 27 A. B. E. 657. § 489] Affidavits, Examinations and Evidence 361 days, within which the bankrupt in involuntary bankruptcy is given leave to appear and plead, the estate may be concealed and disposed of, and the purpose of the act to hold it and to distribute it for the benefit of creditors defeated." "'^ A person duly adjudged bankrupt may be ordered before the referee for examination before the first meeting of creditors in order to obtain information to make up the schedules, ^^ or at the first meeting of creditors ^^ or at any time during the pendency of the proceedings.^* An application for an examination may be granted although the bankrupt has applied for his discharge,^^ or has already obtained his discharge,^® since the right of exami- nation continues for one year thereafter,^ '^ but not after the expiration of that period,^* although this right may be lost by laches.^® § 488. — Length of examination. The register was not allowed under the former act to fix beforehand the time within which the examination of the debtor must be concluded without regard to the nature of the questions or the interest in which they were propounded,^** which is doubt- less trtie under the present law. § 489. — Adjounmients and second examination. The bankrupt may be examined on an adjourned day, not- withstanding the creditor failed to appear on the day originally lla— Cameron v. United States, 231 N. B. E. 448, Fed. Cas. No. 6304; In re U. 8. 710, 58 L. ed. 448, 31 A. B. E. 604, Soils, 3 N. B. E. 186, 4 Ben. 143, Fed. rev'g 192 Fed. 548, 27 A. B. E. 657. Cas. No. 13165; and holding In re Dole, 12— See. 7 (9), act of 1898. In re 7 N. B. E. 538, Fed. Cas. No. 39645; Franklin Syndicate, 2 N. B. N. E. 522, In re Jones, 6 N. B. E. 386, Fed. Cas. 101 Fed. 402, 4 A. E. E. 511; In re No. 7449; In re Dean, 3 N. B. E. 188, Bromley, 3 N. B. E. 169; In re Salkey, Fed. Cas. No. 3701; In re Witkowski, 9 N. B. R. 107, 5 Biss. 486, Fed. Cas. 10 N. B. E. 209, Fed. Cas. No. 17290, No. 12252; In re Patterson, 1 N. B. E. inapplicable. In re Peters, 1 N. B. N. 100, 1 Ben. .448, Fed. Cas. No. 10814. 165, 1 A. B. E. 248; In re Heath, 7 N. 13— Sec. 55b, act of 1898. B. R. 448, Fed. Cas. No. 6304; In re West- 14— In re Bryant, 188 Fed. 530, 26^ A. fall, supra; see In re Dean, 3 N. B. E. B. E. 504. 188, Fed. Cas. No. 3701. 15— In re SoUs, 4 N. B. E. 18, Fed. 18— In re Dole, 7 N. B. E. 538, Fed. Cas. No. 13165. Cas. No. 3965. 16— In re Westfall Bros. & Co., 8 A. 19— In re Isador, 1 N. B. E. ,33, 2 Ben. B. E. 431. , 123, Fed. Cas. No. 7105. 17— In re Westfall Bros. & Co., 8 A. B. 20— In re TifEt, 17 N. B. E. 421, Fed. E. 431; In re Peters, 1 N. B. N. 165, Cas. No. 14036. 1 A. B. E. 248, citing In: re Heath, 7 362 Bbandenbubg on Bankruptcy [§ 489 fixed for the examination,^! j^^t if he has been examined at several adjourned meetings, further examination may be refused.22 Since the law places no limit upon the number of times a wit- ness or the bankrupt may be examined, the frequency rests in the discretion of the officer to whom application is made, so that although a witness may be examined by one creditor, he may still be examined by auoither.^s The bankrupt should not be unnecessarily harassed, vexed or annoyed, but where it appears that the creditors may be benefited by further examination, or for any other good reason appearing, the order should be allowed.?* Where an examination has terminated, there would seem to be no reason why a new application might not be madej^" though cause therefor would have to be shown.^' The applica- tion of the trustee for a further examination of the bankrupt need not set forth the nature and character of the testimony intended to be adduced in detail.^^ While bankrupt may be examined when ^^ in attendance at a meeting to show cause against his discharge, a new examination will not ordinarily be allowed on the application of creditors opposing a discharge, after previous full examination, unless the first examination was elusive or deficient in material and specified particulars;^® though the bankrupt's attendance and examination on the return of the order to show cause, which is required to enable creditors to form their specifications, will not excuse him from undergoing a further examination, on the application of objecting creditors, if the referee shall deem it reasonable and necessary.^" If the application for an examination is made on the return 21— In re Bobinson, 2 N. B. R. 162, Isador, 1 N. B. R. 33, 2 Ben. 123, Fed. Fed. Cas. No. 11942. Cas. No. 7105. 22— In re Proby, 17 N. B. R. 175, Fed. 27— In re Bryant, 188 Fed. 530, 26 A. Cas. No. 11439. B. R. 504. 23— In re Adams, 2 N. B. R. 92, 3 Ben. §8— In re Brandt, 2 N. B. B. 76, Fed. 7 Fed. Cas. No. 40; In re Vogel, 5 N. B. Cas. No. 1812. B. 393, Fed. Cas. No. 16984. 29— In re Frisbie, 13 N. B. R. 349, 24r— In re Bryant, 188 Fed. 530, 26 A. Fed. Cas. No. 5131; In re Prizzelle, 5 B. R. 504. N. B. B. 119, Fed. Cas. No. 5132; In re 25— In re Van Tuyl, 2 N. B. B. 35, Isador, 1 N. B. R. 33, 2 Ben. 123, Fed. Fed. Oas. No. 16S81. Cas. No. 7105. 26— In re Gilbert, 3 N. B. B. 37, 1 30— In re Kingsley, 16 N. B. B. 301, Lowell 340, Fed. Cas. No. 5410; In ro Fed. Cas. No. 7820. § 490} Affidavits, Examinations and Evidence 363 day of the notice of the debtor's application for discharge, and no such examination has been previously had, to avoid delay, notice of the application for discharge should contain notice of the examination, and only one such examination, as regards dis- charge, should ordinarily be had;- though if necessary such examination may be adjourned from time to time.^^ § 490. — Scope of examination. The scope of the bankrupt's examination is the same as that with reference to witnesses generally in bankruptcy proceed- ings.^* The inquiry may cover only such of the bankrupt's dealings and transactions as within a reasonable time of the bankruptcy proceedings can be taken to shed light up)on his affairs at that time,** though it is not limited to facts and trans- actions occurring within four months of the bankruptcy, and may be directed to matters anterior to that time if the circum- stances in question will throw any light upon the facts or issues pertinent to the proceedings.** The bankrupt may be examined as to a transaction which may vest in him an equitable interest in property or the like for the purpose of establishing such interest; *^ and as to property acquired . during the pendency of the bankruptcy proceedings and cannot refuse to give information as to such suddenly acquired wealth; *® or where he evidences the possession of money, he may be examined fully as to it, though generally property acquired or business done after the filing of the petition in bankruptcy is not a proper subject for examination, provided the bankrupt states that the same has no connection with or reference to his estate or business prior to such filing.*'' 31— In re Price, 1 N. B. N. 131, 91 34— In re Brundage, 100 Fed. 613; 4 Fed. 635, 4 A. B. E. 419; In re Baum, A. B. E. 47; see also In re Hayden, 1 1 N. B. E. 7, 1 Ben. 274, Fed. Gas. No. N. B. N. 265, 1 Ai B. E. 670, 96 Fed. 1116; In re Brandt, 2 N. B. E. 109, 199; In re Headley, 2 N. B. N. E. 250, Fed. Gas. 1813; In re Mawson, 1 N. B. 3 A. B. E. 272, 97 Fed. 765;, contra, In B. 271, Fed. Gas. No. 9320; In re Seeken- re Barker, 2 N. B. N. E. 353. dorf, 1 N. B. E. 185, 2 Ben. 462, Fed. 35— In re Bonesteel, 2 N. B. E. 106, Cas. No. 12, 600; In re Vogel, 5 N. B. E. Fed. Gas. No. 1628. 396, Fed. Cas. No. 16984; In re Sherwood, 36— In re Walton, 1 N. B. N. 533. 1 N. B. E. 74, Fed. Gas. No. 12774. 37— In. re Walton, 1 N. B. N. 533; In 32— See ante, § 477. re MeBrien, 3 N. B. E. 90, 3 Ben. 481, 33— In re Jacobs & Both, 154 Fed. 988, Fed. Gas. No. 8666; In re Eosenfield, 1 18 A. B. E. 7?8. N. B. E. 60, Fed. Gas. No. 12059. 364 Beandeistbubg on Bankbuptcy [§ 491 § 491. — Manner of examination. The examination before the referee may be conducted by the party in person or his attorney, by direct and cross-examination according to the mode adopted in courts of law, and be taken down in writing by him, or under his direction, in narrative form, unless he decides it shall be by question and answer; and, when completed, shall be read over to and signed by the witness in the referee's presence, who shall note on the deposition any question objected to, with his decision thereon. The court has power to deal with the question of incompetent, immaterial or irrelevant testimony.^* The bankrupt may be cross-examined by his own counsel; ^® or may appear as a witness in his own behalf and bie so examined.*" When a bankrupt once files his schedules, he asserts not only that he has the property but that he has no more, and he may be subjected to all legitimate cross-examination so long as it opens the way to no independent fact.*^ It has been held that one creditor has no right to intervene and interpose objections to questions put in the course of the examination by another credito'r.*^ § 492. — Admissibility of evidence. A letter from debtor admitting his inability to pay his debts,*^ or his letters written to third parties adnaitting payment of cer- tain claims to the prejudice of others,** or his admission before bankniptcy in support of a set-off pleaded by defendant in an action by a trustee to foreclose a mortgage given to the bank- rupt,*^ has been held admissible. But a copy of bankrupt's statement to a commercial agency cannot be admitted to prove concealment of assets,*® nor will his statement as to his condi- tion at the time of borrowing money be admissible to show that his creditors had reasonable cause to believe him insolvent on a subsequent day,*^ though a question as to whether the bankrupt 38— In re Proby, 17 N. B. R. 175, Ped. 43— In re Lange, 2 N. B. N. E. 85, 97 Cas. No. 11439. Fed. 197, 3 A. B. E. 231. 39— In re Leachman, 1 N. B. R. 91, 44— In re Hatje, 12 N. B. R. 548, 6 Fed. Cas. No. 8157. Biss. 436, Fed. Cas. No. 6215. 40— In re Witkowski, 10 N. B. R. 209, 45— Von Saehs v. Kretz, 19 N. B. R. 83. Ped. Cas. No. 17920. 46— In re Hunter, 2 N. B. N. E. 490. 41— In re Tobias, 215 Fed. 815, 31 A. 47— Goodrich v. Wilson, 14 N. B. B. B. B. 889. 555. 42— In re Stuyvesant Bk., 7 N. B. E. 445, 6 Ben. 33, Fed. Cas. No. 13582. §494] Affidavits, Examinations and Evidence i^65 signed a statement by means of wMch lie obtained credit is not improper.** The testimony of bankrupt as to the number of his creditors will be accepted.*^ It has been held that testimony taken at any time during the proceedings may be admitted in subsequent proceedings,^" but this would not be true where the proceedings in which the testimony was taken were dismissed, unless it be by stipulation of the parties.^^ ^ 493. — Answers compulsory. The bankrupt must answer all proper questions on his examination,*^ even though they were asked at his previous examination by another creditor; ** or if asked by the referee; °* or as to whatever may concern parties interested, in reference to his debts, business or estate,*^ but he need not answer ques- tions that on their face relate to property that does not belong to him,*^ though he should those relating to his wife's property.*'' He need not answer when his response might be incriminating, though in such case, his discharge may be denied for such refusal. While the referee cannot compel a witness to answer, he can report his refusal to the judge, who will punish for contempt.** § 494. — Incriminating evidence. As under section 21a, the bankrupt is a competent witness, it becomes necessary to determine how far he may be compelled to testify. Lord Eldon tersely said: "It is one of the most sacred principles in the law of this country that no man can be called on to criminate himself, if he choose to object to it; but I have always understood that proposition to admit of a qualification 48— In le Jacobs & Roth, 154 Fed. 988, 53— In re Vogel, 5 N. B. E. 393, Fed. 18 A. B. B. 728. Gas. No. 13984. 49— Clinton v. Mayo, 12 N. B. R. 30, 54^In re Brundage, 100 Fed. 613, 4 Fed. Cas. No. 2899. A. B. R. 47. 50— In re Bard, 108 Fed. 208, 5 A. B. 55— In re Jay Cooke, 10 N. B. R. 126, B. 810. Fed. Cas. No. 3168. Testimony of bankrupt at creditors' 56 — In re Van Seryl, 1 N. B. R. 193, meeting may be used against him on Fed._ Cas. No. 16880. hearing of order to show cause. Kirs- 57 — In re Craig, 4 N. B. R. 50, Fed. ner v. TaUaferro, 202 Fed. 51, 29 A. B. Cas. No. 3323; In re Clark, 4 N. B. R. E. 832. 70, Fed. Cas. No. 2805. 51— In re Eosenberg, 116 Fed. 402. 58— Sec. 41b, act of 1898; In re Koch, 52— In re Holt, 3 N. B. E. 58, Fed. 1 N. B. R. 153, Fed. Cas. No. 4916. Caa. No. 6646. 366 Beandenbueg on Bankruptcy [§ 494 with respect to the jurisdiction in bankruptcy, because a bank- rupt cannot refuse to discover his estate and effects, and the particulars relating to them, though in the course of giving information to his creditors or assignees of what his property consists, that information may tend to show he has property which he has not got according to law; as in the case of smug- gling and the case of a clergyman carrying on a farm, and the case of persons having the possession of gunpowder in unlicensed places." ^^ On the same subject, Erskine, C. J., said: "You could not ask a man whether he had not robbed another of a sum of money, because, if he had so robbed, the money would not be the property of the assignees but of the party robbed; it would be, in fact, no discovery of the estate of the bankrupt. But I can see no objection to this question (unless it might be regarded as a chain in evidence to convict the party of rob- bery), namely, Had you not, on such a day and at such a place, one hundred pounds? and, according to the answer, you might then interrogate what he had done with it."®" That was the rule under the act of 1867.®^ Although section 7(9) of the present law expressly provides that "no testimony given by the bankrupt shall be offered in evidence against him in any crimirial proceeding," he cannot be compelled to answer any question propounded on such examina- tion where his answer would tend to criminate him, for the statutory provision is not so broad as the constitutional privilege.®^ The immunity afforded by section 7, subdivision 9, is no bar to a prosecution for perjury for false swearing in giving testimony under the command of that section,®^ nor does it pre- 59 — Cossens, Buck's Gas. 531; Arehb. 37 L. ed. 252; In re Koser, 1 N. B. N. Bank. 277. 469, 2 A. B. E. 755, 96 Fed. 305; In re 60— Heath, 2 Dea. & Ch. 214. Scott, 1 N. B. N. 265, 95 Fed. 815, 1 61— In re Browley, 3 N. B. E. 169; In A. B. E. 49; In re Gilbert, 2 N. B. N. E. re Eichards, 4 N. B. E. 25, Fed. Gas. No. 378 ; Gounselman v. Hitcbcoek, 142 U. S. 11769; In re Koeh, 1 N. B. E. 153, Fed. 547, 35 L. ed. 1110; eomp. In re Hathorn, Gas. No. 7916. 1, N. B. N. 361, 2 A. B. E. 298; In re 62— In re Hooks Smelting Co., 138 Fed. Sapiro, 1 N. B. N. 136, 92 Fed. 340, 1 954, 15 A. B. E. 83; United States v. A. B. E. 296; In re Shera, 114 Fed. 207, Goldstein, 132 Fed. 789, 12 A. B. E. 755; 7 A. B. E. 552; In re Henschel, 7 A. B. In re Feltstein, 4 A. B. E. 321; In re E. 207; pontra Maekel y. Eoohester, 2 Nachman, 114 Fed. 995, 8 A. B. E. 180; N. B. N. E. 880, 4 A. B. E. 1, 102 Fed. In re Shera, 114 Fed. 297; 7 A. B. B. 314, In re Sapiro, 1 A. B. E. 296. 552; In re Glassner, 8 A. B. E. 184; 63— Cameron v. United, States, 231. IT. Thorington v. Montgomery, 147 U. S. 490, S. 710, 58 L. ed. 448, 31 A, B, E. 604, § 494] Affidavits, Examinations and Evidence 367 vent the use of testimony other than that made the basis of the charge from being used as evidence in the prosecution."* It follows as a necessary corollary from this construction, that the bankrupt cannot be compelled to testify in any particular in which the immunity does not protect him, and if he fears a charge of perjury upon testimony already given, he may upon subsequent questions, claim his privilege.*^ While this right to decline to testify is conceded, yet in a case where it clearly appears to the court that a party from whom evidence is sought contumaciously or mistakenly refuses to testify or furnish documents and papers which cannot possibly injure him, he will not be permitted to shield himself behind the privilege.®" No question can be said to be outside the range of some crime, and to allow the bankrupt to stand mute in all cases is to give him the privilege of keeping silence as to all of his affairs, in the interest of merely pedantic and verbal integrity of prin- ciple. While in all cases he must be given the benefit of all doubts, there must be something which gives rise to a probability of damage upon which a doubt may be based." ^ The mere claim of constitutional privilege is not enough."* Where the bankrupt claims his constitutional privilege and refuses to give the information required by the Bankruptcy Act, on the ground that it may incriminate him, it must at least appear to the court from the character of the information sought on the question propounded, that his claim is justified, or the bankrupt must produce facts upon which he bases such claim, in order that the court may judge of their suflficiency to support it."^ If the ques- tion is of such a description that the answer may or may not rev'g 192 Fed. 548, 27 A. B. B. 657; .66— In re Kanter, 117 Fed. 356, 9 A. Glickstein v. United States, 222 TJ. S. 139, B. E. 104. 56 L. ed. 128, 27 A. B. E. 786; Weehsler 67— In re Bendheim, 180 Fed. 918, 24 V. United States, 158 Fed. 579, 19 A. B. A. B. B. 254. E. 1, rev'g 16 A. B. E. 1. Contra: United 68— In re Tobias, 215 Fed. 815, 31 A. States V. Simon, 146 Fed. 89, 17 A. B. E. ,B. E. 889. 41; Edelstein v. United States, 149 Fed. 69— Podolin v. Lesher Warner Dry 636, 9 L. E. A. (N. S.) 236, 17 A. B. E. Goods Co., 210 Fed. 97, 31 A. B. E. 796, 649; United States v. Brod, 176 Fed. aff'g 205 Fed. 563, 30 A. B. E. 576; In 165, 23 A. B. E. 740. re Bendheim, 180 Fed. 918, 24 A. B. E. 64— Daniels v. United States, 196 Fed. 254; In re Kanter, 117 Fed. 356, 9 A. 459,27 A. B. B. 790. B. E. 104. 65 — See Daniels v. United States, 196 Fed. 459, 27 A. B. E. 790. 368 Beandenbueg on BANKEtiPTCY [§494 incriminate the bankrupt, lie can refuse to answer, but if the court is convinced that the answer to the question cannot by any possibility incriminate him, and especially if the witness does not swear that he believes that it would, it is the duty of the court to compel him to answer.'"' While section 860 of the Revised Statutes providing that no pleading, or evidence obtained by means of a judicial proceed- ing shall be used against the party or witness in a subsequent criminal proceeding has been repealed,''^ its repeal does not deprive a bankrupt examined while the section was in force, of the benefit of its provisions. '^^ "Where the bankrupt has begun to disclose his ownership of property, he must continue and disclose it fully, for any privilege in regard to it has thereby beeii waived,''* and a cross-examina- tion on matter volunteered in his petition or schedules or in his previous testimony, is clearly proper.''* The filing of a voluntary petition is not a waiver of the constitutional privilege.''^ The bankrupt must plead his privilege, if any privilege legally exists, to the particular questions propounded, and the proper rulings can then be made.'^® Testimony although privileged may be used for all purposes, when once it is brought out,'''' and all the testimony of the bank- rupt taken upon interrogatories cannot be excluded on the ground that the bankrupt has refused to answer some of the cross-interrogatories on the ground that the answers thereto might incriminate him.'* § 495. — Weight of evidence. The bankrupt is a'competent witness as to all matters relating to his estate, and no objection can lie to his testimony save as to its credibility,'"' and if disposed to comply with the law and 70— In re Louis Levin, 131 Fed. 388, 75— United States v. Goldstein, 132 11 A. B. E. 382. Fed. 789, 12 A. B. E. 755. 71— Act of May 7, 1910, 36 Stat, at L. 76— In re Mellen, 2 N. B. N. R. 69, 3 352. A. B. R. 226, 97 Fed. 326. 72— Cameron v. United States, 231 U. 77— In re Bendheim, 180 Fed. 918, 24 S. 710, 58 L. ed. 448, 31 A. B. E. 604, A. B. E. 254. rev'g 192 Fed. 548, 27 A. B. E. 657. 78— Carey v. Donohue, 209 Fed. 328, 73 — In re Bendheim, 180 Fed. 918, 24 31 A. B. R. 210. A. B. R. 254. 79— In re Campbell, 17 N. B. E. 4, 74— In re Walsh, 2 N. B. N. E. 1031, 3 Hughes 276, Fed. Cas. No. 2348. 104 Fed. 518. § 499] Affidavits, Examinations and Evidence 369 candidly account for Ms property he should have fair considera- tion; but, if he is contumacious and fails to testify fully, fairly and truthfully, his testimony should only be accepted when corroborated by other evidence, and, if at any point found unworthy of credit, may be rejected altogether.*" § 496. — Effect of incomplete examination. Whether an incomplete examination of bankrupt can be used against him is not a question arising in the course of his examina- tion, and must be decided by the judge before whom the examination may be offered.®^ No vote can be taken on a com- position, if a creditor objects, until bankrupt's examination is complete, which should be confined to a true exhibit of his affairs.^^ §497. Depositions. §498. — Pederallaw governs. Section 21b of the act provides that "the right to take deposi- tions 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." Very detailed provisions are made in the laws of the United States for taking testimony,** which, in addition to the other provisions, authorize the taking of depo- sitions of witnesses in cases pending at law or in equity in the . district or circuit courts of the United States, in the mode pre- scribed by the laws of the state in which the court is held.** §499. —Notice. Notice of the taking of depositions must be filed with the referee in every case. When depositions are to be taken in oppo- sition to the allowance of a claim notice shall also be served upon the claimant, and when in opposition to a discharge notice shall also be served upon the bankrupt.** 80— In re Tudor, 2 N. B. N. B. 168, 83— Sees. 858-879, 1778 TJ. S. Rev. IGO Fed. 796, 4 A. B. E. 78; In re Kams- Stat., 1 Supp. Eev. Stat. 123. ler, 2 N. B. N. E. 97, 97 Fed. 194. 84—2 Supp. Eev. Stat. 4. 81— In re Noyes, 11 N. B. E. Ill, 2 85— See. 21e, act of 189^ Lowell, 352, Ted. Cas. No. 10370. 82— In re Holmes, 12 N. B. E. 86, 8 Ben. 74, Fed. Cas. No. 6632. Brandenburg — 24 3?0 Bbandenbubg ON Bankbuptcy [§499 The requirement that all notices be given by the referee unless otherwise ordered by the judge, does not seem to comprehend notices for the taking of depositions, but such notices should be given by the attomey. § 500. — Grounds for taking depositions. Testimony of any witness may be taken in any civil cause pending in a district of the United States by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of deposition, before the time of trial or when he is ancient and infirm. The deposition may be taken before any judge. United States commissioner, clerk of a district or circuit court, or any chancellor, justice or judge of a supreme court or superior court, mayor, or chief magistate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public not being of counsel or attomey to either of the parties, nor interested in the event of the cause.^® If a non-resident creditor, whose claim is contested, cannot personally appear, without hardship, an order will be made to take his testimony before one of the officers authorized to do so in his neighborhood.*''' § 501. — Manner of taking depositions. A deposition in an examination before a referee must be taken down in writing by him or under his direction in the form of narrative, unless, in his judgment, it should be by question and answer, and when completed, it must be read over to the witness and signed by him in the presence of the referee.*^ Depositions BO taken and afterwards transcribed may be suppressed when not read to and signed by the witriess.®^ For this purpose, the referee is authorized to administer oaths or affirmations,®" and, upon request of the trustee, may authorize the employment of a 86— XT. S. Eev. Stat., Sec. 863. 89— In re Gary, 9 Fed. 754. 87— In re Kyler, 2 N. B. E. 649, 2 Ben. 90— Sec. 20, act of 1898. United States 414, Fed. Gas. No. 7956. v. Liberman, 176 Fed. 161, 23 A. B. B. 88—6. O. XXII. 734. § 503] Affidavits, Examinations and Evidence 371 stenographer, at the expense of the estate, to report and tran- scribe the proceedings.®^ He must note upon the deposition any question objected to, with his decision thereon.®^ A deposition talsjen before a referee authorized to administer oaths, no objection being made, and the witness being examined and cross-examined, is properly taken and, the deposition being subsequently placed on file, the party at whose instance it was taken cannot object to its being read by the opposite party, on the ground of irregularity or informality.®* If the officer, administering the oath, fails to sign the jurat in a deposition, the omission may be supplied if he recollects the fact of the creditor signing and verifying in his presence, otherwise the party may be sworn and the deposition filed nunc pro tunc; ®* and the jurat need not contain a venue when it appears from the deposition that the oath was administered where the officer resides.®^ A deposition which has been altered to correct an error must be resworn before it can be filed.®* § 502. — Original exhibits as part of deposition. Original papers exhibited to the court and annexed to deposi- tions, and marked and referred to therein as exhibits, become a part of the depositions, and cannot be withdrawn and a copy substituted therefor, except upon the application of a party who can show a proper use therefor.®'' §503. Production of books and papers. The bankrupt may be compelled to produce his books and papers not shown to contain incriminating evidence.®* Where such books contain incriminating evidence, or the bankrupt so claims, he cannot be compelled to surrender same, though no criminal proceedings against him are pending,®® for as stated in 91— See. 38 (5), act of 1898; see also 96— Walther v. Walther, 14 N. B. E. post', § 504. 273, Fed. Cas. No. 17126. 92-G. O. XXII; In re DeGottardi, 97-In re McNair, 2 N. B. E. 109, Fed. 114. -P ,1 qPS ^^^- ^°- ^^''^• „ . „ T, X. 98— In re Hess & Co., 136 Fed. 988, 93 — Lawrence v. Graves, 5 N, B. B. 14. i B R 826 279, Fed. Cas. No. 8138^ ^g_;_-^^ ^^ >j,^^^y ^ q^^ I77 j,g3_ 532^ 94— In re MeKibben, 12 N. B. E. 97, 23 A. B. E. 438; In re Hess, 134 Fed. Fed. Cas. No. 8859. 109, 14 A. B. E. 559. 95 — In re Hill, Fed. Cas. No. 6485; Contra: In re George' ^arris, 164 Fed. see also §21. 292, 20 A. B. E. 911. 372 Bbandenbueg on Bankeupto'? [§ 503 In re Hess,i "The meaning of the constitntional privilege is not simply that he shall not be compelled to produce books and papers which may contain evidence tending to incriminate him in a pending prosecution for a criminal offense against him, but its object is to insure him against such compulsory production of his books and papers containing incriminating evidence in any proceeding or investigation whether such compulsory dis- closure is sought directly to establish his guilt, or indirectly and incidentally for the purpose of proving facts involved in an issue between other parties. If the disclosure thus made would be capable of being used against him as a confession of crime, or an admission of facts tending to prove the commission of an offense by himself, in any prosecution then pending, or that might be brought against him thereafter, such disclosure would be an accusation of himself, within the meaning of the constitu- tional provision." The court will not, however, permit him to shield himself behind the privilege when it is clear that the party mistakenly or contumaciously refuses to furnish that which cannot possibly injure him,^ or because they may disclose concealed assets and supply evidence in a civil suit by the trustee,^ and, where the bankrupt pleads his constitutional privilege against a produc- tion of books alleged to contain incriminating evidence, he should be required to bring the same before the court or referee to determine whether his plea is veil founded, and if the court finds it is well founded, it may make such order in the case as will fully protect the bankrupt from the discovery of the evi- dence, and at the same time, if possible, enable the trustee to obtain such information as is necessary in the settlement of the estate.* The constitutional privilege against self-incrimination is waived by the surrender by the bankrupt of his books of account without protest, and the books may thereafter be used in crim- inal proceedings against the bankrupt.^ 1—134 Fed. 109, 14 A. B. B. 559. 4— In re Hark Bros., 136 Fed. 986, 2— In re Kanter, 117 Fed. 356, 9 A. 14 A. B. R. 624; In re Hess, 134 Fed. B. B. 104; In re Franklin Syndicate, 114 109, 14 A. B. R. 559. Fed. 205; see People v. Swartz, 8 A. B. 5— In re Tracy & Co., 177 Fed. 532, K. 487. 23 A. B. B. 438. 3— In re Horgan, 2 N. B. N. 233, 3 A. B. E. 253, 98 Fed. 414; afC'g s. c. 2 N. B. N: R. 53, 97 Fed. 319. § 503] Affidavits, Examinations and EvibBNOE 373 It has been held that by filing a voluntary petition the bank- rupt elects to place his books of account, at the disposal of the court, and such petition operates as a waiver of any privilege he would otherwise have to withhold them on the ground that they contain incriminating evidence, but this does not seem tenable.® Where fraud is charged against the purchaser from the bank- rupt, any books or documents of such purchaser showing or tending to show the receipt and disposition of the property pur- chased, or in any other way relating thereto, are subject to examination; and the custodian of such books and documents cannot refuse to produce them, or to answer questions relating thereto, on the ground that they contain nothing relating to the bankrupt's property, since that is not left to the opinioi^ of the witness but is to be determined by the court.'' But tlie assignee under a general assignment made more than four months before the bankruptcy should not be required to produce bankrupt's books unless a foundation is laid for the belief that the latter withheld property at the time of the assignment and still had it long subsequently,^ though this should not be confounded with the case where an assignment is made mthin the four months, which is subsequently avoided, in which eveiit the books should be produced. While the referee may order the production of the minute book of a corporation whose dealings with the bankrupt are being investigated,® a subpoena duces tecum directed to the officer of a corporation in which the bankrupt owns stock which requires the production of the records relating to the financial condition of the company is too broad.^"* An order requiring an officer of the bankrupt corporation to produce his private memo- randum book cannot be resisted upon the mei-e, claim that the same contains a mere compilation from the bpoks of the bank- rupt. Whether or not any particular entry is obnoxious to some valid objection must be determined by the referee with the book before him." e^In're Sapiro, 1 N. B. N. 136, 1 9— In re United States Graphite Co., A. B. R. 296, 92 Fed. 340. See United 159 Fed. 300, 20 A. B. B. 280. States V. Goldstein, 132 Fed. 789, 12 A. 10— In re SeUgman, 192 Fed. 750, 26 B. E. 755. . A. B. E. 664. 7— In re Fixen, 1 N. B. N. 568, 2 A. 11— In re E. S. WTieeler & Co., 158 Fed. B. E. 822, 96 Fed. 748. 603, 19 A. B. E. 461, rev'g 151 Fed. 542, 8— li re Hayden, 1 N. B. N. 265, 1 18 A. B. E. 421. A. B. E. 670, 96 Fed. 199. 374 Beandenbubg on Bankruptcy [§ 503 The court cannot compel the production; of a tax statement . filed by the bankrupt with a local board of assessors where the state laK under which it is filed provides that the same shall not be used for, any other purpose except the making of an assess^ menti^^ An application for a subpoena duces tecum, baSed on an affidavit of counsel that he expects to show facts pertinent to the proceeding by the books asked for, should be granted and if they are the property of a person or corporation within the juris- diction of the court, the fact that the books are beyond the jurisdiction is immaterial and they should nevertheless be pro- duced.^* The' referee has jurisdiction to make an order directltig the bankrupt to turn over books and papers, without the issuance of a subpoena duces tecwni,^^ but the order should not be made without giving the bankrupt an opportunity to be heard.^^ A debtor is not entitled to an examination of the bankrupt's books, and hence the application of a creditor for the examina- tion, pf, the bankrupt's books will be denied where it is apparent that the application is not made in good faith, but merely for the purpose of enabling debtors of the bankrupt to examine the bookp.^® ; , ' , The exercise of this power of compelling; the production of books necessarily involves a wide discretion which should not be interfered with by an appellate court unless manifestly abused.^'^ § 504. Powers and duties of examiners, masters and referees. The referee has authority to^ make an order, requiring any designated persbii, including the bankrupt, to appear and be examined.^* The' referee should be personally present when the evidence is taken which he is to pass upon, unless, in the case of 12— In re Beid, 155 Ted. 933, 17 A. B. 16— In re Daniel Sully & Co.,il42 Fed. K. 477. 895, 15 A. B. B. 304. 13^In re Dews, 1 N. B. N. 140. 17 — In re Horgan, supra. 14— In re Soloway & Katz, 195 Fed. 18 — In re Lanier, 2 N. B. E. 59, Fed. 103, 28 A. B. E. 228. Gas. No. 8070; In re Pioneer Paper Co., 15— In re Soloway & Katz, 195 Fed. 7 N. B. E. 250, Fed. Cas. No. 17178. 100, 28 A. B. B. 225. § 504] Affidavits, Examinations and Evidence 375 purely formal evidence, his presence is waiv^d.^® He should have the testimony taken down preferahly in narrative form,^" The examiner, master or referee conducting the examination is authorized and it is his duty to pass on objection made to a question, and a witness would have no right to .refuse to answer a question on the ground of irrelevancy, since the questions of relevancy and materiality are for the court.^^ Upon objection raised, the officer should require the matter to be presented by question, to which the objection and reason thereof is to be noted; although the question is ruled to be improper, an answer thereto should be allowed; in such case the exception and ruling of the referee are to be preserved for the ultimate decision of the court,^^ th^ equity rules of the supreme court of the United States being followed as nearly as may be in matters of' this nature.*' From this rule evidence plainly privileged, the testi- mony of privileged witnesses, and evidence which clearly and affirmatively appears to be so incompetent, irrelevant, and imma- terial, that it would be an abuse of the process or power of the court to compel its production or permit its iiitroductioii, are excepted.** The referee need not certify objections made to his rulings every time a question is asked which he rules is objectioniablej*® and may refuse to suspend an examination until the questions 19— In re WUde's Sons, 131 Fed. 142, Hamilton-Brown Shoe Co., 165 Fed. 283, 11 A. B. E. 714. 21 A. B. E. 270; In re Eomine, 138 Fed. 20— G. O. XXII. , 837, 14 A. B. R. 785. 21 — ^Peoples Bank of Buffalo v. Brown, .' Contra: In re Euos, 159 Fed. 252, 20 112 Fed. 652, 7 A. B.E. 475. A. B. E. 281; In re Harrison Bros., 197 22— In re Isaacson, 175 Fed. 292, 23 Fed. 320, 28 A. B. E. 293; In re Wilde's A. B. E. 665; In re Sturgeon, 139 Fed. Sons, 131 Fed. 142, 11 A. B. E. 714. 608, 14 A. B. E. 681 ; Bank of Eavens- 23 — United States v. Liberman, 176 wood V. Johnson, 143 Fed. 463, 16 A. B. Fed. 161, 23 A. B. E. 734; In re Lipset, E. 206; G. O. XXII; In re DeGottardi, supra; In re Sturgeon, 139 Fed. 608, 14 114 Fed. 328, 395, 7 A. B. E. 723; In re A. B. E. 681. Lipset, 119 Fed. 379, 9 A. B. E. 32; 24— Matter of Clark, 21 A. B. R. 776; Dressel v. Lumber Co., 119 Fed. 531 ; Missouri- American Elee. Co. v. Hamilton- see In re Eosenfield, 1 N. B. E. 60, Fed. Brown Shoe Co., 165 Fed. 283, 21 A. Cas. No. 12059; In re Bond, 3 N. B. E. B. E. 270; First Nat. Bank of Phila- 2, Fed. Cas. No. 1618; First Nat. Bank Of delphia v. Abbott, 165 Fed. 852, 21 Philadelphia v. Abbott, 165 Fed. 852, 21 A. B. E. 436! A. B. E. 436; In re Clark, 21 A. B. E. . 25— In re Eomine, 138 Fed. 837, 14 A. 776; Missouri- American Eleo. Co. y. B. E. 785. 376 Bbandenbubg on Bankbuptcy [§504 certified by Mm are decided. ^^ While he cannot compel a wit- ness to answer, if he refuses,^'' nor commit him for derelictions, he does have the power and it is his duty to certify the facts of such offense to the judge, who may proceed in a summary man- ner and inflict such punishment as if the contempt had beien committed before the court itself,^® or if the question be material and approved by the court, he may be refused a discharge.^* During the examination of the bankrupt or other proceedings, the referee may authorize the employment of stenographers, upon the application of the trustee, at the expense of the estate, at a compensation not to exceed ten cents per folio for reporting and transcribing the testimony.^" The manner of taking depositions is also treated in § 501. § 505. Exemption of witness from service of process. Hearings in bankruptcy before the judge, as well as before referees and commissioners are judicial in character, so as to exempt a person in attendance from being subjected to the service of process.*^ That the appearance is voluntary is imma- terial.'^ This privilege is personal, however, and may be waived.'* § 506. Fees and compensation. A bankrupt when ordered to appear for examination in refer- ence to his bankruptcy is not entitled to any fees or compensation therefor;'* nor will petitioning creditors be reimbursed for attorneys' fees on such examinations after the trustee is appointed, such services being either for the trustee or the cred- 26— Bank of Eavenswood v. Johnson, Attending creditor or officer of bank- 143 Fed. 463, 16 A. B. B. 206; In re Tiff, rupt corporation exempt. Powell & Smitli 17 N. B. B. 550, Fed. Cas. No. 14030. v. Pangborn, 145 N. Y. S. 1073, 31 A. B. 27— In re Koeh, 1 N. B. R. 153, Fed. E. 650. Gas. No. 7916. 32— PoweU v. Pangborn, 145 N. Y. S. 28— Sec. 41b, act of 1898. In re Eo- 1073, 31 A'. B. R. 650. mine, 138 Fed. 837, 14 A. B. E. 785; A delay of three weeks in insisting In re Automatic Musical Co., 204 Fed. upon the pri-^ege held not a waiver; 334, 30 A. B, E. 328. 33— Morrow v. Dudley & Co., 144 Fed. 29— Sec. 14b (6), post, §1503. 441,16 A. B. E. 459. . 30— Sec. 38, act of 1898. 34— In re McNair, 2 N. E. K. 77, Fed. 31— Morrow v. Dudley & Co., 144 Fed. Gas. No. 8907; In re O'Kell, 1 N. B. R. 441, 16 A. B. E. 459. 62, Fed. Cas. No. 10'474. ' ■ § 506] Apfidatits, Examinations and Evidence 377 itors individually.^" Where an examination is unreasonably discursive, the party making it may be required to pay the expense of the same.^® When the wife of a bankrupt is a competent witness in bank- ruptcy proceedings, she is entitled to mileage and witness fees the same as any other witness, payment thereof for at least one day's attendance being necessary at the time of service of the order for her examination to insure her attendance.*'' The same rule applies to the husband of the bankrupt where the bankrupt is a married woman.** 35— In re Silverman, 2 N. B. N. R. Griffin, 1 N. B. E. 83, 2 Ben. 209, Fed. 18, 3 A. B. B. 97, Fed. 325. Cas. No. 5810. 36— In re Foerst, 1 N. B. N. 258, 1 38— In re Marcus, 160 Fed. 229, 20 A. B. B. 259, 93 Fed. »0. A. B. E. 397. 37— In re Post, 1 N. B. N. 627; In re CHAPTEE XVI Provable Debts § 507. General tests of provabUity. § 508. Advances. § 509. Alimony or annuities in lieu thereof. § 510. Assigned claims. § 5ll. Claims of assignee for creditors and receivers. § 512. Attorney 's fees. § 513. Claims of banks. § 514. Bonds and recognizances. § 515. Claims by and againsti brokers. § 516. Commercial paper. § 517. — In general. § 518. — Liability of bankrupt as indorser or surety. § 519. — Claims of sureties, guarantors and persons secondarily liable. § 520. Composition as affecting provability. § 521. Contracts — In general. § 522. — Illegal contracts. § 523. — Ultra vires contracts. § 524. — Contracts for services. § 525. — Sales of personalty. § 526. — Sales of real property. § 527. — Subscriptions. I 528. Claims for conversion. § 529. Costs and fees. § 530. Claims of creditors of third persons. § 531. Equitable demands. § 532. Executors and administrators. § 533. Fines, bonuses, penalties and forfeitures. § 534. Claims for fraud and deceit. § 535. Fraud of creditor or preference as affecting provability. § 536. Claims of husband or wife of bankrupt. § 537. Insurance. § 538. Interest. § 539. Joint obligations. § 540. Judgments. § 541. — In general. § 542. — Seduction, support, bastardy, etc. § 543. — Judgment recovered after petition filed. § 544. — Judgment against trustee. § 545. Claims of landlord. § 546. — Rent and damages for breach of lease. § 547. — Repairs. 378 i§507] Provable Debts 379 § 548. — Taxes and water rent. § 549. 'Claims barred by statute ot limitations. §550. Claim of mortgagee. § 551. Mutual debts and credits. § 552. Partnership cases. § 553. -n- Individual debts not allowable out of firm assets. §554. — Firm debts. § 555. — Joint and individual debts. § 556. — Firm debts provable against individual estate. § 557. — Firm debts not provable against individual estate. § 558. — Effect of proving firm debt against individual estate. § 559. — Claims of partners. § 560. — Marshalling of assets. § 561. Patents and royalties. § 562. Secured claims. §563. Liability of bankrupt as stockholder or director. § 564. Liability of bankrupt corporation to holders of its stocks and bonds. §565. Trade certificates. ■■;:■: § 566. Debts due the 'United States or a state. § 567. — In general. i 568. — Fines, bonuses, penalties and forfeitures. § 569. — Taxes. § 570. Unliiquidated claims. § 571. Usi^rious contracts. § 507. General tests of provability. The rights of the creditors are determined by tlie law in force at the time of the adjudication.^ Section 63 qf the act enumerates the classes of debts which may be proved, section 64b deterniines the order of their prior- ity, and section 67 determines their validity as liens. These sections must be construed together in detepnining the allow- ance of claims against the estate, whether unsecured or preferred.^ The status of a daim depends upon its provability at the tiine the petition was filed,* and if it arises after the filing of the petition though before the adjudication,* or if it arises after the adjudication,® it is not provable. 1 — ^In re Photo Electrotype Engraving can Vacuum Cleaner Co.', 192 Fed.. 939, Co., 155 Fed. 684, 19 A. B: R. 94. . 26 A. B. R. 621; In re Pettingill & Co., 2— In re Sterne & Levi, 26 A. B. R. 535. 137 Fed. 143, 14 A. B. R. 728.. 3— Act of 1898, § 63a. Slooum v. Soli- 4— In re Adams, 130 Fed. 788/ 12 A. day, 183 Fed. 410, 25 A. B. R. 460; In "B. R. 368; In re Thompson Milling Co., re Simon, 197 Fed. 106, 28 A. B. R. 611; 144 Fed. 314, 16 A. B. R. 454. In re Neff, 157 Fed. 57, 28 L. R. A. S^Claim accruing after bankruptcy (N. S.) 249, 19 A. B. R. 23; In re Ameri- cannot be proved, regardless of whether 380 Bbandenbukg on Bankbuptoy [§ 507 A provable debt must be fixed, that is "determined, settled," as opposed to "undetermined, unsettled, uncertain," and must be absolutely owing, that is "completely, perfectly, finally, without any condition or encumbrance," « as opposed to depend- ing on some condition or the doing of some act, or happening of some event, at the time the petition is filed.'^ It is, however, sufficient that a claim becomes provable as a result of bank- ruptcy,® and the fact that the time of payment is deferred is no objection.* Questions as to the origin of a debt or the motive pf the claim- ant are immaterial in determining the provability of a claim. ^^ §508. Advances. A claim for the amount of a bonus advanced to the bank- rupt under a contract which is afterwards abandoned because of the bankruptcy may be allowed. ^^ A claim for money advanced to the bankrupt to pay rent has been held provable though she obtained the money advanced from the' property of her children.** So a creditor of a bankrupt has been held entitled to the amount paid in redeeming a diamond pawned by bankrupt which was afterwards claimed by and delivered to the trustee.'* Claims for money advanced in pursuance to a fraudulent scheme to defraud other creditors or to aid a debtor in commit- ting an act of bankruptcy will not be allowed.** it is aeeured or not. British & Ameri- 9 — ^Phenix Nat. Park Bank v. Water- can Mortgage Co. v. Siuart, 210 Fed. bury, 197 N. Y. 161, 23 A. B. E. 250, 425, 31 A. B. R. 465, 544. afC'g 123 App. Div. (N. Y.) 453, 20 A. 6— Bouvier's Law Die. B. E. 140, 7— In re Hartman, 166 Fed. 776, 21 10 — In re Lnzarovio, 1 A. B. R. 476; In A. B. R. 610; Colman Co. v. Withoft, re Sully & Co., 152 Fed. 619, 18 A. B. 195 Fed. 250, 28 A. B. R. 328; In re R. 123. Ellis, 143 Fed. 103, 16 A. B. R 221; In 11— Sturgiss v. Meurer, 191 Fed. 9, re Burka, 104 Fed. 326, 5 A. B. R. 12; 26 A. B. R. 851. In re Chambers, Calder & Co., 2 N. B. ■ 12— In re American Specialty Co., 191 N. R. 864; In re Arnstein, 101 Fed. 706, Fed. 807, 27 A. B. R. 463. 4 A. B. R. 246, aff'g 2 N. B. N. R. 106; 13— In re Rudd, 180 Fed. 312, 25 A. In re Scrafford, 14 N. B. R. 184, Fed. B. R. 35. Gas. No. 12557; In re Frost, 11 N. B. R. 14— In re Friedman, 164 Fed. 131, 21 69, 6 Blss. 213, Fed. Cas. No. 5134. A. B. R. 213; In re Hatje, 12 N. B. R. 8— In re Neff, 157 Fed. 57, 28 L. R. A. 543, 6 Biss. 436, Fed. Cas. No. 6215. (N. 8.) 349, 19 A. B. R. 23. See post, f 521. § 510] Provable De^ts 381 § 509. Alimony or annuities in lieu thereof. The supreme court of the United States in considering the question of alimony held that it was neither released by a dis- charge, nor was it such a liability as was provable in bankruptcy, whether past due or to become due.^^ While its conclusions are sweeping they appear to have been based upon the fact that alimony is not founded upon a contract, but is rather in the nature of a penalty imposed for failure to perform a duty, and where a judgment of divorce, granting alimony is sued on in a state other than that of the entry thereof, it is held that a judg- ment recovered in such action is not for alimony, but is a mere money judgment, or judgment of indebtedness and as such is provable.^® Where in lieu of alimony the bankrupt agrees to give his former wife an annuity for life secured by a deed of trust, the fact that the parties later remarry does not bar the wife's claim for the annuity.^'^ In this connection reference should be had to the chapter relating on the discharge and its effect upon the debts of the bankrupt.^^ § 510. Assigned claims. The right of an assignee to prove a claim and the manner of proof is treated elsewhere.^® The assignment of a claim against a bankrupt gives the assignee a provable claim if the assignor be estopped from making the same claimj^" and this though the assignee holds the claim merely as collateral security for a loan made to the owner thereof, and the dividend receivable by him may exceed the amount of the loan.^^ A claim for wages held by an assignee 15— Audubon v. Shufeldt, 181 V. S. 16— In re WilUams Estate, 118 N. T. 8. 575, 45 L. ed. 1009, 5 A. B. E. 829; In 562, 23 A. B. R. 394. re Loehmeyer, 18 N. B. R. 270, 14 Fed. 17— Savage v. Savage, 141 Fed. 346, 15 Cas. No. 914; In re Shepard, 97 Fed. A. B. R. 599, certiorari denied 201 IT. S. 187, 5 A. B. R. 857; In re Anderson, 97 646, 50 L. ed. 904. Fed. 321, 5 A. B. E. 858; In re Nowell, 18— See post, § 1552. 99 Fed. 931, 3 A. B. B. 837; Barclay v. 19— See post, §§596, 610. Barclay, 184 111. 375, 2 N. B. N. R. 552; 20— In re Miner, 114 Fed. 998, 8 A. In re Smith, 3 A. B. E. 67; Contra, In B. B. 248. re Honestro, 94 Feid. 119, 2 A. B. R. 107; 21— In re American Specialty Co., 191 In re Van Orden, 96 Fed. 86, 2 A. B. R. Fed. 807, 27 A, B. R, 463, 801; In re Challoner,, 98 Fed. 82, 3 A, B, R, 442, 382 Bbandenbueg on Bankeuptcy [§ 510 in which, the assignment was made subsequent to filing the peti- tion, is neverthelfess provable.^^ An order by a contractor on his employer directing the latter to pay to the assignee therein any moneys due such contractor is not to be regarded as a transfer as of its date but as of the date when the order was made effective by being presented.^^ § 511. Claims of assignee for creditors and receivers. A claim for services rendered as stiate receiver should be allowed only to the extent that such services were beneficial to the estate.^' So, claims of an assignee under an assignment for the; benefit of creditors for his compensation and expenditures in administering the estate prior to the filing of the petition are niqft provable, not being debts of the bankrupt, but debts incurred by the assignee himself in an attempt to prevent the administra- tion; of the estate in bankruptcy. It is immaterial that he acted in good faith and in conformity to the insolvency laws of the state.^^ The costs incurred by him in the care and preservation of the property, when they result in benefit to the estate gener- ally and do not lead to a duplication of charges, and a reasonable sum as custodian, in the court's discretion, under its equity powers, might be allowed to be proved, provided the utmost good falith has been shown throughout.^® On the same principle, a judgment creditor, who has set aside a fraudulent conveyance but lost his priot right to the fund by the adjudication of the bankrupt, is allowed reasonable indemnity for his expenses in 22— In, re Brown, 3 N. B. E. 177, 4 In re Kenney, 2 N. B. N. E. 140, 97 Fed. Ben. 142, Fed. Gais. No. 1974. 554^ 3 A. B. E. 353; Wilbur v. Watson, 23— Johnston v. Huff, Andrews & 111 Fed. 493, 7 A. B. E. 54; In re Busey) Moyler Co., 133 Fed. 704, 13 A. B. E. 6 A. B. E. 603; In re MeCauley, 2 N. 287. B. N. E. 1089; In re Feter Paul Book 24-^In re Weedman Stave Co., 199 Fed. Co., 5 A. B. E. 105; see Louisyille Trust 948, 29 A. B. E.. 460; In re Eogers v. Co. v. Cominger, 184 U. S. 18, 46 L. ed. Stefani, 156 Fed. 267, 19 A. B. E. 566. 413, 7 A. B. E. 421. 25 — In re Harson Co., 11 A. B. E. 514; Assignee's expenses in resisting the In re Congdon, 129 Fed. 478, 11 A. B. E. adjudication not allowed. In re Hays, 219; In re Standard Dairy and Ice Co., 179 Fed. 222, 24 A. B. E. 691. 20 A. B. E. 321; Stearns v. Flick, 2 N. 26— In re Levitt, 126 Fed. 889, 11 A. B. N. E. 1046, 103 Fed. 919; In re GU- B. E. 411; In re Harson Co., 11 A. B. blom & King, 2 N. B. N. E. 60; In re E. 514; In re Pauly, 1 N. B. N. 405, 2 Solomon, 2 N. B. N. E. 460; see also In A. B. E. 333; In re Kingman, 1 N. E. re Francis- Valentine Co., 1 N. B. N. 529, N. 518; In re Tatum, 112 Fed. 50, 7 94 Fed. 793, 2 A. B. E. 522, aff'g 1 N. A. B. E. 52; In re Mayo, 114 Fed. 600, B. N. 532, 93 Fed. 953, 2 A. B. E. 188; 7 A. B. E. 764; In re Busey, 6 A. B. R. § 512] Provable Debts 383 securing such result.'"' If the assignee, pending an adjudication in bankruptcy, make a beneficial sale of the insolvent's estate, he is entitled to retain a reasonable sum, allowed by the state court, for the services of himself and his attorneys.** §512. AttoTiiey's fees. A reasonable attorney's fee dependent on the services ren- dered and their value, to be determined on evidence or the court's knowledge,*® including the services of counsel when really required, which must be confined to the bankruptcy pro- ceedings, excluding previous consultations or advice, as well as all unnecessary attendance during the proceeding as counsel,'" is provable and is entitled to priority in four cases (1) when the services were rendered the petitioning creditors in involun- tary cases, (2) to the bankrupt in involuntary; cases while performing the duties prescribed by the act, (3) to the bank- rupt in voluntary cases,*^ and (4) when the services of an attorney are really necessary and required by a receiver or trustee in the performance of his duties.^* Where a trustee is substituted for a bankrupt in a suit, but afterwards withdraws and assigns all interest to another, an attorney's fee is provable only for the period the trustee occupied the bankrupt's place.*^ After the beginning of bankruptcy proceedings a bankrupt cannot directly or indirectly create any charge on the assets for legal services rendered or to be rendered him in courts other than that of bankruptcy.'* A claim for legal services rendered an assignee or receiver in a state court is allowable only upon equitable considerations for services from which the estate in bankruptcy has derivied benefit,- and to the extent only that they were beneficial,^^ and a claim for legal services rendered in insolvency proceedings in a state court will not be allowed where the plain object of 603; In re Lock-Stub CJheok Co., 5 A. 31 — See. 64b, post, §1314; see, also, B. E. 106, note. Sec. 60d, post, § 983. 27— In re Lesser, 2 N. B. N. E. 599, 32— Tn re Standard Fuller's Earth Co., 100 Ted. 433, 3 A. B. E. 815. 186 Fed. 578, 26 A. B. E. 562; In re Hud- 28— In re Scholtz, 106 Fed. 834, 5 A. dieston, 167 Fed. 428, 21 A. B. E. 669. B. E. 782. 33— In re Litchfield, 18 N. B. E. 347, 29— In re Curtis, 100 Fed. 784, 4 A. Fed. Cas. No. 8386. B. E. 17. 34— Musiea v. Prentice, 211 Fed. 326, 30— In re Kross, 1 N. B. N. 566, 96 31 A. B. E. 687, aff'g 205 Fed. 418, 30 Fed. 816, 3 A. B. E. 187. A. B. E. 555. 384 Bbandbnbueg on Bankbuptcy [§ 512 such proceedings was to obstruct and delay bankruptcy pro- ceedings.^* However, in a proper case, a claim for services in preparing a general assignment for creditors may be proved as an unsecured claim *'' but such claim cannot be asserted directly by the attorney.®* The validity and effect of a provision in a note stipulating for an attorney's fee is to be determined not by the laws of the state where the note was executed, but is a question which falls within the domain of general or commercial law upon which the federal courts must exercise their own judgment.^® Such fees do not constitute a provable claim unless the note was due and payable at the time of the filing of the petition and had prior to such filing been presented to the attorney for collection.*" Nor is such a claim provable where no effort is made to collect the same until after bankruptcy though the note matures prior thereto; *^ nor where the note does not mature until after the adjudication and is thereafter paid by the trustee in full, though an attorney is engaged to defeat a contest as to the validity of the security.*^ So, an attorney's fee of a certain per cent of the amount of the debt, provided for in a mortgage in case of fore- closure, is not provable against the bankrupt mortgagor's estate, though the mortgagee has proved his claim as a secured , claim and the property mortgaged has been sold by the trustee 35— In re Standard Puller's Earth Co., 381; In re Tersey, 171 Fed. 1004, 22 A. 186 Fed. 578, 26 A. B. E. 562; In re B. E. 863. Congdon, 129 Fed. 478, 11 A. B. E. 219. Attorney's commissions on notes and 36 — In re Zier & Co., 142 Fed. 102, mortgages are not fixed liabilities to the 15 A. B, E. 646, afC'g 127 Fed. 399, 11 payee of the note, under the law of Penn- A. B. E. 527. sylvania, but are in the nature of pen- 37 — Bandolph v. Scruggs, 190 U. S. alties for his indemnification for expense 533, 47 L. ed. 1165, 10 A. B. E. 1. of collection. McCabe v. Patton, 174 Fed. 38 — Claim of attorney for trustee or 217, 23 A. B. E. 335. assignee for creditors has no standing A claim for attorney's fees based upon except as it may be based upon the title a judgment providing for "five per cent or possession of the assignee to property attorney's commission if collected by passing to the estate. In re Marble legal process" has been allowed, though Products Co., 199 Fed. 668, 29 A. B. E. bankruptcy intervened before the judg- 384. ment was satisfied. In re Hershberger, 39 — Mechanics-American Nat. Bank v. 208 Fed. 94, 30 A. B. E. 635. Coleman, 204 Fed. 24, 29 A. B. B. 396. 41— In re Keeton, Stell & Co., 126 Fed. 40 — In re Thompson Milling Co., 144 426, 11 A. B. E. 367. Fed. 314, 16 A. B. E. 454; In re Edens 42 — In re Jenkins, 192 Fed. 1000, 27 & Co., 151 Fed. 940, 18 A. B. E. 643; In A. B. E. 860. re Gebhard, 140 Fed. 571, 15 A. B. E. §514] Pbovable Debts 385 at private sale, the attorney's fee not having become due accord- ing to the contract.** The percentage fixed in the note is not conclusive as to the value of the services eind no allowance can be made without proof of the reasonable value thereof.** The withdrawal of an attorney from the prosecution of a case does not defeat his right to prove a claim for reasonable com- pensation.*^ §513. Claims of banks. The claim of a bank holding the bankrupt's note, payable after the filing of the petition, for the balance after applying bankrupt's deposit as a set-off against the amount of the note is provable;*® but a note taken for money loaned by a savings bank prohibited by law from loaning money on personal security is not a provable debt.*'' Where a depositor gave a check for the full amount of his deposit and received the dividend thereon, which the bank offered, there is nothing to prove.*® § 514. Bonds and recognizances. , There is a distinction between a contract of indemnity and a contract whereby a person obligates himself to pay the debt of the bankrupt. In the case of a mere contract or bond of indemnity, the claim of the surety is not provable, even though there has been a breach of the bond prior to bankruptcy, where there has been no actual payment of the debt by the surety.*^ The obligee in a bond, or the holder of a claim, upon which several persons are personally liable, may prove his claim against the estate of those who become bankrupt and may at the same time pursue the others at law, and, notwithstanding 43— British & American Mortgage Co. N. B. E. 420, 2 Lowell 487, Fed. Cas. V. Stuart, 210 Fed. 425, 31 A. B. E. 465, No. 6764; In re Petrie, 7 N. B. E. 332, 544; In re Weiland, 197 Ted. 116, 28 5 Ben. 110, Fed. Cas. No. 11040. A. B. E. 620; In re Eoche, 101 Fed. 956, 47— In re Jayoox & Green, 13 N. B. 4 A. B. E. 369; see Maybin v. Raymond, E. 122, Fed. Cas. No. 7244. 15 N. B. E. 353, Fed. Cas. No. 9338. 48— Bk. v. Dewey, 19 N. B. E. 314, 44— Mechanics- American Nat. Bank v. Fed. Cas. No. 897; Hodeman v. Dewey, Coleman, 204 Fed. 24, 29 A. B. E. 396. 7 N. B. E. 269, 2 Hughes 341, Fed. Cas. 45— In re Creasinger, 17 A. B. E. 538. No. 6607. ' 46— In re Kalter, 2 N. B. N. E. 264; 49— Williams & Co. v. U. S. Fidelity Hough V. Bk., 4 Biss. 349, Fed. Cas. & Guaranty Co., 11 Ga. App. 635, 28 A. No. 6721; Ex p. Howard Nat. Bk., 16 B. E. 802. Brandenburg — 25 386 Brandenburg on Bankbuptcy [§ 514 partial payments after the bankruptcy by other obligors or their estates, he may recover dividends from each estate in bank- ruptcy upon the full amount of his claim at the time the petition in bankruptcy was filed therein until from all sources he has received full payment of his claim, but no longer.^* A claim based on the bankrupt's suretyship upon a bond given the claimant by a third person is not contingent, and where the record expressly determines the amount of the defalcation, and the amount recoverable through sources other than the bond, and contains an express concession as to the amount, if any, to be allowed, it is liquidated, and the fact that the suit at law brought upon the bond has not been determined is not material.^^ The claim of one furnishing material to the bankrupt, a con- tractor, based upon the bankrupt's liability as obligor in a bond given the United States conditioned upon the bankrupt's prompt payment to all persons furnishing work and material, is not provable, the claim not having been liquidated in the manner provided for by the bond.®^ A bond of a deputy tax collector, running to the county treasurer as such, is not a public bond, but a coromon-law bond, given for the benefit of the county treasurer who is entitled to prove a claim for any defalcation of the deputy .^^ The liability of the bankrupt as surety on the bond of an administrator is a provable debt though not payable at the date of the filing of the petition, if prior to that time it has become fixed by a decree of the probate court ascertaining the amount of his personal responsibility .°* The claim of the United States upon a judgment against the bankrupt who had become surety on a criminal recognizance will not be allowed for the full amount of the recognizance, but only for the amount of actual costs incurred.^^ Corporate bonds, see post, section 564. 50 — Board of County Com 'rs v. Hurley, 54 — Hibbaxd v. Bailey, 129 Fed. 575, 169 Fed. 92, 22 A. B. E. 209. 12 A. B. R. 104, rev'g 123 Fed. 185, 10 51 — ^Loeser v. Alexander, 176 Fed. 265, A. B. E. 545. 24 A. B. K. 75. 55— In re Caponigri, 193 Fed/ 291, 27 52— In re Hawley, 194 Fed. 751, 28 A. B. R. 513. A. B. E. 58. 53 — Loeser v. Alexander, 176 Fed. 265, 24 A. B. R. 75. §517] Pbovable Debts 387 § 515. Claims by and against brokers. If a broker malce a general assignment or be adjudged a bank- rupt, a demand and tender are not necessary to enable the cus- tomer to assert a breach of contract.^** One who puts up margins with a broker on purchases of commodities for future delivery cannot prove his claim therefor against the estate of the broker, where there is no evidence to show the result of the transac- tions, or that any returns were received by the bankrupt broker therefrom.^ ^ Where a broker holds stock on a margin an unreasonable length of time after the buyer's bankruptcy, and then sells with- out notice at a loss, the balance is not provable against the buyer 's^estate.^^ § 516. Conuuercial paper. § 517. — In general. A debt based on a promissory note is provable if absolutely owing at the time of filing the petition, though not then pay- able.°® A note assigned after the filing of the petition is provable.®" A note on which the holder has received, or becomes entitled to receive, a dividend from one party to it, is provable against the other only for the difference." Notes void between the original parties thereto, pledged as collateral security for an indebtedness, are provable by the pledgees for enough to secure dividends to the full amount of their claim.''^ Notes given in consideration of money borrowed to enable the bank- rupt to settle an offer of composition made to and accepted by its creditors may be proved.®* 56— In re Swift, 112 Fed. 315, 7 A. 454; In re MeCauley & Sons, 2 N. B. B. R. 374. N. R. 1085; In re Schaefer, 104- Fed. 57— In re Knott, 109 Fed. 626, 6 A. 973; In re Loder, Fed. Cas. No. 8457; B. R. 749; see Knott v. Putnam, 107 In re Riker, Fed. Cas. No. 11833; see Fed. 907, 6 A. B. R. 80; In re Aetna contra. In re Gerson, 3 N. B. N. R. 249, Cotton MiUs, 171 Fed. 994, 22 A. B. R. 5 A. B. R. 89, 105 Fed. 891. 629; In re Chandler, 9 N. B. R. 514, Fed. 60— In re Murdock, 3 N. B. R. 36, 1 Cas. No. 2590; In re Green, 15 N. B. R. Lowell 362, Fed. Cas. No. 9939. 198, 7 Biss. 338, Fed. Cas. No. 5751. 61— Ex p. Talcott, 9 N. B. R. 502, 2 58— In re Daniels, 13 N. B. R. 46, 6 Lowell 320, Fed. Cas. No. 13184. Biss. 405, Fed. Cas. No. 3566. 62— Bailey v. Nicholas, 2 N. B. R. 151, 59_gee In re Percy Ford Co., 199 Fed. Fed. Cas. No. 741. 334 28 A B R. 919; In re Thompson 63 — In re Bennett Shoe Co., 162 Fed. Milling Co., 144 F^d, 314, 16 A. ?. I?. 691, 20 A, B. R, 704, 388 Beandenbukg on Bankruptcy [§ 517 The taking of a note does not discharge the original debt, and either is provable, and, if the original contract was in viola- tion of statutory provisions regarding contracts by counties, the county may waive it and the other party cannot urge it; ®* nor does the giving of a renewal note to a bank, where it retains the original, discharge the precedent debt for which it was given, unless such is the arrangement.*^ The fact that the signature of the bankrupt's wife appears above his on a note, and that the same is secured by a mortgage upon her separate property is not conclusive that the debt is hers and not the bankrupt's."® Notes are not provable if given for a claim upon which bank- rupt is not legally liable;®'' or if based on a prior gift as consideration;®* or if subject to off-set for an amount greater than the amount of the note;®^ or where interest in advance has been put into a note, and the maker is adjudged a bankrupt before it becomes due for the interest yet to accrue; '"' or where the individual note of one joint maker is accepted in payment of the joint note, the old note is not provable against the estate of thie other joint maker. ''^ Unstamped notes given during the operation of the War Eev- enue Law are not provable, though they may be allowed to be withdrawn to remedy the defect ; ^^ nor a non-negotiable note in the hands of an assignee unless his assignor could have proved it; ''^ nor notes purchased for less than their face by creditors at bankrupt's request to secure an extension of time, the cred- itors being unaware of bankrupt's insolvency and acting in perfect good faith, though the amount paid is provable.''* A note given by the bankrupt after the filing of the petition is not provable ''^ and where the bankrupt executed a note prio.r to bankruptcy and after bankruptcy substituted another note therefor, neither note can be made the basis of a provable claim, 64r— In re Worcester Co., 102 Fed. 808, 70— In re Riggs, Lechtenberg & Co., 4 A. B. B. 496. 8 N. B. E. 90. 65— Hadden v. Dooley, 92 Fed. 274. 71— In re Morrill, 8 IST. B. R.'ll7, 2 66— In re Carter, 138 Fed. 846, 15 A. Sawy. 356, Fed. Cas. No. 9821. B- K- 126. 72— In re Dobson, 2 N. B. N. E. 514. 67— In re Young, 15 N. B. E. 205, Fed. 73— In re Goodman Shoe Co., 96 Fed. Cas. No. 18149. 949, 3 a. B. E. 200. 68— In re Cornwall, 6 N. B. E. 305, 9 74— In re Glassburner, 2 N. B. N. E. Blatch. 114, Fed. Cas. No. 3250. 634. 69— In re Ford, 16 N. B. E. 426, Fed. 75— In re O'Neil, 189 Fed 1010 27 Cas. No. 4932. A. B. E. 5. ' § 517] Provable Debts 389 where the evidence shows that the intention of the parties was that the second note should operate as a payment of the firsts* Notes signed by the bankrupt corporation by its president and secretary and under the corporate seal given for money indisputably advanced at the time of their execution are prima facie liabilities of the corporation.'^'^ An officer of the bankrupt corporation is not estopped to prove his claim based on its notes by the fact that its liability thereon was omitted from credit statements, in the absence of proof of the officer's knowledge of such omission, nor by the omission of the liability from a list of creditors signed by such officer, where no creditor suJjsequently extended credit relying thereon.''* That a third person is secondarily liable on notes on which the bankrupt is primarily liable does not affect the provability of the claim based thereon.'^® A note is provable in full against the estate of the maker, though the indorser has paid part, the excess of the sum due the holder being payable to the indorser.*" In a case where an indorser has paid the note in whole or in part, the holder of the note, if he should receive from the bank- rupt its entire amount, would hold an amount equal to that which the indorser had paid in trust for the indorsee, and would be obliged to reimburse him to that :. 105 Fed. 428, 5 A. B. E. 453; In re Schierman, ? N. B. ]Sr. E. 118; In re Ells, 2 N. B, N. R. 357; aff'd 2 N. B. N. E. 360, 98 Fed. 967, 3 A. B. E. 564; In re May & Merwin, 9 N. B. E. 419, 7 Ben. 238, Fed. Cas. No. 9325; Ex p. Lake, 16 N. B. E. 497, 2 Lowell 544, Fed. Cas. No. 7991; Treadwell v. Marden, 18 N. B. E. 353; but see In re Wynne, 4 N. B. E. 5, Chase 227, Fed. Cas. No. 1817. Claim for royalties accruing after bankruptcy disallowed. In re Gallagher Coal Co., 205 Fed. 183, 29 A. B. E. 766. Landlord's claim for rent after petition not provable nor entitled to priority where landlord re-entered, and this though state law provided that landlord was en- titled to preferred claim for one year's rent although taking possession before rent was due. South Side Trust Co. v. Watson, 200 Fed. 50, 29 A. B. E. 446. 82— In re Ellis, 2 N. B. N. R. 360, 98 Fed. 967, 3 A. B. E. 564; In re Eoth & Appel, 181 Fed. 667, 31 L. E. A. (N. S.) 270, 24 A. B. E. 588, aff'g 174 Fed. 64, 22 A. B. R. 504. 83— In re Scruggs, 205 Fed. 673, 31 A. B. R. 94; In re Sapinsky, 206 Fed. 623, 30 A, B, E, 416. § 546] Peovable Debts 415 rupt and the termination of the lease,®* and where the landlord re-enters with the intention of terminating the lease, his claim for rent for the unexpired term, though otherwise provable, will be deemed waived,®'* though it is held that where the landlord sublets the premises at a lower rental within a few months after the filing of the petition, his claim is liquidated within the year and becomes provable as a claim founded upon a contract express and implied under section 63 (a) 4.®^ If a note given for rent is not paid at maturity, the claim is provable as if the note had never been given.®'' Where premises. under a lease are condemned for a public use, and damages are paid to the tenant therefor upon the basis that his obligation to pay rent during the remainder of the term will continue, upon the bankruptcy of the tenant, the unpaid instalments of rent, at their value at the time of bankruptcy, would doubtless be provable.®® Rent on property fraudulently conveyed to the claimant by the bankrupt is not a provable debt.®^ A claim- for rent due from the bankrupt as tenant in common can only be based upon an express agreement to pay rent,®" and a claim based upon the agreement of the bankrupt to pay his cotenant one-half of any sum which he might be required t6 obtain a rescission of a lease, is not provable, where the rescis- sion is not obtained until after bankruptcy.®^ Damages resulting from a failure of the trustee to surrender the premises at the expiration of the lease, though recoverable in a suit against the trustee, may be allowed against the estate to prevent circuity of action, since the trustee would be entitled to reimbursement against the estate in the event of a recovery against him.®^ Eental during the time title is being determined, based on terms of payment termed rentals in a contract of conditional 84— In re Mahler, 105 Ped. 428, 5 89— In re Hurst, 23 A. B. E. 554. A. B. E. 453. 90— In re Miller, 132 Fed. 414, 13 A. 85— In re Desmond & Co., 198 Fed. B. E. 87. 581, 28 A. B. E. 456. 91— Colman Co. v. Withoft, 195 Fed. 86— In re Caloris Mfg. Co., 179 Fed. 250, 28 A. B. E. 328. 722, 24 A. B. E. 609. 92— In re Hunter, 151 Fed. 904, 18 87— In re Bowne & Ten Eyck, 12 N. A. B. E. 477. B. E. 529, Fed. Cas. No. 1741. 88— In re Clancy, 10 N. B. E. 215, Fed. Cas. No. 2782. 416 Beandbnbubg ON Bankbuptoy [§546 sale under which the bankrupt holds machinery under bailment at the time of the bankruptcy is not a provable claim where trustee does not elect to continue the contract."^ A lessor of personal property who upon the bankruptcy of the vendee takes possession of the property waives his rights to rent accruing after bankruptcy, though the lease provides that upon the bankruptcy of the lessee the entire rental shall become due.®* Liens for Eent, see post, § 912; Priority of Claims for Rent, see post, §§ 1366, 1392. §547. — Repairs. The cost of restoring premises under covenant to do so at expiration of a lease is not provable ®° though where the bank- rupt as lessee undertook to, make all repairs at his own expense, and the lessor is obliged to pay to a city board a sum for repairs, the lessor has a provable claim for the sum so paid.®® § 548. — Taxes and water rents. A landlord is not entitled to have a claim for water rent pay- able to the city allowed as par^of the rent, though the bankrupt has covenanted to pay the same.®'' A claim against a bankrupt lessee based on his covenant to pay taxes is provable if at the time of bankruptcy the taxes were assessed, though not payable until after adjudication, and though the lease is subsequently assigned by the receiver.®* § 549. Clainis barred by statute of limitation. Formerly statutes of limitations were strictly construed, but it has been the tendency of the courts in later years to consider 93 — In re Daterson Pub. Co., 188 Fed. Claim of landlord for taxes and water 64, 26 A. B. R. 582. rents owing under terms of lease disal- 94 — In re Merwin & Willoughby Co., lowed where property has been sold under 206 Fed. 116, 30 A. B. K. 485; In re agreement that estate should be released Quaker Drug Co., 204 Fed. 689, 30 A. from rent, it appearing that the elaiin B. E. 398. was presented on and in behalf of the 95— In re Arnstein, 101 Fed. 706, a purchaser. Ellis v. Eafferty, 199 Fed. 80, N. B. K. 106, 4 A. B. E. 246; In re Inter- 29 A. B. E. 192. national Milling Co., 175 Fed. 308, 23 A. 98 — In re Sherwood's, Inc., 210 Fed. B. E. 664. 754, 31 A. B. E. 769; but see Ellis v. 96— In re Shomacker Piano Forte Mfg. Eafferty, 199 Fed. 80, 29 A. B. E. 192, Co., 163 Fed. 413, 20 A. B. E. 899. supra. 97 — In re Family Laundry Co., 193 Fed. 297, 27 A. B. E. 517. § 549] Pbovablb Debts 417 them as statutes of repose; so that, if a claim be barred by the statute, it will not be revived unless the intent to revive it is so obvious that no other construction could be put upon the act which is claimed to be revived.®^ Whether a claim barred by the statute of limitations is prov- able unless the bar extends throughout the United States,^ the statute being a law of the forum and not controlling proceed- ings in the federed courts though ordinarily applied by them in legal proceedings arising within the state,^ is a question of some difficulty. The weight of authority, however, and sound reason seem to require that a claim barred by the statute of limitations of the state where the petition is filed should not be provable,^ whether the creditor resides in the same state or not,* or the claim is valid in the state of the creditor's residence.^ ' Where a note payable in one year is exchanged at maturity for a new and similar note, and this is repeated year after year, the statute runs from the date of the last note." A claim for sums of money lent at different times, no notes being taken, does not constitute a running account, and each item is unaffected by any other as far as the running of the statute is concerned.''^ The administrator of deceased partner who paid a partnership note before it became outlawed has been held to have a claim for contribution although the original debt had become outlawed.* A state statute of limitations is suspended by the bankruptcy 99— In re Eesler, 1 N. B. N. 280, 95 No. 10288; In re Cornwall, 6 N. B. E. Fed. 804, 2 A. B. E. 602; In re Lorillard, 305, 9 Blatch. 114, 126, 137, 138, Fed. 107 Fed. 677, 5 A. B. E. 62. Cas. No. 3250; In re Kingsley, 1 N. B. 1— In re Eay, 1 N. B. E. 203, 2 Ben. E. 52, 66, 1 Lowell 216, Fed. Cas. No. 53, Fed. Cas. No. 11589; In re Shepard, 7819; In re Hardin, 1 N. B. E. 97, 1 1 N. B. E. 115, Fed. Cas. No. 12753; see Hask. 163, Fed. Cas. No. 6048; In re also In re Levy, 95 Fed. 812, 2 A. B. E. Eeed, 11 N. B. E. 94, 6 Biss. 250, Fed. 21; aff'g 1 N. B. N. 287. Cas. No. 11635; contra. In re Eay, 1 2— In re Lipman, 1 N. B. N. 310, 94 N. B. E. 203, Fed. Cas. No. 11589; In Fed. 353, 2 A. B. E. 46. re Shephard, 1 N. B. E. 115, Fed. Cas. 3— In re Putman, 193 Fed. 464, 27 No. 12753. A. B. E. 923 ; In re Eesler, 1 N. B. N. 4r— In re Eesler, supra. 280, 95 Fed. 804, 2 A. B. E. 166, 602; 5— In re Hardin, supra. In 're Lipman, 1 N. B. N. 310, 94 Fed. 6— In re Sehumpert, 8 N. B. E. 415, 353, 2 A. B. E. 46; In re Farmer, 116 Fed. Cas. No. 12491. Fed. 763, 9 A. B. E. 19; In re Graves, 7— In re Wooten, 118 Fed. 670, 9 A. 9 Fed. 816; see also In re Doty, 16 N. B. B. E. 247. E. 202, Fed. Cas. No. 4017; In re Noesen, 8— In re Panghorn, 185 Fed. 673, 26 12 N. B. E. 422, 6 Biss. 443, Fed. Cas. A. B. E. 40. Brandenburg — 27 418 Bbandenbxjbg on Bankeuptcy [§ 549 proceedings, and, if the debt is not barred wHen the petition is filed, it is provable, though at the time of proof it would other- wise be barred,^ and such suspension continues as long as there is a fund to distribute," though it has been held that it is no ground for relief from the bar of the statute that the creditor was led to believe by an erroneous decision of a court that his claim was not enforceable and therefore did not present it until such decision was overruled after the bar had attached." An acknowledgment of the debt before the bar, if otherwise sufficient to take it out of the statute, will make the debt prov- able.^2 ^ payment upon an outlawed debt, or the giving of a bond or mortgage to secure the same, though made by the bank- rupt prior to his adjudication under such circumstances as to constitute a preference operates to renew the debt so as to enable the creditor to prove his claim,^^ and if, within four months of the filing of the petition and one day before the claim is barred judgment is obtained thereon, this establishes the debt and stops the running of the statute." However, a claim is not revived or inade provable because a debtor includes it in his schedule of debts; ^® nor because of an acknowledgment of the debt by the bankrupt after the filing of the petition in bankruptcy. ^^ The decision by a bankruptcy court that a claim is barred by the statute renders the question res adjudicata between the parties.^'^ Where, as in California, a judgment may be enforced by execu- tion after the statutory period and if execution has been issued before the commencement of the bankruptcy proceedings^ the 9 — In re MoKinney, 15 Fed. 912; In 99 Fed. 686, 3 A. B. E. 729; see also In re Graves, 9 Fed. 816; In re Eldridge, 12 re Woodard, 1 N. B. N. 385, 95 Fed. 260, N. B. R. 540, 2 Hughes 256, Fed. Cas. No. 2 A. B. E. 339. 4331; In re Wright, 6 Biss. 317, Fed. 15 — In re Eesler, supra; In re Hardin, Cas. No. 18068; Contra, Nicholas v. Mur- supra; In re Kingsley, supra; In re ray, 18 N. B. E. 469, 5 Sawy. 320, Fed. Wooten, 118 Fed. 670, 9 A. B. E. 247; Cas. No. 10223. Contra, In re Hertzog, 18 N. B. E. 526, 10— In re Maybin, 15 N. B. E. 468, Fed. Cas. No. 6433 ; contra, In re Currier, Fed. Cas. No. 9337. 192 Fed. 695, 27 A. B. E. 597. 11 — In re State Ins. Co., 15 Fed. 736. 16— In re Zorn & Co., 193 Fed. 299, 27 12 — In re Eeed, supra. A. B. E. 433. 13 — In re Stendts, 1 N. B. N. 509; 17 — In re Hargadine-McKittriek Dry contra, In re Banks, 207 Fed. 662, 31 A. Goods Co. v. Hudson, 111 Fed. 361, 6 B. E. 270. A. B. R. 657. 14r— In re MoBride, 2 N. B. N. E. 340, §551] Pbovable Debts 419 claim based upon a judgment is provable though the statutory period has elapsed.^* See Discharges, post, § 1562. §550. Claim of mortgagee. A claim for the deficiency upon the sale of mortgaged prpp- erty between the amount due under the mortgage and the amount realized on the sale of the property, applicable to the mortgage debt, is provable; ^® but, where a mortgagee sells the mortgaged premises at auction for a small sum without notice to the trustee and without leave of the eou,rt, neither the balance nor any sum whatever is provable.^" Where a mortgage is given to indemnify the mortgagee for his advances and he lends his acceptances to the mortgagor, and after the bankruptcy of the latter buys up the paper at a dis- count, only what he actually paid to take up his acceptance is provable.*^ If a mortgage is given on goods sold to secure the purchase money, with the understanding that the proceeds are to be applied on the mortgage, but are not, the proceeds of the unsold goods should go to the vendor, who should surrender the mort- gage and prove his claim for the difference as unsecured.^^ A creditor will not be permitted to obtain a preference indirectly through a mortgage held by a third person to whom the creditor has given an indemnity bond, and the mortgagee will not be per- mitted to enforce the mortgage until he has exhausted his remedy on the bond.^* § 551. Mutual debts and credits. A creditor of a bankrupt, who is also his debtor in a larger amount, will not be permitted to prove his claim against the estate, so long as his own debt remains unpaid.^* See Debts Founded on Contracts, ante, section 521, and Set- off and Counterclaims, post, chapter XVII. 18— In re Eebman, 150 Fed. 759, 17 22— Overman v. Quick, 17 N. B. E. 235, A. B. E. 767. ' 8 Biss. 134, Fed. Gas. No. 10624. 19— In re Veitch, 101 Fed. 251, 4 A. 23— In re Beerman, 112 Fed. 663, 7 B. B. 112; In re Euchle, 2 N. B. E. 175, A. B. E. 434. Fed. Cas. No. 12113. 24— In re Gerson, 105 Fed. 893, 5 A. 20— In re Miller, 19 N. B. E. 78, Fed. B. E. 850. Cas. No. 9555. 21— Ex p. Ames, 7 N. B. E. 230, 1 LoweU 561, Fed. Cas. No. 323. 420 Bbandenbueg on Bankeuptoy [§ 552 § 552. Partnership cases. § 553. — Individual debts not allowable out of fimnassets. Since the law contemplates that partnership assets shall be in good faith applied first to the payment of partnership debts, any scheme resorted to by a person in contemplation of bankruptcy for the purpose of charging partnership assets with the indi- vidual liabilities of the partners, is violative of the law and should not be permitted,^^ as where the firm's indorsement is placed upon the individual notes of its members to certain rela- tives,^^ or a note is given in an individual transaction, though signed in the firm name,^''^ or is merely signed in the name of the individual giving it,^* or an accommodation note is indorsed by one member without the knowledge or consent of the others,^® or a firm note is issued to a partner for his share of the capital stock and by him transferred to his wife by whom the capital was advanced,*" or notes are signed by both members, which do not purport to be obligations of the firm.*^ Although real estate stands in the name of a member, if it be in fact firm property, the unsecured individual creditors of such member have no claim upon the proceeds.*^ § 554. — Finn debts. While a partner cannot bind the firm by giving a note to pay his individual debt unless authorized to do so by his partner,^* notes drawn by one partner in the firm name in the course of partnership business without mala fides, or actual knowledge by the holder of want of authority or intended misapplication, may be allowed out of the firm estate; ^* the same is true where 25— In re Bates, 100 Fed. 263, 4 A. 30— In re Froat, 3 N. B. E. 180, Fed. B. R. 56; In re Leigh Lumber Co., 101 Gas. No. 5135. Fed. 216, 4 A. B. E. 221; In re Denning, 31 — Strause et al. v. Hooper et al., 105 8 A. B. E. 138. Fed. 590, 5 A. B. R. 225; In re Jones, 26— In re Jones, 2 N. B. N. R. 193, 116 Fed. 431, 8 A. B. E. 626. 100 Fed. 781, 4 A. B. R. 141; but see 32— In re Groetzinger, 127 Fed. 814, Ex p. Eussell, 16 N. B. E. 476, Fed. Gas. 11 A. B. E. 723, aff'g 110 Fed. 366, 61 No. 12148. A. B. E. 399.- 27— In re Forsyth, 7 N. B. E. 174, 33— First Nat. Bank of Miles Gity v. Fed. Gas. No. 4948. State Nat. Bank of Miles City, 131 Fed. 28— In re Dobson, 2 N. B. N. E. 514. 422, 12 A. B. E. 429. 29— In re Irving, 17 N. B. E. 22, Fed. 34— Bush v. Crawford, 7 N. B. E. 299, Cas. No, 7074, Fed. Gas. No. 2224; overruling In re § 554] Provable Debts 421 one holds a note on which the firm is an accommodation indorser, though collateral security is held therefor; ^^ or a note given by each of the members of a firm individually, the consideration of which went into the firm's business; ^^ or where with knowledge of the existence of a dormant partner, the paper of the active members is discounted, or money loaned them, although the money was borrowed for the partnership.*'^ Where all the mem- bers of a firm have signed, instead of the firm name, their respec- tive names to a written obligation, whether the indebtedness is individual or that of the firm depends upon whether it was given for a firm obligation, whether the consideration went to the firm, whether it is joint or several, or joint and several, and whether others besides the members of the firm are on it.** Whether a claim is against a firm and hence provable iji bank- ruptcy against it, or a claim against the individuals, or some one of them, composing such firm, is to be determined on general principles and the bankrupt law makes no special provision on the subject. If a firm obligation be taken for the debt of a partner, the creditor must show that the partner is entitled to give it and he may then prove against the joint assets, and the firm assets must be applied without reference to any dis- proportion of the individual partners' interests, as between themselves,*® so with the amount paid for firm debts purchased, by friends for two partners, the third partner not contributing, even though the third partner objects.*" That the obligation is Dunkle, 7 N. B. E. 107, Fed. Cas. No. Herrick, 13 N. B. E. 312, Fed. Cas. No. 4161. Union Nat. Bank of Kansas City 6420. T. Neill, 149 Fed. 711, 10 L. E. A. (N. 37— Amly v. Lye, 15 East 7; Ex p. S.) 426, 17 A. B. E. 841, rev'g 143 Fed. Emly, 1 Eose 61. 553, 16 A. B. E. 318. 38— In re Webb, 2 B. E. 183, Fed. Cas. Notes of a firm given to the surety on No. 17313; In re BueyruS Maeh. Co., 5 the bond of a partner who had misap- N. B. E. 303, Fed. Cas. No. 2100; In. re propriated government funds and used Miller, Fed. Cas. No. 9550; In re Herrick, the same for partnership purposes held 13 N. B. E. 312, Fed. Cas. No. 6420; In based on sufficient consideration. In re '« ^°^^^' ^ ^^^- ^77, Fed. Cas. No. a T> -lAA -n< ;i a-in ia s -D j> 11989; In re Holbrook, 2 Lowell, 259, Speer Bros., 144 Fed. 910, 16 A. B. B. „ , ' „ »_„„ ^ mt 1™ f" ' ' Fed. Cas. No. 6588; In re Thomas, 17 ' , N. B. E. 54, 8 Biss. 139, Fed. Cas. No. 35— In re Dunkerson, 12 N. B. E. 413, ^gggg 4 Biss. 253, Fed. Cas. No. 4157; Ex p. gg^j^^ ^^ Lowe, 11 N. B. E. 221, Fed. Whiting, 14 N, B. E. 307, 2 Lowell 472, cas. No. 8564. Fed. Cas. No. 17573. 40— In re Lathrop, 5 N. B. E. 43, 5 36— In re Thomas, 17 N. B. E. 54, 8 Ben. 199, Fed. Cas. No. 8104; see In re Biss. 139, Fed. Cas. No. 13886; see in Carmichael, 96 Fed. 594, 2 A. B. E. 815. 422 Bbandenbukg on Bankexjptcy [§ 554 that of the firm may be proved notwithstanding the failure to enter the transaction at large on the firm's books.*^ On the other hand, the fact that the amount due a creditor is entered upon the firm books and that payments have been made to him by means of checks of the firm' is not conclusive as to the char- acter of the debt.*^ One does not become a firm creditor by reason of holding a right of action for the misrepresentation of a firm's condition by one of its members; ** or by purchasing the partner's interest in a firm pending their adjudication as bankrupts individually and as a firm; ** or where by the partnership contract it is agreed that the firm should assume the individual debts if it becomes bankrupt, the creditor failing to consent to the conversion of liabilities before bankruptcy; *^ nor can a firm, all of whose mem- bers are partners in another firm, prove its debts against the latter firm.^' Claims of legatees of a deceased partner who directed by will that his capital be left with the partnership after his death and interest be paid thereon have been allowed.*'' § 555. — Joint and individual debts. Where there are separate and distinct contracts of the firm and a copartner to pay a debt contracted by the firm, the claim may be proved against both estates. The additional several contract of a partner is not, however, implied from the firm transaction, but must be created by a distinct act of the copartner.*^ The holder of a note given by a firm and also by an individual member of the firm is entitled to dividend from both estates.*® And it has been held that a creditor.holding a firm note indorsed by one of its members may resort to either estate.^" If one 41 — In re Stevens, 104 Fed. 323 ; In re 47 — ^In re Lough & Burrows, 182 Fed. Warren, 2 Ware 322, Fed. Gas. No. 17191. 961, 25 A. B. E. 597. 42— Hibberd v. MoGill, 129 Fed. 590, 48— Reynolds v. New York Trust Co., 12 A. B, E. 101. 188 Fed. 611, 39 L. E. A. (N. S.) 391, 43 — In re Schuchart, 15 N. B. E. 161, 26 A. B. E. 698. 8 Ben. 585, Fed. Caa. No. 12483. 49— Emery v. Bank, 7 N. B. E. 217, 44— Osborne v. McBride, 16 N. B. E. 3 Cliff. 507, Fed. Cas. No. 4446; In re 22, 3 Sawy. 590, Fed. Cas. No. 10593. Long, 9 N. B. E. 237, 7 Ben, 141, Fed. 45— In re Isaacs, 6 N. B. R. 92, 3 Sawy. Cas. No. 8476; In re Bigelow, 2 N. B. E. 35, Fed. Cas. No. 7093. 321, 3 Ben. 146, Fed. Cas. No. 1397. 46— In re Savage, 16 N. B. E. 368, Fed. 50— Buckingham v. First Nat. Bank, Cas. No. 12381. 131 Fed. 192, 12 A. B. E. 465; Stephen- § 555] Provable Debts 423 partner indorses firm paper and pledges securities belongiflg to himself, after the firm's bankruptcy, the holder of the notes may sell the security and yet receive from the joint fund a dividend on the notes.®' If the holders of a note indorsed by a firm and one partner accept a percentage from the maimers, their divi' dends from the partnership and individual partner's estates are confined to the difference between the face of the note and the percentage received.®^ A former partner may be held liable on a firm note, where, after retirement, he permits his name to be used, although notice of his withdrawal is published, and the firm exchanges notes with a third party, who sells for value before maturity, the firm beconiing bankrupt.^® A claim based upon a misappropriation for the benefit of the firm, may be filed against either the individual or partnership assets,^* and an individual debt of a partner which is assumed by the partnership upon the formation thereof is provable against the estate of the partnership,® ® i The claim of the wife of a partner for money loaned the part- nership is allowable against both the individual estate of the partners and the partnership estate.®* Where an execution lien has been obtained in good faith more than four months before bankruptcy on the property of one of the individual members of the firm under a judgment against the firm, it has been held that the statutory lien will not yield to the equity of the separate creditors of that partner,®^ but such partner has a lien on the firm real estate until the debts are paid to indemnify him in the event of his having to pay them.®® son V. Jackson, 9 N. B. E. 255, 2 Hughes Tesson, 9 N. B. R. 378, Fed. Cas. No. 304, Fed. Cas. No. 13374. ' 13844; In re Baxter, 18 N. B. E. 62, 51— In re Foot, 12 N. B. E. 337, 8 Ben. Fed. Cas. No. 1119. 228, Fed. Cas. No. 4906. 55— Dacovieh v. Sehley, 134 Fed. 72, 52— In re Howard, 4 N. B. E. 185, Fed. 13 A. B. E. 752. Cas. No. 6750. 56— James v. Gray, 131 Fed. 401, 1 53— In re Krepger, 5 N. B. E. 439, 2 L. E. A. (N. S.) 321, 12 A. B. E. 573. Lowell 66, Fed. Cas. No. 7941; In re 57— In re Sandusky, 17 N. B. E. 542, Morse, 13 N. B. E. 376, Fed. Cas. No. Fed. Cas. No. 12308; In re Lewis, 8 N. 9854. B. E. 546, 2 Hughes 320, Fed. Cas. No. 54— In re Coe, 169 Fed. 1002, 22 A. 8313. B. R. 384, afE'd 183 Fed. 745, 26 A. B. E. 58— Thrall v. Crampton, 16 N. B. E. 352; In re Jordan, 19 N. B. E. 465; In re 261, 9 Ben. 218, Fed. Cas. No. 14008. 424 Bbandeb^bueg on Bankkuptcy [§ 556 § 556. — Firm debts provable against individual estate. One who has a claim upon whieli both the partnership and an individual partner are liable may prove his claim against the individual estate of the partner, to the extent it is unpaid by the partnership estate.^^ A promise by one partner to pay all the firm debts is enforceable by the firm creditors, though they were not cognizant of the promise when made, and though the con- sideration did not move from them,"" and if an agreement to pay the firm's debts is with the consent of creditors, firm creditors are entitled to share pari passu with the individual creditors.®^ Sureties on a partnership note who pay the same are entitled to prove the claim against the individual estates of the partners who agree to assume the debt, though such agreement is not reduced to writing,^^ If one partner files a voluntary petition, seeking a discharge from both individual and firm debts, and is adjudged bankrupt, but no adjudication is made against the firm, the firm creditors may prove their debts and subject bankrupt's interest in the firm property to the payment thereof.®^ If the firm is not brought into bankruptcy and there are no firm assets, it has been held that a partnership creditor may share with the individual creditors in the estate of a bankrupt individual partner.®* A firm creditor may prove against a partner's separate estate such partner's individual notes, received and credited by him on a firm note held by him; ®^ or, if he holds individual property as security for partnership debts he may prove his whole debt against the joint estate and the deficiency after disposing of the security against an individual partner's separate estate.®* A bond binding several members of a firm jointly and severally may be proved against the individual estate of such member of the firm,®'^ and a purchaser of individual notes of a bankrupt to the firm of which he is a partner, given as collateral for a 59— In re McCoy, 150 Fed. 106, 17 A. 62— Kelsey v. Munson, 198 Fed. 841, 28 B. E. 760; New York Inst, for Deaf & A. B. E. 520. Dumb V. Crockett, 117 App. Div. (N. Y.) 63— In re Laughlin, 96 Fed. 589. 269, 17 A. B. E. 233. 64— In re Green, 116 Fed. 118, 8 A. 60— In re Collier, 12 N. B. E. 266, Fed. ^- ^- ^^^^ Cas. No. 3002. ^^^"^ "^^ ^*^^^"^' ^^^ ^«^- 323- 66— In re May, 17 N. B. E. 192, Fed. 61— In re Long, 9 N. B. E. 227, 7 Ben. Cas. No. 9327. 141, Fed. Cas. No. 8476; see In re Keller, 67— In re Bigelow, 2 N. B. E. 121, 3 109 Fed. 118, 6 A. B. E. 334. Ben. 146, Fed. Cas. No. 1397. § 557] Peovable Debts 425 firm obligation may prove a claim based thereon, against the individual estate of the partner.** If there is a dormant partner, the firm creditors, having no notice of him, may prove against the separate estate of the ostensible partner,*® and in the case of a merely nominal partner, the same course may be taken; ''° and, by proving as separate debts, the separate creditors of the ostensible partner are entitled to payment from the surplus of the joint estate before the sep- arate creditors of the dormant partner. A tort by a firm of which the bankrupt is a member is not in itself a sufficient basis for an implied or quasi contract of the bankrupt individually.'^^ ^ Two notes executed in the names of the individual partners respectively, the loan as to one note being made to one partner, and as to the other note being made to the other partner, and not to the firm, have been held individual debts of the partners, it appearing that the proceeds passed to the partners and not to the firm, though immediately thereafter the partners checked the amount to their credit to the firm.'^2 § 557. — Firm debts not provable against individual estates. The following firm debts have been held not to be provable against a partner's separate estate: where a judgment against a bankrupt firm was paid out of real property belonging to a partner who was not served with process ; '^^ or a partner seeking paynaent before all the partnership debts have been paid, where he sells his interest to his partner, taking his notes therefor, and the partner became bankrupt, leaving some of the notes unpaid; ''* or creditors of an old insolvent firm, to the prejudice of the creditors whose claims arose in connection with a new business, in which he is adjudged bankrupt upon the petition of the new creditors; ''^ or firm creditors who received a dividend in dissolution proceedings in a state court, but decline to sur- 68— In re White, 183 Fed. 310, 25 72— In re Weisenberg & Co., 131 Fed. A. B. E. 541. 517, 12 A. B. E. 417. 69— Ex p. Hodgkinson, 19 Ves. 291; 73— In re Hinds, 3 N. B. E. 91, Fed. Ex p. Norfolk, Id. 455; Ex p. Law, 3 Gas. No. 6516. Dea. 541, 74— In re Jewett, 1 N. B. E. 131, Fed. 70— Ex p. Eeid, 2 Eose 84. Gas. No. 7309. 71— Eeynolds v. New York Trust Co., 75— In re Bates, 2 N. B. N. E. 208. 188 Fed. 911, 26 A. B. E. 698. 426 Beandbnbueg on Bankruptcy [§557 render the same, before proving for the balance on the subse- quent adjudication of a member of the firm; ''^ or the firm trustee against the separate estate of a partner who withdraws firm money for his private purposes, the withdrawal not being fraudulent as against his partners, even if the firm estate was known to be insolvent at the time; '''' or a claim of one firm of which the bankrupt is a partner, against another firm of which he is a partner cannot be proved against him; '^^ or where a creditor gets judgment against the solvent partner, he cannot waive his rights under such judgment and resort to the bankrupt partner's separate estate.''* Costs incurred in an action under a state insolvency law against a firm, although a preferred claim thereunder, are not entitled to priority of payment out of the individual estate of one of the partners,^" nor joint and several notes given by partners for partnership liabilities,*^ nor a note made payable to a firm and subsequently endorsed by a member in the firm name.*^ § 558. — Effect of proving firm debt against individual estate. A firm creditor does not lose his right against the firm or the assets of the firm by proving his debt against a single partner; ^* but if a firm creditor has received payment out of an individual partner's property, such partner's creditors will be subrogated to his rights.®* The acceptance of a composition offered by a partner is no bar to a claim against the estate of the other partner arising out of a conversion for which all partners are jointly and severally liable.*® § 559. — Claims of partners. If a partner has an enforceable claim against his partner, not connected with the partnership, or if a balance has been struck , 76— In re Mills, 95 Fed. 269, 2 A. B. E. 82— Lamoille County Nat. Bank v. 667. Stevens Estate, 107 Fed. 245, 6 A. B. E. 77— In re May, 19 N. B. E. 101, Fed. 164. Cas. No. 9328. 83— Hudgins v. Lane, 11 N. B. E. 462, 78— In re Lloyd, 15 N. B. E. 257, Fed. 2 Hughes 361, Fed. Cas. No. 6827. Cas. No. 8429. 84— In re May, 17 N. B. E. 192, Fed. 79— In re Polidori, 2 N. B. N. E. 922. Cas. No. 9327; In re Poote, 12 N. B. E. 80— In re Daniels, 110 Fed. 745, 6 337, 8 Ben. 228, Fed. Cas. No. 4906. A. B. E. 699. 85— In re Coe, 183 Fed. 745, 26 A. B. E. 81— In re Hosier, 112 Fed. 138, 7 352. A. B. E. 268. §559] Pbovable Debts 427 and acknowledged, he may prove his claim against his partner's estate, but can receive no dividend until all joint debts are paid.*** A solvent partner may not claim against the individual estate of another partner in competition with other creditors, but this rule does not prevent the creditor of a bankrupt estate who, after the debt is incurred, becomes a general partner, from proving against the individual estate of his partner to the diminution of the fund available for the partnership creditors.*'^ Notes of one partner given to the other for his share in the partnership constitute an individual debt and are not provable against the partnership; ** nor can such notes be proved in bank- ruptcy against the purchasing partner if the transaction oc- curred pending the insolvency of the firm.*^ A partner's contribution to the firm capital is not provable,"" but if a partner purchases judgments against his firm, in favor of certain of its creditors, he becomes a creditor of his partners for their respective shares of the money so advanced, and may prove a claim for such share against a partner's individual estate.®^ A partner who has had to pay all the firm debts can prove against his bankrupt partner his proportion of such debfs,"^ so a former partner, or a joint covenanter with bankrupts, who is liable for joint debts and pays them, may prove the amount against the assets of his former partners or of his cocon- tractors.*^ But the claim of a solvent partner against his copart- ner, the bankrupt, because of the insufficiency of the partnership assets to liquidate partnership debts and the consequent neces- sary resort to the property of the solvent partner for that purpose is not a provable claim, where the partnership became insolvent after the filing of the petition.®* Although a partner, afterward becoming bankrupt, had assumed the partnership debts, a solvent partner cannot share in the joint assets, if any 86 — Ex p. Eiehardson, 3 Dea. & Ch. 91 — In re Carmichael, 96 Fed. 594, 244; Ex p. Briggs, Id. 367. 2 A. B. E. 815. 87— In re Strawbridge, 25 A. B. R. 92 — In re Hirth, 189 Fed. 926, 26 355. A. B. E. 666; In re Stevens, 104 Fed. 88— Moek v. Stoddard, 177 Fed. 611, 323;*In re Stephens, 6 N. B. E. 533, 3 24 A. B. E. 403. Biss. 187, Fed. Gas. No. 13365. 89— In ie Denning, 114 Fed. 219, 8 93— Ex p. Lake, 16 N. B. E. 497, 2 A. b! E. l33. Lowell 544, Fed. Gas. No. 7991. 90— In re W. J. Floyd & Co., 156 Fed. 94— In re Walker, 176 Fed. 455, 23 206, 19 A. B. E. 438. A. B. E. 805. 428 Bbandenbueg on Bankbuptcy [§ 559 of the partnership debts are outstanding, since if he did so he would comp.ete with his own creditors; nor can he prove against the separate assets, since the surplus therefrom increases the joint assets; but, if he has paid the joint debts, he is entitled to prove againt the separate estate. A bankrupt partner, though liable to the joint creditors for the whole debt, is entitled to the benefit of the payment by the solvent partner of his liability.®^ Where a partnership is dissolved by consent, one partner buy- ing the assets and assuming all the debts and liabilities of the firm, from which he agrees to save the other harmless, the rela- tion of the former partners becomes that of principal and surety; and, if the retiring partner is called upon to pay a debt of the firm, after the continuing partner is adjudicated a bank- rupt, he may prove the amount so paid against the bankrupt's estate, making such proof in the name of the creditor, or, if the creditor has already proved the debt, be subrogated to such creditor's rights.^^ To charge a person as a silent partner, and thus debar h\m from his claims as a creditor, an actual and definite agreement, binding on all parties, must be proved.^^ § 560. — Marshalling of assets. See post, chapter XXXII. § 561. Patents and royalties. Under a contract providing for a royalty for the use of a patent, a claimant is entitled to reasonable compensation for the period during which the patent was used.^« § 562. Secured claims. The claim of a creditor who has collateral therefor is provable without applying such collateral; ^^ and so is a mortgagee's claim though he has obtained leave to foreclose in a state court, provided he does not take a deficiency judgment, and he has not 95-In re Jay Cooke, 12 N. B..JI. 30, 98-In re-Bevier Wood Pavement Co., Fed. Cas. No. 3170. 156 j^ed. 583, 19 A. B. E 462 96— In re Dillon, 100 Fed. 627; In re 99— Lewis v. United States, 14 N. B. E. Pease, 13 N. B. E. 168, Fed. Cas. No. 64, 92 U. S. (2 Otto) 618, 23 L. ed. 513. 10881. . ' 97— In re Clark, 111 Fed. 893, 7 A. B. E. 96; In re Harris, 108 Fed. 517. § 564] Pbovable Debts 429 prosecuted such suit to judgment; ^ as is also the claim of a plaintiff iu a suit pending when the petition is filed.^ See also Proof of Secured Claims, post, section 629. § 563. Liability of bankrupt as stockholder or director. The liability of the stockholders of a corporation for its debts is not only a debt created by statute, but is also founded upon an implied contract and provable in bankruptcy if the circum- stances are such that the claimant could have maintained a suit to enforce the stockholder's liability. It is a collateral security for the benefit of the creditors and not a penalty for the mis- behavior of the directors or stockholders, but rather in the nature of a contract of suretyship for corporate debts.^ The amount previously ascertained to be due for an assessment is provable against a bankrupt stockholder where the charter of a corporation provides for the forfeiture of stock upon which an assessment remains unpaid.* A receiver appointed by a state court to enforce the bankrupt's liability as a stockholder may prove a claim based upon such liability as a representative of the creditors of the corporation.^ The statutory liability of directors of corporation for money embezzled by its officers is a provable debt.® § 564. Liability of bankrupt corporation to holder of its stocks and bonds. A stockholder of a bankrupt corporation cannot after bank- ruptcy of the latter rescind his contract of subscription and prove a claim for the amount paid by him on his contract, though his contract reserves such right.'' A claim for damages for an anticipatory breach of the bank- rupt's contract to purchase or redeem stock on a fixed date after bankruptcy is provable, if the trustee does not within a reason- 1— In re Linforth, 87 Fed. 386. 4^-Gibson v. Lewis, 11 N. B. E. 247, 2— Bueknam v. Dunn, 16 N. B. E. 470, Ted. Cas. No. 5393. 2 Hask. 215, Fed. Cas. No. 2096. ■ 5— Dight v. Chapman, 44 Ore. 265, 12 3— In re Eouse, 1 A. B. E. 393 ; James A. B. E. 743. V. Atl. Delaine Co., 11 N. B. E. 390, Fed. 6— In re Brown, 164 Fed. 673, 21 A. Cas. No. 7179; In re Walker, 164 Fed. B. E. 123. 680, 21 A. B. E. 132; In re Putman, 193 7— Allen v. Commercial Nat. Bank, Fed. 464, 27 A. B. E. 923; Dight v. Chap- 191 Fed. 97, 27 A. B. E. 33. man, 44 Ore. 265, 12 A. B. E. 743. 430 Bbandenbueg on Bankbuptct [§ 564 able time elect to keep the contract alive,® notwithstanding the stock is of no value.® The owner of a going concern who sold his entire stock in trade to a corporation taking in payment thereof stock of the corporation which was held in trust for him by the directors of the corporation has been held not to be a creditor of the corporation.^" Bonds of the bankrupt may be made the basis of a provable claim provided their issue was not ultra vires." And claims based on bonds, the holders of which were induced to purchase them through fraud are not merged in a deficiency judgment recovered by the trustee of the bondholders who foreclosed the mortgage securing the bonds.^^ A bond which recites that prin- cipal and interest are payable only out of a fund to be created but of the surplus earnings of the bankrupt company, can not give rise to a provable debt in the absence of surplus earnings, there being no fixed liability.^^ §565. Trade certificates. Trade certificates issued by a bankrupt corporation evidenc- ing an indebtedness due by the bankrupt to the claimant and guaranteeing the payment of interest at a specified rate on the amount borrowed, constitute an express promise to pay though payable in merchandise a,nd not negotiable.^* § 566. Debts due the Uuited'States or a state. § 567. — In general. The United States may prove its claim in the bankruptcy pro- ceedings,^® but as it is in nowise bound by a bankruptcy act in the absence of a specific provision to that effect '^^ it is under no obligation to do so, but is considered as standing in the 8— In re Pettingill & Co., 137 Ted. 143, Mines Co., Ltd., 208 Fed. 251, 31 A. B. B. 14 A. B. E. 728. 421. 9— In re NefE, 157 Fed. 57, 28 L. E. A. 14— In re Spot Cash Hooper Co., 188 (N. S.) 349, 19 A. B. E. 23. Fed. 861, 26 A. B. E. 546. 10— Drozda v. Galbraith, 195 Fed. 926, 15— Bousfield & Poole Mfg. Co., 17 27 A. B. E. 882. N. B. E. 153, Fed. Cas. ^o. 1704. 11— In re Waterloo Organ Co., 134 16— Lewis v. U. 8., 92 U. S. (2 Otto) Fed. 345, 13 A. B. E. 477. 619, 23 L. ed. 513; U. S. v. Herron, 20 12 — Maokay v. Eandolph Macon Goal Wall. 251, 22 L. ed. 275; Harrison v. Co., 178 Fed. 881, 24 A. B. E. 719. Sterry, 5 C. E. 289. 13 — Synnott v. Tombstone Consol. §570] Provable Debts . 431 category of creditors who are not affected by the proceedings except as otherwise provided.^'' It is the trustee's duty, how- ever, to settle first the claims of the United States, and a failure so to do makes him personally liable.^® § 568. — Fines, bonuses, penalties and forfeitures. The provability of claims of this nature is treated in a prior paragraph.^® §569. —Taxes. The filing of the petition in bankruptcy does not stop the run- ning of legal interest on taxes unpaid, and interest will be allowed thereon at the penal rate up to the time of payment.^" The statutory penalty for the non-payment of taxes is a provable debt where, under the laws of the state^ such penalty is treated as interest.^^ Where a tax is regularly assessed and levied, and is neglected by the bankrupt up to a time when under the state law no review or defense to the legality thereof can be had, the question of statutory legality from the standpoint of regularity cannot be raised in the bankruptcy court, but if the property upon which the tax was levied does not actually exist, the claim may be disallowed.^^ It has been held that a state need not prove its claim in bank- ruptcy in order to recover taxes due it on bankrupt's property, nor could the federal law compel the proof of such claim nor sale of the property so subject, free from the tax lien.^* § 570. Unliquidated claims. Section 63b of the act provides that: "Unliquidated claims against the bankrupt may, pursuant to application to the court, be liquidated in such manner as it shall direct, and may there- after be proved and allowed against his estate. ' ' ** 17 — In re Stoever, 127 Fed. 394, 11 22 — In re Otto Freund Arnold Yeast A. B. E. 345; United States v. Barnes, Co., 178 Fed. 305, 24 A. B. E. 458. 31 Fed. 705. 23— Stokes v. State of Ga., 9 N. B. E. 18— United States Eev. Stat., §§3466, 191. 3467. 24 — Analogous provision of act of 19— See ante, § 533. 1867. "See. 19. . . . In all cases of 20 — In re Schuyler & Co., 21 A. B. E. contingent debts and contingent liabili- 428. ties contracted by the bankrupt and not 21-^In re Scheldt Bros., 177 Fed. 599, herein otherwise provided for, the cred- 23 A. B. E. 778. itor . . . may at any time apply to 432 Bbandenbueg on Bankeuptcy [§570 This subdivision does not add to the debts provable under sub- division a, but merely provides for the liquidation of such as are unliquidated;^^ and hence does not authorize the liquidation of claims arising ex delicto, unless they are of such a nature that the claimant may waive the tort and recover in quasi contract.^'' A claim may be liquidated' by agreement between the bankrupt, the trustee and the claimant,^'^ or by directing a hearing before the referee in charge,^* or by the court itself making the com- putation, where the facts are admitted and uncomplicated,^® or by directing a plenary suit to be brought in any court having jurisdiction, or by permitting an action pending in any court to proceed to judgment,®" but until liquidated the holder does not become a creditor.®^ The rendition of a 'judgment against the bankrupt upon appeal more than a year after his adjudica- tion in bankruptcy is a liquidation of the claim of the surety the court to have the present value of the debt or liability ascertained and liqui- dated, which shall then be done in such manner as the court shall order, and he shall be allowed to prove for the amount so ascertained. ... If any bankrupt shall be liable for unliquidated damages arising out of any contract or promise, or on account of any goods or chattels wrongfully taken, converted, or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. No debts other than those above specified shall be proved or allowed against the estate. ' ' 25— In re Roth & Appel, 181 Fed. 667, 31 L. R. A. (N. S.) 270, 24 A; B. R. 588, aff'g 174 Fed. 64, 22 A. B. E. 504. 26 — Brown & Adams v. United Button Co., 149 Fed. 48, 8 L. R. A. (N. S.) 961, 17 A. B. R. 565, aff'g 140 Fed. 495, 15 A. B. R. 390; In re Hirschman, 2 N. B. N. E. 1123, 104 Fed. 69, 4 A. B. R. 716; In re Yates, 114 Fed. 365, 8 A. B. R. 69. It has been held that an action for damages for an assault and battery should be reduced to judgment, where it would be provable. This seems to be con- trary to the law. Beers v. Hanlin, 99 Fed. 695, 3 A. B. R. 745. 27 — Claim for damages is sufficiently liquidated if the bankrupt, the trustee and the claimant all agree as to the amount due, if any. In re Mertens & Co., 147 Fed. 177, 16 A. B. R. 825. 28— In re Hirth, 189 Fed. 926, 26 A. B. E. 666; In re Buchan's Soap Corp., 169 Fed. 1017, 22 A. B. R. 382. An adjudication by the referee after a consideration of all the evidence is a proper liquidation of a claim for imli- quidated damages, the parties having submitted themselves to the referee. In re Duquesne Incandescent Light Co., 176 Fed. 785, 24 A. B. E. 419. 29— tn re Rouse, 1 A. B. R. 393; In re Marshall Paper Co., 95 Fed. 419, 1 N. B. N. 407, 2 A. B. E. 653. 30 — Mitchell Storebuilding Co. v. Car- roll, 193 Fed. 616, 27 A. B. E. 894; In re Hilton, 104 Fed. 981, 4 A. B. E. 774. Claim of holder of bond secured by mortgage held to become liquidated by foreclosure of the mortgage after the fil- ing of the petition in bankruptcy, and the entry of a deficiency judgment. In re Fitzgerald, 191 Fed. 95, 26 A. B. E. 773; In re Buchan's Soap Co., 169 Fed. 1017, 22 A. B. R. 382. 31 — In re Big Meadows Gas Co., 113 Fed. 974, 7 A. B. E. 697. § 570] Peovable Debts 433 on his appeal bond, who may thereafter prove his claim for costs paid by him,"** Where some of the elements of a single claim are confessedly unliquidated, the claim as a whole is an unliquidated one.** A claim for stockholder's liability ** should be liquidated, as should a claim for salary to accrue of a person under annual employ- ment, discharged before the expiration of his term.** A creditor who ha^een permitted to rescind a sale on account of fraud on the part of the bankrupt in the purchase and has secured a return of the unsold goods from the trustee, may have his claim for the proceeds of the goods sold liquidated under the court's direc- tion, and prove the same as a debt against the estate.*^ Unliquidated damages growing out of a contract when assessed are provable claims,*'^ and such assessment may be by judgment of a state court,*® and would include a claim for breach of cove- nant of warranty upon eviction,*® or of title where there is an unrelinquished dower right and the person entitled survives and asserts the same,*" or the like. A claim cannot be liquidated and proved for rent to accrue under a lease after the filing of a petition in bankruptcy; ** or as a penalty,*^ or for damages for breach,** or a right of action for misrepresentation of a firm's condition, afterward bank- rupt,** or a claim for damages for an injilry caused by the negli- gence of a special receiver or assignee while operating a rail- 33— In re Lyons Beet Sugar Eefining In re Claugh, 2 N. B. E. 59, 2 Ben. 508, Co., 192 Fed. 445, 27 A. B. E. 610. Fed. Cas. No. 2905. 33 — In re Big Meadows Gas Co., 113 See ante, § 521. Fed. 974, 7 A. B. E. 697. 38— In re Bundle & Jones, 2 N". B. E. 34— In re Eouse, 1 A. B. E. 393; In re 49, Fed. Cas. No. 12138. MarshaU Paper Co., 1 N. B. N. 407; 2 39— WiUiams v. Harkins, 15 N. B. E. A. B. E. 656, 95 Fed. 419. 34; In re Morales et al., 105 Fed. 761, 35— In re Silverman Bros., 2 N. B. N. 5 A. B. E. 425. 760, 101 Fed. 219, 4 A. B. E. 83, s. c. 40— Eiggin v. Maguire, 8 N. B. E. 484, 1 N. B. N. 286, 2 A. B. E. 515; In re 15 Wall. 549, 21 L. ed. 232. Hilton, 3 N. B. N. E. 105; see also Ex p. 41 — In re CoUignon, 2 N. B. N. E. 660, Pollard, 17 N. B. E. 228, 2 Lowell 411, 4 A. B. E. 250. See ante, § 546. Fed. Cas. No. 11252. 42— In re Ehoads, 2 N. B. N. E. 179. 36— In re Hirschman, 2 N. B. N. E. See ante, § 546. 1123, 104 Fed. 69; In re Heinsfurter, 1 43 — In re Amstein, 101 Fed. 706, 4 N. B. N. 504, 3 A. B. E. 113, 97 Fed. 198; A. B. E. 246, afC'g 2 N. B. N. E. 106. see In re Wilcox & Wright, 1 N. B. N. See ante, § 546. 188, 1 A. B. E. 544. 44— In re Sohuchardt & Wells, 15 N. 37— In re Osage Valley & 8. Kan. E. E. B. E. 161, 8 Ben. 585, Fed. Cas. No. Co., 9 N. B. E. 281, Fed. Cas. No. 10592; 12483. Brandenburg— 28 434 Beandenbtjeg on Bankeuptcy [§570 road,*^ since they are debts not affected by a discharge. A claim for unliquidated damages founded upon tort is not provable,*® but the fact that the debts are contingent, or that it is difficult to assess damages for a breach of contract is not a valid objec- tion to the proof of a claim.*'' A claim originally contingent which becomes capable of liqui- dation within the year after the adjudication may be proved.** A claim for unliquidated damages arising out of a brefeh of a contract of sale is provable, though the goods are not tendered, the breach having been occasioned by the filing of the petition in bankruptcy.*^ A claim for damages for breach of warranty, in the absence of a contract, expressed or implied, fixing any amount of dam- ages, has been held not to be founded on a contract within the provisions of section 63a (4) of the law, so as to make it the basis of an adjudication in bankruptcy, but is such an unliquidated claim, as after an adjudication may be liquidated as directed by the court under subdivision b of this section.^" § 571. Usurious contracts. Notes given for the excess over legal interest are not prov- able; ^^ notwithstanding that by the laws of the state the defense of usury is personal and cannot be interposed by a stranger to the cpntract,^^ and, where a borrower gives his note for the loan, with legal interest, and pays for the acconmiodation, such con- tract is affected with usury, and if the lex Joci provides for the forfeiture of the debt, it is not provable.^* While the holder of 45— Metz V. B. E. Co., 12 V. B. E. 559. 927, 12 A. B. E. 566; In re KeUogg, 121 46— In re New York Tunnel Co., 159 Ped. 333, 10 A. B. E. 7, afE'g 113 Fed. Ted. 688, 20 A. B. E. 25; In re Fred 120, 7 A. B. E. 623 ; In re Samuel Wilde 's Dorr, 21 A. B. R. 752. Sons, 133 Fed. 562, 13 A. B. E. 217. 47 — Ex p. Pollard, 17 N. B. E. 228, Agreement whereby money was loaned 2 Lowell 411, Fed. Cas. No. 11252. to bankrupt at the highest legal rate and 48 — In re Dunlap Carpet Co., 163 Fed. under which he assigned book accounts as 541, 20 A. B. E. 882. But see Grant Shoe security held not usurious though lender Co. V. Laird, 21,2 V. S. 445, 53 L. ed. 591, was allowed an additional per centage for 21 A. B. E. 484. the collection of the accounts assigned 49 — In re Duquesne Incandescent Light and their application to the payment of Co., 176 Fed. 785, 24 A. B. E. 419. the loan. In re Mesibovsky, 200 Fed. 50— In re Morales, 105 Fed. 761, 5 A, 562, 29 A. B. E. 235. B. E. 425. 52— In re Stern, 144 Fed. 956, 16 A. 51— 'ShafCer v. Fritchery, 4 N. B. R. B. E. 510. 179, Fed. Cas. No. 12697; In re Moore, 1 53— In re Pittook, 8 N. B. E. 78, 2 N. B. R. 123; In re Worth, 130 Fed. Sawy. 416, Fed. Cas. No. 11189. § 571] Pbovablb Debts 435 a usurious note cannot recover upon the usurious contract, yet where the loan was induced by the fraud of the bankrupt he may be allowed to amend his proof of claim and recover as for money had and received.^* The burden is upon the trustee or objecting creditors to prove that the contract upon which a claim is based is usurious."^ 54^In re Eobinson, 136 Fed. 994, 14 55— In re Wilde's Sons, 133 Fed. 562, A. B. E. 626. 13 A. B. E. 217. CHAPTER XVn Set-offs and Counterclaims § 572. Mutual debts and credits — General rules. § 573. Claims between estate and creditor — In general. § 574. Claim must be provable. § 575. — In general. § 576. — Claims barred by limitations. § 577. — Taxable costs. § 578. Debts and credits must be in same right. I 579. Claims must not be purchased in view of bankruptcy. § 580. Claims need not be of same nature. § 581. Joint and separate debts. § 582. Set-off between banker and depositor. § 583. Set-off by a married woman. § 584. Secured and preferred creditors. § 585. Set-off against usurious note. § 586. Foreign attachment. § 587. Waiver of set-off. § 588. Estoppel to plead set-off. § 589. Time and place of set-off. § 572. Mutual debts and credits — General rules. Section 68a of tlie act provides thaj; "In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid."^ This section did riot create the right of set-off, but recognized its existence and provided a method by which it could be enforced after bankruptcy. The right is given by the commercial law of each of the states and is protected by the Bankruptcy Act if the petition is filed before the right is exer- cised." 1 — Analogous provisions of act of 1867. shall be allowed or paid, but no set-off "Sec. 20. . . . That, in all cases of shall be allowed of a claim in its nature mutual debts or mutual credits between not provable against the estate. ' ' the parties, the account between them 2 — Studley v. Boylston Bank, 229 U. S. shall be stated, and one debt set off 523, 57 L. ed. 1313, 30 A. B. R. 161, aff 'g against the other, and the balance only 200 Fed. 249, 29 A. B. B. 649. 436 § 572] Set-offs and Countbeclaims 437 "Debt" as used in the section refers to such claim or demand as is provable in bankruptcy,^ though not due at the time of the filing of the petition,* while "mutual debts" are claims or demands of that nature, due and owing by the bankrupt to the creditor on the one hand and by the creditor to the bankrupt on the other. It is not believed the language of the act in reference to "mutual debts" was intended to qualify or restrict the gen- eral meaning of the expression, with its attendant incidents and legal requirements. It obviously does not refer to a debt due by one to another and payment on account of such debt,® for in the absence of the statute, a trustee in bankruptcy may show, in opposition to the allowance of a claim, that it has been paid, or that payment has been made on account, which reduces its amount. In such a case, it is the balance merely whic^ is the debt. But where the creditor owes a debt to the bankrupt, and the bankrupt owes such creditor a debt on» account of some different, independent matter, not arising out of the same transaction, such debts are "mutual debts" within the act and may be set off one against the other, and "the balance only shall be allowed or paid. " ^ What is meant by "mutual credits" is not clear, however, unless it means substantially the same as "mutual debts," when the credit must ultimately terminate in a debt, because mutual credits necessarily imply mutual debts to the extent of such mutual credits, for a credit cannot exist in favor of one against another unless such other owes the creditor the amount of the credit.'^ It obviously cannot mean merely a payment on account, whether such payment be in cash, or its equivalent, for the balance only is the debt. Moreover, if it did mean a payment on account, it would follow in all cases wherein the trustee seeks to recover back preferences, consisting of payments received in violation of the act, that the recipient could set off the amount 3 — Germania Savings Bank v. Loeb, 6 — In re Christensen, 101 Fed. 802, 2 188 Fed. 285, 26 A. B. E. 238. N. B. N. E. 1094, 4 A. B. R. 202; In re 4 — ^In re PhiUip Semmer Glass Co., Thompson, 2 N. B. N. R. 1016; contra, Lim., 11 A. B. E. 665; Steinhardt v. Na- In re Eyan, 2 N. B. N. E. 693. tional Park Bank of New York, 120 App. 7— Libby v. Hopkins, 104 II. S. (14 Div. (N. Y.) 255, 19 A. B. E. 72, rev'g Otto) 303, 26 h. ed. 769. 52 Misc. (N. Y.) 464, 18 A. B. E. 86. 5— In re Eyan, 105 Fed. 760, 5 A. B. E. 396. 438 Beandenbueg on Bankruptcy [§572 of the original debt due from the bankrupt and, in that manner, in every case, defeat the recovery of the preference.^ So that, while in the first clause of this section "mutual credits" are referred toj in the next clause they are treated as if "mutual debts" and "mutual credits" meant the same thing, the law providing "and one debt may be set off against the other, ' ' without repeating in that connection the word ' ' credits. ' ' But the set-off is allowable only in cases of "debt," that is to say, where the amount due from the one to the other is a specific liquidated sum of money, and not, for instance, an unliquidated claim for damages arising out of a breach of contract.® In this connection an interesting discussion of this question appears in the leiading English case of Eose v. Hart,^" wherein the court said: "Something more is certainly meant here by mutual credits than the words mutual debts import; and yet, upon the final settlement, it is enacted merely that one debt shall be set off against another. "We think this shows that the legislature meant such credits only as must in their nature termi- nate in debts, as where a debt is due from one party, and credit given by him on the other for a sum of money payable at a future day, and which will then become a debt, or where there is a debt on one side, and a delivery of property with directions to turn it into money on the other; in such case the credit given by the delivery of the property must in its nature terminate in a debt, the balance will be taken on the two debts, and the words, of the statute will in all respects be complied with; but where there is a mere deposit of property, without any authority to turn it into, money, no debt can ever arise out of it, and, there- fore, it is not a credit within the meaning of the statute." § 573. Claims between estate and creditor — In general. The set-offs allowed are of mutual debts or mutual credits between the estate of a bankrupt and the creditor, and would 8— In re Christensen, 101 Fed. 802, 2 from a creditor of Ms, whether for N. B. N. R. 1094, 4 A. B. B. 202. damages, or on contract, express or 9— Bell V. Carey, 8 C. B. 87; but see implied, which passes to the trustee, may In re Harper, 175 Fed. 412, 23 A. B. be used to reduce the claim of such ered- E. 918, holding that any debt, liquidated itor or to extinguish it altogether. ' or unliquidated, owing to the bankrupt, 10 — 8 Taunt. 499, § 575] Set-offs and Counterclaims 439 include a liability that hal accrued to a trustee as such which had not accrued to the bankrupt when the claim and liability i are. mutual." Where no trustee has been appointed and a com- position is made, the bankrupt has the same right of set-ofif as the trustee would have had if one had been appointed.^^ A creditor who voluntarily releases securities held by him in order that the bankrupt may sell and transfer the property is chargeable with the amount lost to the creditors by reason thereof.^* § 574. Claim must be provable. §575. — In general. In order that a claim may be used as a set-off it must be one that is provable in bankruptcy,^* but it need not necessarily be one that has been, or may yet be, proved in the bankruptcy proceeding, ^s The provability of a claim must be determined as of the date of the filing of the petition in bankruptcy, and matters arising thereafter cannot be made the subject of set-off; ^^ though it has been held that a debt due before the adjudication and one not due until afterwards, but both being due at thel time of the attempted set-off, may be set off against each other.^'^ A surety paying his principal's debt either before or after his bankruptcy, may set off the amount so paid against his debt to the bankrupt, provided the debt was provable.^* Unliqui- 11 — In re Crystal Spring Bottling Co., Need not necessarily be due at the time 104 Fed. 265, 4 A. B. E. 55;. Moran v. of the filing of the petition. In re Phillip Bogart, 14 N. B. B. 293. Semmer Glass Co., Lim., 11 A. B. E. 665. 12 — Ex parte Howard Nat. Bk., 16 15 — Steinhardt v. National Park Bank, liT. B. E. 420, 2 LoweU 487, Fed. Cas. No. 19 A. B. E. 72; Norfolk & W. E. Coi v. 6764. Graham, 145 Fed. 809, 16 A. B. E. 610. 13 — In re Stoddard Bros.. Lumber Co., 16 — In re Miohaelis & Lindeman, 196 169 Fed. 190, 22 A. B. E. 435, aff'd 177 Fed. 718, 27 A. B. E. 299. Fed. 611, 24 A. B. E. 4Q3. 17— Norfolk & W. E. Co. v. Graham, 14— See. 68b, Act of 1898; Germania 145 Fed. 809, 16 A. B. E. 610; In re City Savings Bank v. Loeb, 26 A. B. E. 238; Bk., 6 N. B. E. 71, Fed. Cas. No. 2742; In re Beeher Bros., 139 Fed. 366, 15 A. Marks v. Barker, Fed. Cas. No. 9096; B. E. 288; In re Howe Mfg. Co., 193 Catlin v. Foster, 3 N. B. E. 134, 1 Sawy. Fed, 524, 27 A. B. E. 477; In re Bing- 37, Fed. Cas. No. 2519; Prake v. Eollo, ham, 94 Fed. 796, 1 N. B. N. 351, 2 A. 3 Biss. 273, Fed. Cas. No. 4066. B. R. 223; Morgan v. Wordell, 8 A. B. 18— In re Dillon, 100 Fed. 627, 4 A. B. E. 167. E. 63. 440 Beandenbubg on Bankruptcy [§575 dated damages, when liquidated as directed by the court,^® may- be used as a set-off; or the holder of an insurance policy may set off the amount due thereon against the claim for the company's money deposited with him.*" §576, — Claims barred by limitationsi A claim barred by the statute of limitations of the state in which the petition is filed is not provable and hence cannot be used as a set-off, but the same rule would not necessarily apply to claims not filed within the time fixed by the bankruptcy act, since a claim may have been provable, notwithstanding it was never proved.^^ § 577. — Taxable costs. Taxable costs being provable under the present act,^^ may be allowed as set-offs. § 578. Debts and credits must be in same right. The debts and credits must be due in the same capacity; *' thus an expectancy of the bankrupt under the will of a creditor dying after the adjudication cannot be used as a set-off of the bankrupt's indebtedness to the testator,** nor is the amount expended by the bankrupt in the education and support of his children available as a set-off against a debt owing them as guardian ; *^ nor can a debt due an executor as such be set off against a debt due from him personally, nor;the claim of a stock- holder against a corporation against his unpaid stock subscrip- tion or vice versa; ^^ nor can a bank collect money due bankrupt 19— See. 63b, Act of 1898. 23— In re Howe Mfg. Co., 193 Fed. . 20— Seammon v. Kimball, 13 N. B. E. 524, 27 A. B. E. 477; In re T. M. Lasher 445, 92 tr. S. (2 Otto) 362, 23 L. ed. 483. & Son, 176 Fed. 650, 25 A. B. E. 218; 21 — See Steinhardt v. National Park Wright v. Eogers, 3 McLean 229, Fed. Bank of New York, 120 App. Div. (N. Cas. No. 18090. Y.) 255, 19 A. B. E. 72, rev'g 52 Mise. 24— In re Woods, 133 Fed. 82, 13 A. (N. Y.) 464, 18 A. B. E. 86. B. E. 240. The fact that a claim has not been 25 — Embry v. Bennett, 162 Fed. 139, proved in the bankruptcy proceeding 20 A. B. E. 651. within the time fixed by section 57n is no 26 — Kiskadden v. Steinle, 203 Fed. 375, bar to the use of the claim as a counter- 29 A. B. E. 346 ; In re Howe Mfg. Co.," claim or set off in an independent action 193 Fed. 524, 27 A. B. E. 477; In re by the trustee. Id. Norfolk & W. E. Co. Goodman Shoe Co., 96 Fed. 949, 3 A. V. Graham, 145 Fed. 809, 16 A. B. E. 610. B. E. 200; Sawyer v. Hoag, 9 N. B. 22— See. 63a, Act of 1898. See ante, E. 145, 17 Wall. 610, 21 L. ed. 731; § 569. WUbur v. Stockholders, 18 N. B. E. 178 § 579] Set-offs and Counterclaims 441 and set it off against a claim against Mm; ^'' nor can money which is held in trust for the bankrupt by the creditor be used as a set-off; ^® nor can a claim based on promissory note of a member of the bankrupt firm as an individual be set off against a judgment recovered against the claimant on behalf of the firm by the trustee in bankruptcy in a suit for unliquidated damages ex contractu.^® However, a creditor may set off against a debt due him by a bankrupt the value of goods delivered by the latter, to one of the creditor's workmen on the latter 's credit, because in that case it is the debt of the person to whom the credit was extended.^" Damages growing out of a failure of the trustee or receiver in bankruptcy to complete a contract of the bankrupt are prop- erly claims against the bankrupt, and may be set off against a claim of the bankrupt setup by his trustee,^* but they cannot be set off against a claim for services or materials supplied by the trustee.^^ § 579. Claims must not be purchased in view of bankruptcy. The act of 1867 forbade the allowance of set-offs only in case of the purchase or transfer of a claim after the petition was filed. The present act forbids the allowance of a set-off or counter-claim if purchased or transferred after the filing of the petition, or within four months before such filing, with a view to such use and with knowledge of bankrupt's insolvency or commission of an act of bankruptcy; ^^ but there seems to be Fed. Cas. No. 17636; JenHns v. Armour, 31 — Howard v. Magazine & Book Co., 14 N. B. E. 276, 6 Biss. 312, Fed. Cas. No. 147 App. Div. (N. Y.) 335, 27 A. B. E. 7260; Scammon v. Kimbell, 13 N. B. E. 296. 445, 92 U. S. (2 Otto) 362, 23 L. ed. 483; 32 — Howard v. Magazine & Book Co., Sanger v. Upton, 91 U. S. (1 Otto) 56, 147 App. Div. (N. Y.) 335, 27 A. B. E. 23 L. ed. 220; Morgan v. Allen, 103 U. S. 296. (13 Otto) 498, 26 L. ed. 498. 33— Sec. 68b, Act of 1898. Continental 27 — Traders Bk. v. Campbell, 6 N. B. & Commercial Trust & Savings Bank v. E. 353, 14 Wall. 87, 20 L. ed. 832. Chicago Title & Trust Co., 229 U. S. 435, 28— Western Tie & Timber Co. v. 57 L. ed. 1268, 30 A. B. E. 624; In re Brown, 196 U. S. 502, 49 L. ed. 571, 13 Tacoma Shoe & Leather Co., 3 N. B. A. B. E. 447, rev'g 129 Fed. 728, 12 N. E. 9; In re Howe" Mfg. Co., 193 Fed. A. B. E. 111. 524, 27 A. B. E. 477; Mason v. Nat. 29— In re T. M. Lesher & Son, 176 Fed. Herkimer County Bank, 172 Fed. 529, 22 650, 25 A. B. E. 218. A. B. E. 733, rev'g 163 Fed. 920, 21 A. 30— Bice V. Grafton Mills, 13 N. B. E. B. E. 98; In re Shult^, 135 Fed. 623, 14 209. A. B. E. 378; Stich v. Berman, 49 Misc. 442 Bbandenbueg on Bankruptcy [§579 no prohibition against such use of claims purchased more than four months before the bankruptcy, whether with or without knowledge or notice of bankrupt's insolvency.^* Creditors cannot purchase worthless claims, or such as are worth but a percentage of their face value, and use them as set-offs or counter-claims to pay what they owe the estate; nor can a debtor to the bankrupt's estate set off against his debt the bankrupt's notes bought on speculation as to probable divi- dends; ^^ nor a protested draft after the commencement of the bankruptcy .proceedings; ^^ nor claims bought up by the debtor to set dff against the bankrupt's deposit,^'^ but the satisfaction by a bank, without diminution of the estate of the bankrupt depositor, of possible claims of others, who, in the event of the depositor's default, would have^been entitled to the deposits, is not within the prohibition of the act".^* § 580. Claims need not be of same nature. While a claim for unliquidated damages arising out of a tort is not available as a set-off to a claim founded upon contract,*^ the debts and credits may be of different kinds, as money or securities deposited in a bank may be set off against notes or a protested draft due the bank by the debtor; *° or the amount due for personal services may be set off against a mortgage; *^ or money on hand by an employee against salary due where he was in the habit of receiving and paying out money for his employer; *^ or the claim of the trustee in bankruptcy against (N. Y.) 104, 15 A. B. B. 466; In re Savings Bank v. Chicago Title & Trust Shults, 132 Fed. 573, 13 A. B. E. 84; Co., 229 XT. S. 434, 57 L. ed. 1268, 30 A. Western Tie & Timber Co. v. Brown, B. E. 624. 196 V. S. 502, 49 L. ed. 571, 13 A. B. E. 39— In re Becher Bros., 139 Fed. 366, 447, rev'^g 129 Fed. 728, 12 A. B. E. 111. 15 A. B. E. 228. Where the effect of allowing a credit 40 — In re Kalter, 2 N. B. N. E. 264; would be to give the creditor a prefer- Ex parte Howard Nat. Bk., 16 N. B. E. enfte the same will not be allowed. In re 420, 2 Lowell 487, Fed. Cas. No. 6764; White, 177 Fed. 194, 24 A. B. E. 197. City of Harrisburg v. Sherlock, 16 N. B. 34 — Hovey v. Home Ins. Co., 10 N. B. E. 62; In re Petrie, 7 N. B. E. 332, 5 E. 224, Fed. Cas. No. 6743. Ben. 110, Fed. Cas. No. 11040; In re 35— Hunt V. Holmes, 16 N. B. E. .101, Peebles, 13 N. B. E. 149, 2 Hughes 394, Fed. Cas. No. 6890. Fed. Cas. No. 10902. 36— Bashore v. Ehoads, 16 N. B. E. 72. 41— Von Sachs v. Kretz, 19 N. B. E. 63. 37— In re Perkins, 8 N. B. E. 56, 5 42— Ex p. Pollard, 17 N. B. E. 228, Bias. 254, Fed. Cas. No. 10982. 2 Lowell 411, Fed. Cas. No. 11252. 38 — Continental & Commercial Trust & § 581] Set-offs and Counteeclaims 443 a common law assignee; ** or a eonnter-claim for false repre- sentations in inducing a contract of sale against a claim based on such contract.** § 581. Joint and separate debts. The Supreme Court,*^ in citing with approval Justice Story in his treatise on Equity Jurisprudence, said: "Courts of equity, following the law, will not allow a set-off of a joint debt against a separate debt, or conversely, of a separate debt against a joint debt; or, to state the proposition more generally, they will not allow a set-off of debts accruing in different rights. But special circumstances may occur creating an equity, which will justify even such an interposition. Thus, for example, if a joint creditor fraudulently conducts himself in relation to the separate property of one of the debtors, and misapplies it, so that the latter is drawn in to act differently from what he would if he knew the facts, that will constitute, in a case of bankruptcy, a sufficient equity for a set-off of the separate debt created by such misapplication against the joint debt. So, if one of the joint debtors is only a surety for the other, he may, in equity, set off the separate debt due to his principal from the creditor; for in such a case the joint debt is nothing more than a security for the separate debt of the principal, and, upon equitable con- siderations, a creditor who has a joint security for a separate debt, cannot resort to that security without allowing what he has received on the separate account for which the other was a security. Indeed, it may be generally stated that a joint debt may, in equity, be set off against a separate debt, where there is a clear series of transactions, establishing that there was a joint credit given on account of the separate debt." *^ Where a bankrupt and another have accounts one against the other, and both are on a note held by a bank which is paid in full after the filing of a petition by that other, he can set off against the amount due from him to the bankrupt the amount due from bankrupt on the account, but not bankrupt 's share of the note.*''' 43— Catlin v. Foster, 3 N. B. B. 134, 46— See In re Crystal Spriiig Bottling 1 Sawy. 37, Fed. Gas. No. 2519. Co., 104 Fed. 265, 4 A. B. E. 55; In re , 44_in re Harper, 175 Fed. 412, 23 Shults, 132 Fed. 573, 13 A. B. E. 84. A. B. E. 918. 47 — In re 'Bingham, 94 Fed. 796, 1 45— Gray v. Eolo, 18 Wall. 629, 21 L. N. B. N. 351, 2 A. B. E. 223. ed. 927. 444 Bbandenbueg on Bankbxjptcy [§582 § 582. Set-off between banker and depositor. The general rule of set-off applies between a banker and his customers, so that in case of mutual debts and credits, whether matured or not, they may be set off by the banker as against the liabilities of a bank depositor,^* or by the depositor against the liabilities of a bankrupt bank.*^ The right to a set-off attaches only to the deposit as it existed when the petition in bankruptcy was filed, and money deposited after the filing of the petition cannot be set off against an indebt- edness existing before the filing of the petition.^" A deposit made on the day of the filing of the petition cannot be considered in adjusting the mutual credits between the bank- rupt and the bank, since the law does not recognize fractions of a day, and title to the deposit is therefor in the trustee.®^ While the mere fact that the deposit was made within four months of bankruptcy ,^^ or that a portion of the deposits were made after the bank had knowledge of the debtor's insolvency ^* is not conclusive against the right of set-off, yet, if the deposit was made under such circumstances as to constitute it a prefer- ence, the right does not exist.^* So, the privilege of set-off does 48— Toof V. City Nat. Bank, 206 Fed. 250, 30 A. B. B. 79; In re Percy Ford Co., 199 Fed. 334, 28 A. B. E. 919; Ger- mania Savings Bank & Trust Co. v. Loeb, 188 Fed. 285, 26 A. B. E. 238; Whitaker V. Crowder State Bank, 26 Okla. 786, 25 A. B. E. 876; Booth v. Prete, 81 Conn. 636, 22 A. B. E. 579; Steinhardt v. Nat. Park Bank of New York, 120 App. Div. (N. Y.) 255, 19 A. B. E. 72, rev'g 52 Misc. (N. Y.) 464, 18 A. B. E. 86; In re Medaris-Vine Carriage Co., 15 Ohio Fed. Dee. 467, 17 A. B. E. 897; West v. Bank of Lahoma, 16 Okla. 328, 16 A. B. E. 733; Tomlinson v. Bank of Lexington, 145 Fed. 824, 16 A. B. E. 632; Frank v. Mercantile Nat. Bank, 182 N. Y. 264, 14 A. B. E. 125; In re Semmer Glass Co., 135 Fed. 77, 14 A. B. E. 25; appeal dis- missed 203 U. S. 141, 51 L. ed. 128; In re Scherzer, 130 Fed. 631, 12 A. B. E. 451; In re Semmer Glass Co., Ltd., 11 A. B. E. 665. In re Little, 110 Fed. 621, 6 A. B. E. 681; In re Stege, 116 Fed. 342, 8 A. B. B. 515; In re Kalter, 2 N. B. N. B. 264; Traders Bk. v. Campbell, 14 Wall. 87, 20 L. ed. 832, 6 N. B. E. 353; In re Farnsworth, 14 N. B. E. 148; In re Mad- ison, 9 N. B. E. 184; Libby v. Hopkins, 104 IT. 8. (14 Otto) 303, 26 L. ed. 769; In re Meyer, 107 Fed. 86, 5 A. B. E. 593; In re Elsasser, 7 A. B. E. 215. 49— In re Shults, 132 Fed. 573, 13 A. B. E. 84. 50— Toof V. City Nat. Bank, 206 Fed. 250, 30 A. B. E. 79; In re Michaelis & Lindeman, 196 Fed. 718, 27 A. B. E. 299. 51 — Moore v. Third Nat. Bank of Philadelphia, 41 Pa. Super. Ct. 497, 24 A. B. E. 568. 52 — New York County Nat. Bank v. Massey, 192 U. S. 138, 48 L. ed. 380, 11 A. B. E. 42; In re Hill Co., 130 Fed. 315, 12 A. B. E. 221. 53 — Germania Savings & Trust Co. v. Loeb, 188 Fed. 285, 26 A. B. E. 238. 54 — Mechanics' & Metals Nat. Bank v. Ernst, 231 U. S. 60, 58 L. ed. 121, 31 A. B. E. 302, afE'g 201 Fed, 664, 29 A. B. E. 289; In re Wright-Dana Hardware § 584] Set-offs and Counteeclaims 445 not exist "where a deposit is not made for general purposes, but for the purpose of creating a fund to be used in set-ofif, the application of the deposit pursuant to such an arrangement being preferential.®" The right to a set-off against a depositor's demand note is not lost by accepting the bankrupt's check against the same account."^ A set-off cannot be allowed against a special deposit agreed not to be subject to general set-off,®'' nor can deposits held by a bank as trustee be set off.®* Where the deposit of the bankrupt is set off against his lia- bility to a bank, his trustee in bankruptcy may participate in any collateral held by the bank to the extent that such deposit discharged the bankrupt's liability to the bank.®® §583. Set-off by a married womaji. There is no reason why the claim of a married woman may not be used as a set-off as well as that of any individual. Hence, if under the law of the state she is authorized to enter into con- tracts, any claim that she may have against the debtor, if provable, may be used as a set-off. This is true although the debt may have been contracted during coverture without her having complied with the requirements of the statute.*" But neither reasonable gifts from the husband nor an insurance policy on bankrupt's life for the benefit of his wife and children can be set off against a claim of a wife for money which she had received and deposited with her husband for safe keeping.®^ § 584. Secured and preferred creditors. The courts of the United States have generally followed the liberal construction of the English courts in the matter of mutual Co., 212 Fed. 397, 31 A. B. E. 816, modi- Co. v. Loeb, 188 Fed. 285, 26 A, B. E. fying 207 Fed. 636, 31 A. B. E. 192. 238. 55 — In re Starkweather & Albert, 206 59 — Merchants' Nat. Bank v. Sexton, Fed. 797, 30 A. B. E. 743. 228 U. S. 634, 57 L. ed. 998, 30 A. B. E. 56— Toof V. City Nat. Bank, 206 Fed. 278. 250, 30 A. B. E. 79. 60— In re Slichter, 2 N. B. E. 107, Fed. 57— Farmers'* Merchants 'State Bank Cas. No. 12943. of Waco, Tex., v. Park, 209 Fed. 613, 61— In re Bigelow, 2 N. B. E. 170, 2 31 A. B. E. 696. Ben. 198, Fed. Oas. No. 1398. 58 — Gennania Savings Bank & Trust 446 Beandbnbueg on Bankkuptcy [§ 584 criedits in bankruptcy and insolvency.®^ The result of them is that a creditor, who, at the time of the bankruptcy, has in hand goods or chattels of the bankrupt as collateral with a power of sale, or choses in action with power of collection, may sell the goods or collect the claims and set thena off against the debt of the bankrupt, although the power to sell or collect was revocable by the bankrupt before his bankruptcy, or he may retain the surplus by way of set-off on another claim which he holds against the bankrupt.**^ In other words, the very fact of bank- ruptcy, in such cases, gives what is in the nature of a lien which did not exist before.** When shares of stock are conveyed as collateral security, the law implies a promise to return them on the payment of the debt. In cases where there has been either an express or implied promise by the agent or other person having the property, that he will faithfully account for it and pay over its proceeds, such promise would not prevent a set-off in bankruptcy. The weight of authority is that a promise of this sort does not bar a set-off, either under the ordinary statutes, or under the law, unless the property has been entrusted to the agent for a par- ticular purpose inconsistent with such an application of the surplus, so that this would be a fraud or breach of promise.®^ Where the receiver takes possession of property on which a claimant holds a valid mortgage, the mortgagee can only be charged with such portion of the expense of caring for the prop- erty as would necessarily have been incurred by him during the process of foreclosing his mortgage.®* A creditor holding both a secured and an unsecured note of the, bankrupt who after bankruptcy sells the security for an 62— Eose V. Hart, 2 Smith, Lead. Dow, 14 N. B. R. 307, 2 Low. 472, Fed. Cases; McLaren v. Pennington, Paige, Cas. No. 17573; In re McKay, 13 Fed. 102; Receivers, etc., v. Paterson Gas L. Cas. No. 443; In re Taeoma Shoe & Co., 23 N. J. 283; Aldrich v. Campbell, 70 Leather Co., 3 N. B. N. R. 9. 284; Clarke v. Hawkins, 5 E. I. 65 — Marks v. Barber, 1 Wash. 178; 219; Medomac Bank V. Curtis, 24 Me. 36; Eland v. Karr, 1 East. 175; Mayer v. Phelps V. Rice, 51 Mass. 128; Myers v. Nias, 8 Moore 275; Cornforth v. Rivett, Davis, 22 N. Y. 489; Morrison's Assig. 2 M. & S. 510; Groom v. West, 8 A. & E. V. Bright, 20 Mo. 298. 758. 63— Ex p. Whiting, 14 N. B. R. 307, 66— In re Davis, 155 Fed. 671, 19 A. 2 Lowell 472, Fed. Cas. No. 17573. B. R. 98. 64 — Rose V. Hart, 8 Taunt. 499; In re '§ 587] Set-offs and Countebolaims 447 amount in excess of his secured claim may apply tli& excess as a set-off on the unsecured claim.® ^ If a creditor has received a preference on account, he cannot use the balance of his claim as a set-off.®® § 585. Set-off against usurious note. The trustee has the same right as the bankrupt would have under the state laws to set off usurious interest against a claim based on a usurious note.®^ § 586. Foreign attaidmient Where a creditor obtains a preference by an attachment of property as that of the bankrupt under the law of a country which does not recognize the American bankruptcy, any benefit obtained from the attachment operates as a payment pro tanto of the claim and should reduce the dividends payable on the claim to that extent, inasmuch as the creditor should be re- quired to surrender the preference before participating in the dividends.'"' § 587. Waiver of set-off. Where, by reason of the silence or the conduct of the party claiming a right of set-off, the debtor or other creditors have taken such action as would make the enforcement of the set-off inequitable; ''^ or the creditor deliberately proves his full claim without setting off the amount due from the bankrupt,'^^ the right will be lost. In the absence of fraud, however, where either through ignorance or mistake, proof has been made for the full claim, the court will permit the creditor either to amend or withdraw his proof. ''^ And this has been permitted, not- withstanding the fact that through the mistake of the cashier of a bank the amount on deposit was transferred to the account of bankrupt's trustee, without deducting the value of bankrupt's 67— In re Searles, 200 Fed. 893, 29 A. 70— In re Knight, Yancey & Co., 190 B. E. 635. ' Fed. 893, 26 A. B. E. 787. 68— Mechanics' & Metals Nat. Bank 71— Higgs v. Tea Co., L. E. 4, Ex. 387. V. Ernst, 231 U. S. 60, 58 L. ed. 121, 31 72— Hunt v. Holmes, 16 N. B. E. 101, A. B. E. 302, aff'g 201 Fed. 664, 29 Fed. Cas. No. 6890 ; Brown v. Bk., 6 Bush A. B. E. 289; In re Dillon, 100 Fed. 627, (Ky.) 198. 4 A. B. E. 63. 73— Bemis v. Smith, 10 Met. 194. 69— In re Martin, 27 A. B. K. 151. 448 Beandekbueg on Bankruptcy [§ 587 note/* the rights of the parties not otherwise being affected, and no other steps being taken. § 588. ^— Estoppel to plead set-off. The doctrine of estoppel has also been applied to set-offs.'^® § 589. Time and place of set-off. The right of set-off may be availed of even after expiration of the year allowed for filing claims, and this, regardless of the fact that the claimant has failed to prove his claim within that time.'^* If a creditor's debt against a bankrupt is less than the bankrupt's debt against him, the time for set-off is when the creditor is sued, and the place the forum in which the suit is brought, TT 74— Union Nat. Bk. v. McKey, 2 N. In re Charles Town L. & P. Co., 199 Fed. B. N. E. 913; Standard Oil Co. v. Haw- 846, 29 A. B. E. 721. kins, 74 Fed. 395, 33 L. E. A. 739. 76— Steinhardt v. National Park Bank 75 — Creditors are estopped from claim- of New York, 120 App. Div. (N. Y.) 255, ing as an off-set against the claim of a 19 A. B. E. 72, rev'g 52 Misc. (N. Y.) stockholder for advances, the difference 464, 18 A. B. E. 86. between an alleged overvaluation of prop- 77 — In re T. M. Lescher & Son, 176 erty turned over by the claimant in pay- Ped. 650, 25 A. B. B. 218. meut for his stock and its true value. CHAPTEE XVIII Pboof and Allowance of Claims § 592. Proof and allowance distinguished. § 593. Eight to prove claim and necessity therefor. § 594. By whom proof made. § 595. — Agent, ofScer, partner or attorney. § 596. — Assignee or receiver. § 597. — Indorsers, sureties and persons secondarily liable. §598. —Pledgor! § 599. — Proof previously filed by another. § 600. Piling proof of claim. § 601. — Necessity of filing. § 602. — Filing instrument upon which claim founded. § 603. —Place of filing. § 604. — Duty of court to receive proofs. § 605. — Effect of filing. § 606. Time for making proof. I 607. Manner of making proof. § 608. — In general. § 609. — Statement of consideration. § 610. — Assigned claims. § 611. — Open accounts. § 612. — Priority claims. i 613. — Instruments in writing. § 614. Verification of proof of claim. § 615. Amendment of proof. § 616. — In general. § 617. — Period during which amendment may be allowed. § 618. Surrender of preferences. § 619. — What must be surrendered. § 620. — Surrender of preference given within four months. § 621. — Surrender prior to amendment of 1903. § 622. — To whom surrendered. § 623. — Surrender after discharge of trustee. I 624. — .Involuntary surrender of preference. § 625. — All debts affected by non-surrender. 1 626. — Surrender in case of new credit. 1 627. — Effect of surrender. i 628. Proof of claim of one bankrupt estate against another. § 629. Secured claims, i 630. — What are secured claims. § 631. — Bight to prove claim and manner of proof. i 632. — Allowance for voting purposes. Brandenburg — 29 449 450 BbANDENBUBG on BAWKEUPlCTf [§ 592 § 633. — Double proof. § 634. — Security ou property Of third person. § 635. — Application of credits and marshalling of assets. J 636. — Determination of value of securities. § 637. — Sale of securities. § 638. — Purchase of security by creditor. § 639. — Effect of proving claim as secured or unsecured. § 640. Allowance and rejection of claims. § 641. — Discretion of referee. § 642. — Bankrupt 's attorney cannot appear for creditor. § 643. — Eight to jury trial. § 644. — Prima facie case. , §645. — Examination of claimant and witnesses. § 646. — Admissibility of evidence and order of proof. § 647. — Competency of witnesses. § 648. — Adjudication of bankruptcy as res adjudicata. § 649. — Judgment of state court as res adjudicata. § 650. — Appeal and review. § 651. Objections to claims. § 652. — Jurisdiction of referee. § 653. — Who may object. § 655. — Time of making. § 656. — Manner of making objections. § 657. — Time of hearing. § 658. — Proof in case of objections. § 659. — Costs in case of objections. § 660. Postponement of hearing on claims. § 661. Withdrawal of claim. § 662. Be-examinatiou of claims. § 663. — Who may petition. § 664. — Time for asking reconsideration. § 665. — Consolidation of proceedings. § 666. — Mode of procuring re-examination. § 667. — Answer to petition. § 668. — Conduct of hearing and relief awarded. § 669. — -^Costs and expenses. § 670. Effect of proving claim. § 671. — In general. § 672. — Effect on collateral proceedings. § 673. — Eight to oppose discharge. § 674. Effect of failure of proof. § 592. Proof and allowance distinguished. The proof and allowance of claims are distinct, tlie former being the sworn statement by which a creditor presents his claim, the latter the judicial action by which it is established in the proceeding and permitted to participate in the distribu- tion. Claims may be allowed conditionally or temporarily for such purposes as participating in the choice of a trustee or where some question may remain to be determined before they I 595] Proof and Allowance of Claims 451 would be allowed for the purpose of distribution.^ The cred- itor's statement under oath, in writing, as to the proof of his claim, if it contains the matter pointed out in section 57, is at once the claimant's pleading and his evidence, and makes for him a prima facie case,^ and is a part of the proceeding in bank- ruptcy.^ A debt is to be considered as proved when it is duly authenticated and sent to the referee or clerk.* § 593. Right to prove claim and necessity therefor. A claim must be proved before it can be allowed, notwith- standing it is based on a judgment.^ Whether a debt is provable depends upon the nature of the liability, and not upon whether there are assets, or there is any prospect of assets applicable to it.® Thus where a creditor holds the individual notes of a partner he may prove and have them allowed in the firm proceedings, though their payment will be postponed until the partnership debts have been paid.'^ § 594. By whom proof made. § 595. — Agent, officer, partner or attorney. While, generally speaking, only the holder and owner of a claim should make proof,* the law contemplates that it may be made by an agent, attorney or proxy,® upon good and sufficient reasons. Under the former act it might be made by an agent in case the owner was not within the United States,^" though the mere absence from the state was insufficient." Thus a mere agent holding negotiable paper was not permitted to make proof when the owner was in a situation to do so himself, but if not, then the agent might prove in the name and for the benefit of the real owner.^^ The agent might prove where he was cog- 1— In re Wise, 2 N. B. N. E. 151. 7— In re Dobson, 2 N. B. N. E. 514. 2— In re Sumner, 2 N. B. N. E. 681, 8— In re Ford, 18 N. B. E. 426, Fed. 101 Fed. 224, 4 A. B. E. 123. Gas. No. 4932. ^ , 3_Wiswall V. CampbeU, 15 N. B. E. 9— Sec. 1 (9), Act of 1898; G. O. 421, 93 TJ. S. (3 Otto) 347, 23 L. ed. 923. XXI (1). 4— Ex p. Harris, 16 N. B. E. 432, Fed. 10— In re Whyte, 9 N. B. E. 267, Fed. Gas. No. 6109. Gas. No. 17606. 5— In re Eosenberg, 144 Fed. 442, 16 11— In re Jackson, 14 N. B. E. 449, A. B. E. 465. Fed. Gas. No. 7123, 7 Biss. 280. 6— In re Bates, 100 Fed. 263, 4 A. 12— In re Saunders, 13 N. B. E. 164,- P, B, 56. F?d, Ca§. No, 1§371, 2 hm, 444, 452 Bkandenbueg on Bankkuptcy [§ 595 nizant of all the facts, the creditor having no personal knowl- edge; ^* though it has been held that the agent's oath that he is better acquainted with the facts than his principal would not necessarily render the agent's deposition alone admissible as proof." The formal proof of claim may be made out by the attorney for the trustee.'^ "When the deposition is made to prove a debt due to a part- nership, it must appear on oath that the deponent is a member of the firm; when made by an agent the reason the deposition is not made by the claimant in person must be stated; and when made to prove a debt due to a corporation, the deposition must be made by the treasurer, or, if the corporation has no treasurer, by the officer whose duties most nearly correspond to those of treasurer,^^ and if verified by the manager instead of the treas- urer, it is objectionable, though amendable.^'' A corporation may make proof of its claim by agent or attorney in fact, when there is sufficient reason why it should not be made by the officer designated in General Order XXI.^^ § 596. — Assignee or receiver. A claim assigned before bankruptcy should be presented in the name of the assignor, and supported either by his deposition or that of his agent.*^ A receiver of a creditor's property,^" or one who has purchased claims against bankrupt in an endeavor to settle the matter out of court,^^ or one who holds a note as trustee for another,^^ or who holds an account for goods assigned before bankruptcy,^^ may make proof of the claim so held. The 13 — ^In re Watrous, 14 N. B. B. 258, other directors. In re Salvator Brewing Fed. Cas. No. 17270. Co., 188 Ted. 522, 26 A. B. E. 21. 14— In re Whyte, 9 N. B. R. 267, Fed. 17— In re Kude, 2 N. B. N. E. 498. Cas. No. 17606. 18 — In re Eeboulin Fils & Co., 19 A. 15— In re McKenna, 137 Fed. 611, 15 ^- ^- ^15. A. -Q S, i ^^ — ^ ^6 McCarthy Portable Elevator ',-" J Q _„j .^, Co., 205 Fed. 986, 30 A. B. E. 247. ■mi. \^1 ..■ . ^ ^ X,. ,. , X 20— In re Mills, 17 N. B. R. 472, Fed. Where the directors of the bankrupt r xr QfilP corporation had indorsed its notes and 21— In re Pease, 6 N. B. E. 73, Fed. contributed to their payment, appointing Qg^g_ jjq_ 10880. one of their number as their trustee for 22— Ex p. Dreyfus, 13 N. B. E. 43, 2 the purpose, such director held entitled Lowell 305, Fed. Cas. No. 8043. to file proof of claim as trustee for the 23 — In re Fortune, 3 N. B. E. 83. § 597] Peoop and Allowance of Claims 453 form by which a claim against a bankrupt was transferred is immaterial, and cannot affect the right of the transferee to prove the claim, where it is sufficient to estop the original holder from asserting a right to it.** Upon the filing of satisfactory proof of the assignment of a claim proved and entered on the referee's docket, he must imme- diately give notice by mail to the original claimant of the filing of such proof of assignment; and, if no objection be entered within ten days, or within such further time as is allowed by the referee, he must make an order subrogating the assignee to the original claimant. If objection be made, he should proceed to hear and determine the matter.*^ § 597. — Indorsers, sureties and persons secondarily liable. "Whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor's name, and if he discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor." *® A surety or an indorser cannot prove his claim in his own name, whether the note of the bankrupt is due or not, and whether he has paid anything thereon or not. The holder of the note proves the claim, and if he neglects to do so, the indorser can prove in the holder's name, but not in his own name.^''' General Order XXI provides that a person contingently liable for the bankrupt should prove his claim in the name of the cred- itor, when known, and when unknown, in the name of the party contingently liable, but no dividend will be paid upon such claim except upon satisfactory proof that it will diminish pro tanto the original debt.** A party is entitled to be subrogated to the rights of the creditor, without any agreement to that effect, where he has been compelled to pay the debt of a bankrupt to protect himself;*' hence it has been held that sureties and 24— In re Miner, 117 Fed. 953, 9 A. B. 27— In re Manhattan Brush Mfg. Co., R. 100; s. c. 114 red. 998, 8 A. B. E. 248. 209 Fed. 997, 31 A. B. E. 747. 25—6. O. XXI (3). 28— G. O. XXI (4); In re Dillon, 100 26— Sec. 57i Aet of 1898. Sessler v. Fed. 627, 4 A. B. E. 63; In re Christen- Paducah Distilleries Co., 168 Fed. 44, 21 sen, 2 N. B. N. E. 1094. A. B. E. 723 ; In re Beaver Knitting Mills, 29— Whithead v. PillsbUry; 13 N. B. 154 Fed. 320, 18 A. B. E. 528. E. 241, Fed. Cas. 17572. 454 Bbandenbueg on Bankbuptcy [§ 597 indorsers are authorized to prove the debt for which they are liable, when not proven by the creditor, or without first paying it,^" and such debts being provable are released by the dis- charge.^^ This right of subrogation arises from the equities of the subse- quent transactions and not from the original contract of surety- ship,^2 ]j^^ i]^Q subrogation of the surety to the rights of the creditor neither enlarges nor reduces them.^^ The right of sub- rogation does not arise from contract. One surety is entitled to subrogation as against his co-surety even when they are not bound by the same instrument and are ignorant of each other's existence.®* The fact that the claim was not paid by a surety until after the date of the adjudication, will not prevent its proof and allow- ance as a claim against the bankrupt; ®^ but if for any reason the creditor could not have proved the claim, as because he had received a preference, it cannot be proved by the person con- tingently liable. A creditor is entitled to prove his full claim in preference to the person contingently liable, who has dis- charged a part of his indebtedness.®^ On the failure of the holder of a promissory note transferred to him by indorsement to prove his claim therefor on the bankruptcy of the maker, the surety must himself move in the matter or require the holder to act on furnishing him with suitable indemnity against risk and expense.®''^ Accommodation makers, indorsers or sureties upon the obligations of an insolvent debtor are not discharged from liability to pay them because of the innocent acceptance by the creditor of preferences from the debtor, which he sur- 30— Phillips V. Dreher Shoe Co., 112 36— In re Dillon, supra; In re Fed. 404, 7 A. B. R. 326. Schmeckel Cloak & Suit Co., 3 N. B. N. 31— In re Perkins, 10 N. B. E. 529, E. 110, 104 Fed. 64; In re Heyman, 95 Fed. Cas. No. 10983. Fed. 800, 2 A. B. B. 651, citing In re 32 — Courier Journal Job Printing Co. Ellerhorst, 5 N. B. R. 144, Fed. Cas. No. V. Schaefer-Meyer Co., 101 Fed. 699, 4 4381; In re HoUister, 3 Fed. 452; Stew- A.' B. R. 183. art v. Armstrong, 56 Fed. 171 ; In re 33— In re Bingham, 1 N. B. N. 351, Souther, 2 Low. 322, Fed. Cas. No. 13184; 94 Fed. 796, 2 A. B. R. 233; In re Bk. v. Pierce, 137 N. Y. 444; see Down- Schmechel Cloak & Suit Co., 104 Fed. ing v. Bk., 11 N. B. R. 372, Fed. Cas. 64, 3 N. B. N. R. 110. No. 4046. 34 — In re Nickerson, 8 A. B. E. 707, 37 — Nat. Bk. of So. Reading v. Saw- 116 Fed. 1003. yer, 3 N, B, N. R. 266, 6 A, B, R, 154, 35 — In re Christensen, supra, § 60^] Pboof and Allowance of Claims 4S5 renders and may notwithstanding such preferred creditors prove their claims.^* Provability of claims of indorsers is fully treated elsewhere.** §598. —Pledgor. The payee in a note of the bankrupt is entitled to prove it though he has pledged the same as collateral security for his own note.*" § 599. — Proof previously filed by another. The fact that another person has previously come forward as a creditor upon the same account does not affect a claimant's right to offer proof of its debt.*^ ^ §600. Filing proof of claim. § 601. — Necessity of filing. A creditor who retains possession of the proof of his claim and does not file it, has not proven his claim.*^ § 602. — Filing instrument upon which claim founded. Whenever a claim is founded upon an instrument of writing, such instrument, unless lost or destroyed, must be filed with the proof of claim.** The failure to file with the proof of notes the originals, is a sufficient bar to their allowance, and the filing of a list giving the date, amount, date of maturity and the names of the makers, will not answer in lieu thereof.** The holder of 38 — Swarts v. Fourth Nat. Bank of St. in court or deposited in the elerk 's office, Louis, 117 Fed. 1. may be deliyered, by the register or clerk 39 — See ante, § 519. having the custody thereof, to the per- 40 — Ohio Valley Bank Co. v. Mack, son who used it, upon his filing a copy ]63 Fed. 155, 24 L. E. A. (N. S.) 184, thereof , attested by the clerk of the court, 20 A. B. B. 40. who shall indorse upon it the name of 41 — In re Dunlap Carpet Co., 171 Fed. the party against whose estate it has been 532, 22 A. B. E. 788. . proved, and the date and amount of any 42 — In re Sheppard, 1 N. B. E. 115, dividend declared thereon. ' '■ Fed. Gas. No. 12753. Notes should be filed with the proof of 43 — See. 57b, Act of 1898. Analogous claim based thereon. In re Goldstein, 199 provision of Act of 1867. "See. 24. Fed. 665, 29 A. B. E. 301. ... A bill of exchange, promissory 44 — In re McCauley, 2 N. B. N. E. note, or other instrument, used in evi- 1085. denee upon the proof of a claim, and left 456 Bbandenbueg on Bankktjptcy [§ 602 an indorsed note who does not himself prove it on the bank- ruptcy of the maker is not required to tender it to the indorser, in order that he may file it as required by the act, but the better practice is to obtain the note by furnishing indemnity to the holder, when it may be filed with proof of the claim, or have the holder prove the claim and file the note upon suitable indemnity against risk, loss or expense.*^ If the instrument is lost or destroyed, a statement of such fact and of the circumstances of such loss or destruction must be filed under oath with the claim.*® After the claim is allowed or disallowed, such instrument may be withdrawn by permission of the court, upon leaving a copy thereof on file with the claim.*'' A creditor may withdraw the written instrument after the claim has been passed npon, if a copy is left on file, but the trustee has the right to demand the production of the original when the dividends are paid, that they may be properly indorsed.** § 603. — Place of filing. The proof of debt should be filed with the ^lerk of court unless the petition has been referred, in which event it should be filed with the referee in charge of the case, and if any proofs have been received by the trustee, they must be delivered to said referee.*^ § 604. — Duty of court to receive proofs. ' The court has no discretion as to receiving and filing a proof which appears on its face to have been taken by a proper officer and to be correct in fomi-and substance.^" § 605. — Eflfect of filing. By the receipt and filing of the proof of debt, the court obtains jurisdiction of the claim and of the creditor presenting it, and then only does its revising power over such proof commence, the 45— Nat. Bk. of So. Reading v. Saw- 49— Act of 1898 § 57e. G. O. XX.; In yet, 3 N. B. N. E. 266, 6 A. B. E. 154. re Ankeny, 1 N. B. N. 482. 46— Sec. 57b, Act of 1898. 50— In re Merrick, 7 N. B. K. 459, Fed. 47— Sec. 57b, Act of 1898. Cas. No. 9463. 48 — In re Emison, 2 N. B. R. 179, Fed. Cas. No. 4459. § 606] Peoof and Allowance of Claims 457 receiving and filing concluding nothing, but the court retaining full power to revise and correct, or reject altogether."^^ §606. Time formaking proof . Section 57n of the act provides that, "Claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication; or if they are liquidated by litigation and the final judgment therein is rendered within thirty days before or after the expiration of such time, then 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," This provision is an absolute prohibition against proof and allowance of claims when presented after the expiration of one year,^* and, instead of being an enlargement of a creditor's rights, operates as a restriction, and does not authorize the with- holding of dividends when ready, on proved and allowed claims; nor the delay of the final settlement and closing of an estate, when ready to be closed, nor the withholding from other cred- itors of money due them to give a negligent creditor further opportunity for the proof and allowance of his claim.® ^ It has been held, however, that a claimant has the entire year within which to file his claim, and is in no way estopped by his failure to file the claim until within a short time of the expiration of the year.®* In computing the year the day of adjudication is excluded.®® The fact that a creditor failed to make his claim within the time limit through mistake or accident,®^ or that he received no notice of the pendency of the bankruptcy proceedings,® '^ or was 51 — In re Merrick, 7 N. B. E. 459, Fed. his claim until after a final dividend has Cas. No. 9463. been declared he cannot participate in the 52— In re Knosco, 208 Fed. 201, 31 A. distribution. In re Coulter, 206 Fed. B. E. 238; In re Daniel, 29 A. B. E. 284; 906, 30 A. B. E. 75. In re Meyer, 181 Fed. 904, 25 A. B. E. 44; 54— In re Dunlap Carpet Co., 206 Fed. Bray v. Cobb, 2 N. B. N. E. 586, 100 726, 30 A. B. E. 664. Fed. 270, 3 A. B. E. 788; In re Shaffer, 55— In re Co-operative Knitting Mills, 3 N. B. N. E. 54, 104 Fed. 982; In re 202 Fed. 1016, 30 A. B. E. 181. Hilton, 3 N. B. N. E. 105. 56— In re Sanderson, 160 Fed. 278, 20 53— In re Stein, 1 N. B. N. 389, 1 A. A. B. E. 396. B. E. 662, 94 Fed. 124. 57— In re Muskoka Lumber Co., 127 ■ Creditor may prove his claim at any Fed. 886, 11 A. B. E. 761. time within year, but if he fails to prove 458 Bkandenbubg on Bankeuptcy [§ 606 not scheduled as a creditor,^^ or that lie was misled by a state- ment in the bankrupt's schedules as the value of a particular asset ^^ does not entitle him to file his proof of claim after the year, though it is held that where claimants fail to file their claims because no assets are scheduled by the bankrupt, they may upon reopening of the estate upon the ground of newly administered assets be allowed a year from the time of the order reopening the estate to file their claims."" A referee's refusal to reopen a case to allow a creditor who has been guilty of laches in presenting his claim, will be upheld unless there is manifest error.® ^ In case of an appeal from the order of adjudication and the dismissal of such appeal, the period of limitation is to be computed from the date of such dismissal.*^ The provision must be limited to claims as to which the filing of proof is necessary, and where the creditor is in a position to file the necessary proof with the referee, or to elect not to do so,®^ and does not apply to claims filed by the United States,"* or to claims of a city for taxes,"^ or to claim for services as general assignee under an assignment for creditors."" Section 57n requires something more than the mere making of proof according to section 57a to be done within the year. The filing or presentation in some form in the bankruptcy pro- ceedings is also necessary to prevent a claim from being barred by the provisions of that section." '^ However, the presentation and delivery of proofs of claim to the trustee in bankruptcy before the expiration of the year after adjudication is a sufficient compliance with the statute though the claims are not actually filed with the referee until after that time."* This construction 58— In re Lane, 125 Fed. 772, 11 A. 64^In re Stoever, 127 Fed. 394, 11 A. B. E. 136. B. E. 345. 59— In re Peek, 168 Fed. 48, 21 A. B. 65— In re Flatau & Stern, 21 A. B. E. 707, aif 'g 161 Fed. 762, 20 A. B. E. K. 352. g29 66— In re Levitt, 126 Fed. 889, 11 A. 60— In re Pierson, 174 Fed. 160, 28 A. ^- ^- ^^^■ _ _ „. 67— In re French, 181 Fed. 583, 25 A. ^- ®- ^^- B. E. 77. . '«oT'? :' ?°''f/''- '''' ' ^- ^- 68-Orcutt Co. V. Green, 204 U. S. 96, E. 695, 1 N. B. N. 430. 51 ^_ ^^ ,7 ^ 3 ^' ,3,' 62-In re Lee, 171 Fed. 266, 22 A. B. p,^ 5^7^ ^3 ^_ ^ ^ g^g. j^ ^^ j,^.^. ^- 820. lamb Co., 199 Fed. 278, 28 A. B. E. S15. 63— In re Strobel, 163 Tea, 787, 20 A, But see In re PettingiU & Co., 137 Fed. . 3, E. 884, 840, 14 A,B. E..763. § 606] Pboof and Allowance op Claims 459 of the act, however, will not permit the trustee to file with him- self his proof of his own claim, and a delivery of such claim to his attorney or employee cannot make such delivery stand in the place of a delivery to the referee.**® It is not necessary, where claims are liquidated hy litigation, that the suit or liquidation be commenced within one year after the adjudication,''*' or that final judgment in the litigation be rendered within thirty days of the expiration of the year, either before or af ter,''^^ in order that the claimant may thereafter prove his claim, nor need the litigation in terms relate to the amounts due the claimant, it being sufficient that the question litigated necessarily involved the determination of the net amount for which the claim should finally be allowed.'^^ Negotiations between the trustee and the claimant to offset a judgment in favor of one against a judgment in favor of the other cannot avail to suspend the exception of section 57n "if they are liqui- dated by litigation. " '^^ Litigation to determine the validity of a lien or preference is a liquidation within the meaning of section 57n, and, where such litigation is determined adversely to the creditor, he may there- after prove a claim at any time within sixty days after the rendition of the judgment though a year has expired since the- adjudication.'^* An agreement entered into pending a litigation between the trustee and a creditor, as to the value of the security 69— In re Lathrop, HasMns & Co., 197 989, 28 A. B. E. 56; aff'g 188 Fed. 522, Fed. 164, 28 A. B. E. 756; Orcutt Co. v. 26 A. B. E. 21; In re Salvator Brewing Green, 204 TJ. S. 96, 51 L. ed. 390, 17 Co., 188 Fed. 522, 26 A. B. E. 21; In re A. B. E. 72, rev'g 137 Fed. 517, 13 A. B. Clark, 176 Fed. 955, 24 A. B. E. 388; In B. 512. re Lange Co., 170 Fed. 114, 22 A. B. E. 70— In re Clark, 176 Fed. 955, 24 A. 414; In re Coventry Furniture Co., 171 B. E. 388. Fed. 673, 22 A. B. E. 623; In re Baker 71— In re Noel, 150 Fed. 89, 18 A. B. Notion Co., 180 Fed. 922, 24 A. B. E. E. 10, rev'g 144 Fed. 439, 16 A. B. E. 808; In re Clark, 176 Fed. 955, 24 A. B. 457; contra, In re Kemper, 142 Fed. E. 388; see also. Page v. Eogers, 211 U. 210, 15 A. B. E. 675. S. 575, 53 L. ed. 332, 21 A. B. E. 496, 72— In re Keyes, 160 Fed. 763, 20 A. rev'g 140 Fed. 596, 15 A. B. E. 502; In B. E. 183. re Standard Tel. & Elec. Co., 186 Fed. 73— In re Clover Creamery Ass'n, 176 586, 26 A. B. E. 601. But see In re Fed. 907, 23 A. B. E. 884. Ehoades, 3 N. B. N. E. 112, 105 Fed. 74— In re Cahill, 30 A. B. E. 794; In 231; In re Leibowitz, 108 Fed. 617, 6 A. re Noel, 150 Fed. 89, 18 A. B. E. 10, B. E. 268 ; In re Baird, 154 Fed. 215, 18 rev'g 144 Fed. 439, 16 A. B. E. 457; In A. B. E. 655, overruling; In re Baird & re Fagan, 140 Fed. 758, 15 A. B. E. 520; Co., 18 A. B. E. 228. In re Salvator Brewing Co., 193 Fed. 460 Bbandenbueg on Bankbuptcy [| 606 held by the creditor is also considered a liquidation by litiga- tion within the meaning of the section '^^ but not litigation between third parties.''* Where a state law prescribes a limited time in which to file a lien claim, such limitation is the lex fori of the state courts, but is not binding upon the courts of bankruptcy, in which the limitation for filing all claims is one year; and, if a lien is per-- fected with the exception of filing it in court, it will hold, if filed within such time, provided other rights do not intervene through lack of notice of the lienJ'^ Section 63 of the law per- mitting provable debts reduced to judgments after the filing of the petition and before the discharge, to be proved does not enlarge the time for proving such debts beyond the year to which proof is limited by this section.''* A clear statement of a claim in writing duly verified and filed with the referee, if made within a year, is sufficient to take a claim out of the statutory limitation, even though it may be allowed or liquidated, afterwards.''^ § 607. Manner of makingf proof. § 608. — In general. No creditor is entitled to participate in the distribution of the bankrupt estate, unless his claim or debt has been proved in the manner and within the time required by law.*" Section 57a pro- vides that "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 securi- ties are held therefor, and whether any, and if so, what pay- hients have been made thereon, and that the sum claimed is justly owing from the bankrupt to the creditor." *^ 75 — First Nat. Bank of Atlanta, Tex., 78 — In re Leibowitz, 108 Fed. 617, 6 V. Cameron, 2,09 Fed. 611, 31 A. B. R. A. B. E. 268. 209, 695. 79— In re Mertens & Co., 147 Fed. 177, 76— In re Daniel, 29 A. B. E. 284. 16 A. B. E. 825. 77— In re Eude, 2 N. B. N. R. 498; In 80— In re Goble Boat Co., 190 Fed. 92, re Ft. Wayne Elec. Corp., 2 N. B. N. E. 27 A. B. E. 48; In re Meyer, 181 Fed. 891; In re Falls City Shirt Mfg. Co., 1 N. 904, 25 A. B. R. 44. B. N. 565, 98 Fed. 592, 3 A. B. R. 437; 81— Analogous provisioa of Act of contra, Goldman v. Smith, 1 N. B. N. 1867. "See. 22. . . . That all 291, 2 A. B. R. 104; In re Brunquest, 14 proofs of debts against the estate of the N. B. R. 529, 7 Bisa. 208, Fed. Cas. No. bankrupt, by or in behalf of creditors 2055. residing within the judicial district §609] Pboop and Allowance of Claims 461 AH the formalities of ordinary pleading do not apply to the making of proof.* ^ The statute and general forms should, how- ever, be followed, wherever possible.** The deposition must be correctly entitled in the court and in the cause, but an omission in this regard is not fatal.** It should give in full at least one Christian, name of the affiant and of the bankrupt, in addition to the surname,*® and the address of the party making proof. A material fact which cannot be conclusively implied from the statements of the proof of a claim, must be found upon a trial thereof.*® § 609. — Statement of consideration. The proof of claim must set forth the consideration,*'^ fully and explicitly giving sufficient facts to enable the trustee and creditors to determine the justice and legality of the claim.** A where the proceedings in bankruptcy are pending, shall be made before one of the registers of the court in said district, and by or in behalf of non-resident debt- ors before any register in bankruptcy in the judicial district where such creditors or either of them reside, or before any commissioner of the circuit court author- ized to administer oaths in any district. To entitle a claimant aganist the estate of a bankrupt to have his demand al- lowed, it must be verified by a deposition in writing on oath or solemn afSrmation before the proper register or commis- sioner setting forth the demand, the con- sideration thereof (Here follows require- ment as to contents of oath.) . . . Such oath or solemn affirmation shall be made by the claimant, testifying of his own knowledge, unless he is absent from the United States or prevented by some other good cause from testifying, in which cases the demand may be verified in like manner by the attorney or author- ized agent of the claimant testifying to the best of his knowledge, information, and beligf, and setting forth his means of knowledge; or if in a foreign country, tlie oath of the creditor may be taken before any minister, consul, or vice-con- sul of the United States; and the court may, if it. shall see fit, require or receive further pertinent evidence either for or against the admission of the claim. Cor- porations may verify their claims by the oath or solemn affirmation of their pres- ident, cashier, or treasurer. ' ' 82— Spencer v. Lowe, 198 Fed. 961, 29 A. B. R. 876; Kelsey v. Munson, 198 Fed. 841, 28 A. B. E. 520; In re Martens & Co., 147 Fed. 177, 16 A. B. E. 825; In re Carter, 138 Fed. 846, 15 A. B. E. 126. 83 — In re Dunn Hdwe. & Furn. Co., 132 Fed. 719, 18 A. B. E. '147. 84— -In re Blue Eidge Packing Co., 125 Fed. 619, 11 A. B. E. 36. 85— In re Valentine, 12 N. B. E. 389, 4 Biss. 417, Fed. Cas. No. 16812. 86— In re Stevens, 107 Fed. 243, 5 A. B. E. 806. 87— Act of 1898, See. 57a; In re Stev- ens, 104 Fed. 325, 5 A. B. E. 11. 88— Spencer v. Lowe, 198 Fed. 961, 29 A. B. E. 876 J In re United Wireless Tel. Co., 201 Fed. 445, 29 A. B. E. 848; Orr v. Park, 183 Fed. 683, 25 A. B. E. 544. Proof of claim which merely sets forth that the bankrupt owed claimant a cer- tain sum of money, which sum was to have been paid by the issuance and de- livery to aim of preferred stock held too indefinite. In re United Wireless Tel. Co., 201 Fed. 445, 29 A. B. E. 848. 462 Brandenbtjeg on Bankeuptcy [§ 609 general statement that there was a consideration is not suffi- cient.*^ The statement of the consideration ought to be such as, if true, not to put the trustee or creditors upon proof, or require oral explanation from the claimants.^" Where the consideration for a note presented for proof is set forth in the creditor's deposi- tion as goods, wares, merchandise, etc., there should be stated the kind of goods, the quantity, the price, the date of the trans- action and time of delivery, if delivered at one time, or, if delivered continuously through a period of time, that period should be stated.®^ ^ statement that the claim is for merchan- dise sold when in fact it is for a balance of a running account is not a fatal defect when in fact the merchandise sold coiistitutes the major part of the consideration.®^ § 610. — Assigned claJms. A claim which has been assigned before proof must be sup- ported by deposition of the owner at the time of the commence- ment of proceedings, setting forth the true consideration of the debt and that it is entirely unsecured, or if secured, the security, as is required in proving secured claims.®^ A claim presented by one who has assigned the same prior to the bankruptcy pro- ceedings may be amended, even after the expiration of the year, so as to be in the name of the real owner, and supported by his deposition.®* § 611. — Open accounts. As in other cases, a proof of claim based upon open account should be specific in the statement of the consideration, and the account should be itemized,®® the proof must state when the Proof of claim of officer of bankrupt vices, mds., &e., "bal. of wages," "for corporation alleging that the claimant goods sold and delivered," and the like was in the employ of the bankrupt ' ' from are insufficient. In re Morris, 154 Fed. on or about November 1, 1903, to on or 211, 18 A. B. E. 828. about November 1, 1906" and that the 92 — In re Watertown Paper Co., 169 amount of $1,117.94 was due him for Fed. 252, 22 A. B. R. 190. salary when he left the bankrupt's em- 93 — In re Mills, 17 N. B. R. 472, Fed. ploy without alleging character of em- Cas. No. 9612. ployment held too indefinite. Id. 94 — In re McCarthy Portable Elevator 89— In re Coventry Evans Furniture Co., 205 Fed. 986', 30 A. B. E. 247. Co., 166 Fed. 516, 22 A. B. B. 272. 95— In re Scott, 1 N. B. N. 402, 1 A. B. 90— In ro Ci-easinger, 17 A. B. E. 538. E. 553, 93 Fed. 418; In re Chasnoff, 3 N. 91— In re Elder, 3 N. B. R. 165, 1 B. N. R. 1; In re Blue Ridge Packing Sawy. 73, Fed. Cas. No. 4326. Co., 125 Fed. 619, 11 A. B. R. 36; In Proof simply stated to be for "ser- re Creasinger, 17 A. B. R. 538. § 613] Pboop and Allowance of Claims 403 debt became or will become due; and if it consists of items maturing at different dates, the average date due, in default of which it will not be necessary to compute interest upon it. All such depositions must contain an averment that no note has been received for such account, nor any judgment rendered thereon.^* § 612. — Priority claims. The proof of claim must state facts, if any, which show the claim entitled to preference or priority of payment. It is not sufficient to say in the claim that the debt therein mentioned is "preferred" or a "preferred claim." ®'' § 613. — Instruments in writing. A general allegation of the consideration for claims founded upon instruments in writing is insufficient, but it should extend to the particulars, though it need not be beyond what relates to the claim as it accrued to the claimant.®* If on notes some of which are payable so many days after date, and others so many days after discount, the proof should show the date of the discounts, and the amount advanced as consideration for each.®® In the case of the holder of bankrupt's paper, he must show that he paid value when he took it, or incurred some responsi- bility, or relinquished some right, or granted some indulgence, or discharged a precedent debt, upon the faith and credit of the paper.^ It is not sufficient to say that the bankrupt is indebted to the claimant in a certain sum, and that the consideration for the debt is a written promise to pay it reciting "for value received."^ The proof on a note upon which the bankrupt is indorser should explicitly state the action taken to fix his liability.' 96— G. O. 2X1 (1) ; In re Goble Boat 99— In re Stevens, 104 Fed. 325, 5 A. Co., 190 Fed. 92, 27 A. B. B. 48. B. B. 11. 97— In re Dunn, 181 Fed. 701, 25 A. 1— In re Howard, Cole & Co., 6 N. B. B. E. 103. But see In re Jones, 151 Fed. E. 372, Fed. Cas. No. 6751. 108, 18 A. B. E. 206, holding that priority 2 — In re Coventry Evans Furniture Co., need not be claimed in the petition for 166 Fed. 516, 22 A. B. E. 272. the proof of claim, but may be asserted 3 — In re Stevens, 104 Fed. 325, 5 A. at any time, in connection with or before B. E. 11. the payment of dividends. 98— In re Stevens, 107 Fed. 243, 5 A. B. E. 806. 464 Beandenbtjeg on Banketjptoy [§ 614 § 614. Verification of proof of claim. A claim is not entitled to allowance unless verified.* The oath thereto may be administered by a referee, United States commissioner, notary public, or other officer authorized to administer oaths in proceedings before the United States courts or under the laws of the states, and diplomatic and consular officers in a foreign country.^ If inade abroad it must be in accordance with the requirements of the federal laws.^ The attorney of a creditor may take the oath of his client as a notary,'^ though the contrary was held under the act of 1867.* A notary public, before whom proof is made, must authenticate the same by his official seal as well as his signature.® ' The vital facts to support a proof of claim should be made to appear by positive averments, founded on deponent's knowl- edge, and not upon information and belief,^" but informalities in the proofs are not material where the creditor, as a witness, has sworn positively of his own knowledge." In the case of any defect in the verification, it may be amended.^^ § 615. Amendment of proof. § 616. — In general. A judge or referee may in his discretion allow a proof of debt ** or the verification of a claim to be amended, and, in case 4— In re tJnited Wireless Tel. Co., 201 10— In re Ilnited Wireless Tel. Co., 201 Fed.. 445, 29 A. B. E. 848. Ted. 445, 29 A. B. E. 848. 5— Sec. 20, Act of 1898; G. O. XXI 11— McKinsey v. Harding, 4 N. B. E. (5) ; In re Sugenheimer, 1 N. B. N. 59, 10, Ted. Cas. No. 8866. 1 A. B. E. 425, 91 Fed. 744; In re Pan- 12— In re Stevens, 107 Fed. 243, 5 A. coast, 129 Fed. 643, 12 A. B. E. 275. B. E. 806; In re Medina Quarry Co., 179 6— Eobert v. Lynch, 16 N. B. E. 38, Fed. 929, 24 A. B. E. 769. Fed. Cas. No. 8635. 13— In re Salvator Brewing Co., 193 7— In re Kimball, 2 N. B. N. E. 46, 4 A. Fed. 989, 28 A. B. E. 56; In re Stevens, B. E. 144, 100 Fed. 777; McDonald v. 107 Fed. 243, 5 A. B. E. 806. Willis, 143 Mass. 542. Evidence given on the hearing in rela- 8— In re Nebe, 1 N. B. E. 289, Fed. tion to the validity of an assignment of Cas. No. 10073 ; In re Keyaer, 9 Ben. 224, securities held by several indorsees of the Fed. Cas. No. 7748; see also In re Brum- bankrupt's notes to one of their number elkamp, 1 N. B. N. 360, 95 Fed. 814, 2 A. held to amount substantially, to a proof B. E. 318. of the claim, and same held amenable by 9 — ^In re Nebe, supra; but see In re annexing to it the formal proofs. In re Strauss, 2 N. B. E. 18, Fed. Cas. No. Salvator Brewing Co., 188 Fed. 522, 26 13532; In re Haley, 2 N. B. E. 13, Fed. A. B. E. 21. Cas. No. 5918. § 616] Proof and Allowance of Claims 465 of inadvertence, mistake or ignorance, whetlier of fact or law, will generally exercise that power, in the absence of fraud, when justice seems to require that the amendment be made and when all parties can be placed in the same situation they would have occupied if the error had not occurred.^* In the administration of the law, its fundamental principle of equal distribution among the creditors, would seem to forbid the exercise of this discretion in the interest of one creditor to the prejudice of others, as where a claim is proved as unsecured, and subsequently an endeavor is made to set up the claim as an equitable lien when there is no perfected security in the cred- itor's favor, but only a contingent and inchoate lien in the effort to secure a preference by litigation.^^ So, an amendment whereby the claimant claims as a contractor upon an agreement made directly with the bankrupt, instead of claiming to be entitled to a lien as a subcontractor will not be allowed to the prejudice of other creditors.^® Where proof is made on an old promissory note, an amend- ment should not be permitted to show that a new note was given, for which the old note was part consideration, but such new note should be proved independently.^'' If the proof is insufficient and is not amended upon leave, it will be expunged.^* However, a claim of which a part only is sustained by the proof need not be amended and resworn before it can be allowed ^^ and the fact that the account annexed, and made part of the proof, fails as to certain items because of the illegality of the transaction out of which they arose, does not require an amendment where the other items set out a valid claim.^" 14— In re Fairlamb Co., 199 Fed. 278, 15— In re Wilder, 2 N. B. N. E. 629, 28 A. B. B. 515; Streeter v. Lowe, 184 101 Fed. 104, 3 A. B. B. 761; see In re Fed. 263, 25 A. B. E. 774; In re Myers, Lesser, 99 Fed. 913, 3 A. B. E. 758. 99 Fed. 691; In re WUder, 2 N. B. 16 — In re Miner's Brewing Co., 162 N. E. 629, 101 Fed. 104, 3 A. B. Fed. 327, 20 A. B. E. 717. E. 761; In re Parkes, 10 N. B. E. 17— In re Montgomery, 3 N. B. E. 109, 82; Fed. Cas. No, 10754; In re Friedman, Fed. Cas. No. 9731. 1 N. B. N. 208, 1 A. B. E. 510; In re 18— In re Seott, 1 N. B. N. 402, 93 Fed. Clark & Beninger, 5 N.B. B. 255, Fed. 418, 1 A. B. E. 553. Cas. No. 2806; In re Jayeox & Green, 8 19— In re Goldstein, 199 Fed. 665, 29 N. B. E. 241, Fed. Cas. No. 7242; In re A. B. E. 301. McConnell, 9 N. B. E. 387, Fed. Cas. No. 20— Streeter v. Lowe, 184 Fed. 263, 8712. 25 A. B. E. 774. Brandenburg — 30 466 Beandenbueg on Bankeuptoy [§ 616 Tlie sufficiency of the amended proof is to be determined on its face, irrespective of prior proofs, except as to whether it is sub- stantially the same claim.^^ § 617. — Period during which amendment may be allowed. The right of amendment extends to all matters forming a part of the proof and will generally be permitted so long as proof of a debt may be made,^^ provided the claim has not been settled or dividend received on account, in which -event the holder would probably be estopped unless good and sufficient reasons are shown. It has been held, however, that the amendment may be permitted, even after the expiration of the time for proving claims, if there be enough on the original proof by which to amend,^^ but not if a new cause of action is set up thereby.^* The scheduling of a creditor by the bankrupt, or the appear- ance of his name on the list of creditors filed in pursuance to a local rule is not such a statement of the claim as to permit of its being filed by a so-called amendment after the expiration of the year.^^ An amendment transferring a claim from the indi- vidual estate of a partner to the firm estate has been allowed after the expiration of the year,^® but it has been held that where the original claim is upon a firm note, the creditor cannot amend after the expiration of the year so as to add a claim as against a 21 — lu re Stevens et al., 107 Fed. 243, An amendment may be made even after 5 A. B. E. 806. the year, if the claim proved presents 22 — In re Moebius, 116 Fed. 47, 8 A. that which the amendment seeks to make B. E. 590; In re Stevens et al., 107 Fed. effective. In re McCarthy Portable Ele- 243, 5 A. B. E. 806. vator Co., 205 Fed. 986, 30 A. B. E. 247. 23 — In re Hamilton Automobile Co., Where the trustee under a mortgage 209 Fed. 596, 31 A. B. B. 205; Brown v. made proof before the referee which was O 'Connell, 200 Fed. 229, 29 A. B. E. 653 ; suflScient to enable him to insist upon In re Daniel, 29 A. B. E. 284; In re the lien of the mortgage, the presentation Basha & Son, 200 Fed. 951, 29 A. B. E. of the bonds secured by such mortgage 225; Hutchinson v. Otis, 190 U. S. 552, could be considered as a claim, although 47 L. ed. 1179, 10 A. B. E. 135, aff'g informal, which might be amended after 115 Fed. 937, 8 A. B. E. 382; In re the expiration of the year. In re Stand- Kessler & Co., 184 Fed. 51, 25 A. B. E. ard Tel. & Elec. Co., 186 Fed. 586, 26 512, rev'g 176 Fed. 647, 23 A. B. E. 901 ; A. B. E. 601. In re Home & Co., 23 A. B. E. 590 ; In re 24 — In re Watldnson, 143 Fed. 602, Faulkner, 161 Fed. 900, 20 A. B. E. 542; 16 A. B. E. 245. In re Creasinger, 17 A. B. E. 538; Buck- 25 — In re Basha & Son, 27 A. B, E. inghan; v. Estes, 128 Fed. 584, 12 A. B. 435. E. 182; In re Eoeber, 127 Fed. 122, 11 26— In re Home & Co., 23 A. B. E. A. B, E. 464. 590. § 619] Pboop and Allowance op Claims 467 partner based npon his indorsement of the note.^'^ An amend- ment increasing the amount of the claim will not be permitted after the expiration of the year,^* nor an amendment setting np a payment upon the debt due from the bankrupt where the effect of allowing same will be to prevent the claim from bein^ outlawed.^^ A creditor, after examination before the referee touching his claim, has been allowed to file supplemental proof correspond- ing with the facts shown by his testimony.^" § 618. Surrender of preferences. § 619. — What must be surrendered. A creditor who holds a voidable preference may file formal proof thereof but cannot obtain allowance without its sur- render.^^ By the amendment of February 5, 1903, section 57g of the act was made to read as follows: "The claims of credito^rs who have received preferences, void- able under section 60, subdivision b, or to whom conveyances, transfers, assignments, or incumbrances, void or voidable under section 67, subdivision e, have been made or given, shall not be allowed unless such creditors shall surrender such preferences, conveyances, transfers, assignments, or incumbrances."^^ This amendment changes the law in such material respects as to render many of the earlier decisions under the law as it now exists almost valueless as authority. The amendment requires that as a condition precedent to the proof of a claim, there must be first surrendered (1) a preference voidable under section 60b. As a preference is defined by section 60a as occur- 27 — In re McCallum & MeCallum, 127 Analogous provision of Act of 1867. Fed. 768, 11 A. B. E. 447. "Sec. 23. . . . 'Any person who, 28 — In re Mowery, 22 A. B. E. 239. after approval of this act shall have ac- 29 — ^In re Girvin, 160 Fed. 197, 20 A. cepted any preference, having reasonable B. E. 490. cause to believe that the same was made 30 — In re Montgomery, 3 N. B. R. 108, or given by the debtor, contrary to any Fed. Cas. No. 9729. provision of this act, shall not prove the 31 — Stevens v. Nave-MeCord Mercan- debt or claim on account of which the tile Co., 150 Fed. 71, 17 A. B. E. 609. preference was made or given, nor shall 32 — Prior to the amendment the section he receive any dividend therefrom until read: "The claims of creditors who have he shall first have surrendered to the as- received preferences shall not be allowed signee all property, money, beijeflt, or unless such creditors shall surrender their advantage received by him under such preferences. ' ' preference. ' ' 468 Beandenbueg on Bankextptcy [§ 619 ring where an insolvent within four months of bankruptcy- procured or suffered a judgment to be entered against himself in favor of any person or made a transfer, of any of his prop- erty, with the result that such creditor shall receive a greater: proportion of his debt than other creditors, such transfer, whether of property or money, or the amount recovered by such judgment must be surrendered prior to proving the claim, if the person receiving the same or to be benefited thereby had reason- able cause to believe that a preference would thereby be effected.^* (2) The law also provides that there shall be sur- rendered all conveyances, transfers, 'assignments or incum- brances on the bankrupt's property, within four months of the filing of the petition, with the intent and purpose on the baiik- rupt's part to hinder, delay or defraud creditors, or any of them, or if made by the bankrupt while insolvent within the same period, and which conveyances, transfers or incumbrances are null and void as against the creditors of the debtor by the laws of the state. It will be observed, therefore, that a surrender of a preference is only necessary where the elements necessary to render it void- able under section 60, subdivision b, are present,^* which under the amendment of 1910 include reasonable cause to believe a preference would be effected,^^ or where the transfer by the debtor was with the intent and purpose to hinder, delay or defraud creditors, or was voidable as against creditors under the laws of the state.^* The mere preferential transfer of a worthless claim does not come within the meaning of 57g requiring surrender.*'' 33 — Section 60a and 60b determine Act held not a voidable preference which what preferences are to be surrendered. should be surrendered. Boden & Haac v. Little V. Holley Brooks Hdwr. Co., 133 Lovell, 203 Fed. 234, 30 A. B. R. 353. Fed. 874, 13 A. B. E. 422. 35 — See In re Mayo Contracting Co., 34— In re Greenberger, 203 Fed. 583, 157 Fed. 469, 19 A. B. R. 551 ; In re 30 A. B. R. 117; In re Carlile, 199 Fed. Andrews, 144 Fed. 922, 16 A. B. R. 387; 612, 29 A. B. R. 373; Western Tie & afie'g 135 Fed. 599, 14 A. B. E. 247; In Timber Co. v. Brown, 196 tJ. 8. 502, 49 re Bloch, 142 Fed. 674, 15 A. B. R. 748; L. ed. 571, 13 A. B. R. 447, rev'g 129 Fed. decided prior to amendment of 1910. 728, 12 A. B. E. 111. 36— In re Clark, 176 Fed. 955, 24 A. B. Attachment within four months of R. 388. bankruptcy under the law of a foreign • 37 — ^In re Hamilton Automobile Co., country not recognizing the Bankruptcy 209 Fed. 596, 31 A. B. E. 205. 1 620] Peoof and Allowance of Claims 469 The surrender of a preference is not necessary unless the cred- itor claims for the excess of the security held by him.^* A preferential mortgage on both exempt and non-exempt property need not be released so far as the exempt property is concerned as a condition to the proof of claim on the debt secured by it, but must be surrendered so far as the assets of the bank- rupt are a fund for creditors.^® The disqualifications of a claim because of a preference inheres in and follows every part of the claim, whether retained by the creditor or transferred to another. So, where a creditor cannot prove his claim without first surrendering a preference under section 57g, a guarantor who has paid the remainder of the debt since the adjudication is subject to the same condition, and can prove the claim only on returning to the estate the amount of such preference.*" However, if a bank in good faith discounts for a customer the note of a third party, indorsed by the customer, the bank may prove the debt against the estate of the maker, although the indorser had received preferences which he would have been required to surrender before he could prove the claim.^^ A surety who has paid his principal's debt after the latter 's bankruptcy is not required to surrender preferential payments received by the creditor as a condition to the proving of his claim which arises from the payment made by him and through subrogation.*^ § 620. — Surrender of preference given within four months. While prior to the amendment of 1903, the statute specified no time limit within which preferences given to a creditor must be surrendered before proof could be made of the balance of the claim, by analogy to other provisions, the courts generally read into the law the period of four months prior to the filing of the petition,** though it was also held that this period applied only 38— In re Keystone Press, 203 Fed. 43— In re Beswick, 2 N. B. N. E. 808; 710, 29 A. B. E. 715. In re Fixen, 2 N. B. N. E. 885, 102 Fed. 39— In re Bailey, 176 Fed*. 990, 24 A. 295, 50 L. E. A. 605, 4 A. B. E. 10; In B. E. 201. re Sloan, 102 Fed. 116, 4 A. B. E. 356; 40— In re Schmeohel Cloak & Suit Co., In re Arndt, 104 Fed. 234, 3 N. B. N. E. 104 Fed. 64, 3 N. B. N. E. 110. 101; In re Castle, 2 N. B. N. E. 985; In 41— In re Wyley et al., 116 Fed. 38. re Wise, 2 N. B. N. E. 151 ; In re Jourdan, 42— In re New, 116 Fed. 116, 8 A. B. 2 N. B. N. E. 581; In re Siegel-Hillman E. 566. Dry Goods Co., 2 N. B. N. E. 933; In re 470 Beandenbiteg on Bankeuptoy [§ 620 in case the creditor had knowledge or reasonable cause to believe that an interdicted act had been committed, but if he had no knowledge the day of cleavage was the day the petition was filed;** also that such payment must be surrendered, although received more than four months prior to bankruptcy.*^ By the amendment referred to, the four months' period prior to the filing of the petition has been specified. § 621. — Surrender prior to amendment of 1903. There is perhaps no provision of the law that was the subject of greater discussion or of such diversity of opinion as section "57g" as it appeared prior to the amendment. As originally enacted it provided "that the claims of creditors who have received preferences shall not be allowed unless such creditors shall surrender their preferences." This, section was the sub- ject of consideration by the supreme court of the United States in the famous case of Carson, Pirie, Scott & Co. v. The Chicago Title & Trust Co.,*® and by a decision of five to four that court held that payments made by an insolvent debtor to a creditor is the usual course of business, must be first surrendered as a condition of proving the balance of the debt or other claims of the creditor, notwithstanding the fact that the debtor had no intention of giving a preference and the creditor was without reasonable cause to believe that a preference was thereby intended. In answer to the contention that the term "transfer of any of his property, ' ' as used in section 60a, to which refer- ence was necessarily made for a solution of what constituted a preference, the court held that the word "transfer" included not only the sale of property, but also every other mode of dis- posing or parting with property. The word was used in its most comprehensive sense, all technicality and narrowness of mean- ing being precluded, and accordingly included the transfer of money as well as of property. The amendment enables a creditor to retain a preferential payment or transfer where there is lacking a reasonable cause Harry Dickinson, 7 A. B. E. 679 ; contra, 45 — In re Jones, 2 N. B. N. E. 961, In re Jones, 110 Fed. 736, 4 A. B. E. 563; aff'd 962, 4 A. B. E. 568. '" In re Abraham Steers Lumber Co., 110 46—182 IT. S. 438, 45 L. ed. 1171, 5 ¥ed. 738, 6 A. B. E. 315. A. B. E. 814. 44— In re Hall, 2 N. B. N. E. 1126, 4 A. B. E. 671. §621] Pboof and Allowance op Claims 471 to believe that a preference would be effected or that the purpose was to hinder, delay or defraud creditors. Accordingly, this makes valueless those decisions which were rendered prior to the amendment, which held that payments received in the usual course of business, although the creditor had no reasonable cause to believe that a preference was intended, must nevertheless be surrendered prior to proving a claim for the balance; the sur- render being necessary whether either or both the debtor and the creditor intended a preference and were innocent in the transaction,*'' The amendment also renders inapplicable the decisions which held that a creditor could not avoid the operation of this pro- vision requiring the surrender of preferences by showing that he received it in the ordinary course of business, and that he had no knowledge or reasonable cause to believe that the debtor was insolvent, or that a preference was intended,** or that the 47— In re Fixen & Co., 2 N. B. N. E. 885, 102 Fed. 295, 50 L. E. A. 605, 4 A. B. E. 10; In re Jourdan, 2 N. B. N. E. 581; In re Hoffman, 2 N. B. N. E. 554; In re Knost & Wilhelmy, 1 N. B. N. 403, 2 A. B. E. 471, Fed. 409; In re Seott, 1 N. B. N. 226; In re Fort Wayne Else. Corp., 2 N. B. N. E. 434, 99 Fed. 400; B. c. below 3 A. B. E. 186, 96 Fed. 803; In re Wise, 2 N. B. N". E. 151; In re Kohn, 2 N. B. N. E. 367; In re Conhaim, 2 N. B. N. E. 148, 3 A. B. E. 249, 97 Fed. 923; In re Nathan, 2 N. B. N. E. 613; In re Christensen, 2 N. B. N. R. 695; In re Eagles & Crisp, 2 N. B. N. E. 462, 99 Fed. 695, 3 A. B. E. 733 ; In re Eichard, 1 N. B. N. 487, 94 Fed. 633, 2 A. B. E. 506; In re Klingaman, 101 Fed. 691, 4 A. B. E. 254; In re Eogers Milling Co., 102 Fed. 687, 2 N. B. N. E. 973, 4 A. B. E. 540; In re Sehmeehel Cloak & Suit Co., 104 Fed. 64, 3 N. B. N. E. 110; In le Teslow, 2 N. B. N. E. 1024, 104 Fed. 229; In re Arndt, 104 Fed. 234, 3 N. B. N. E. 101; In re Siegel Hillman Dry Goods Co.j 2 N. B. N. E. 933; In re Thompson, 2 N. B. N. E. 1016; In re Beiber, 2 N. B. N. E. 943; Eeed v. Phin- ney, 2 N. B. N. E. 1007; In re Castle, 2 N. B. N. E. 985; In re Jones, 2 N. B. N. E. 961, 4 A. B. E. 563 ; In re Beswick, 2 N. B. N. E. 808; In re Durham, 2 N. B. N. E. 1101; In re Sloan, 102 Fed. 116, 4 A. B. E. 356; In re Thompson, 2 N. B. N. E. 1016; contra, In re Piper, 2 N. B. N. E. 7; Blakely v. Bk., 1 N. B. N. 411, 2 A. B. E. 460, 95 Fed. 267; In re Eyan, 2 N. B. N. E. 693 ; In re Locke, 1 N. B. E. 123, 1 Lowell, 293 ; In re Hall, 2 N. B. N. E. 1126, 4 A. B. E. 671; In re Smoke, 2 N. B. N. E. 831, aff'd 2 N. B. N. E. 996, 4 A. B. E. 434, 104 Fed. 289; In re Alexander, 2 N. B. N. E. 997, 102 Fed. 464, 4 A. B. E. 376; In re Keller, 109 Fed. 306, 6 A. B. E. 487; In re OUver, 109 Fed. 784, 6 A. B. E. 626; In re Keller, 109 Fed. 118, 6 A. B. E. 334. 48— In re Pixen, 2 N. B. N. E. 885, 102 Fed. 295, 50 L. E. A. 605, 4 A. B. E. 10; In re Sloan, 102 Fed. 116, 4 A. B. E. 356; In re Arndt, 104 Fed. E. 234, 3 N. B. N. E. 101; In re Keller, 109 Fed. 118, 6 A. B. E. 334; In re Seckler, 106 Fed. 484, 5 A. B. E. 579; In re Water- bury Furniture Co., 114 Fed. 255, 8 A. B. E. 79; Mills v. Lewis, 110 Fed. 512, 6 A. B. E. 612; In re Lyon, 114 Fed. 326, 7 A. B. E. 412; In re Kellar, 110 Fed. 348, 6 A. B. E. 661 ; In re Bashline, 109 Fed. 965, 6 A. B. E; 194; In re Abraham 472 Beandenbueg on Bankeuptcy [§ 621 payment claimed as a preference was made upon a different debt than the one presented for allowance; *^ as the payment of one of several notes; ^^ that the payment was in full discharge of specific bills, while the creditor held an open account against the bankrupt,^^ or where vendors secure return of a portion of the goods sold by them under an agreement that the property was pledged and hypothecated to the vendors as collateral security for the payment of the price with authority to take possession and dispose of the goods at their discretion; ^^ a lien given within four months as security for an antecedent debt; ^* a loan repaid,^* or that payment was made for the purpose of obtaining more goods on credit; ^^ or where transactions are claimed to be for cash, but collections therefor are not made for some days subsequent to delivery of the goods ; ^^ or where a deed of trust ^'^ or mortgage is given to secure an antecedent debt ; ^* or goods are replevined on the ground that the sale was rescinded because of bankrupt's fraud; ®^ or that the claim was one entitled to priority of payment.®" § 622. — To whom surrendered. The surrender of a preference must be to the trustee and not to the bankrupt or any other person.®^ steers Lumber Co., 112 Ted. 406, 7 A. B. 52— In re Klingaman, 101 Fed. 691, 4 K. 332; In re Diekinsou, 7 A. B. E. 679; A. B. E. 254. Carson, Pirie, Scott v. Trust Co., 182 U. 53 — In re Balding, 116 Fed. 1016, 8 A. S. 438, 45 L. ed. 1171, 5 A. B. E. 814; B. E. 718. In re Dickson, 111 Fed. 726, 7 A. B. E. 54— In re Flick, 105 Fed. 503, 5 A. B. 186; but see In re Eatliff, 107 Fed. 80, E. 465; In re Cotton, 115 Fed. 158. 5 A. B. E. 713. 55— In re Arndt, 104 Fed. 234, 3 N. 49— In re Beswick, 2 N. B. N. E. 808; B. N. E. 101. In re Sogers MiUing Co., 102 Fed. 687, 56— In re Durham, 2 N. B. N. E. 1101. 2 N. B. N. E. 973, 4 A. B. E. 540; contra, 57— In re Wright Lumber Co., 114 Fed. In re Hoffman, 2 N. B. N. E. 554; In re ^°^^' ^ ^- ^- ^- ^*5- Wise, 2 N. B. N. E. 151. ^^-^"^ ""« Leeman, 1 N. B. N. 331, 2 50— Eeed v. Phinney, 2 N. B. N. E. ' „" ^' „ . 1007; In re Conhaim, 2 N. B. N. E. 148, , ^tVluTlTlls ' 97 Fed. 923, 3 A. B. E. 249. see In re "^ to-ln\l1lZT^!l\ E. 961, 4 Myers, 2 N. B. N. E. 765; In re Castle, ^. g. E. 563; In re Kohn, 2 N. B. N. E. 2 N. B. N. E. 985. ggy. but see In re Magnus, 3 N. B. N. 51— In re Siegel Hillman Dry Goods e. 68; In re Flick, 3 N. B. N. B. 71. Co., 2 N. B. N. E. 933; In re Tealow, 2 61— In re Bailey, 176 Fed. 990, 24 A. N. B.. N. E. 1024, aff 'd 104 Fed. 229. B. E. 201. §624] Peoof and Allowance op Claims 473 § 623. — Surrender after discharge of trustee. The fact that the trustee is discharged and a composition is confirmed after the presentment of a claim but before its allowance does not absolve the claimant from surrendering a preference as a condition precedent to the allowance of his claim.^2 t § 624. — Involuntary surrender of preference. Under the act of 1867,^^ a creditor might surrender a pref- erence and prove his claim, though if the surrender was not voluntarily made he was prohibited from proving his claim.*'* Under the present law a dreditor who has received a preference 62— In re Feiuberg & Sons, 187 Fed. 283, 26 A. B. E. 587. 63— Under sections 23 and 39 of the Act of 1867, it was held that a creditor, having reasonable cause to believe, or knowing by his agent at the time, that the debtor was insolvent, or that a fraud was intended, who, within four months of the bankruptcy proceedings, obtained a preference, could not prove his claim, and, in addition, was liable to lose his pref- erence. (In re Princeton, 1 N. B. E. 178, 2 Biss. 116, Fed. Cas. No. 11433; Bing- ham V. Bichmond & Gibbs, 6 N. B. E. 127, Fed. Cas. No. 1415; Phelps v. Sterns, Id. V. Dudley, 4 N. B. E. 7, Fed. Cas. No. 11080; In re Kingsbury, 3 N. B. E. 84, Fed. Cas. No. 7816; In re Davidson, 3 N. B. E. 106, 4 Ben. 10, Fed. Cas. No. 3599; In re Walton, 4 N., B. E. 154, Fed. Cas. No. 17130; In re Stein, 16 N. B. E.'569, Fed. Cas. No. 13352; In re Coleman, 2 N. B. E. 172, 7 Blatoh. 192, Fed. Cas. No. 2979; In re Cramer, 13 N. B. E. 225, Fed. Cas. No. 3345; In re Kaufman, 19 N. B. B. 283, Fed. Cas. No. 7627) ; but this pro- hibition only applied where the creditor refused upon demand to surrender his preference and compelled the assignee to recover the same by suit. (In re Hunt, 5 N. B. E. 433, Fed. Cas. No. 6882) ; and a creditor who resisted suit could not prove his claim, where he was defeated in the action, though he paid the judgment re- covered against him therein, such pay- ment not being a surrender (In re Eich- ter's est., 4 N. B. E. 67, Fed. Cas. No. 11803; In re Cramer, 13 N. B. E. 225, Fed. Cas. No. 3345; In re Tonkin, 4 N. B. E. 13, Fed. Cas. No. 14094; In re Lee, 14 N. B. E. 89, Fed. Cas. No. 8179; contra. In re Newcomber, 18 N. B. E. 85, Fed. Cas. No. 10148). 64 — Swrrender under Act of 1867. — Where a preference was knowingly re- ceived by a creditor he was debarred from proving the debt thereby sought to be secured unless, previous to suit brought by the assignee to set aside the prefer- ence, he surrendered the same (In re Leland, 9 N. B. E. 209, 7 Ben. 156, Fed. Cas. No. 8230; In re Scott, 4 N. B. E. 139, Fed. Cas No. 12518; In re Montgomery, 3 N. B. E. 97, Fed. Cas. No. 9728; In re Hunt, 5 N. B. E. 433, Fed. Cas. No. 6882; contra. In re Currier, 13 N. B. E. 68, 2 Lowell, 436, Fed. Cas. No. 3492) ; and a full surrender was a complete condona- tion of the offense (In re Stephens, 6 N. B. E. 533, Fed. Cas. No. 13365; In re Leland, supra; In re Saunders, 13 N. B. E. 164, 2 Low. 444, Fed. Cas. No. 12371) ; but a repayment of a preference to the debtor did not take the place of a sur- render to the assignee (In re Currier, supra.) It was also held that a prefer- eiice would not bar the proof of a claim unless it was given and received by the parties to the debt (In re Comstock & Co., 12 N. B. E. 110, a Sawy. 320, Fed. Cas. No. 3079). 474 BeANDENBUEG ok SANKKUPTOif [§ 624 with knowledge of the debtor's insolvency and that he was being preferred may prove his claim after the preferential payment has been recovered through resort to the courts ^^ and is entitled to a reasonable time thereafter within which to surrender the preference and have his claim allowed,*® even though a year had elapsed since the adjudication.®'' A claim filed within sixty days after judgment in favor of the trustee in an action of replevin commenced by the claimant, and before the surrender to the trustee of the property replevined is not subject to objection that the claimant's preference was not first surrendered, it being presumed that the claimant gave a proper i-eplevin bond which would stand in place of the property replevined.®* § 625. — All debts aifected by non-surrender. The act of 1867 (section 23) expressly provided that a cred- itor receiving a preference ' ' shall not prove the debt or claim on account of which the preference was given. ' ' These words were omitted in the act of 1898 from which it would seem that a creditor who has received a preference will not be allowed to prove any claim or debt, without first surrendering all pref- erences he has received.®^ Prior to the amendment of 1903 it was held in a number of instances that a creditor holding distinct debts might prove them and have his claim allowed upon one upon which no pay- ment had been received, without surrendering what he had received, upon the other,™ though it was also held that if a 65— Barber v. Coit, 144 Fed. 381, 16 Sehmeokel Cloak & Suit Co., 104 Fed. 64, A. B. E. 419; Keppel v. Tiffin Sav. Bank, 4 A. B. E. 719; In re Greth, 112 Fed. 197 U. S. 356, 49 L. ed. 790, 13 A. B. 978, 7 A. B. E. 598. E. 552; and see In re Baker, 2 N. B. E. 66— In re Oppenheimer, 140 Fed. 51, 15 195; In re Eichard, 94 Fed. 633, 2 A. B. A. B. E. 267. E. 506; Eau Claire Nat. Bank v. Jack- 67 — See ante, § 606. man, 204 U. S. 522, 51 L. ed. 597, 17 A. 68— In re Venstrom, 205 Fed. 325, 30 B. E. 675; In re Baker Notion Co., 24 A. A. B. E. 569. B. E. 808; In re Clark, 176 Fed. 955, 24 69— Dunn v. Cans, 129 Fed. 750, 12 A. A. B. E. 388; Page v. Eogers, 211 U. S. B. E. 316. 575, 53 L. ed. 332, 21 A. B. E. 496, rev'g 70— In re Dickinson, 7 A. B. E. 679; 140 Fed. 596, 15 A. B. E. 502; contra. In In re Wise, 2 N. B. N. E. 151; In re re Beiber, 2 N. B. N. E. 943; In re Ow- Bullock, 8 A. B. E. 646; In re Abraham ings, 109 Fed. 623, 6 A. B. E. 454; In Steers Lumber Co., 6 A. B. E. 315, aff'd re Keller, 6 A. B. E. 334; Strobel & Wil- 7 id. 332; In re Weissner, 8 A. B. E. 177; kins V. Knost, 3 A. B. E. 631; In re In re Seay, 7 A. B. E. 700; In re Cham- § 627] Pboof and Allowance of Claims 475 creditor had several claims Of the same class upon one of which he received a payment, the same would have to be surrendered before any of his claims could be allowed.''^ § 626. — Surrender in case of new credit. The set-off authorized by section 60c in case new credit is given, is not restricted to the case in which the trustee brings an action against the creditor under subdivision b of the same section, to avoid the preference and recover the amount thereof, but is also applicable to the surrender required of a creditor who attempts to prove his claim for the balance of his account.''^ Where a creditor has a claim upon an dpen account for goods sold and delivered to the bankrupt during the period of four months prior to the adjudication in bankruptcy, the account being made up of debits and credits, leaving a net amount due from the bankrupt estate, payments made thereon do not con- stitute preferences which the creditor must surrender before proving his claim. '^^ § 627. — Effeist of surrender. Upon the surrender of his preference, the taint of fraud implied in the creditor's acceptance of it, is removed and he is immediately restored to all his rights,''* and he may thereafter prove his claim.'^^ A claim which has been disallowed because of the non-sur- render, by the claimant, of an alleged preference, may be subse- pion, 7 A. B. E. 560; contra, In re Meyer, Fed. 406; also In re Cihristensen, 2 N. B. 8 A. B. E. 598. N. E. 695, aff'd 101 Fed. 802; In re 71— Swartz v. Fourth Nat. Bank, 117 Thompson, 2 N. B. N. E. 1016; In re Jour- Fed. 1. dan, 2 N. B. N. E. 581; In re Eyan, 2 N. 72— Dickson v. Wyman, 7 A. B. E. 186, B. N. E. 693; In re Beswiek, 2 N. B. N. Ill Fed. 726; 55 L. E. A. 349, In re E. 808; In re Hoffman, 2 N. B. N. E. Topliff, 114 Fed. 323, 8 A. B, E. 141; 0. 554; In re Siegel-Hillman Dry Goods Co., S. Morey Mercantile Co. v. Scheffer, 114 2 N. B. N. E. 933; see also Carson, Pirie, Fed. 447, 7 A. B. E. 670; Gans v. Ellison, Scott & Co. v. Trust Co., 182 U. S. 438, 114 Fed. 734, 8 A. B. E. 153; McKey v. 45 L. ed. 1171, 5 A. B. E. 814. Lee, 5 A. B. E. 267, 45 C. A. A. 127, 105 73— Wild & Co. v. Provident Life Trust Fed. 923; In re Seekler, 106 Fed. 484, 5 Co., 214 V. S. 292, 53 L. ed. 1003, 22 A. A. B. E. 579; Peterson v. Nash Brothers, B. E. 109, rev'g 153 Fed. 562, 18 A. B. 7 A. B. E. 181, 112 Fed. 311, 55 L. E. A. E. 506. 344; Kahn v. Cone Export & Commis- 74— In re Nathan, 2 N. B. N. E. 611. sion Co., 115 Fed. 290; contra. In re 75— In re Wright-Dana Hdw. Co., 213 Abraham Steers Lumber Co., 110 Fed. Fed. 397, 31 A. B. E. 81§. 738, 6 A. B. E. 315; afE'd 7 id. 332, 11? 476 Bban-denbtjbg on Bankexjptcy [§ 627 quently reconsidered and allowed upon a surrender of such alleged preference.'^® § 628. Proof of claim of one bankrupt estate against another. 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.'^''^ Where an undischarged bankrupt, after notice of protest, took up a promissory note on which he was indorser and which fell due after the filing of the petition in bankruptcy, he can prove his claim against the estate of the maker, also in bankruptcy, on the ground that it was after acquired property, and not affected by the claims of his creditors.'^* In the case of a con- troversy between the trustees of two estates as to the ownership of property, the court of bankruptcy has jurisdiction to pass upon the matter.''^ § 629. Secured claims. § 630. — What are secured claims. To be secured, a creditor must either hold security against the property of the bankrupt, or be secured by the individual obliga- tion of another who holds such security.^ An obligee in the bank- rupt's bond for a deed who seeks to recover payments on his contract will be deemed a secured claimant where under the laws of the state he is entitled to an equitable lien by virtue of the payments made by him.^ A personal claim of indebtedness against a bankrupt does not constitute a secured claim upon property of the estate in the hands of one making such claim; ^ or the claim on a bond wh,ere 76 — In re Hamilton Automobile Co., Security need not be on property of 209 Ped. 596, 31 A. B. R. 205. bankrupt. In re Grive, 153 Fed. 597. 18 77— See. 57m Act of 1898. A. B. E. 737. 78— In re Smith, 1 N. B. N. 186, 1 A. 2— In re Peasley, 137 Fed. 190, 14 A. B. E. 37. B. E. 496. 79— In re Eosenberg, 116 Fed. 402. 3— Sedgwick v. Casey, 4 N. B. E. 161, 1— Gorman v. Wright, 136 Fed. 164, 4 Ben. 562, Fed. Cas. No. 12610; In re 14 A. B. E. 135; rev'g 132 Fed. 274, 13 Krogman, 5 N. B. E. 116, Fed. Cas. No. A. B. E. 91; see also In re Keep Shirt 7936. Co., 200 Fed. 80, 28 A. B. E. 765. § 631] Proof and Allowance of Claims 477 the sureties are indemnified by a mortgage ; * or the claim of a consignor whose property is sold prior to the bankruptcy and the pl-oceeds mingled with the general assets; ^ or a bailor who allows the bailee to mix the property with his own so that it can- not be distinguished;^ or a creditor holding a mortgage on exempt property; '^ or a creditor who seizes property by attach- ment issued from a state court, within four months of the bankruptcy proceedings; * or where persons place money in the hands of another to be invested in trust for their benefit which he fails to do, the property not remaining in specie ; ^ or a depositor whose specie deposit has been appropriated by the depositee.^** The owner of a note holding debenture bonds issued by the bankrupt, which are simply promises to pay money and are not secured by any mortgage or other security is not a secured creditor ^^ but a creditor who upon expiration of a lease held by him as security renews the same in his own name, will be regarded as holding the lease as security, though the debtor acquiesced in his taking it in his own name.^^ Advances made on the faith of a security presently to be given should be allowed as a secured claim, nothwithstanding changes in the condition of the borrower pending the consummation of the agreement, by the actual delivery of the security.^^ § 631. — Right to prove claim and manner of proof. The proof must show whether the claim is secured or unse- cured.** A secured creditor may file proof of claim at his 4— In re Lloyd, 15 N. B. R. 257, Fed. 10— In re King, 9 N. B. E. 140; In Cas. No. 8429. re Hosie, 7 N. B. E. 601, Fed. Cas. No. 5 — ^In re Coan and Ten Broeke Car 6711. Mfg. Co., 12 N. B. E. 203, 6 Biss. 315, Lessee who deposited $5,000 as security Fed. Cas. No. 2915; Ex p. Flanagan, 12 for rent held only entitled to prove his N. B. E. 230> 2 Hughes 264, Fed. Cas. claim as a general creditor. In re Ban- No. 4855. ner, 149 Fed. 936, 18 A. B. E. 61. 6— Adams v. Myers, 8 N. B. E. 214, 1 11— -In re Matthews, 188 Fed. 445, 26 Sawy. 306, Fed. Cas. No. 62. A. B. E. 19. 7— In re Bailey, 176 Fed. 990, 24 A. B. 12— Fitch v. Eiehardson, 147 Fed. 197, E. 201; contra, In re Meredith, 144 Fed. 16 A. B. E. 835. 230, 16 A. B. E. 331. 13— Sparhawk v. Eichards, 12 N. B. E. 8— In re Broich, 15 N. B. E. 11, 7 Biss. 74, Fed. Cas. No. 13205. 303, Fed. Cas. No. 1921. 14— Cunningham v. Cady, 13 N. B. E. 9— In re Faneway, 4 N. B. E. 26; Unge- 525, Fed. Cas. No. 3480. witter V. Von Sachs, 3 N. B. E. 178, 4 Ben. 167, Fed. Cas. No. 14343. 478 Beandbnbubg on Bankkuptcy [§ 631 option,^^ but unless a secured creditor surrenders his security and proves his debt as unsecured ^® he is required to make proof of the whole debt ^'^ as in the case of an unsecured debt, except that a statement of all securities should be included in the proof. The referee has power to pass upon the question whether a claim is secured or unsecured, but his determination will in no wise divest the claimant of his title to property so secured.^* A creditor holding a secured claim has three alternatives with reference to the proof of his claim. First.^® He may prove for the full amount of his claim, specifying the securites held for the debt,^"' in which event he will participate in the dividends to the extent that his claim is greater than the value of the security ,2^ and such act will in no wise be deemed an abandon- ment of the security.^^ The value of the securities is determined by converting them into money as provided,^* their value, to be credited upon such claims and the dividend paid only on the unpaid balance.^* It is not necessary if he has recovered a judgment after the adjudication of the debtor to vacate it before he can prove the claim on which such judgment is based, pro- vided the claim be otherwise valid and properly provable.*^ Second. While the act contemplates that a secured creditor shall prove his claim, he may, notwithstanding, decline to make proof, and he does not thereby waive or lose his lien upon the property pledged, or the right to interest on the debt.^* In such 15— Ward v. First Nat. Bank, 202 Fed. 22— Kohout v. Chaloupka, 69 Neb. 677, 609, 29 A. B. R. 312. 11 A. B. R. 265; In re Bolton, 1 N. B. E. 16— Sec. 57e, Act of 1898. 83, 2 Ben. 189, Fed. Cas. No. 1614. 17— Official Form 32, § 1752, post. 23— Sec. 57h, Act of 1898. 18— In re Harrison, 2 N. B. N. R. 541; 24r— In re Morrison, 10 N. B. R. 105, In re Jackson Brick & Tile Co., 189 Fed. Fed. Cas. No. 9839; In re Winn, 1 N. B. 636, 26 A. B. R. 915; In re Quinn, 165 R. 131, Fed. Cas. No. 17876. Fed. 144, 21 A. B. R. 264. 25— In re Stevens, 4 N. B. R. 122, Fed. 19 — In re Bridgman, 1 N. B. R. 59, Cas. No. 13391. Fed. Cas. No. 1866. 26— In re Stevens, 173 Fed. 842, 23 A. 20— Official Form No. 32, § 1752, post. B. R. 239; In re Paramore, 156 Fed. 21— In re Cale, 182 Fed. 439, 25 A. B. 208, 19 A. B. E. 126. R. 367; In re Little, 110 Fed. 621, 6 A. A secured creditor may petition for B. R. 681; In re Ehoads, 2 N. B. N. R. an order directing the trustee to pay over 178; Stewart v. Isador, 1 N. B. E. 129; money held by him, without proving hfs In re Stewart, 1 N. B. E. 42, Fed. Cas. claim. Ward v. First Nat. Bank, 202 No. 13418; In re Winn, 1 N. B. R. 131, Fed. 609, 29 A. B. R, 312, Fed. Cas. No. 17876; In re Baldwin, 19 N. B, R. 52^ Fed. Cas, No. 796, § 631] Proof and Allowance of Claims 479 case, however, before enforcing his lien, authority should first be obtained of the court of bankruptcy.^^ Third. The creditor may either directly or indirectly waive his security and prove his claim as unsecured. Thus, one having a lien upon bankrupt's estate by judgment, execution, attach- ment, creditor's suit, or otherwise, who proves the claim with- out disclosing the lien, cannot subsequently enforce it,^^ except perhaps against exempt property ^® but will be deemed to have surrendered his security,®" which may ripen into a conclusive extinguishment.*^ Where a judgment creditor proves his claim in bankruptcy, but finding no assets to pay it, his lien will be deemed to have been waived and he cannot enforce payment by means of a fl. fa.®^ So where a party who took a bill of sale as security deliberately proved his debt, which assumes that he is the absolute owner of the goods, and persisted in such false claim in an action by the trustee to recover the goods, and attempted to support it by his own oath, he was held to be estopped from claiming them as security.®* A creditor whose claim consists of notes and drafts for which he has no security, and a debt secured by mortgages, may be admitted as a creditor for that part of his claim only which is unsecured, and the indebtedness for which he has security must rest in abeyance, until the value of the security is ascer- tained.** The referee should, in a proper case, authorize the ' trustee to allow in reduction of a claim, the reasonable value of land belonging to the estate on which the claimant has security, and in that event, should order the land conveyed to the claimant.*^ 27— In re Sink, 2 N. B. N. E. 645; In B. N. R. 1014; In re Bloss, 4 N. B. E. re Frick, 1 N. B. N. 214, 1 A. B. E. 719; 37, Fed. Cas. No. 1562; In re Brand, In re Brown, 104 Fed. 762. See post, 3 N. B. R. 85, Fed. Cas. No. 1809; Frank- §1058. lin Co. Nat. Bk., 138 Mass. 515; In re 28— White v. Crawford, 9 Fed. 371; In Anson, 101 Fed. 698, 2 N. B. N. E. 567, re Bear, 5 Fed. 53, afE'd 7 Fed. 583. 4 A. B. E. 231. 29— In re Loden, 184 Fed. 965, 25 A. 31— In re Parkes, 10 N. B. E. 82, Fed. B. B. 917. Cas. No. 10754. 30— In re Spring, 2 N. B. N. E. 509; 32— Heard v. Jones, 15 N. B. R. 402. In re Moyer, 97 Feo. 324; Stewart v. 33— Willis v. Carpenter, 14 N. B. B. Isador, 1 N. B. E. 129; In re Granger, 8 521, Fed. Cas. No. 17770. N. B. E. 30, Fed. Cas. No. 5684; In re 34— In re Hanna, 7 N. B. E. 502, 5 MeConnell, 9 N. B. R. 387, Fed. Cas. No. Ben. 5, Fed. Cas. No. 6027. 8712; In re Jayoox et al., 8 N. B. R. 241, 35— In re Smith, 1 N. B. N. 404, A. Fed. Cas. No. 7242; In re Walker, 2 N. B. R. 648. i80 Bbandenbxteg on Bankeuptcy [ § 631 "Where a bankrupt's mortgaged property is sold free of the incumbrance, the mortgagee has only to plead and prove his debt and security as in an ordinary suit.^" § 632, — Allowance for voting purposes. See ante, chapter XIV, section 447. § 633. — Double proof. A creditor holding two obligations of the bankrupt based upon the same consideration one being given as security for the other cannot prove both.^'^ § 634. — Security on property of third person. If the security is of a third person, the creditor can prove for the whole debt and enforce the security against such third person at the same time, provided he does not take from both sources more than the full amount of the debt.^* So, if a creditor receives partial payment of his debt from an accommodation maker, an indorser or a surety, he may prove his claim and have it allowed against the estate of the bankrupt for the fuU amount owing by the bankrupt upon the obligation, but if the dividends on the claim from the estate, plus the amount paid by the surety, aggregate more than the entire amount of the obligation and interest, he holds the surplus in trust for the 36— In re Goldsmith, 118 Fed. 763. In re Headley, 2 N. B. N. R. 250, 97 Fed. 37 — First National Bank of Beaumont 765, 3 A. B. E. 272; In re Anderson, 12 V. Eason, 149 Fed. 204, 17 A. B. E. 593. N. B. E. 502, 7 Biss. 233, Fed. Gas. No. A creditor who holds as security for 350. But see In re Graves, 182 Fed. 443, a note of the bankrupt certain treasury 25 A. B. E. 372; In re Graves, 163 Fed. bonds of the bankrupt not imposing a 358, 20 A. B. E. 818; In re Bigelow, 1 N. lien or charge upon its property, but B. E. 186, 2 Ben. 480, Fed. Gas. No. merely importing an obligation to pay, 1396. will not be allowed to prove on both in- Glaim against bankrupt indorser may struments. Matthews, Inc., v. Knieker- be proved without surrendering property boeker Trust Co., 192 Fed. 557, 27 A. B. pledged by maker as security. In re E. 629. Thompson, 208 Fed. 207, 31 A. B. E. 236. 38 — In re Noyes Bros., 127 Fed. 286, 39— In re Manhattan Brush Mfg. Go.,. 11 A. B. E. 506; Haas-Baruck & Co. v. 209 Fed. 997, 3l' A. B. E. 747; Swartz v. Portuondo, 138 Fed. 949, 15 A. B. E. 130; Fourth Nat. Bank, 8 A. B. E. 673; In re In re Lange Co., 170 Fed. 114, 22 A. B. E. Ellerhorst, Fed. Gas. No. 4381; In re 414; In re Cram, 1 N. B. E. 133, 1 Hask. Bingham, 94 Fed. 796, 2 A. B. E. 223; In 189, Fed. Gas. No. 3343; In re Forsythe re Heymann, 95 Fed. 800, 2 A. B. E. 651; et al., 7 N. B. E. 174, Fed. Gas. No. In re Beaver Knitting Mills, 154 Fed. 4948; In re Babooek, Fed. Gas. No. 696; 320, 18 A. B. E. 528. § 635] Pboof and Allowance of Claims 481 surety.^^ The right to prove the claim in such case is in the creditor, in preference to the surety.*" If the security is on the property of a third party and the holder proves as unsecured, he only forfeits his lien in case those interested in the estate would be benefited thereby; *^ or by voluntarily disclaiming any interest under a preferential deed of trust; *^ or where judgment is recovered against two co-de- fendants, and execution thereon is levied upon the property of one of them, and the other is adjudged bankrupt, the claim may be proved against the bankrupt as unsecured.** Where execu- tion had issued and levy made on property sufficient to satisfy the judgment, the creditor not having been estopped thereby from proceeding in bankruptcy it would operate as a waiver; ** but a mortgage is not extinguished by such waiver, the trustee in bankruptcy being subrogated to the rights of the holder.*^ A claim against a bankrupt indorser may be proved as unse- cured though the note is secured by property of the maker.*^ An indorser would not be released though all the creditor's rights and claim as well at law as in equity to a mortgage given for the purpose of indemnifying the indorser would be.*'' § 635. — Application of credits ajid marshalling of assets. In the absence of instructions to the contrary the creditor may credit payments made by the bankrupt on an unsecured debt rather than on a secured debt.*® Creditors who sell their securi- ties after the filing of the petition and find that the proceeds are insufficient to pay the whole amount of their claims, should not be allowed to apply the proceeds first to the interest accrued since the filing of the petition, then to principal, and to prove for the balance.** Where there are two classes of creditors having a common 40— Swarts v. Siegel, 8 A. B. E. 689, 45 — Hiseock v. Jaycox, 12 N. B. E. reversing In re Siegel-Hillman Dry 507, Fed. Cas. No. 6531. Goods Co., Ill Fed. 980, 7 A. B. E. 351. 46— Gorman v. Wright, 136 Fed. 164, 41— Bassett v. Baird, 17 N. B. E. 177. 14 A. B. E. l35, rev'g 132 Fed. 274, 13 42— In re Saunders, 13 N. B. E. 164, A. B. E. 91. 2 Lowell 444, Fed. Cas. No. 12371. 47 — Bank v. Comstock, 11 N. B. E. 235. 43— In re Headley, 2 N. B. N. E. 250, 48— In re Johnson, 125 Fed. 838, 11 3 A. B. E. 272, 97 Fed. 765. A. B. E. 138. 44— In re Sheehan, 8 N. B. E. 345, Fed. 49— Sexton v. Dreyfus, 219 XJ. S. 339, Oas. No. 12737; In re Bloss, 4 N. B. E. 55 L. ed. 244, 25 A. B. E. 363; In re 37, Fed. C9S. No. 1562. Kessler, 180 Fed. 979, 24 A. B. E. 287. Brandenburg — 31 482 Beandenbubg on Bankruptcy [§ 635 debtor, who has several funds, and one class can resort to all the funds and the other to but part, the former take payment out of the fund to which they can resort exclusively; if the former resort to the fund common to both classes, to the loss of the latter, the latter are subrogated to the extent of such loss to the place of the former.^" As joint and separate estates are considered distinct, a joint creditor having security on the sep- arate estate may prove against the joint estate without relin- quishing his security, or prove his whole claim against both estates and receive a dividend from each, but so as not to receive more than the full amount of his debt from both sources.^ ^ § 636. — Detertnination of value of securities. Section 57h of the act provides that ' ' The value of securities held by secured creditors shall be determined by converting the same into money according to the terms of the agreement pur- suant to which such securities were delivered to such creditors or by such creditors and the trustee, by agreement, arbitration, compromise, or litigation, as the court may direct. "^^ The court is by this subdivision empowered to direct a disposition of the security, or the ascertainment of its value, where the parties have failed to do so by their own agreement, but in the absence of fraud the court cannot interfere, where the creditor disposes of his securities in accordance with his contract.^* Unless by agreement, it is doubtful whether it could be ascertained by the creditor's sending the security to an auctioneer and having it advertised and sold at public sale.^* If after such value is agreed upon between the trustee and a creditor, new facts are developed showing such valuation to be erroneous, a new valua- tion will be ordered. Any surplus over and above the amount necessary to liquidate the debt will be turned over to the trustee.^® If a creditor claims a lien upon exempt property, the 50— In re Foot, 12 N. B. E. 337, 8 Bon. 737; In re Davison, 179 Fed. 750, 24 A. 228, Fed. Gas. No. 4906 ; In re Eugbee, 9 E. E. 460. N. E. E. 258, Fed. Gas. No. 2115. 53— Hiscock v. Varick Bank of New 51— In re Howard, 4 N. E. E. 185, Fed. York, 206 U. S. 28, 51 L. ed. 945, 18 A. Cas. No. 6750. B. E. 1, afe'g 144 Fed. 818, 15 A. B. E. 52— Sec. 57h, Act of 1898; In re CofSn, 362, rev'g 134 Fed. 101, 14 A. B. E. 226. 1 N. B. N. 507, 2 A. B. E. 344; Stewart 54— In re Hunt, 17 N. B. E. 205, Fed. V. Isador, 1 N. B. E. 129; In re Stewart, Cas. No. 6884. 1 N. B. E. 42, Fed. Cas. No. 13418 ; see 55— In re Newland, 9 N. B. E. 62, 7 In re Grive, 153 Fed. 597, 18 A. B. E. Ben. 63, Fed. Cas. No. 10171; s. o. 7 N. § 637] Pboof and Allowance of Claims 483 value of such property must be ascertained as just stated, and deducted from the amount of the claim, to ascertain the amount, provable against the general estate.^* It is the duty of a trustee in bankruptcy to investigate securi- ties held by the creditors of the bankrupt to determine their value, how and by what right they are held and whether, or not, anything can be obtained therefrom for the general cred- itors. When the value is determined, the right and title of such creditors is fixed and the trustee should be ordered to execute a proper transfer and release to such creditors of all the rights, claims and equities of the bankrupt, or his creditors, in said securities.^'' § 637. — ' Sale of securities. ' Where it appears that, if mortgaged property is taken and sold by the trustee, an amount over and above the secured debt may be derived for the benefit of the general creditors, the court of bankruptcy may continue the trustee in possession of such property and administer the same.^* Until a creditor has shown a right to sell securities conceded to be the property of the bankrupt and which he claims to hold as security for the indebtedness of the bankrupt to him, permission to sell them will not be granted; ^^ and, if the debtor, though insolvent, acquiesce in a sale of the collateral by a secured creditor, his trustee is bound by such acquiescence, although it is sacrificed; but he is not bound by the bankrupt's ratification of a sale made after the commencement of the proceedings in bankruptcy.®" A sale is not essential to ascertain the amount a mortgagee will be allowed to prove.* ^ A creditor holding as security bonds of the bankrupt which, though sold, had never been delivered to the purchasers, may sell the same to apply on its indebtedness,*^ but the owner of a B. E. 477, 6 Ben. 342, Fed. Cas. No. Christy, 3 How. 292; In re Fellerath, 1 10170. N. B. N. 292, 2 A. B. E. 40, 95 Fed. 121. 56-In re Little, 110 Fed. 621, 6 A. B. 59-In re Bigelow, 1 N. B. E. 186, 2 jj ggj Ben. 480, Fed. Cas. No. 1396. 60— Sparhawk v. Drexel, 12 N. B. E. 57-In re Coffin, 1 N. B. N. 507, 2 A. ^gg^ ^^^_ ^as. No. 13204. ^- ^- 344. 61— In re Eose, 193 Fed. 815, 26 A. B. 58— In re Booth, 1 N. B. N. 476, 96 E. 752. Fed. 943, 2 A. B. E. 770; The Skylark, 4 62— Matthews, Inc., v. Knickerbocker Biss. 383, Fed. Cas. No. 12929; Ex P. Trust Co., 192 Fed. 557, 27 A. B. E. 629. 484 Bkandenbueg ON Bankruptcy [§637 note who holds as collateral debenture bonds issued by the bank- rupt, which are simply promises to pay money and are not secured by any mortgage or other security cannot sell the bonds and thereby create au additional indebtedness. The fact that some of the bonds were sold by such creditor cannot affect the rights of the original parties or of the bankrupt's. creditors.®* Notice should be given the trustee of a proposed sale of col- lateral,®* but a sale of securities is not fraudulent because held without notice, or demand, or advertisement, where power so to do is expressly granted by the pledge, even though the pledgee is the purchaser at the sale.®^ Inadequacy of the price obtained at a sale of the securities is not such fraud as will warrant the court if directing ah ascer- tainment of the value.®® § 638. — Purchase of security by creditor. Where secured creditors, on the sale of the assets of the estate, buy in those parcels on which they hold security, subject to their own liens, thus merging the latter, they have received their due from the estate and their claims for any excess should be rejected.®'' A creditor who forecloses a mortgage held by him as security and buys in the premises for a nominal sum cannot prove his claim where the premises are admitted by him to be fully worth the amount of the debt.®® § 639. — Effect of proving claim as secured or unsecured. One who has claimed to be a secured or preferred creditor may, after the expiration of the year, put in the same claim as unsecured and vice versa.®^ Proof of a claim as unsecured will be deemed a waiver of any security held by a creditor '''' unless such security is exempt 63— In re Matthews, 188 Fed. 445, 26 B. R. 1, aff'g 144 Fed. 818, 15 A. B. E. A. B. K. 19. 362, rev'g 134 Fed. 101, 14 A. B. E. 226. 64— Van Kirk v. Vermont Slate Co., 67— In re Paulj, 1 N. B. N. 405, 2 A. 140 Fed. 38, 15 A. B. E. 239. B. E. 333. 65— Hiscock v. Varick Bank of New 68 — In re Davis, 147 Fed. 556, 23 A. York, 206 U. S. 28, 51 L. ed. 945, 18 A. B. E. 446, aff'g 23 A. B. E. 156; In re B. E. 1, aff'g 144 Fed. 818, 15 A. B. E. Dix, 176 Fed. 582, 23 A. B. E. 889. 362, rev'g 134 Fed. 101, 14 A. B. E. 226. 69— Maxwell v. MeDaniels, 195 Fed. 66— Hiscock v. Varick Bank of New 426, 27 A. B. E. 692. York, 206 U, S. 28, 51 L. ed. 945, 18 A, 70— See ante, § 631, § 641] Peoof and Allowance of Claims 485 property of the bankrupt which does not pass to his trusteeJ^ Notwithstanding the foregoing rule, where a creditor without any fraudulent intent, in ignorance of his rights, has proved a secured claim as unsecured, he will be allowed to withdraw his proof or amend by setting up his security,''^ provided no injury has resulted to the unsecured creditors as a result of such proof,^* and all parties can be placed in statu quo.'^* This will not be allowed, however, where there is no perfected lien or established security, but only a contingent and inchoate lien in the effort to secure a preference by litigation.''^ An attorney cannot schedule his claim for services prior to the petition as an unse- cured claim and then claim it as a priority under section 64 J^ It has been held- that the filing of an ordinary claim by one claiming a lien against funds in the hands of the trustee can- not be considered as an election to waive the lien.'''^ § 640. Allowance and rejection of claims. §641. — Discretion of referee. The referee is vested ''^ with a wide discretion in the allow- ance and disallowance of claims; and the judge, upon review, will not interfere with his decision upon questions of fact, unless convinced that it is manifestly against the weight of evidence.''^ A claim that has been duly proved *" and filed for allowance with the referee ^^ must be allowed, unless objections are made by parties in interest, or unless continued by the court for cause on its own motion.*^ If the proof fails to state an essential 71— See In re Loden, 184 Fed. 965, 25 77— In re Zitron, 203 Fed. 79, 30 A. A. B. E. 917. B. B. 172. 72— Ex. p. Harwood, Fed. Cas. No. 78— G. O. XXI. 6185; In re Brand, supra; Ex. p. Lapsley, 79— Orr v. Park, 183 Fed. 683, 25 A. Fed. Cas. No. 8083. B. E. 544. 73— In re Friedman, 1 N. B. N. 208, 80— See. 57a and b. Act of 1898. 1 A. B. E. 510; In re Jayeox et al., 8 81— Sec. 57e, Act of 1898. N. B. E. 241, Fed. Cas. No. 7242; In re 82— Sec. 57d, Act of 1898; analogous Clark et al., 5 N. B. E. 255, Fed. Cas. No. provision of Act of 1867. "Sec. 23. 2806. . . . The court shall allow all debts duly 74— In re Paikes, 10 N. B. E. 82, Fed. proved, and shall cause a list thereof to Cas. No. 10754. be made and certified by one of the 75— In re Wilder, 2 N. B. N. E. 629, registers." In re Ankeny, 1 N. B. N. 482, 101 Fed. 104, 3 A. B. E. 761. 511, citing In re Cochran, 11 Fed. Cas. 76— In re Morris, 125 Fed. 841, 11 A. No. 606; In re Felter, 7 Fed. Cas. No. B. E. U5. P04; In re Merrick, 17 Fed. Cas. No. 75; 486 Bbandenbueg on Bankbuptcy [§641 fact, but complies substantially with the forms, orders and the statute, it is the referee's duty to allow it as requested, since he is not required to examine claims further than to see that the proof contains the formal requisites prescribed by the law and General Orders, as parties in interest have the right to file objections or petition for a re-examination.®* However, it is his duty to examine the proofs to see whether they are in the statu- tory form, and.hei is not justified in allowing a claim when the proofs do not comply with the requirements of the statute or general orders, whether creditors or the trustee raise specific objections to the sufficiency of the proofs filed or not.®* If the allegations of the proof do not sufficiently set forth all the necessary facts to establish a claim, or are self-contradictory, the claim may be disallowed; or the referee may order proper inquiries into the fairness and legality of such claim, that he may be enabled to pass on it intelligently and judicially.®^ § 642. — Bankrupt's attorney cannot appear for creditor. The attorney for the bankrupt should not be permitted to appear in the proceedings as attorney for a creditor also, yet, in the absence of a rule of court on the subject, a claim thus duly proved against the bankrupt's estate has been allowed, though such practice cannot be too severely condemned.®^ § 643. —Eight to jury trial. It has been held that a creditor presenting a claim for proof and allowance, which is contested by the trustee, is not entitled to demand a trial by jury, because proceedings in bankruptcy are of equitable cognizance and the seventh amendment to the Con- stitution of the United States does not apply thereto, and no act of Congress at present in force authorizes it.®'' § 644. — Prima facie case. If proof is made in the manner directed by the statute, the verified statement of the claim makes a prima facie case for its In re Patterson, 18 Fed. Cas. No. 1313; 86— In re Kimball, 2 N. B. N. E. 46, In re Trowbridge, 24 Fed. Cas. No. 218. 100 Fed. 777, 4 A. B. R. 144. 83— In re Shaw, 109 Fed.' 780, 6 A. B. 87— In re Christensen, 101 Fed. 243, 4 R. 499; In re Ankeny, 1 N. B. N. 511. A. B. E. 99, citing Barton v. Barbour, 84— In re Goble Boat Co., 190 Fed. 104 U. S. 126, 26 L. ed. 672. 92, 27 A. B. E. 48. 85— Orr v. Park, 183 Fed. 683, 25 A. B. E. 544. § 646] Pboof and Allowance of Claims 487 allowance, notwithstanding the claim is objected to, and the burden is upon the contestant or objector to go on with the proof.** It is immaterial that the contest is based upon the plea of non est factum or forgery.*® The prima facie case may, how- ever, be overcome by testimony of the claimant's own witnesses without any evidence being submitted in opposition.*" § 645. — Examination of claimant and witnesses. The claimant cannot be required to appear and submit to an examination, but where he fails to appear upon notice, the referee may pass upon the claim, its merits, and the sufficiency of the proofs.®^ A witness appearing voluntarily or under com- pulsory process to give testimony in support of a claim may be examined under oath.®^ A creditor summoned to appear for examination respecting his claim is entitled to reasonable hotel and travelling expenses, but not to counsel fees.®* § 646. — Admissibility of evidence and order of proof. A creditor who has filed a statement of his claim under oath, cannot sustain it by evidence of an indebtedness arising in a different manner from that stated.®* The referee has discretionary power to determine the order of introduction of evidence.®^ Testimony taken before the referee will not be admitted upon 88— Moore v. Crandall, 205 Fed. 689, 89— In re Montgomery, 185 Fed. 955, 30 A. B. R. 517; In re United Wireless 25 A. B. E. 431. Tel. Co., 201 Fed. 445, 29 A. B. E. 848; 90— In re Cannon, 133 Fed. 837, 14 A. In re Goble Boat Co., 190 Fed. 92, 27 A. B. E. 114; In re Greenfield, 193 Fed. 98, B. E. 48; In re Coventry Evans Furniture 27 A. B. E. 427; In re Mclntyre & Co., Co., 166 Fed. 516, 22 A. B. E. 272; In 174 Fed. 627, 24 A. B. E. 1. re New York Car Wheel Works, 141 Fed. 91 — In re Goble Boat Co., 190 Fed. 430, 15 A. B. E. 571; In re Castle Braid 92, 27 A. B. E. 48. But see cases cited Co., 145 Fed. 224, 17 A. B. E. 143; In in § 658n, 34. re Boanoke Furnace Co., 152 Fed. 846, 92 — United States v. Simon, 146 Fed. 18 A. B. E. 661 ; Whitney v. Dresser, 89, 17 A. B. E. 41. 200 U. 8. 532, 50 L. ed. 584, 15 A. B. E. 93— In re Watkihson & Co., 130 Fed. 326, aff'g 135 Fed. 495, 13 A. B. R. 747; 218, 12 A. B. E. 370. In re Carter, 138 Fed. 846, 15 A. B. E. 94^-In re Lansaw, 118 Fed. 365, 9 A. 126; In re Shaw, 109 Fed. 780, 6 A. B. B. E. 167; Orr v. Park, 25 A. B. E. 544. E. 499; In re Sumner, 101 Fed. 224, 2 95— In re Montgomery, 185 Fed. 955, N. B. N. E. 681, 4 A. B. E. 123. 25 A. B. E. 431. 488 Beandewbtjkg on Bankruptcy [§ 646 the hearing before the court against the objection that the claim- ant was not notified that the same was to be used against him.®® § 647. — Competency of witnesses. In proceedings against the estate of a deceased bankrupt a creditor is competent to prove the contract on which his claim is based.®'^ § 648. — Adjudication of bankruptcy as res adjudicata. It has been held that an existing adjudication in bankruptcy precludes all inquiry touching the existence or validity of the debt of a petitioning creditor.®^ Certainly, where the respondent, in a petition in involuntary bankruptcy, denies his alleged indebtedness to the petitioning creditor, and takes issue on the validity and consideration on which such creditor claims, and upon evidence offered on both sides, the court sustains the peti- tioner and adjudges respondent bankrupt, such adjudication is conclusive of petitioner's claim, when presented for allowance, as to the bankrupt, and any creditor who joined in the proceed- ings and opposed the adjudication.®^ However, the adjudication is not conclusive, nor does it pre- clude the bankrupt from opposing the allowance of notes, made by the bankrupt to third parties and offered in evidence on the question of solvency, such notes not being directly in issue but only collaterally brought in question, the holders not 'being parties to the proceedings.^ All allegation in an involuntary petition that a petitioning creditor is a creditor of the alleged bankrupt to the amount stated, and the failure to answer the petition and controvert the allegation, does not make it res adjudicata as to the other creditors or the trustee, but the claimant must still file proof of claim and procure its allowance.* 96 — In re Hersey, 171 Fed. 1004, 22 suggestion of the bankrupt and creditors A. B. E. 863. not parties to the petition in bankruptcy. 97— In re Merrill, 16 N. B. E. 35, 9 Ayres v. Cone, 188 Fed. 935, 14 A. B. E. Ben. 165, Fed. Gas. No. 9466. 739. 98— In re Fallon, 2 N. B. E. 92, Fed. 99— See In re Sheridan, 98 Fed. 406, Cas. No. 4628; contra, In re Continental 3 A. B. E. 554. Corporation, 14 A..B. E. 538. 1— In re Sheridan, 98 Fed. 406, 3 A. A petitioning creditor, whose claim is B. E. 554. declared valid, on the application for an 2 — In re Harper, 175 Fed. 412, 23 A. adjudication, cannot be required to es- B. E. 918. tablish it again before the referee at the § 653] Proof and Allowance of Claims 489 § 649. — Judgment of state court as res adjudicata. The judgment of a state court against the claim concludes the bankruptcy court.* § 650. — Appeal and review. A referee's finding upon a claim will usually be accepted, but a court may review his decision when asked to do so because of testimony claimed to have been overlooked.* Upon reversal of an order of the referee disallowing a claim upon motion of the trustee, the district court should remand the case with directions to allow the trustee to put in his proofs.^ § 651. Objections to claims. § 652. — Jurisdiction of referee. Where objections to a proof of debt are filed and a hearing is had before the referee, he may pass upon the same;^ or upon request may certify the matter to the court.'^ § 653. — Who may object. Any "party in interest" may object to the allowance of a claim.® This includes all persons who have an interest in the res to be administered.^ The bankrupt not only has the right but it is his duty to examine and file objections to the proof and allowance of unjust «r fictitious claims against his estate ; ^^ while either the trustee," a stQckholder,^^ or a creditor ** may 3— Handlan v. Walker, 200 Fed. 566, 349, 100 Fed. 614; In re Home, 22 A. 29 A. B. R. 4. B. R. 269. 4— In re Grand, 118 Fed. 73. 11— Atkins v. Wilcox, 105 Fed. 595, 53 5 — ^A decree reversing the referee's L. R. A. 118, 5 A. B. R. 313. order and allowing the claim is improper. 12 — Stockholders of a bankrupt cor- In re Livingston Co., 144 Fed. 971, 16 poration upon whom an assessment has A. B. R. 385. been made and who will be relieved of 6 — In re Keller, 18 N. B. R. 331, Fed. paying the same if the claim be dis- Cas. No. 7654. allowed are parties in interest and en- 7-^Iu re 'Clark, 6 N.B. R. 202, Fed. titled to object. Eosenbaum v. Button, Cas. No. 2808. 203 Fed. 838, 30 A. B. R. 155, rev'g 198 8— Act of 1898, § 57d. Fed., 316, 28 A. B. R. 880. 9— Rosenbaum v. Duttoh, 203 Fed. 838,' 13- — ^An unsecui^ed creditor may object; 30 A. B. R. 155, rev'g 198 Fed. 316, 28, to the proof of claim by another nn- A. B. E. 880.' secured creditor; In re Hatem, 161 Fed; 10— Sec. 7 (3), Act of 1898; In' re 895, 20 A. B. E. 470. Ankeny, 1 N. B. N. 511, 2 N. B. N. R. 490 Bbandenbueg on Bankruptcy [§ 653 also object. A disinterested party can only be heard by leave of the court." In respect to opposing allowance of claims, the trustee is not bound to comply with every request preferred by objecting creditors irrespective of merit; nor is he clothed with absolute discretion to refuse. He is bound to exercise his judgment and act in the best interests of the estate, but subject to the super- vising power of the court. He does not act judicially, and if he refuses to oppose a claim or move for a reconsideration when he ought to do so, he may be compelled to act or permit the objecting creditors to act in his name.^^ While a creditor must ordinarily file his own objections and cannot ordinarily adopt objections made by bankrupt,^® yet, upon application of a creditor, the court may in a proper case instruct the trustee to contest what appears to be a doubtful claim, provided the objecting creditor indemnifies the estate against the cost of so doing.^'^ A trustee cannot object to a judg- ment creditor's claim on the ground that the judgment was for a debt procured by fraud on the bankrupt, and was secured by default, as such defense should have been set up in the court ren- dering the judgment. 1^ Where the validity of a claim is conceded and the only dispute is between two persons claiming ownership thereof, each of such persons may object to the proof of claim of the other.^* Creditors either of the partnership or of the individual mem- bers thereof may appear and contest the claim of the partnership estate against the individual estate of a partner, where the same person is acting as trustee for both estates.^** § 655, — Time of making. An attack upon a claim may ordinarily be made at any time before the estate is closed.^^ Certainly objections may be filed 14 — ^Dressel v. North State Lumber Co., 17 — In re Canton Iron & Steel Co., 197 119 Fed. 531; In re Sully & Co., 152 Fed. Fed. 767, 28 A. B. E. 791: 619, 18 A. B. B. 123. 18— Stillwell v. Walker, 17 N. B. E. 15— Bank v. Cooper, 9 N. B. E. 529, 20 569, Fed. Cas. No. 13451. WalL 171, 22 L. ed. 273; In re Little 19— In re Dunlap Carpet Co., 206 Fed. Eiver Lumber Co., 101 Fed. E. 558, 3 A. 726, 30 A. B. E. 664. B. E. 682; In re Stern, 144 Fed. 956, 16 20— In re Coe, 154 Fed. 162, 18 A. B. A. B. E. 510. E. 715. 16— Ayres v. Coiie, 138 J'ed. 935, 14 A. 21— In re Canton Iron & Steel Co., 197 B. E. 739. Fed. 767, 28 A. B. E. 791. § 658] Pboof and Allowance of Claims 491 until a direct or indirect order of allowance is made and the mere filing of a claim cannot be considered an allowance thereof so as to prevent objections thereto from being thereafter made, and as to necessitate a motion for reconsideration.^'* § 656. — Manner of making objections. The Bankruptcy Act is silent as to the form of objections to claims. Although, preferably they should be filed in writing, they may be stated orally,^* or they may be noted by the stenog- rapher.^* The objections need not be in any particular form, but should be sufficiently explicit to indicate to the claimant the nature and character thereof,^^ but they are not required to be under oath.^^ Irregularity in making objections is waived by the creditor's appearance, submitting to examination, and participating in the examination of other witnesses without objection.^^ § 657. — Time of hearing. Objections to claims must be heard and determined as soon as the convenience of the court and the best interests of the estates and the claimants will permit.^* § 658. — Proof in case of objections. A sworn objection to a claim is not prima facie evidence of its truth 2^ and does not require a creditor to produce such evidence of his claim as would be necessary at an ordinary trial.*" Nor does such objection transfer the burden of proof to the objector to disprove the claim; all he is required to do is 22— In re Two Elvers Woodenware Co., 27— Orr v. Park, 183 Fed. 683, 25 A. B. 199 Fed. 877, 29 A. B. B. 518. E. 544. 23— Embry v. Bennett, 162 Fed. 139, 28— Sec. 57f, Act of 1898. 20 A. B. E. 651; Orr v. Park, 183 Fed. 29— In re Goble Boat Co., 190 Fed. , 683, 25 A. B. E. 544; In re Cannon, 133 92, 27 A. B. E. 48; In re Castle Braid Fed. 837, 14 A. B. E. 114. But see, In Co., 145 Fed. 224, 17 A. B. E. 143. re Boyce Dry Goods Co., 133 Fed. 100, The fact of the claim being secured 13 A. B. E. 257. or, the receipt of a preferential payment 24 — In re Shaw, 109 Fed. 780, 6 A. being made thereon cannot be assumed B. E. 499. to exist because alleged by the object- 25— In re Eoyce Dry Goods Co., 133 Ing party. Id. Fed. 100, 13 A. B. E. 257 ; In re Linton, 30— In re Saunders, 13 N. B. E. 164, 7 A. B. E. 676. 2 Lgwell, 444, Fed. Cas. No. 12371. 26— In re Wooten, 118 Fed. 670, 9 A. B. E. 247. 492 Bbandenbueg on Bankeuptcy [§ 658 to produce evidence tlie probative force of wMcli is equal to or greater than that offered in the first instance by the claimant upon whom the burden of proof remains,^^ the statute merely pointing out how he may meet it, in making a prima facie case, or how the creditor, or other person entitled, may, by interposing objection, so relate himself to the record as to be able to give evidence in opposition to the claim.^^ An objecting creditor shall be heard ^^ and given an oppor- tunity to examine the claimant and other witnesses, if their attendance can be procured without embarrassing delay.^* § 659. — Costs in case of objection. See post, chapter XXXI. § 660. Postponement of heaxing on claims. As between contending creditors, the court or referee in the interest of fair dealing and good conscience, has the unquestioned power to postpone the claim of a creditor, and should do so whenever the circumstances are such as to arouse suspicion or to throw doubt upon the validity of the claim. Thus a claim may be postponed, although a just one, as where there is evi- dence of a fraudulent combination and scheme of such creditor to defeat the claim of others ; ^^ or where the oflBcers of a bank- rupt corporation present large claims; ■''* or where the names of certain creditors, by whom claims against the estate are pre- sented, do not appear upon the schedule ; ^'^ or where a prima facie case is made out that certain creditors have received pref- 31 — In re Wooten, 118 Fed. 670, 9 A. to call by the court or the contestant for B. E. 247. explanations in the nature of a cross- 32 — ^Whitney v. Dresser, 200 tJ. S. 532, examination and should not be permitted 50 L. ed. 584, 15 A. B. E. 326; aff'g 135 to decline to answer any proper question Ted. 495, 13 A. B. E. 747; In re Sumner, propounded by the court, referee or con- 2 N. B. N. E. 681, 101 Fed. 224, 4 A. testant. Baumhauer v. Austin, 186 Fed. B. E. 123. 260, 26 A. B. E. 385. 33 — In re Mendelsohn, 12 N. B. E. 533, 35— In re Headley, 2 N. B. N. E. 250, 3 Sawy. 342, Fed. Cas. No. 9420. 3 A. B. B. 272, 97 Fed. 765; State v. 34— In re Sumner, 2 N. B. N. E. 681, Hope, 102 Mo. 431. 101 Fed. 244, 4 A. B. E. 123; In re 36— In re Lake Sup. Ship Canal, E. Columbia Iron Works, 142 Fed. 234, 14 E. & Iron Co., 7 N. B. E. 376, Fed. Cas. A. B. E. 526. No. 7997. The verification of the proof of debt is 37 — In re Milwain, 12 N. B. E. 358, in no true sense an ex parte afildavit. In Fed. Cas. No. 9623 case of contest the claimant is subject I 661] Pboop and Allowance op Claims 493 erences, or that their claims have been purchased with money belonging to the bankrupt and in collusion with him; ^^ or where the claim is founded on a leirge open account between the parties, and which is in dispute between them.^® If the referee is not satisfied with the prima facie case made by the claimant in his statement accompanying the claim, it should not be accepted as proven until disposition has been made of such objection or the court is convinced of its validity; *" and in such case the hearing may be postponed and the question heard at some subsequent time.*^ In a proper case, the determination of the matter may be suspended until evidence can be taken on deposition, but this is only where the referee is convinced that there is substantial reason for believing the evidence necessary for the just administration of the estate,*^ but the proceeding should not be suspended for purpose of obtaining the evidence of witnesses beyond the jurisdiction, unless the court is satisfied that the objection is interposed in good faith, and that the evi- dence desired is of substantial value and necessary to a just determination of the case. In such case, the claim should not be accepted until the objection is disposed of or the court is satisfied of the validity of the claim.** ' Proof of a claim may be postponed until after the choice of trustee,** and, if so, it may be treated in all respects as if it had not been tendered and postponed.*® § 661. Withdrawal of a claim. The withdrawal of a claim upon discovery of the fraud of the bankrupt is a matter of right in the creditor, and not a matter of discretion with the referee or judge.*® A claim may be withdrawn to enable a creditor to sue thereon in the state court.*^ 38— In re Herrman, 3 N. B. R. 153, 43— In re Sumner, 2 N. B. N. E. 681, Fed. Gas. No. 6426. 101 Fed. 224, 4 A. B. E. 123. 39— In re Jones, 2 N. B. E. 20, Fed. 44— In re Smith, 1 N. B. E. 25, 2 Ben. Gas. No. 7447. 113, Fed. Gas. No. 12971. 40— In re Sumner, 2 N. B. N. E. 681, 45— In re Herrman, 3 N. B. R. 161, 4 101 Fed. 224, 4 A. B. E. 123. Ben. 126, Fed. Gas. No. 6425. 41— In re Eagles & Crisp, 2 N. B. N. 46— In re Stewart, 178 Fed. 463, 24 E. 462, 99 Fed. 695, 3 A. B. E. 733; In A. B. E. 474. re Frank, 5 N. B. E. 194, 5 Ben. 164, 47— In re Strickland, 167 Fed. 867, 21 Fed. Gas. No. 5050. A. B. E. 734. 42 — In re Sumner, supra. 494 Beandenbueg on Bankbuptcy [§662 § 662. Re-examination of claims. § 663. — Who may petition. The trustee or any creditor desiring the re-examination of any claim filed against a bankrupt's estate, which includes only those that were in existence at the commencement of the pro- ceedings and not claims for expenses of administration,*® may apply by petition to the judge or the referee to whom the case is referred for an order for such re-examination,*^ and he must thereupon make an order fixing a time for hearing the petition, of which due notice must be given by mail to the creditor. General Order XXI excludes action on the application of any one but the trustee or a creditor.^" Where a general creditor is dissatisfied Avith the allowance of the claim of another creditor, his proper remedy is a demand upon the trustee to move for a reconsideration or review of such claim, or, if the trustee upon the demand declines to act, then by motion to the court that the trustee be required to move, or that the objecting creditor be permitted to move in his own name.^^ If the trustee wrongfully refuses to apply for a reconsidera- tion of a claim, the bankrupt may apply for an order against him to show cause why he should not be compelled to act. On the hearing of such motion the merits of the application and of the contention that the claim has been allowed for an exces- sive amount may be gone into by the court itself, or the court may order the matter to be investigated by the referee, in case the application is not made to him in the first instance. If the matter is brought to the attention of the referee in an irregular manner, it is his duty to ascertain whether the application or 48 — In re Reliance Storage and Ware- A debtor of the bankrupt sued by the house Co., 100 Fed. 619, 4 A. B. E. 49. trustee cannot by reason of his interest in 49 — Sec. 57k, Act of 1898; In re Syra- the outcome of the suit be permitted to cuse Paper & Pulp Co., 134 Fed, 275, 21 petition for a re-examination of claims. A. B. R. 174; In re Tifft, 17 N. B. R. In re Daniel Sully & Co., 142 Fed. 895, 502, Fed. Cas. No. 14029; In re Russell, 15 A. B. R. 304. 105 Fed. 501, 5 A. B. R. 566. Stockholder of bankrupt corporation 50— In re Sully & Co., 142 Fed. 895, held not entitled to move for reeonsidera- 15 A. B. R. 304; In re Levy, 7 A. B. R. tion. In re Pittsburg Lead & Zinc Co., 56. 198 Fed. 316, 28 A. B. R. 880. Debtor cannot move for reconsideration. 51 — In re Mexico Hardware Co., 197 In re Pittsburg Lead & Zinc Co., 198 Fed. 650, 28 A. B. R. 736; In re Stem, Fed. 316, 28 A. B. R. 880. 144 Fed. 956, 16 A. B. R. 510. § 664] Peoof and Allowance op Claims 495 petition in fact has merit, and he may order the trustee to appear and contest the claim, or may, after ascertaining the real facts if he believes the application for reconsideration has no merit, certify that such application is without merit and dismiss the same upon the ground of the informality of the mode in which the matter was presented to him.^^ While there may be some question as to the right of a creditor whose claim has been disallowed to obtain a re-examination under section 57k, in view of the General Orders,^^ the law, being broader than the orders, would doubtless comprehend such an application, though if refused, a petition for review should be filed.5* § 664. — Time for asking reconsideration. The Bankruptcy Act merely provides that -'Claims which have been allowed may be reconsidered for cause and reallowed or rejected in whole or in part, according to the equities of the case, before but not after the estate has been closed. ' ' ^^ An application for reconsideration should, however, be seasonable, and if one has been guilty of laches, or has permitted a claim to be allowed and paid without objection, only on a proper showing should such application be considered.^® A delay of one year is not of itself such laches as to bar a re-examination, no divi- dend having been declared in the interim.^'^ An objection to the reconsideration of a claim upon the ground of laches is waived by failure to object at the hearing.^® A referee's refusal to reopen a case to allow creditors who have been guilty of laches in presenting their claims, to be heard, will ordinarily be upheld by the judge unless manifestly error.^^ Claims will not be reconsidered upon the hearing of an applica- tion for a discharge, where no objection was made by the bank- rupt at the time they were allowed.®" 52— In re Ferrer, 5 Porto Eico Fed. Fed. 116, 8 A. B. E. 588; In re Stein, Eep. 184, 22 A. B. E. 785. 94 Fed. 124, 1 A. B. E. 662; In re , 53— G. O. XXI (6). Wood, 95 Fed. 946, 2 A. B. E. 695. 54— See In re Chambers, Calder & Co., 57 — In re Globe Laundry, 198 Fed. 365, 6 A. B. E. 707. 28 A. B. E. 831. 55— Sec. 57k, Act of 1898. 58— In re Effinger, 184 Fed. 724, 25 56— In re MSrwin & WiUoughby Co., A. B. E. 924. 208 Fed. 293, 32 A. B. E. 385. See 59— In re Wood, 1 N. B. N. 430, 2 In re Chambers, Calder & Co., 6 A. A. B. E. 695, 95 Fed. 946. B. R. 707; In re Eelianee Storage Ware- 60 — In re Carton & Co., 148 Fed. 63, house Co., 100 Fed. 619, 4 A. B. E. 17 A. B. E. 343. 49; In re Hamilton Furniture Co., 116 496 Bkandenbueg on Bankruptcy [§ 664 The court may, in the exercise of a sound judicial discretion, set aside an order disallowing a claim, even after the expiration of the time for an appeal.®^ Where an appeal has been taken from an order disallowing a claim, the district court is without jurisdiction to order a rehearing unless such appeal is dis- missed.^^ § 665. — Consolidation of proceedings. The trustee may institute a joint proceeding against several creditors for a re-examination of their claims.*^ § 666. — Mode of procuring re-examination. The ruling of the referee upon a claim cannot be brought into the district court for review by merely filing exceptions thereto in that court,®* but irregularity in obtaining reconsideration of an allowed claim upon filing of objections rather than a petition for reconsideration has been held not prejudicial.®^ The petition of the trustee for a reconsideration of an allowed claim need not allege facts sufficient to disprove the claim. All that is required is the allegation of facts sufficient to require a re-examination."® If the petition for reconsideration or disallow- ance does not aver the essential facts with sufficient particularity, a motion should be made for a more specific statement and not to strike out parts of the petition. Such motion may be made by the bankrupt where no trustee has been appointed.®'^ § 667. — Answer to petition. An answer to a petition to expunge a claim cannot be filed where the time allowed has expired and the trustee has already presented all his testimony in support of the petition.®* § 668. — Conduct of hearing and relief awarded. At the time appointed the creditor or any witnesses that may be called by either party will be examined, and if it appears 61— West V. McLaughlin & Co., 162 65— In re Canton Iron & Steel Co., 197 Fed. 124, 20 A. B. E. 654. Fed. 767, 28 A. B. E. 791. 62— First Nat. Bank of Miles City v. 66— In re Watkinson & Co., 130 Fed. State Nat. Bank of Miles City, 131 Fed. 218, 12 A. B. E. 370. 430, 12 A. B. E. 440. 67— In re Ankeny, 2 N. B. N. E. 349, 63— In re Lyon, 7 A. B. E. 61. 100 Fed. 614, 4 A. B. E. 72. 64— In re Hawley, 116 Fed. 428, 8 A. 68— In re Lewis, Eek & Co., 153 Fed. B. E. 632. 495, 18 A. B. E. 657. § 668] Pboof and Allowance of Claims 497 from such examination that the claim ought to be expunged or diminished, the referee may order accordingly.®® The referee has no power to do more than allow the petition, expunge or diminish the claim, or refuse to do either. He has no jurisdiction to render any affirmative judgment against the creditor, and can- not decide questions regarding the title to property.''" Under section 57k, section 2 (2), and General Order XXI (6), the court may by summary proceeding diminish or expunge an allowed claim unless the claimant pays to the trustee the value of the property of the bankrupt he has taken and converted to his own use, without any prior claim to it, after the petition in bankruptcy has been filed,''^ but the court cannot upon recon- sideration of a claim allowed in favor of a stockholder of the bankrupt, summarily compel the latter to pay the balance due on his stock subscription, since such liability, if any, can only be enforced by a plenary suit.''^ When the application is for the purpose of increasing or decreasing the amount at which a claim has been allowed, the better practice is to vacate the former allowance and allow the claim at the new amount as if then moved for the first time.''-'' A creditor moving to expunge the allowance of a claim of another creditor stands in the shoes of the bankrupt, and has no greater rights than he.''* In a proceeding to reconsider a claim which has been allowed, the bnrden of proof rests upon the petitioner,''" so when a creditor appears and offers himself for examination, the burden of proof rests upon the trustee or con- testing creditors.''* The moving party is entitled to open and close at the hearing.'''' It is proper to use the answer to the petition as evidence at a hearing on a petition to expunge a proof of claim.''® 69— G. 0. XXI (6). 198 Fed. 316, 28 A. B. E. 880; In re 70— In re Peacock, 178 Ted. 851, 24 Howard, 100 Fed. 630, 4 A. B. E. 69; In A. B. E. 159. re Doty, 5 A. B. E. 58 ; See also In re 71— In re W. A. Pateraon Co., 186 Lount, Fed. Cas. No. 8543. Fed. 629, 34 L. E. A. (N. S.), 31, 25 A. Proofs of claim already filed make out B. E. 855. a prima faoie case. In re Elk Val. Min. 72— In re Howe Mfg. Co., 193 Fed. 524, Co., 210 Fed. 386, 31 A. B. E. 545. 27 A. B. E. 477. 76— In re Eobinson, 14 N. B. E. 130, 73— In re Smith, 1 N. B. N. 404, 2 8 Ben. 406, Fed. Cas. No. 11938. A. B. E. 648. 77— Canby v. McLear,-13 N. B. E. 22, 74— In re Arnold & Co., 133 Fed. 789, Fed. Cas. No. 2378. 13 A. B. E. 320. 78— Canby v. MeLear, 13 N. B. E. 22, 75— In re Pittsburg Lead & Zine Co., Fed. Cas. No. 2378. Brandenburg — ^32 498 Beandenbueg on Bankexjptcy [§ 668 If a claim offered for proof is thoroughly investigated by the referee, and allowed, the judge will not expunge it on the application of other creditors, who contend that fraud is pre- sumable from the relationship of the parties and attempt to support such presumption by uniinportant variances in the evi- dence.'^^ If through inadvertence a claim is proved without surrender of a voidable preference, it may be allowed to stand, treating it as a surrender, or, if that result be opposed by the creditoi^ or he deny the preference and that fact be found against him so that opposition amounts to a fraud upon the act, or the proceedings by evincing an intention to obtain through them an advantage over other creditors, the entire claim will be expunged.*" The allowance of a claim against a bankrupt's estate in favor of an assignee thereof who acquired it after the adjudication, but from an innocent bona fide holder, in whose hands it was valid an^ provable, will not be set aside upon allegation that the claim was brought for- the purpose of acquiring a majority interest in the estate, and of hindering and defrauding the other creditors, when it does not appear that such fraudulent purpose has actually been carried out.*^ § 669. — Costs and expenses. Where the re-examination of a claim is instituted and con- ducted by a creditor, in the name of the trustee, through attorneys selected by the creditor, the creditor must stand the expense.*^ General Order X does not require a party seeking re-examina- tion of an allowed claim to indemnify the claimant for travelling expenses incurred by him in coming to the hearing.*^ § 670. Effect of proving claim. § 671. — In general. When a creditor seeks to prove a claim against the estate of a bankrupt, he stands in the position of a plaintiff at law,** and 79— In re Eider, 96 Pad. 811, 3 A. 83— In re Elk Val. Coal Min. Co., 210 B. E. 192. Fed. 386, 31 A. B. E. 545. 80— In re Wise, 2 N. B. N. E. 151. 84— In re Prescott, 9 N. B. E. 385, 5 81— In re Headley, 2 N. B. N. E. 250, Hiss. 523, Ted. Cas. No. 11389. 97 Fed. 765, 3 A. B. E. 272. 82— In re Sully & Co., 152 Fed. 619, 18 A. B. E. 123. § 671] Peoop and Allowance of Claims 499 is a party to the suit and bound by the decision.^^ In the case of a foreign creditor his rights remain unaffected by the domestic proceedings, except that his remedy, when sought in the United States courts, must be in accordance with the bankruptcy act and laws of the United States.®® Where proof has been duly presented a prima facie case is made, subject only to an order for further proof and the right of a creditor, or person interested, to offer counter proof; ®'^ and when such proof is admitted the rights of creditors accrue, and they may then ask for an amendment of the petition for any defect.®* However, allegations in the proofs of claim as to priority are not to be taken as prima facie true for the purpose of establishing the priority.®* In passing upon and allowing a claim, the referee does not adjudicate whether the creditor has obtained a preference, and allowing a claim in no way affects the right of the trustee to sue for and recover back a preference from a creditor whose claim has been allowed.®" A creditor by filing a claim acquiesces in the adjudication.*^ A receiver in proceedings supplementary to execution does not lose his right to property of the bankrupt by the filing of a claim by the judgment creditor.*^ Proving a debt does not of itself operate as an absolute extinguishment or satisfaction of the debt, the creditor being remitted to his former rights and remedies if the bankrupt is refused a discharge; ®* the weight of authority holding that the right of action is merely suspended, pending the granting of the discharge.®* However, it is held, that ah. election to prove 85— Wiswall v. Campbell, 15 N. B. 89— In re Jones, 151 I'ed. 108, 18 A. B. 421, 93 U. S. (3 Otto) 347, 23 L. ed. B. E. 206. 923; In re Kornit Mfg. Co., 192 Fed. 90— Utah Ass 'n of Credit Men v. Boyle 392, 27 A. B. R. 244; In re Kenyon, 156 Turn. Co., 39 Utah 518, 26 A. B. R. 867. Fed. 863, 19 A. B. B. 194. 91— In re^ New York Tunnel Co., 166 86— In re Bugbee, 9 N. B. E. 258, Fed. ^^d. 284, 21 A. B. E. 531. , Cas. No. 2115. See also. In re Knight, J^^Tl'^Z^V' -^^^\l^.^ ^^F' ^^^S^' ■^ p /-I inn -n ^5 009 ofl A -D T? Y.) 293, 21 A. B. E. 821, rev'g 61 Misc. Yancey & Co., 190 Fed. 893, 26 A. B. E. ^^ ^^ '^^^^ ^^ ^ ^ ^ ^^^_ ' ^ „ „ „„, ,„, 93— Dingee v. Becker, 9 N. B. R. 508, 87-In re Sunaner, 2 N. B. N. E. 681, 101 ^^^ ^^_ ^„_ gg^g. ^^^^ ^_ q,^^.^^ ^l' Fed. 224, 4 A. B. B. 123 ; In re Saunders,- ^_ g_ jj j^g^ 13 N. B. B. 164, 2 Lowell, 444, Fed. Cas. 94— Miller v. O'Kain, 14 N. B. E. 145; No. 12371. Dingee v. Becker, 9 N. B. E. 508; Davis 88— In re Jones, 2 N. B. E. 20, Fed. v. Anderson, 6 N. B. E. 146, Fed. Cas. Cas. No. 7447. No. 3623. 500 Bkandenbxjeg on Bankruptcy [ § 671 against the estate for the value of stock wrongfully hypothe- cated by the bankrupt is a waiver of the right to subsequently claim the stock or its profits specifically,®^ that proof of a claim based upon a judgment and the allowance thereof is a waiver of the lien growing out of the commencement of the action in which the judgment was rendered,®* and that filing a claim for goods sold and delivered to the bankrupt is a waiver of the right to dispute the passing of the title of the goods to the bankrupt.®'' § 672. — Effect on collateral proceedings. No creditor, who holds a claim which might be proven in bank- ruptcy, whether the debt is secured by lien or not, can enforce such debt in a state court against a debtor after his adjudication in bankruptcy, except by permission of the court of bank- ruptcy.®* This inhibition would probably not extend to col- lateral remedies, and hence the right of action against a person as a stockholder of a corporation would not be affected.®® A creditor secured by a mortgage on the bankrupt's estate, haying proved his claim, may, with leave of the court of bankruptcy, and in the absence of objection by the trustee, proceed to fore- close the mortgage in a state court; ^ but a creditor, who asserts his lien in the court of bankruptcy, is not entitled to resort to a state tribunal to enforce his lien against the same property which was the subject of adjudication in the bankruptcy court.^ The fact that a creditor, after the adjudication in bankruptcy, abandoned attachment proceedings instituted by him withiu four months prior thereto and filed his claim as a general creditor does not constitute a waiver of his right to attach, or estop him from subsequently attaching, property which has been set aside by the bankruptcy court as exempt.^ A creditor does not waive his right to recover for false pre- tenses or representations by proving his claim since such claim is not allowable in the bankruptcy court,* nor does the proof and 95 — In re Berry & Co., 174 Fed. 409, 1 — McHenry v. La Societe Francaise, 23 A. B. R. 27. 16 N. B. R. 385, 95 TJ. S. (5 Otto) 58, 96 — Dunn Salmon Co. v. Fillmore, 55 24 L. ed. 370. Misc. (N. Y.) 546, 19 A. B. B. 172. 2— Spilman v. Johnson, 16 N. B. E. 97— Lynch v. Bronson, 160 Fed. 139, 145. 20 A. B. E. 409. 3— Northern Shoe Co. v. Cecka, 22 N. 98— In re Winn, 1 N. B. E. 131, Fed. D. 631, 28 A. B. E. 935. Cas. No. 17876. 4— Maxwell v. Martin, 130 App. Div. 99— Allen v. Ward, 10 N. B. E. 285. (N. Y.) 80, 22 A. B. E. 93. § 674] Proof and Allowance of Claims 501 allowance of a claim for the unpaid purchase price of goods lor a suhsequ^ent action to recover the balance due, it being alleged that the goods were obtained through fraud." § 673. — Right to oppose discharge. Whether he has proved his debt or not, any creditor may oppose bankrupt's discharge.® Under the former law it was held that a discharge would not be set aside after bankrupt's death in order that demands might be proved against his estate in the hands of his administrator.''^ § 674. Effect of failure of proof. A creditor who has not proved his claim does not acquire any rights superior to those who do, but if the claim is scheduled it will be released by the discharge, and as a penalty he loses his dividend. Such creditor has no rights in composition pro- ceedings ; ^ nor can he proceed in an action against the bankrupt pending the determination as to his discharge.® The indorser of a note is not released by the failure of the holder to prove his claim or to tender the note to the indorser.^" 5 — Orr Shoe Co. v. tJpshaw & Powledge, 7 — ^Toung v. Eidenbaugh, 11 N. B. B. 13 6a. App. 501, 30 A. B. E. 534. 563, 3 Dill, 239, Fed. Cas. No. 18173. &— In re Sheppard, 1 N. B. E. 115, 8— In re Mathers, 17 N. B. B. 225, Fed. Cas. No. 12753; In re Boutelle, 2 Fed. Cas. No. 9274. N. B. B. 51, Fed. Cas. No. 1705, contra; 9— In re Schwartz, 15 N. B. E. 830, 14 In re Burke, 3 N. B. E. 76, Deady, 425, Blatch. 196, Fed. Cas. No. 12502. Fed. Cas. No. 2156; In re Levy, 1 N. B. 10— Nat. Bank of South Beading v. E. 66, 2 Ben. 169, Fed. Cas. No. 8297. Sawyer, 177 Mass. 490, 6 A. B. E. 154. CHAPTER XIX Tetjstees; Their Qtjalificatioits, Appointment and Compen- sation § 675. OfScial or general trustee. § 676. Ancillary trustee. § 677. Trustee in partnership cases. § 678. When appointment of trustee unnecessary. § 679. Election of trustee. § 680. — Time of election. § 681. — "Votes counted. § 682. Approval or disapproval of creditors ' choice. § 683. Appointment hj judge or referee. § 684. Notice of appointment and acceptance of trust. § 685. Qualifications. of trustee. § 686. — In general. § 687. — Trustee held qualified. § 688. — Trustee held not qualified. § 689. — Corporation as trustee. § 690. Bond of trustee. § 691. — In general. § 692. — Fixing amount. § 693. — Sureties. § 694. — Failure to give bond. § 695. — Liability on bond. § 696. Additional trustees. § 697. Vacancy in office of trustee. § 698. — In general. § 699. — Eesignation and abandonment of ofSce. § 700. — Eemoval for cause. § 701. — Effect of death or removal upon pending actions. § 702. Compensation of trustees. § 703. — Where no assets disclosed. §704. —Fees. § 705. — Expenses. § 706. — Commissions in general. § 707. — Commissions for continuing business. § 708. — Commissions where composition confirmed. § 709. — Extra compensation. § 710. — Apportionment between several trustees. § 711. — Withholding compensation. § 712. — Procedure to procure compensation. 502 §677] Appointment and Compensation of Teustees 503 §675. Official or general trustee. , No official trustee shall be appointed by the court, nor any general trustee to act in classes of cases,^ but the mere fact that the person chosen by the creditors has acted as trustee in numerous other proceedings is no ground for a disapproval of the choice.^ § 676. Ancillary trustee. Au ancillary trustee cannot be appointed by a court other than that of original jurisdiction.^ § 677. Trustee in partnership cases. Upon the adjudication of a firm in bankruptcy, whether there are firm assets or not, the creditors of the individual members have no voice whatever in the election of a trustee, this being by statute left entirely to the firm creditors; * and the choice must be by a majority in number and amount of creditors whose claims have been proved and allowed,® but if the creditors fail to elect,® or if a majority in number vote for one person and a majority in amount for another, the judge or referee may appoint.' In the case of the separate bankruptcy of one member of a firm, both joint and separate creditors may prove their debts and vote for trustee,* though all the assets are partnership assets.® The appointment of separate trustees for the estate of a part- nership and its individual members is not to be encouraged." 1—6. 0. XIV. B. N. E. 315, 3 A. B. E. 299, 98 Fed. 576; 2— In re Kreuger, 196 Ped. 705, 27 In re Scheiffer, 2 N. B. E. 179, Fed. Cas. A. B. E. 440. No. 12445. 3— In re Tybo Mining & Eeduotion Co., 6 — See. 44, Act of 1898; In re Brooke, 132 Fed. 697, 13 A. B. E. 62. 2 N. B. N. E. 680, 100 Fed. 432, 4 A. B. 4 — Sec. 5b, Act of 1898; In re Eagles E. 50. & Crisp, 99 Fed. 696, 3 A. B. E. 733, 2 7— In re Eichards, 2 N. B. N. E. 1024. N. B. N. E. 462; In re Phelps, 1 N. B. 8— In re Webb, 16 N. B. E. 253, 4 E. 139, Fed. Cas. No. 11071; In re Sawy. 326, Fed. Cas. No. 17317; In re Scheiffer, 2 N. B. E. 179, Fed. Cas. No. Falkner, 16 N. B. E. 503, Fed. Cas. No. 12445; Alnsink v. Bean, 11 N. B. E. 495, 4624; Wilkins v. Davis, 2 Lowell, 511, 22 WaU. 395, 22 L. ed. 801, s. c. 8 N. B. Fed. Cas. No. 17664. E. 228, 10 Blateh. 361, Fed. Cas. No. 9— In re Beck, 110 Fed. 140, 6 A. B. 1167; Atkinson V. Kellogg, 10 N. B. E. E. 554. 535, Fed. Cas. No. 613. 10— In re Cuirie, 197 Fed. 1012, 28 5— Sec. 56, Act of 1898; In re Brown, A. B. E. 834; In re Coe, 154 Fed. 162, 18 2 N. B. E, 590; In re Lewinsoh^, 2 N. A. B. E. 715. 504 Beandenbueg on Bankruptcy [§678 § 678. When appointment of trustee unnecessary. If the schedules of a voluntary bankrupt disclose no assets and if no creditor appears at the first meeting, no trustee should be appointed; " but the court may, upon the subsequent dis- covery of assets, appoint a trustee though more than a year has elapsed since the first meeting of creditors.^^ If at the first meeting the bankrupt announces his purpose to offer a composition, the appointment of a trustee may be post- poned to givaan opportunity to file such composition, and, when filed, the appointment may be further postponed until the com- position is refused; or if approved, the necessity for a trustee, of course, ceases to exist.^* § 679. Election of trustee." § 680. — Time of election. The trustee is to be chosen at the first meeting of creditors, after the adjudication, or after a vacancy has occurred in the office of trustee, or after an estate has been reopened, or after a composition has been set aside or a discharge revoked,^^ and the vote should be taken at the earliest moment practicable.^® The referee will not be held to have abused his discretion in declin- ing to postpone the election, on holding proxies disqualified, in order that new proxies may be obtained.^'^ Where an adjudi- cation has been made and notice of the first meeting given and the bankrupt files a second petition in which the same debts are set out, the trustee should be chosen in the first proceeding.^® The election of trustee is not irregular because occurring pend- ing the determination of the question of jurisdiction and the referee's report thereon.^^ 11— G. O. XV; In re Levy, 101 Fed. E. R. & Iron Co., 7 N. B. E. 376, Fed. 247. Cas. No. 7997. 12— Clark v. Pidcoek, 129 Fed. 745, 12 17^In re MeGill, 106 Fed. 57, 5 A. B. A. B. E. 309. E. 155, aff'g 104 Fed. 292, 4 A. B. E. 13 — In re Eung Bros., 1 N. B. N. 406, 782. , . 2 A. B. E. 620. 18— In re Wielarskie, 4. N. B. E. 130, 4 14r— See also, ante Chap. ZIV. Ben. 468, Fed. Cas. No. 17619. 15 — See 44a, Act of 1898; In re Jones, 19 — In re Pennsylvania Con. Coal Co., 2 N. B. E. 20, Fed. Cas. No. 7447. , 163 Fed. 579, 20„A, B, E, ,873,', 16 — In re Lake Superior Ship Canal, § 683] APPOIITTMENT AND COMPENSATION OF TeUSTEES 505 § 681. — Votes counted. The qualifications of voters and the majority i;equired to elect a trustee are fully treated in chapter XIV. § 682. Approval or disapproval of creditors' choice. The creditor's selection of a trustee is subject to the approval or disapproval of the judge or referee,*" and when they fail to approve, they have no power to appoint a trustee, but another creditors' meeting must be called to make the selection, the same as in the case of a vacancy.^^ However, where a referee dis- approves of the selection of the creditors and appoints another as trustee without sufficient grounds for his action, the trustee so appointed by him may nevertheless be allowed to act as trustee it appearing that nothing remains to be done but the distribution of the assets.^^ The right of disapproval is not to be lightly exercised. It can- not be exercised arbitrarily but only for cause.^^ Those seeking confirmation of trustees appointed by creditors in case of a contest are the moving parties and should file such papers as they see fit in support of the motion.** Where the referee disapproves a person whom the creditors elect as trustee, he must do so expressly, and not merely by holding that there has been no election, so that his ruling iu that regard may be reviewed if any creditor so petitions.*^ An order of a referee approving the appointment of the trustee is likewise subject to review.*® § 683. Appointment by judge or referee. Where the creditors fail to appoint at the first meeting,* '^ or where the referee's time is consumed in maneuvering to elect a 20— a. O. XIII; Morris v. Swartz, 10 23— In re Kreuger, 196 Ted. 705, 27 N. B. R. 305; Kiser Co. v. Georgia Cot- A. B. E. 440. See post § 685. ton Oil Co., 208 Ted. 548, 31 A. B. E. 24-^In re Am. Waterproof Cloth Co., 376;. In re Clay, 192 Fed. 830, 27 A. B. 3 N. B. E. 74, 1 Ben. 526, Fed.. Cas. No. E. 715. 318. - 21— In re MaeKellar, 116 Fed. 547, 25— In re Kaufman, 179 Fed. 552, 24 8 A. B. E. 669; In re Lewensohn, 98 A. B. E. 117. Fed. 576, 3 A. B. E. 299; In re Hare, 26— In re Hanson, 156 Fed. 717, 19 . 119 Fed. 246; In re Van De Mark, 175 A. B. E. 235. Fed. 287, 23 A. B. E. 760; In re Mar- 27— See. 44a, Act of 1898. Anon. 1 N. golies, 191 Fed. 369, 27 A. B. E. 398. B. N..2; In re Brooke, 2 N. B. N. E. 22— In re Jacobs and Eoth, 154 Fed. 680, 4 A. B. E. 50, 100 Fed. 32; In re 988, 18 A. B. E. 728. MaeKellar, 116 Fed. 547, 8 A. B. E. 669; 506 Beandenbukg on Bankbxjptcy [§ 683 special favorite, or to elect a particular trustee for merely per- sonal objects,^®, or there is not a majority in number and amount of claims for a candidate,^ ^ or where the trustee offers to pay certain creditors in full for their support,^" or where the cred- itors, upon disapproval of their selection of a trustee, neglect or fail to choose another approved by the referee,*^ or where a vacancy is caused by resignation,^^ the judge or referee may appoint the trustee. If at the first meeting of creditors all claims offered for proof are in dispute, and it is impracticable at that time to settle the disputes, the referee may appoint a trustee to act until the contested claims have been passed upon and a trustee regularly elected.^* If the creditors at their first meet- ing do not choose a trustee, nor request that an election be had, nor nominate a candidate for the office, and the referee, pre- siding at the meeting, appoints one, his appointment will not be set aside merely because the creditors desire a different person.** § 684. Notice of appointment and acceptance of trust. It is the duty of the referee to notify the trustee of his appoint- ment.*^ The trustee is required forthwith, on receipt of notice of his appointment, to notify the referee of his acceptance or rejection of the trust.*® § 685. Qualifications of trustee. § 686. — In general. All the creditors have a right to a fair and impartial trustee, one not under the influence of the bankrupt or his attorney to In re Newton, 107 Fed. 429, 6 A. B. R. 30— In re Haas, 8 N. B. E. 189, Fed. 52 ; see In ire Sumner, 4 A. B. E. 123. Cas. No. 5884. Eeferee's refusal to adjourn meeting 31 — In re Clay, 192 Fed. 830, 27 A. B. and his appointment of a trustee held not E. 715. erroneous where creditors failed to elect 33 — Hull v. Burr, 63 Fla. 440, 28 A. at first meeting and supporters of both B. E. 837. candidates informed referee that agree- 33 — In re Joseph Cohen, 131 Fed. 391, ment was hopeless. In re Goldstein, 199 11 A. B. E. 489. Fed. 665, 29 A. B. E. 301. 34— In re Brooke, 2 N. B. N. E. 680, 28— In re KufBer, 2 N. B. N. E. 29, 4 A. B. E. 50, 100 Fed. 432; In re Kuffler, 3 A. B. E. 162. 2 N. B. N. B. 29, 3 A. B. E. 162, 97 Fed. 29— In re Kenney & Co., 136 Fed. 451, 187; Falter v. Eeinhard, 2 N. B. N. E. 14 A. B. E. 611; In re Morris, 154 Fed. 1119, 104 Fed. 292. 211, 18 A. B. E. 828; In re Machin and 35— 36— G. O. XVI. Brown, 128 Fed. 315, 11 A. B. R. 449; In re Henschel, 109 Fed. 861, 6 A. B. E. 305. § 686] Appointment and Compensation op Trustees 507 any substantial degree, especially where there are or may be conflicting interests, and questions as to claims and the conduct of the bankrupt prior to and after bankruptcy.*'' The trustee is the representative of the creditors and in his capacity as such he is frequently required to act in opposition to the bankrupt. The authorities under the present law, as well as under the act of 1867, are uniform in maintaining the proposi- tion that the bankrupt has no right to influence nor has he a voice in the choice of a trustee. Accordingly, interference by the bankrupt, the voting of claims in his interest or at his direc- tion should be discountenanced and held to invalidate a choice of trustee thus secured.*® The election of a trustee is not, however to be disapproved unless the election was directed, managed or controlled by the bankrupt or by his attorney or by some influence opposed to the creditor's interests,*® and the mere fact that the bankrupt sug- gested his choice as trustee and that the person so designated was elected,*** or that the person elected is friendly to the bank- rupt,*^ will not justify the disapproval of the election. The choice of the creditors should not be interfered with on slight grounds and, unless incompetency, want of capacity or integrity or lack of an oflSce or residence within the judicial district is shown, the appointment should be approved.*^ Neither residence nor citizenship is required, but merely that 37— In re Sitting, 182 Fed. 917, 25 Cas. No. 1543 ; In re Dayville Woolen Co., A. B. E. 682. 114 Fed. 674, 8 A. B. E. 85; In re Eek- 38— In re Lloyd, 148 Fed. 92, 17 A. ersdres, 108 Fed. 206, 5 A. B. E. 811; B. E. 96; In re Hanson, 156 Fed. 717, In re Henschel, 109 Fed. 865, 6 A. B. E. 19 A. B. E. 235; In re Turn^ & Co., 20 305; In re Morton, 118 Fed. 908; but see A. B. E. 646; In re Van Be Mark, 175 In re Noble, Fed. Cas. No. 10282. Fed. 287, 23 A. B. E. 760; In re Ployd, 39 — iO— In re Eastlaek, 145 Fed. 68, 183 Fed. 791, 25 A. B. E. 194; In re 16 A. B. E. 529. Columbia Iron Works, 142 Fed. 234, 14 41— In re Turner & Co., 20 A. B. E. A. B. E. 526; Birmingham Coal & Iron 646. Co. V. Southern Steel Co., 160 Fed. 212, 42— In re Krueger, 196 Fed. 705, 27 20 A. B. E. 151; In re Machin & Brown, A. B. E. 440; In re Lewensohn, 2 N. B. 128 Fed. 315, 11 A. B. E. 449; In re N. E. 315, 3 A. B. E. 299, 98 Fed. 576; In McGiU, 106 Fed. 57, 5 A. B. E. 155, aff'g re MeGlynn, 2 Lowell 127, 16 Fed. Gas. 104 Fed. 292, 4 A. B. E. 782; In re No. 122; In re Funkenstein, Fed. Cas. Wooten, 118 Fed. 670; In re Lewensohn, No. 1004; In re Barrett, 2 N. B. E. 533, 98 Fed. 576, 3 A. B. E. 299; In re Le- 2 Fed. Cas. No. 909; In re Grant, 2 N. mbnt, 2 N. B. N. E. 291; In re Wetmore, B. E. 35, Fed. Cas, No. 5292; In re Clair- Fed. Cas. No. 17466; In re Bliss, Fed. mont, 1 N. B. E. 276, 5 Fed. Cas. No. 810. 508 Bbandenbueg on Bankbuptcy [§ 686 the proposed trustee have an office within the judicial district of which his bankruptcy district is a part.** The fact that the person chosen lives remote from the place where the trust is to be administered is no ground for disapproval of the choice.** § 687. — Trustee held qualified. The mere fact of relationship on the part of the proposed trustee to the bankrupt or a creditor will not necessarily dis- qualify him,*^ if he is otherwise qualified and satisfactory to the creditors, and the court is satisfied that he will perform the duties without fear or favor, though as a rule "such selections should be discountenanced. The referee is unauthorized to dis- approve the selection made by the creditors solely on the ground that the person chosen was the attorney for some of the cred- itors,** oy because he voted for himself at the meeting of creditors,*'^ nor can the referee's approval of the selection made by creditors be withheld because the person selected has incurred the hostility of the bankrupt, or because he has, as receiver, unreasonably delayed to account for the funds in his hands, thereby hindering the distribution of them to creditors.** So the fact that the person chosen acted as assignee under the gen- eral assignment made by the bankrupt which constituted the act of bankruptcy upon which the adjudication was had does not necessarily. disqualify the creditors' selection,*^ nor does the fact that the person selected shares offices with an attorney repre- senting stockholders of the bankrupt corporation.^" The fact that one solicits the appointment will not necessarily operate as a disqualification,^^ especially where it appears that the bank- 43— In re Woodbury, 2 N. B. N. E. 46— In re Margolies, 191 Fed. 369, 27 284, 98 Fed. 833, 3 A. B. R. 457; see In A. B. R. 398; In re Barrett, 2 N. B. B. re Havens, 1 N. B. E. 126, Fed. Cas. No. 165, 2 Hughes, 444, Fed. Cas. No. 1043; 6231; In re Loder, 2 N. B. R. 161, Fed. In re Clairmont, 1 N. B. E. 42, 1 Lowell Cas. No. 8459 ; In re Jacobs and Eoth, 230, Fed. Cas. No. 2781 ; In re Lawson, 2 154 Fed. 988, 18 A. B. E. 728; In re N. B. R. 44, Fed. Cas. No. 8150. Seider, 163 Fed. 138, 20 A. B. E. 708. 47— In re Margolies, 191 Fed. 369, 27 Alien not disqualified. In re Coe, 154 A. B. E. 398. Fed. 162, 18 A. B. R. 715. 48— In re Mangan, 133 Fed. 1000, 13 44— In re Kreuger, 196 Fed. 705, 27 A. B. E. 303. A. B. E. 440. 49— 50— In re Blue Eidge Packing Co., 45— In re Zinn, 4 N. B. E. 145, 4 Ben. 125 Fed. 619, 11 A. B. E. 36. 500, Fed. Cas. No. 18215 ; s. c. 4 N. B. E. 51— In re Brown, 2 N. B. N. E. 590 ; 123, Fed. Cas. No. 18216; In re Powell, but see In re "a bankrupt," 2 N. B. 2 N. B. E. 17, Fed. Cas. No. 11354. E. 100; In re Smith, 1 N. B. E. 25, 2 § 689] Appointment and Compensation of Tbustees 509 rupt has filed his schedules and that the list of creditors was open to anyone.®^ The fact that the trustee chosen by a majority of the creditors has business relations with, or is a blood relation of, the referee, would not disqualify him.®* § 688. — Trustee held not qualified. The appointment, as trustee, of a stockholder of one of the creditors, procured through the active efforts of such creditor will be disapproved where it appears that such creditor is charged with having received a preference,®* as will the selec- tion of a director of a bank in whose favor bankrupt confessed judgment.®® Ordinarily the attorney or former attorney of the bankrupt is disqualified to act as trustee,®® as is a son of one member of a bankrupt firm, who, with the other members of bankrupt's family, have presented claims against the estate,®''' or one who has himself been adjudged a bankrupt,®* or one who was for years bankrupt 's bookkeeper and voted under powers of attorney from different creditors.®® So, the fact that the person selected by the creditors is the bankrupt's assignee whose accounts are unsettled, or the attorney of such assignee, or the latter 's partner, will justify the disapproval of the selection by the referee.*" § 689. — Corporation as trustee. "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, may act as trustees. ' ' ®^ Ben. 133, Fed. Cas. No. 12971; In re in sfeeuring his election." In re Wink, Haas, 8 N. B. E. 189, Fed. Cas. No. 206 Fed. 348, 30 A. B. E. 298. 5884. Choice of a stockholder of bankrupt 52— In re Crooker Co., 27 A. B. E. 241. corporation who acted as legal adviser of 53— In re Brown, 2 N. B. N. E. 590. *^°^^ formerly in control of the corpora- 54— In re Anson MercantUe Co., 185 *^°'' disapproved. In re Gordon Supply Fed. 993, 25 A. B. E. 429. ^ ^^S- Co., 129 Fed. 622, 12 A. B. E. 94. ,„ T ^ 11 o TVT T. T, ■■ „ T, J 57— In re Bogert, 3 N. B. E. 161, Fed. 55— In re Powell, 2 N. B. E. 17, Fed. „ „ 1,.«,^ n -NT -i-ioT^ Cas. No. 1600. Cas. No. 11354. ,„ -. o -i,. , -vr t. w loc i » 58 — In re Smith, 1 N. B, N, 136, 1 A. 56 — "The presumption against the b E 37 eligibiUty as trustee of an attorney for 59— In re Wetmore, 16 N. B. E. 514, the bankrupt is so strong it is doubtful ^ei. Cas. No. 17466. whether his choice should ever be con- 60 — In re Clay, 192 Fed. 830, 27 A. firmed where he has solicited and ob- B. E. 715. tained the assistance of the bankrupt 61 — Sec. 45a, Act of 1898. 510 Beandenbubg on Bankeitptcy [§ 690 §690. Bond of trustee. §691. — In general. 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, must 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 officia] duties.^^ Joint trustees may give joint or several bonds.®^ Bonds should be filed in the office of the clerk of court.®* § 692. •=■ Fixing amount. The creditors of a bankrupt estate, at their first meeting after the adjudication, or after a vacancy has occurred in the office of a trustee, or after an estate has been reopened, or after a com- position has been set aside or a discharge revoked, if there is a vacancy in the office of trustee, must 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 provided the court must do so.®° §693. -^Sureties. There must be at least two sureties upon each bond.®® The court must require evidence as to the actual value of the property of sureties ®'^ which must equal over and above their liabilities and exemptions, on each bond, at least the amount of such bond.®® 62 — See. 50b, Act of 1898. Analogous If the assignee fails to give the bond provision of act of 1867. "Sec. 13. . . . within such time as the judge orders, not The judge at any time may, and upon the exceeding ten days after notice to him of request in writing of any creditor who such order, the judge shall remove him has proved his claim shall, require the and appoint another in his place. ' ' assignee to give good and sufllcient bond The notice to be sent to the trustee of to the TJnited States, with a condition his appointment should contain a state- for the faithful performance and dis- ment of the penal sum of his bond. (G. charge of his duties; the bond shall be O. XVI.) approved by the judge or register by his 63 — Sec. 50j, Act of 1898. indorsement thereon, shall be filed with 64 — See. 50h, Act of 1898. the record of the case, and inure to the 65 — See. 50c, Act of 1898. benefit of all creditors proving their 66 — Sec. 50e, Act of 1898. claims, and may be prosecuted in the name 67 — Sec. 50d, Act of 1898. and for the benefit of any injured party. 68 — Sec. 50f, Act of 1898. § 695] Appointment and Compensation of Trustees 511 "Corporations organized for the purpose of becoming sureties upon bonds, or authorized by law to do so, may be accepted as sureties upon the bonds of referees and trustees whenever the courts are satisfied that the rights of all parties in interest will be thereby amply protected."*® Congress has provided that, whenever a bond is required with one or more sureties, a cor- poration, organized under the laws of the United States or of any state, having power to execute similar bonds, may be the sole surety, provided the court approves the same; '"^ and it has been held that statutes not inconsistent with each other and relating to the same subject matter should be construed together and effect given to all, though they contain no reference to each other and were passed at different times; '^^ accordingly the require- ment ^^ that 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, and ''^ that corporations may be accepted whenever the courts are satisfied that the rights of all parties in interest will be thereby amply protected, dif- ferentiates corporate security from personal. Hence two sureties are required if they are individuals but one if a surety com- pany.''* § 694. — Failure to give bond. The trustee's failure to give bond creates a vacancy in his office ''^ to be filled primarily by the creditors, or if they fail to appoint one, or it is impracticable for them to elect, by the judge or referee.''® § 695. — Liability on bond. See post, section 736, 69— See. 50g, Act of 1898. 75— Seo: 50k, Act of 1893. Analogouj 70— Act of August 13, 1894, 28 U. S. provision of Act of 1867. ' ' See. 13. . . . Stat., 2 Supp. E. S. 237. ' If the assignee fails to give the bond 71 — In re Kalter, 1 N. B. N. 384; 2 A. within such time as the judge orders, not B. E. 590, citing A. & Eng. Enoy. of Law, exceeding ten days after notice to him V. 23, p. 311. of such order, the judge shall remove 72 — Sec. 50f, Act of 1898. him and appoint another in his, place. 73_See. 50g, Act of 1898. . 76— Sec. 44, Act of 1898; In re Lewen- 74— In re Kalter, 1 N. B. N. 384, 2 sohn, 2 N. B. N. E. 315, 98 Fed. 576, 3 A. B. E. 590. A. B. E. 299. 512 Beandenbueg on Bankeuptcy [§ 696 §696. Additional trustees. The act authorizes the appointment of one or three trustees; and, if it should be found that one cannot properly attend to the affairs of the estate, there is no reason why additional trustees should not be chosen subsequently, but, in that case, a majority would be required to perform any act required of them as trustees. Under the act of 1867, an additional trustee was obtainable upon a petition to the court showing cause for his appointment,'^'^ and the same course would be proper now; but a resolution of creditors nominating a committee to supervise the trustee will not be approved.'^^ § 697. Vacancy in office of trustee. § 698. — In general. It is evidently the intent of the act to give the creditors the control of the selection of the trustee not only in the original election at the first meeting, but (1) after a vacancy has occurred in the office of trustee; (2) after an estate has b^en reopened; (3) after a composition has been set aside; (4) or a discharge revoked, or (5) "if there is a vacancy in the office of trustee;" which seems to provide for all possible cases. There is a vacancy in the office of trustee whenever that office is unoccupied or unfilled, as when the trustee chosen refuses the office or fails to qualify, or is disapproved by the court, whether the office has been previously filled or not, and in such case the judge or referee cannot appoint until an opportunity has been given the creditors for a new election if practicable.''^ After an estate once closed has been reopened, the creditors have the same power and authority with respect to the appoint- ment of a trustee as is conferred upon them at the first meeting after the adjudication.®" Where a trustee dies before qualifying and while the first meeting of creditors is still open, having been adjourned for the 77— In re Overton, 5 N. B. R. 366, Fed. 366; In re Lewensohn, 2 N. B. N. R. 315, Gas. No. 10625. 3 A. B. R. 299, 98 Fed. 576; In re Mac- 78— In re Stillwell, 2 N. B. R. 104, Kellar, 116 Fed. 547, 8 A. B. R. 669. Fed. Cas. No. 13447. 80— In re Newton, 107 Fed. 429, 6 79— In re Hare, 119 Fed. 246; In re A. B. R. 52. But see. Fowler v. Jenks, Fisher & Co., 135 Fed. 223, 14 A. B. R. 90 Minn. 74, 11 A. B. R. 255. § 700] Appointment and Compensation of Trustees 513 bankrupt's examination, it is as though no trustee had been chosen and the creditors who chose him may choose another.^^ Where at the first meeting of creditors, two trustees are elected, a vacancy in the office of the third trustee will be held to exist, and the creditors at a subsequent meeting may elect the third trustee.* 2 § 699. — Resignation and abandonment of office. While the statute is silent upon the point as to whether a trustee may resign his office after qualifying, no objection appears to exist to granting such request, unless the interests of the estate would be injuriously affected, in which event the court would undoubtedly have the power to compel the trustee to proceed with its administration. In any event the resignation would not be complete until acceptance. An abandonment of his office by a trustee ipso facto vacates the same, and a new trustee may be appointed without notice to hitn.*^ The failure of the court to summon the creditors to elect another trustee after the abandonment of his office by the trustee first elected, is a mere irregularity which cannot be taken advan- tage of collaterally.®* § 700. — Removal for cause. Courts of bankruptcy have jurisdiction upon complaints of creditors, to remove trustees for cause upon hearings and after notice to them,*^ the power being vested in the judge alone and not in the referee.** The removal of a trustee rests in the dis- cretion of the court, but it is a legal discretion and cause must be shown, as gross neglect, mismanagement, fraud, or conceal- ment of material facts, incompetency or want of integrity,?^ and the election of a trustee will not be set aside on account of any irregularity in a claim when its exclusion would not have 81— In re Wright, 1 N. B. N. 405, 2 87— In re Blodgett, 5 N. B. B. 472, A. B. E. 497. Fed. Cas. No. 1552; In re Mallery, 4 N. 82— In re Fisher & Co., 135 Fed. 223, B. E. 38, Fed. Cas. No. 8990; In re Morse, 14 A. B. E. 366. 7 N. B. E. 56, Fed. Cas. No. 9852; In re 83— 84— Seofield v. United States, 174 Price, 4 N. B. E. 137, Fed. Cas. No. Fed. 1, 23 A. B. E. 259. 11409; In re Sacchi, 6 N. B. E. 398, Fed. 85— See. 2 (17), Act of 1898. Cas. No. 12200; In re Perkins, 8 N. B. 86— G. O. XIII; In re Stokes, 1 N. B. E. 56, Fed. Cas. No. 10982. E. 130, Fed. Cas. No. 13475. Brandenburg — 33 614 Bbandenburg on Bankruptcy [§ 700 affected tlie result; ^s nor will a trustee be removed in tlie absence of imputation upon his capacity or integrity/^ A change of residence to another district does not require the removal of a trustee where such change does not make it impos- sible for him to perform his duties, nor difSScult for the creditors to locate or communicate with him.^* That the trustee and some of his relatives were the owners of some of the securities redeemed by him as receiver by order of the court, and that he has declined to apply to the court for a rescission of its orders respecting the sale and redemption of the securities, has been held no ground for removal.^^ K it is desired to have a trustee removed, a petition should be presented setting forth the grounds on which it is sought to have him removed.®^ Where a creditor's proof of claim has not been disallowed, his standing as a creditor cannot be attacked col- laterally upon the latter 's petition to remove the trustee.^^ § 701. — Effect of death or removal upon pending actions. Section 46 of the act prevents the death or removal of a trustee from interfering with the progress of the administration of the estate and avoids delay and additional expense, which would be incurred if his successor had to institute new suits, or proceed- ings, besides the possible interposition of the bar of the statute of limitation. § 702. Coimpeiisation of trustees. § 703. — Where no assets disclosed. A trustee is not required to serve without compensation and, if no assets are disclosed and creditors insist upon the appoint- ment of a trustee, they must provide; for his compensation.®* 88— In re Jackson, 14 N. B. E. 449, 7 90— In re Seider, 163 Fed. 708, 20 A. Biss. 280, Fed. Cas. No. 7123. B. E. 138. 89— In le Leweusohn, 2 N. B. N. E. 91 — ^In re Carothers & Co., 192 Fed. 315, 3 A. B. E. 299, 98 Fed. 576; In re 691, 27 A. B. E. 603. McGlynn, 2 LoweU 127, 16 Fed. Cas. No. 92— In re Hicks, 19 N. B. E. 449, Fed. 122; In re Funkenstein, 9 Fed. Cas. No. Cas. No. 6457. 1004; In re Barrett, 2 N. B. B. 533, 2 93— In re Roanoke Furnace Co., 152 Fed. Cas. No. 909; In re Grant, 2 N. B. Fed. 846, 18 A. B. E. 661. E. 35, Fed. Cas. No. 5292; In re Clair- 94— In re Levy? 101 ^ed. 247, 4 A. B. mont, 1 N. B. E. 276, 5 Fed. Cas. No. E. 108. 810; In re Dewey, 4 N. B. E. 139, Fed. Cas. No. 3849. § 706] Appointment and Compensation of Teustees 515 §704. —Fees. The clerk is required to collect the fee of $5 for the trustee in each case instituted before filing the petition, except the peti- tion of a proposed voluntary bankrupt, which is accompanied by an affidavit stating that the petitioner is without, and cannot obtain, the money with which to pay such fee.^^ The trustee is entitled to a compensation of fifty cents for each copy of the decree of adjudication filed by him, which, together with the filing fee, shall be paid out of the estate of the bankrupt as a part of the cost and disbursements of the proceedings.®® , §705. — Expenses. The compensation allowed to trustees shall not include expenses necessarily incurred in the performance of their duties, and allowed upon the settlement of their accounts.®'^ Before incurring any expense in publishing and mailing notices, or in traveling, or in procuring the attendance of wit- nesses, or in perpetuating testimony, indemnity may be required from the person for whom such service is to be rendered.®* The trustee may be allowed a reasonable amount for services and attorneys' fees in a controversy involving the validity of liens.99 § 706. — Commissions in general. Trustees shall receive for their services, payable after they are rendered, from estates which they have administered such commissions on all moneys disbursed by them as may be allowed by the courts, not to exceed six per centum on the first five hundred dollars or less, four per centum on moneys in excess of five hundred dollars and less than fifteen hundred dollars, two per centum on moneys in excess of fifteen hundred dollars and less than ten thousand dollars, and one per centum on moneys in excess of ten thousand dollars.^ Within the limits fixed by t 95 — Sees. 48a, 51^ Act of 1898. following, which appeared in the Act of 96 — Sec. 47c, Act of 1898. July 1, 1898: "Trustees shall receive, as 97 — G. O. XXXV. ■ full compensation for their services, pay- 98 — G. 0. X. able after they are rendered, a fee of 99 — ^In re Waterloo Organ Co., 154 Fed. five dollars deposited with the clerk at 657, 18 A. B. E. 752, modf 'g 147 Fed. the time the petition is filed in each case, 814, 17 A. B. E. 301. except when a fee is not required from 1 — Section 48a is substituted by the a voluntary bankrupt, and from estates Act of Februarjr 5, 1903, f o? the matter -vrhieh they- have administered, such The amendment is constitutional ^^ and applies to every bank- ruptcy, the petition in which was filed after its passage, and may be invoked to avoid transfers made prior to its passage,** though it is held that it will not be given a retroactive effect so as to avoid transfers made prior thereto which would have been valid as against the trustee but for the amendment.** §749. Extent of trusiee's title. § 750. — Under act of 1867. Under the act of 1867, it was held that all the rights and the duties of the bankrupt in respect to whatever property, not A. B. E. 793; and see, In re Lausman, 183 Fed. 647, 25 A. B. E. 186. 39— In re Eutland-Perry Co., 205 Fed. 200, 30 A. B. E. 383. 40 — In re Farmers Co-operative Co. of Barlow, 202 Fed. 1005, 30 A. B. E. 187. The lien given by the amendment at- taches as of the date of the adjudication. In re Eose, 206 Fed. 991, 30 A. B. E. 791. 41 — Big Four Implement Co. v. Wright, 207 Fed. 535, 47 L. E. A. (N. S.) 1223, 31 A. B. E. 125; Hart v. Emerson- Brantingham Co., 203 Fed. 60, 30 A. B. E. 218; In re Jacobson & Perrill, 200 Fed. 812, 29 A. B. E. 603. The trustee may assert every right which a lien creditor could have asserted during the four month period. Bank of North America v. Penn Motor Car Co., 235 Pa. 194, 31 A. B. E. 395. 42 — In re Williamsburg Knitting Mill, 190 Fed. 871, 27 A. B. E. 178, aft'd 193 Fed. 1020, 27 A. B. E. 578. 43— Holt V. Henley, 193 Fed. 1020, 27 A. B. E. 578, afe'g 190 Fed. 871, 27 A. B. E. 178. The amendment is a purely remedial statute, which gives a rule of interpreta- tion rather than a substantive right and which may properly be given a retro- active effect. In re Farmers Co-operative Co. of Barlow, 202 Fed. 1008, 30 A. B. E. 190. Amendment held to apply to a mort- gage dated March 17, 1908, which was filed September 8, 1909, where bank- rupt was adjvtdicated September 5, 1911, it appeEtting that the state statute re- quired a renewal afSdavit to be filed within thirty days before the expiration of two years from the original filing and that no such af&davit had been filed. In re Smith, 198 Fed. 876, 29 A. B. E. 527. 44 — Arctic Ice Mach. Co. v. Armstrong County Trust Co., 192 Fed. 114, 27 A. B. E. 562. Amendment of 1910 to section 47a does not affect rights vested under a con- ditional sale contract made before its passage. In re Schneider, 203 Fed. 589, 29 A. B. E. 469. ^ 751] Property of Bankrupt and Title Thereto 545 excluded from the operation of the bankruptcy act, he might hold under whatever title, legal or equitable^ however incum- bered, passed to the assignee upon the filing of the petition; ^^ likewise all money and. property on hand used and held as his own, notwithstanding an endeavor to set up title in a third per- son merely to hold it himself as against the assignee.^® § 751. — Property acquired prior to filing of petition. The effect of the adjudication is to transfer the title to all property of the bankrupt wherever situated to his trustee.*^ While certain classes of property passing to the trustee are expressly enumerated in the act,** the act cannot be construed so narrowly as to exclude any interest constituting an asset available to creditors merely on the ground that it is not expressly enumerate4.*® Under section 70a (5) the trustee is vested with property which prior to the filing of the petition the bankrupt could by any means have transferred or which might have been levied upon and sold under judicial process. If property is not exempt under the state laws, the fact that it could not have been levied upon and sold at the date of the adjudication will not prevent its passing to the trustee if it is property which the bankrupt could by any means have transferred, the statute being in the alter- native.^" Mere ability of the bankrupt, by deed or otherwise, to estop or preclude himself from claiming title to or enjoying property, acquired after the execution of such deed, does not constitute property which prior to the filing of the petition he could by any means have transferred.®^ 45— In re Wynne, 4. N. B. R. 5, Fed. E. 350; Hersey v. EUiott, 18 N. B. E. . Cas. No. 18117; In re Rosenberg, 3 N. 358. B. R. 33, 3 Ben. 366, Fed. Cas. No. 46— In re Moses, 1 Fed. 845, 19 N. B. 12055; Smith v. Buchanan, 4 N. B. E. E. 412, Fed. Cas. No. 9870. 133, Fed. Cas;.No. 13016; Markson v. 47— Robertson v. Howard, 229 U. S. Heaney, 4 N. B. E. 165, 1 DUl. 497, Fed. 254, 57 L. ed. 1174, 30 A. B. E. 611. Cas. No. 9098; Purvianee v. Bk., 8 N. B. 48— Act of 1899, § 7da. E. 447, Fed. Cas. No. 11475; Bk. v. Bk., 49— In re Baudouine, 1 N. B. N. 506, 10 N. B. E. 44; Eandolph v. Canby, 11 96 Fed. 536, 3 A. B. R. 55. N. B. E. 296, Fed. Cas. No. 11559; 50— gpencer v. Lowe, 198 Fed. 961, Barnard v. E. E. Co., 14 N. B. E. 469, 29 A. B. E. 877. 4 Cliff, 351, Fed. Cas. No. 1007; Aiken 51— In re TwaddeU, 110 Fed. 145, 6 V. Bdrington, 15 N. B. E. 271, Fed. Cas. A. B. E. 539. JSio. Ill; Hayes v. Dickinson, 15 N. B. BrandenbuTsr— sliS 646 Beandenbubg on Bankruptcy [§ 751 The distinction between the property which vests in the trustee and the time the title of the bankrupt to such property vests in him should be observed. The trustee is vested with the title of the bankrupt as of the date of the adjudication of bank- ruptcy,^^ but as to the class of property referred to in section 70, subdivision 5, only to that which "prior to the filing of the petition the bankrupt could by any means have transferred or which might have been levied upon and sold under judicial process." This limits the amount of that particular kind of property, but still as to this the trustee is vested with the title of the bankrupt as of the date of adjudication.^^ The words "prior to the filing of the petition," refer to what passes, while the apparently antagonistic words earlier in the section refer to when it passes.^* Where bankrupt made a voluntary assignment prior to filing a petition in bankruptcy, the status of creditors, who did not consent to the assignment, is not affected by it, but is fixed by the filing of the petition.^^ To illustrate: suppose, prior to filing his petition, the bankrupt had a transferable interest in a busi- ness left by his father, who, to protect the business, had pro- vided in his will that, in case of the bankruptcy of any of his children, his interest should cease and there should be paid to whomever was entitled the value of such interest as of the day he filed the petition in bankruptcy. Suppose, further, that between the filing of the petition and the adjudication, events occurred which caused the business to increase largely in value, and by the death of a brother, the bankrupt received an interest equal to the one he had formerly had. His trustee in bankruptcy would take the bankrupt's first interest as the bankrupt held it on the day of the adjudication, that is, its value on the day the petition was filed, while, as shown by the interest still held by the bankrupt, the property itself then was quite different both in form and value. The elimination of the part of the paragraph 52— In re Kellogg, 113 Fed. 120, 7 A. Lumber Co., 222 V. S. 300, 56 L. ed. 208, B. E. 623. See ante, §743. 27 A. B. E. 262; Everett v. Judson, 228 53— In re Pease, 2 N. B. N. E. 1108, U. S. 474, 57 L. ed. 927, 30 A. B. E. 1, 4 A. B. E. 578; In re Burka, 104 Fed. afE'g 192 Fed. 834, 27 A. B. E. 704, 188 326, 5 A. B. E. 12. Fed. 702, 26 A. B. E. 775. 54 — ^Acme Harvester Co. v. Beekman 55 — ^In re Swift, 3 N. B. N. E. 52. § 751] Pkoperty of Bankrupt and Title Thereto 547 between the provisions will further emphasize what is meant. "The trustee . . . shall in turn be vested . . . with the title of the bankrupt, as of the date he was adjudged a bank- rupt . . . to all . . . (5) property which prior to the filing of the petition he could by any means have transferred. it If insolvency proceedings were pending when the bankruptcy act was passed and the bankrupt's assets were vested in the assignee appointed therein, the trustee is entitled only to prop- erty acquired between the institution of the insolvency proceed- ings and the filing of the petition.^® To summarize, it may be generally stated that the trustee becomes vested as of the date of the adjudication to all prop- erty of the bankrupt which at the time the petition was filed by or against him might in any way, by legal or equitable pro- ceedings, be subjected to the claims of his creditors,^'^ including such as may have been conveyed in fraud of the act or of cred- itors, or by any voidable transfers whatever. This transition of title is limited as to the class of property in subdivision 5 of section 70a, to such interests in property as the bankrupt could by any means have transferred or which might have been levied upon and sold under judicial process against him, or otherwise subjected to the claims of his creditors prior to the filing of the petition, or property into which such interests have been con- verted, including such as may have vested in him on the day but prior to the filing of the petition.^® The trustee takes all of the bankrupt's right and title and all those of the creditors against adverse claimants to the estate, free of all claims not valid against the creditors and every one of them.«9 A fraction of a day should properly be considered where it is a question whether property inherited or acquired on the date a petition in bankruptcy is filed, was before or after such filing.®", 56 — ^In re Mussey, 2 N. B. N. R. 113, 58 — In re Pease, supra; In re Stoner, 99 Fed. 71, 3 A. B. R. 592. 105 Fed. 752, 5 A. E. R. 402. 57— In re Elmira Steel Co., 109 Fed. 59— In re Kindt, 2 N. B. N. R. 369, 456, 5 A. B. R. 484; In re Lewis & Bros., reversed 101 Fed. 107, 4 A. B. R. 148. 91 Fed. 632, 1 A. B. R. 458; In re Appel, 60— In re Stoner, 105 Fed. 752; In re 103 Fed. 931, 4 A. B. R. 722. Petit, 1 Ch. Div. 478. 548 Beandenbueg on Bankruptcy [§ 752 § 752. — Property acquired between filing petition and adjudi- cation. Since it is the purpose of tlie act to apply the property owned by the bankrupt at the time of filing the petition to the pay- ment of the debts of bankrupt then owing, though the title thereto does not vest until the adjudication, all property acquired between the filing of the petition and adjudication, unless simply a substitute for property held before such filing^ can be retained by banknipt and does not become a part of his estate for the payment of debts, and need not therefore be sche'duled."^ If the interest is vested when the petition is filed, it would be otherwise.®^ Thus, an inheritance received during this period but over which bankrupt had no control at the time of filing the petition, remains his individual property.®^ Where, at the time of the filing of the petition, a creditor is still investigating the value of a note of a third person offered as collateral by the bankrupt, he cannot after the 'filing of the petition accept the offer of the bankrupt and thereby obtain title to the note.*"* § 753. — Property acquired after adjudication. Section 70a (5) of the act does not undertake to vest the bankrupt with title to property to which he had no title prior to his bankruptcy. It only relates to property, the title to which he has acquired to such an extent as to render the same liable to seizure and sale under execution for his debts, and the right to the possession of which could be maintained by him upon the strength of such title in a proper proceeding for the recovery of the same ^^ All property -acquired by the bankrupt subsequent to his 61— In re Gerdes, 2 N. B. N. E. 131, re Baudoiiine, 1 N. B. N. 506, 96 Fed. 102 Fed. 318, 4 A. B. R. 346; In re 536, 3 A. B. E. 55. Harris, 1 N. B. N. 384, 2 A, B. E. 359; 63— In re Freeman, 2 N. B. N. E. 569; In re Freeman, 2 N. B. N. E. 569; In In re Wetmore, 99 Fed. 703, 3 A. B. B. re Judson, 192 Fed. 834, 27 A. B. E. 704, 700; b. o. 102 Fed. 290; In re Hoadley, 2 aff'g 188 Fed. 702, 26 A. B. E. 775, N. B. N. E. 704, 101 Fed. 233, 3 A. B. aff'd 228 TJ. S. 474, 57 L. ed. 927, 30 E. 780. ■^- ^- ^- 1- 64— In re Duncan, 148 Fed. 464, 17 A. 62— In re Wood, 98 Fed. 972, 3 A. B. B. .E. 283. E. 572; In re Sehenberger, 102 Fed. 978, 65— Wood Mowing & Heaping Machine 2 N. B. N. E. 783, 4 A. B. E. 487; Smith Co. v. Vanstory, 171 Fed. 375, 22 A. B. V. Schultz, 17 N. B. E. 520; see also In E. 740. § 755] PeopSbty of BAiirKEUPT and Title Theketo 549 adjudication remains his individual property, and does not inure to tlie benefit of creditors.®' Thus a lease which proved valuable, after the adjudication on a forfeited contract though it appeared not to be so at the time of filing the petition and was accordingly not scheduled, no creditor objecting to the omission, was held to be after-acquired property;*''' as were a patent allowed after adjudication on application filed prior to the petition;®* a government award made after the adjudication for information given it prior thereto,®® and wages earned after the adjudi- cationJ" § 754. — Property transferred after filing of petition. The filing of a petition is notice to all the world, and all per- sons dealing with the bankrupt thereafter do so at their peril, although it may be bona fide and without knowledge of the bank- ruptcy proceedings ; ''^ hence a purchaser of negotiable paper, after such filing, is not a bona fide holder without notice,''* and a fraudulent transfer of property by the bankrupt after the filing of the petition is voidable at the option of the trustee.''* Where goods fraudulently transfererd by the bankrupt after the filing. of the petition are commingled with other goods of the purchaser so as to be incapable of identification, the pur- chaser may be required to restore the value of the- goods in lieu of the goods themselves.''* § 755. Estoppel of trustee to assert title. ^ Where the bankrupt delivers property under a contract and assigns his rights for the amount due thereunder as collateral security for a loan, the trustee is estopped to assert title to the property or the proceeds of the sale thereof.''^ So, where the 66 — In re Barton's Estate, 144 Fed. 71 — Opin. Attorney-General, 9 N. B. 540,, 16 A. B. E. 569. E. 117. In re Dunean, 148 Fed. 464, 17 67— In re Oliver, 2 N. B. N. R. 212; A. B. R. 283. But see, In re Laplume to Same effect, Norton v. Hood, 124 U. Condensed Milk Co., 145 Fed. 1013, 16 S. 20, 31 L. ed. 364. A. B. E. 729; American Trust Co. v. 68— In re McDonald, 101 Fed. 239, 4 Wallis, 126 Fed. 464, 11 A. B. K. 360. A. B. R. 92. 72— In re Lake, 6 N. B. R. 542, 3 Biss. 69— In re Ghazal, 174 Fed. 809, 23 A. 204, Fed. Cas. No. 7992. B. R. 178. 73— In re Denson, 195 Fed. 854, 28 70— In re Harrington, 200 Fed. 1010, A. B. E. 158. 29 A. B. E. 666; In re Karns, 148 Fed. 74— In re Denson, 195 Fed. 854, 28 A. 143, 16 A. B. R. 841; In re Home Dis- B. R. 158. count Co., 147 Fed. 538, 17 A. B. R. 168. 75— Aldine Trust Co. v. Smith, 182 550 Brandenbueg on Bankbtjptcy [§ 755 bankrupt enters into a contract for the sale of certain goods and forges bills of lading, upon receipt of which the purchaser pays the contract price of the goods, the trustee is estopped to assert title to the goods when actually shipped though the bank- rupt has possession of the genuine bills of lading.''® § 756. Injunction against trustee. No injunction can issue restraining the trustee from dealing with the property in his possession or its proceeds as the court may direct.'^'^ § 757. Title on setting a^ide composition or discharge. Whenever a composition is set aside, or discharge revoked, the trustee is, upon his appointment and qualification, vested with the title to all of the property of the bankrupt as of the date of the final decree setting aside the composition or revoking the discharge.'^* tJpon application of parties in interest filed at any time within six months after a composition has been con- firmed, the judge may set it aside and reinstate the case; ^® or he may revoke a discharge at any time within one year after it was granted.^" In this event the title to all the property held by the bankrupt vests in the trustee, which would include not only such as was held at the time the petition was filed but also such as was acquired by him subsequent thereto. An assign- ment to a trustee after an incomplete composition must be with- out prejudice to lawful acts done or titles acquired under and by virtue of such composition.*^ § 758. By what law title determined. Where the trustee in bankruptcy and a transferee of the bank- rupt both claim certain property which once belonged to the bankrupt, it may be difficult to decide how far the title to the property in question depends upon the state law which deter- mines the effect of the bankrupt's conveyance, and how far upon the Bankruptcy Act which declares which property the trustee Fed. 449, 25 A. B.E. 608, rev 'g 176 Fed. 78— See. 70d, Act of 1898. 652, 23 A. B. R. 907. 79— Sec. 13, Act of 1898. 76— Lovell V. Newman & Son, 188 Fed. 80— Sec. 15, Act of 1898. 534, 26 A. B. E. 660. 81— Ex Hamlin, 16 N. B. R. 320, 2 77— Treat v. Wooden, 138 Fed. 934, 14 Lowell 571, Fed. Cas. No. 5993. A. B. R. 736. § 760] Peopeety of Bankeupt and Title Theeeto 551 shall take. The one law regulates the passage of title from the bankrupt, and is interpreted by the state court. The other law regulates its passage to the trustee, and is interpreted by the federal court.®^ The trustee takes title to all of bankrupt's prop- erty which prior to the filing of the petition he could have trans- ferred or which might have been levied upon, wherever situated, whether within the district or state where the petition is filed or beyond it. Whether property is such as the bankrupt could by any means have transferred or which might have been levied upon and sold under judicial process is to be determined by the state law.** So, the validity of rights, claims and equities impressed upon the property in the hands of the bankrupt is to be determined, in the absence of federal statute, by local law as evidenced by the decisions of the state courts.** § 759. Title in case of confusion of goods. Where a bailee, prior to his bankruptcy, mixes the property of another with his own so that the identical property cannot be distinguished, the whole passes to his trustee.*® So, where property upon which a lien exists is commingled with other property of the bankrupt, the lien attaches to the whole.*^ See also post, section 852. § 760. Failure to take possession or abandonment. Neither a receiver nor trustee is bound to accept property of an onerous or unprofitable character, or to assume an obligation of the bankrupt, unless for the benefit of the creditors.*'^ Accordingly, the trustee may refuse to take possession of mort- gaged property, or property held in trust, and it is his duty to 82— In re Littlefield, 155 Fed. 838, 19 A. B. E. 94; In re Hasie, 206 Fed. 789, A. B. B. 18. 30 A. B. B. 83 ; Oldmixon v. Severance, 83— In re Waite-Eobbins Motor Co., 119 App. Div. (N. Y.) 821, 18 A. B. E. 192 Fed. 47, 27 A. B. E. 541; Eosenbluth 823; In re Schierrmann, 2 N. B. N. E. V. DeForest & Hotchkiss Co., 85 Conn. 118; In re Ells, 2 N. B. N. E. 360, 98 40, 27 A. B. E. 359. Fed. 967, 3 A. B. E. 564; In re Chambers, 84— In re Wade, 185 Fed. 664, 26 A. 2 N. B. N. E. 388, 98 Fed. 865, 3 A. B. E. B. E. 169. See also, post, §858. 537; File Co. v. Garrett, 110 U. S. 288, 85— Adams v. Meyers, 8 IT. B. B. 214, 28 L. ed. 149; Sessions v. Eoniadka, 145 1 Sawy, 306, Fed. Cas. No. 62. U. S. 29, 36 L. ed. 609; Sparhawk v. 86— In re Hennis, 17 A. B. E. 889. Yerkes, 142 U. S. 1, 35 L. ed. 915; 87— In te Scruggs, 205 Fed. 673, 31 Kimberling v. Hartley, 1 Fed. 571. 552 Beandenbueg on Bankexjptct [§ 760. do so, if its value, over and above tlie incumbrance, is not suffi- cient to justify an attempt to administer it.«» Where property- is mortgaged beyond its value and the trustee elects not to take the same, it may be surrendered to the mortgagee without preju- dice to the right of the trustee to contest the validity of the mortgage.*® The trustee's failure to record the evidence of his title in a county in which land of the bankrupt is situated is evidence of a disposition not to assert title to such land and after a reason- able time, he will be estopped if the bankrupt in possession has sold it to an innocent purchaser for value.®" Where property may involve the trustee in litigation his claim thereto may be assigned.®^ If the trustee disclaims onerous property he cannot thereafter claim its benefits.®^ Upon abandonment or refusal of title by the trustee, the property 'revests in the bankrupt,®* but mere silence or inaction in the collection of a claim owing the bank- rupt does not establish refusal or abandonment,®* and where the trustee is ignorant of the existence of the property and has had no opportunity to make an eleetionj the rule does not apply.®' So, his failure for a number of years to prosecute a claim belong- ing to the bankrupt does not show an abandonment in the absence of evidence that he knew, or had means of knowing, of the existence of the claim.®® Where the bankrupt omits from his schedules a patent or like interest owned by him and the trustee asserts no claim thereto and after the discharge of both, the bankrupt sells the same, the title of the purchaser is good;®'' or, if he refuses to pay the dues on seats in stock exchanges, license fees, and the like, and 88— In re Zehner, 193 Fed. 787, 27 TJ. S. 115, 49 L. ed. 408, 13 A. B. E. A. B. E. 536; In re Jersey Island Pack- 698; In re Wiseman & Wallace, 159 Fed. ing Co., 138 Fed. 625, 2 L. E. A. (N. S.) 236, 20 A. B. E. 293. 560, 14 A. B. E. 689. 94^In re Wiseman & Wallace, 159 89— Equitable Loan & Security Co. v. Fed. 236, 20 A. B. E. 293. Moss & Co., 125 Fed. 609, 11 A. B. E. 95— First Nat. Bank v.' Lasater, 196 111. U. S. 115, 49 L. ed. 408, 13 A. B. E. 698. 90— Taylor v. Irwin, 20 Fed. 615. 96— Dunblane v. BeaU, 161 TJ. S. 513, 91 — Oldmixon v. Severance, 119 App. 40 L. ed. 791; Mabin v. Eaymond, 15 Div. (N. Y.) 821, 18 A. B. E. 823. N. B. E. 353, Fed. Cas. No. 9338. 92 — In re Koester, 15 Ohio Fed. Dec. 97 — Sessions v. Eomadka, 145 II. S. 257, 17 A. B. E. 391. 29, 36 L. ed. 609. 93— First Nat. Bank v. Lasater, 196 § 762] Pkopebty of Bankeupt and Title Theeeto 553 takes no steps to have them sold, he cannot years later compel their sale for the benefit of the estate, or make the bankrupt refund dividends paid his fellow members, both remedies having been lost through laches.'^ § 761. Intermeddling with estate. A committee of less than aU of the creditors which takes possession df the bankrupt's property, without his consent or authority, has no authority to sell the same, and is guilty of trespass and is liable to the trustee for any damage caused by its intermeddling.^® § 762. Taxation of property of estate. The power of a state with reference to the taxation of property within its jurisdiction extends to property in the hands of trustees, receivers and others acting iri a fiduciary capacity, irrespective of the residence of the parties beneficially interested in the property.^ Accordingly property in the hands of a trustee or receiver in bankruptcy is subject to taxation by the state the same as though in the hands of the bankrupt and proceedings in bankruptcy had not been instituted.^ Property in the hands of a receiver or trustee is in the custody of the court, and is therefore not subject to seizure and levy under process issuing from a court of the state to enforce the collection of a tax assessed under the laws of a state. The proper course is for the collector to apply to the court or referee for the payment of the taxes due, in which event such claim when so presented will be entitled to priority of payment. As stated 98— Sparhawk y, Yerkes, 142 TJ. S. mittee were held liable to the trustee for 1, 35 L. ed. 915; Id. v. Ackley, Id. the proportional share of the non-assent- 99 — In re Thomas, 199 Fed. 214, 29 ing creditors and for a proportionate A. B. B. 945. share of the expenses of administration. Sale of property by self-appointed Id. committee of creditors acting without 1^ — Judson, Tax. § 407. authority of the debtor who had ab- 2 — Swarts v. Hammer, 194 TJ. S. 441, sconded held ineffective to divest title 48 L. ed. 1060, 11 A. B. .E. 708, aff'g of the bankrupt. Id. 120 Fed. 256, 9 A. B. R. 691; In re Where a committee representing a ma- Prince & Walter, 131 Fed. 546, 12 A. jerity of creditors turned over property B. E. 675; In re Mitchell, 16 N. B. claimed by a mortgagee holding under R: 535^ F-ed. Cas. Nb. 9658; Contra, In an unrecorded mortgage and paid to an- re Booth, 14 N. B. E. 232, Fed. Cas. No. othet mortgagee the amount of hisclaim, 1645. without authority of bankrupt, the ebm- 554 Beandenbubg on Bankbuptcy [§ 762 by the supreme court of the United States in the case of Tyler, property in the hands of a receiver is in custodia legis, but is "not thereby rendered exempt from the imposition of taxes by the government within whose jurisdiction the property is, and the lien for taxes is superior to all other liens whatsoever, except judicial costs, when the property is rightfully in the custody of the law, but this does not justify a physical invasion of such custody and a wanton disregard of the orders of the court in respect of it. " ^ The duty of the trustee to pay taxes is elsewhere treated.* § 763. Title by a4verse possession. Possession of real property by the trustee of a bankrupt is the possession of the bankrupt and may be tacked onto the posses- sion of the bankrupt for the purpose of completing the bar of the statute of limitations.^ § 764. Brokers, factors and their customers. The relation between a broker and his customer is that of pledgor and pledgee and upon the bankruptcy of the former the customers are entitled to stock deposited with the broker or pur- chased by him on their account.® To entitle a customer of a bankrupt broker, claiming owner- ship to shares of stock in the latter 's possession, it is riot necessary that he be able to put his finger upon the identical certificates of stock purchased for him by the bankrupt. It is enough that the bankrupt has shares of the same kind in his possession which are legally subject to the demand of the cus- tomer.'^ Where the bankrupt, a broker, disposes of securities which 3— In re Tyler, 149 U. S. 164, 182, 37 Fed. 694, 23 A. B. E. 124; In re Boiling, L. ed. 689; in re Sims, 118 Fed. 356, 9 A. 147 Fed. 786, 17 A. B. E. 399; Thomas v. B. E. 162; In re Conhaim, 2 N. B. N. E. Taggart, 209 U. S. 385, 52 L. ed. 845, 19 148, 97 Fed. 923, 3 A. B. E. 249; In re A. B. E. 710. And see, Eiehardson t. Baker, 1 N. B. N. 212, 1 A. B. E. 526; Shaw, 209 U. S. 365, 52 L. ed. 835, 19 A. In re Friek, 1 N. B. N. 214, 1 A. B. E. B. E. 717, affi'g 147 Fed. 659, 16 A. B. 719. E. 842. 4— See ante, § 731. 7— Gorman v. Littlefield, 229 U. S. 5— Cannon v. Prude, 181 Ala. 629, 30 19, 57 L. ed. 1047, 30 A. B. E. 266, rev'g A. B. E. 276. 171 Fed. 254, 22 A. B. E. 659. See, In r6 6— In re Meadows, Williams & Co., T. A. Molntyre & Co., 181 Fed. 960, 25 177 Fed. 1004, 24 A. fi. E, 251, aff'g 173 A. B. E. 93. § 765] Pbopebty op Bankrupt and Title Thereto 555 belong to several of his customers, and deposits the proceeds in a bank, and his drawings exhaust his own funds and such pro- ceeds, a deposit made subsequently will be considered as a general restoration in which all the defrauded cestui que trust will share ratably.* "Where a bankrupt, having possession of another's property, with authority to sell and pay over the proceeds, sells, but uses the proceeds, either by depositing them to his own account or by dealings with a broker, the owner cannot establish a lien upon the bankrupt's account when less than the amount of such pro- ceeds, nor upon stocks in the hands of the broker where there is no evidence that the same were purchased with the proceeds of the sale of his property.® Proceeds of property sold by a factor constitute a trust fund and do not pass to his trustee.^" § 765. Choses in ax^tion. Any chose in action arising upon contract or from the unlawful taking or detention of, or injury to the bankrupt's property, if beneficial to the estate, will pass to the trustee.^^ Accordingly, a claim for usurious interest ^^ or for damages for fraudulent representations,^^ or against an officer of a bankrupt corporation for misappropriation of its property,^* passes to the trustee. Where prior to bankruptcy the debtor turns a long- pending suit over to his son, without consideration, and then after his discharge takes a reassignment, the fund should go to the trustee.^® A chose in action will not pass to the trustee if it be a right of action of a personal nature, or in tort,^" such as for libel or 8— In re T. A. Melntyre & Co., 181 13— In re Harper, 175 Fed. 412, 23 Fed. 960, 25 A. B. B. 93. A. B. B. 918; In re Gay, 182 Fed. 260, 9— In re Mulligan, 116 Fed. 715, 9 25 A. B. B. 111. A. B. E. 8. 14 — In re Swofford Bros. Dry Goods 10— Bills V. SehUep, 127 Fed. 103, 11 Co., 180 Fed. 549, 25 A. B. E. 282. A. B. B. 607. 15— Seott v. Devlin, 1 N. B. N. 561, ll^See. 70a (6), Act of 1898; Shesler 89 Fed. 970. V. Patton, 114 App. Div.( N. Y.) 846, 17 16— Friedman v. Myers, 30 Ohio Cir. A. B. E. 372. Ct. 303, 19 A. B. E. 883; In re Brick, 12— Wright V Bank, 18 N. B. E. 87, 19 N. B. E. 504; Cleland v. Anderson, Fed. Cas. No. 18078; First Nat. Bank v. 66 Neb. 276, 11 A. B. E. 605; Sibley v. Lasater, 196 U. 8. 115, 49 L. ed. 408, 13 Nason, 196 Mass. 125, 22 A. B. B. 712. A. B. B. 698. But see, In re Burnstine, 131 Fed. 828, 556 Beandenburg on Bankeuptcy [ § 765 slander, or for damages for a malicious prosecution and arrest suffered by the bankrupt prior to filing the petition; ^'^ or for the maliieious abuse of the garnishee process; ^* or for conspiracy whereby bankrupt was driven out of business.^^ Nor will a chose in action pass to the trustee, if held by the bankrupt in a fiduciary capacity; ^^ or of a wife not reduced to possession by her husband, the bankrupt,^^ but, if reduced to possession, it does, and the question of survivorship is laid aside by the bankruptcy; ^^ unless by the laws of the state he has no interest in her choses in action ; or if non-negotiable and suable only in the name of the assignot so as to be a set-off as a mutual debt or credit.^* Damages arising from a change of grade will not be applied to liens Upon the property accruing after the right to damages.^* A bankrupt is not deprived of his right to sue upon a cause of action in the state court until the trustee is appointed,^^ but an assignment by the bankrupt long before his adjudication of an unliquidated cause of action in tort, which is unassignable, does not rest in the assignee any right in a judgment subse- quently recovered on the cause of action.^® See Claims against the United States, post, section 854. § 766. Commercial paper. The trustee takes all interest that a bankrupt has in com- mercial paper, but the trustfee of the payee of negotiable, paper 12 A. B. E. 596, holding that the bank- of action for injury "to property, and rupt's interest in a claim for damages passes to the trustee, for death by wrongful act passes to his 19 — Cleland v. Anderson, 66 Neb. 276, trustee. 11 A. B. E. 605. 17— Irion v. Knapp, 132 La. 60, 31 20— In re Bank of Madison, 9 N. B. A. B. E. 891; Epstein v. Handverker, E. 184, 5 Biss. 515, Fed. Cas. No. 890. 29 Okla. 337, 26 A. B. E. 712; In re 21— Wiekham v. VaUe's'Ex'rs, 11 N. Haensell, 91 Fed. 355, 1 N, B. N. 340 B. R. 83, Fed. Cas. No. 17613. (note), 1 A. B. E. 286; see also Tufts v. 22— In re Boyd, 15 N. B. R. 119, 2 Matthews, 10 Fed. 609; Noonan v. Ortou, Hughes, 349, Fed. Cas. No. 1745. 12 N. B. E. 405; Wright v. Bank, 18 N. 23-Eollins v. Twitchell, 14 N. B. E. B.,E. 87, Fed. Cas. No. 18078. 2"^' ^ ^ask. 66, Fed. Cas. No. 12027. . 18-Noonan v. Orton, 2 N. B. E. 405. ^ ^J~^%79 '^°''''''' '^^ ^'^' '°^' ^^ But see, Hansen Mercantile Co. v Wy- -gglBand ;. Iowa Cent. Ry. Co., 186 man. Partridge & Co., 105 Minn. 491, 22 jj. Y. 58, 16 A. B. R. 692, rev'g 96 App. A. B. R. 877, holding that malicious at- Div_ (jf_ y.) 413 12 A B E 164 tachment of corporate property is not a 26^Eogers v. American Halibut Co., personal tort, but gives rise to a cause Mass. 31 A. B. R. 576. §769] Peopeety of Bankbupt and Title Theeeto 557 is not entitled to such paper, where such payee sold and delivered the same before bankruptcy, but without indorsement, and such payee may indorse it after bankruptcy to enable the holder to sue on it in his own name.^^ The trustee is entitled to funds of the bankrupt held by the drawee of an ordinary commercial bill of 'exchange, which has merely been presented to such drawee, without his accepting it, such naked presentation not operating as an equitable assignment of such funds ; ^^ and he is entitled to demand the surrender of notes given for the excess over legal interest, such notes not being provable in bankruptcy.^** He cannot compel an indorser of a note, who receives none of its proceeds and whose contingent liability never becjomes absolute, to pay the amount of the note paid by the bankrupt to the holder; ^^ nor can he maintain an action to set aside the bankrupt's subscription to an endowment fund, for which the bankrupt gave his note.^^ Notes taken by a bankrupt after adjudication, for the future rental of land which is exempt, do not constitute assets of his estkte in bankruptcy.^^ § 767. Concealed assets. Money placed in the hands of a third person for concealment may be recovered, though there were no creditors at the time of the transfer.^* Where the bankrupt conceals part of his assets and after his death the same are obtained by a third person with knowledge of the facts, the assets or property purchased there- with may be recovered by the trustee.^* § 768. Conditional sale or bailment. §769. —In general. It is a general rule that property held by the bankrupt as bailee or consignee does not pass to his trustee.®^ The ' ■ property 27— Percy v. Elliott, 18 N. E. E. 358. 32— In re Oleson,, 110 Fed. 796, D. C. 28-^Randolph v. Canby, 11 N. B. E. Iowa, 7 A. B. E. 22, 296, Fed. Cas. No. 11559. 33— Breckons v. Snyder, 211 Pa. St. 29— Shafer v. Fritchery, 4 N. B. E. 176, 15 A. B. E. 112. 179, Ted. Cas. No. 12697. 34— Clay* v. Waters, 161 Fed. 815, 20 30— Bean v. Laflin, 5 N. B. E. 333, A. B. E. 561. Ped. Cas. No. 1172. 35 — Wood Mowing & Eeaping Machine 31— Sturgis V. Colby, 18 N. B. R. 168, Co. v. Vanatory, 171 Fed. 375, 22 A. B. Fed. Cas. No. 13574. E. 740; In re Smith & Nixon Piano Co,, 558 BeANDENBUEG on BANKEUPTCy [§769 which prior to the filing of the petition he (the bankrupt) could have transferred" within the meaning of subdivision (5) of section 70, is property that he could by any means have trans- ferred to another lawfully under the same terms that he transfers it by law to the trustee; that is to say, without consideration. It does not include property of another, which the bankrupt is authorized to transfer only on condition that he sells it for value, or sells it and holds the proceeds for the owner.*® It therefore becomes important to determine whether a par- ticular transaction is a sale or a bailment, and, if it is a condi- tional sale, whether it is valid £is against creditors. These are questions purely of local law,*'' to be determined by the law of the state where delivery is to be made, and the property is to be used.** 149 Fed. Ill, 17 A. B. E. 636, rev'g 132 Fed. 983, 13 A. B. E. 276; Chisholm v. Earle Ore Sampling Co., 144 Fed. 670, 16 A. B. R. 423; In re Gait, 120 Fed. 64, 13 A. B. R. 575. The trustee is not entitled to goods in the possession of the bankrupt which have been left simply for repairs, storage or upon other bailments. In re Wright- Dana Hardware Co., 211 Fed. 907, 31 A. B. E. 764, aff'g 205 Fed. 335, 30 A. B. E. 582. Contract held not to be fraudulent but to be a consignment arrangement with the net proceeds of sales to be accounted for to the consignor, and with the right to return the unsold goods. Ludvigh v. American Woolen Co., 231 TJ. S. 522, 58 L. ed. 345, 31 A. B. E. 481, rev'g 159 Fed. 796, 19 A. B. E. 795. Contract providing that bankrupt to whom goods were delivered should sell such goods only in usual course of trade, and in case it became insolvent or sold the same in any other way except in due course of trade, all of its in- debtedness should become due and pay- able, and that seller should take imme- diate possession .thereof and credit the buyer with the invoice price thereof on his indebtedness held a chattel mortgage and not a bailment. In re Marengo Co. Merc. Co., 199 Fed. 474, 29 A. B. R. 46. 36— In re Dunlop, 156 Fed. 545, 19 A. B. E. 361. 37— In re Lutz, 197 Fed. 492, 28 A. B. E. 649; In re Nelson, 191 Fed. 233, 27 A. B. E. 272; In re Hartdagen, 189 Fed. 546, 26 A. B. E. 532; In re Ameri- can Mach. Works, 174 Fed. 805, 23 A. B. E. 483; Deere Plow Co. v. Anderson, 174 Fed. 815, 23 A. B. E. 480; In re Agnew, 178 Fed. 478, 23 A. B. E. 360; Crucible Steel Co. of America v. Holt, 174 Fed. 127, 23 A. B. E. 302; In re Braselton, 169 Fed. 960, 22 A. B. E. 419; McElvain v. Hardesty, 169 Fed. 31, 22 A. B. E. 320; Wood Co. v. Eu- banks, 169 Fed. 929, 22 A. B. E. 307; Bryant v. Swofford Bros. Dry Goods Co., 214 U. S. 279, 53 L. ed. 997, 22 A. B. E. Ill, aff'g 153 Fed. 841, 18 A. B. E. 567; In re Burke, 168 Fed. 994, 22 A. B. E. 69; In re Morris, 156 Fed. 597, 19 A. B. E. 422; In re Heekathora, 144 Fed. 499, 16 A. B. E. 467; In re Tice, 139 Fed. 52, 15 A. B. E. 97; In re Miller & Brown, 135 Fed. 868, 14 A. B. R. 439; In re Gait, 120 Fed. 64, 13 A. B. R. 575. 38— In re WaU, 207 Fed. 994, 29 A. B. R. 901; In re Gray, 170 Fed. 638, 21 A. B. R. 375; Davis v. Crompton, 158 Fed. 735, 20 A. B. R. 53; In re Hess, 138 Fed. 954, 14 A. B. R. 635; Hart v. Mfg. Co., 7 Fed. 543; Pittsburg L. & C. Wks. v. Bank, Fed. Cas. No. 11198j §770] Pbopebty of Bankrupt and Title Theeeto 559 § 770. — What constitutes a sale. A conditional sale is one in which the vesting of title in the purchaser is subject to a condition precedent, or in which its revesting in the seller is subject to a failure of the buyer to comply with a condition subsequent.^® Whether a transaction constitutes a conditional sale or a bailment, is a question of fact,*" to be determined by the intention of the parties as gathered from the contract in its entirety,*^ and from the acts and circumstances attending its execution and performance,*^ and effect should be given the intention so expressed, unless such intention is found to be contrary to the local laws.*^ The fact that the original intention of the parties is to create a sale does not prevent a change of the agreement while it is still executory, into a bailment with an alternative of future conversion into a sale on the compliance with certain conditions.** The true test is, has the sender the right to compel a return of the thing sent, or the receiver the option to pay for the thing in money. Jn a bailment the identical thing delivered is to be restored; in a sale there is an agreement express or implied to pay money or its equivalent for the thing delivered, and there is no obligation to return. Where there is no obligation to return the specific article, and no promise to pay the bankrupt any com- missions or compensation for its services the transaction will be held to be a sale and title passes to the trustee,*^ notwithstanding Heryford v. Davis, 102 U. S. (12 Otto) Savannah Trust Co., 141 Fed. 802, 15 235, 26 L. ed. 160; C!hi. By. Equip. Co, A. B. R. 618. V. Bank, 136 U. S. 268, 280, 34 L. ed. 44— In re Naylor Mfg. Co., 135 Fed. 349; MeGonmey v. By. Co., 146 TJ. S. 206, 14 A. B. E. 284. 536, 36 L. ed. 1079. 45— In re Gaglione & Son, 200 Fed. 39— In re Lutz, 197 Fed. 492, 28 A. B. 81, 28 A. B. E. 694; In re Priegle Paint R. 649; In re Columbus Buggy Co., 143 Co., 175 Fed. 586, 23 A. B. B. 385; In re Fed. 859, 16 A. B. B. 759; In re Dnnlop, Burt, 155 Fed. 267, 19 A. B. B. 123; In re 156 Fed. 545, 19 A. B. E. 361. Gait, 120 Fed. 64, 13 A. B. B. 575; 40 — Franklin v. Stoughton Wagon Co., In re Martin- Vernon Music Co., 132 Fed. 168 Fed. 857, 28 A. B. E. 63; Ludvigh 983, 13 A. B. E. 276. V. American Woolen Co., 176 Fed. 145, 23 A contract which contains no pro- A. B. E. 314. vision for the reservation of the title in 41— Franklin v. Stoughton Wagon Co., the shipper of goods or for the return of 168 Fed. 857, 22 A. B. E. 63. the unsold portion of the goods will not 42 — Mishawaka Woolen Mfg. Co. v. be construed as a consignment entitling Westveer, 191 Ffed. 465, 27 4. B. E. 345. the consignor to a return thereof upon 43 — Southern Pine C6. of Georgia v. the bahkruptcy of the Consignee. In re 560 Beandenbtjeg on Bankeuptcy [§770 an agreement that the ownership shall remain in the seller, until the price is paid." The trustee is entitled to articles delivered under an arrange- ment whereby the bankrupt has the exclusive right to sell them, with the understanding that he is to pay for them if sold within a certain time, and, if not, he is "to take them for the next season," and the transaction appears on his books and upon the owner's invoices as a sale.*" A trustee is entitled to the proceeds of goods sold by the baukrupt, where, by agreement between the bankrupt and another, the latter was to furnish the bankrupt goods at a fixed price, the bankrupt to pay all freight, storage and charges, and, at the expiration of each three months, to pay for all goods sold or shipped from the bankrupt's warehouse.** So, when property is~ delivered to the bankrupt for consumption or sale, or to be dealt with in any way inconsistent with the ownership Zephyr Mercantile Co., 203 Fed. 576, 30 A. B. E. 203. Contract providing for delivery of au- tomobile "hubs" held a contract of sale with a reservation reserving a lien as security and not a conditional sale conr tract, and therefore void unless recorded. In re King Motor Car Co., 31 A. B. E. 172. A contract for the sale of beer, by the terms of which bankrupt was charged and promised to pay for the cases and bottles unless he desired to return, the same, in which case he was to be credited with the amount of the charge held a contract of sale and return and not a mere option to purchase, nor a bailment in any sense and the trustee held en- titled to the possession of the property. In re Allen, 183 Fed. 172, 25 A. B. E. 722. 46— In re Harrington, 29 A. B. E. 690 ; In re Penny & Anderson, 176 Fed. 141, 23 A. B. E. 115; In re Poore, 139 Fed. 862, 15 A. B. E. 174, Mishawaka Woolen Mfg. Co. V. Westveer, 191 Fed. 465, 27 A. B. E. 345; In re Butterwick, 131 Fed. 371, 12 A. B. E. 536;; In re Garcewich, 115 Fed. 87, 8 A. B. B. 149; In re Mc- Callum, 113 Fed. 393, 7 A. B. E. 596. A reservation of title cannot be coupled with a plain intent to transfer that title. In re Waters-Colver Co., 206 Fed. 845, 30 A. B. E. 763. 47 — Wood M. & E. Mach. Co. v. Brooke, 9 N. B. E. 395, 2 Sawy. 576, Fed. Cas. No. 17980. Consignment with right to return is a bailment. In re Flanders, 134 Fed. 560, ■14 A. B. R. 27. Contract of consignment of goods to be sold on commission by the consignee, as agent for the consignor for cash, held a bailment. Deere Plow Co. v. MeDavid, 137 Fed. 802, 14 A. B. E. 653. Title to machine held to have remained in leasor until payment in full. Colonial Trust Co. V. Thorpe, 194 Fed. 390, 27 A. B. E. 451. Goods delivered to the bankrupt on a consignment, under which the bankrupt did not become liable to pay for unsold goods at any time, and acted merely as agent, may be reclaimed. In re Chal- mers, 206 Fed. 143, 30 A. B. E. 521. 48— In re Linforth, 16 N. B. E, 435, 4 Sawy. 370, Fed. Cas. No. 8369. § 770] Peopekty of Bankrupt akd Title Thereto 561 of the seller, or so as to destroy his lien or right of property, the, transaction cannot be upheld as a conditional sale, and is a fraud upon the creditors of the vendee.*® The form of the transaction is of little consequence,^*' and the construction of a contract adopted by the parties thereto will not control or override lan- guage that is so plain as to admit of no controversy as to its meaning. In such case the intent of the parties must be deter- mined by the language employed, rather than by their acts.^^ The acceptance of a note as security for payment rebuts the idea of a lease,^^ but a conditional privilege of purchase conferred on the bankrupt by an agreement does not operate to convert the same into a contract of sale,^* and a contract otherwise an agency contract is not made a sale contract by a provision requir- ing the agent at the first of each month to account for all goods sold fiuring the preceding month.®* Machinery, fixtures and merchandise may be the subject of conditional sale, and the court will protect the claim of the con- ditional vendor as against the trustee who takes the property in such cases unaffected by fraud subject to all equities impressed upon it in the hands of the bankrupt. But where there is fraud, actual or constructive, the cases rest upon a different reasoning.^® A contract of sale of a stock of goods and fixtures title to 49 — In re Eaamussen, 136 Fed. 704, would be constructively fraudulent and 13 A. B. E. 462. void as against creditors who had ac- 50 — In re Gaglione & Son, 28 A. B. quired a lien without notice of the rights E. 694; In re Franklin Lumber Co., 26 of the vendor. . . . The trustee is by the A. B. E. 37; In re Levin, 127 Fed. 886, amendment of the Bankruptcy Act 11 A. B. E. 446. clothed with the rights of such creditors. ' ' Calling payments rent cannot make a In re Appel Suit & Cloak Co., 198 Fed. sale a lease. In re Poore, 139 Fed. 862, 322, 28 A. B. E. 818. 15 A. B. E. 174. 51— Smith & Bro. Typewriter Co. v. An agreement by the terms of which Alleman, 199 Fed. 1, 28 A. B. E. 699, the vendor of a chattel reserves title rev'g 187 Fed. 281, 26 A. B. E. 37. until the payment of the purchase price, 52 — In re Gaglione & Son, 200 Fed. and the right of rescission in case of de- 81, 28 A. B. E. 694. fault is a conditional sale, though termed 53-— In re , Marx Tailoring Co., 196 a lease. TJnitype Co. v. Long, 143 Fed. Fed. 243, 28 A. B. E. 147. 315, 16 A. B. E. 282, aff 'g 136 Fed. 989, Claimant held entitled to reclaim goods 14 A. B. E. 668. in the hands of the trustee aa to which no "It is unnecessary to determine option to purchase had been exercised. Id. whither the contract . . . operated as an 54 — In re Eeynolds, 203 Fed. ' 162, 29 absolute sale with the reservation of a A. B. E. 145. secret lien, or whether its effect was a 55 — In.re. Penny & Anderson, 176 Fed. conditional sale. ... In either event it 141, 23 A; B. E. 115. •:. -...." Brandenburg — 36 562 Bbandenbueg on Bankbuptcy [§ 770 reiiain in tlie seller until the payment of the purchase price may- be upheld as a conditional sale as to the fixtures though invalid as a chattel mortgage upon the stock of goods because not recorded.^® If an owner of personalty leases it, neither the lessee's posses- sion nor the lessee's representations confer any rights on creditors of the lessee as against the owner, even though the lessee is given power to bind the property in obtaining credit. The rights of the creditors in such case spring from and are measured by the owner's grant of power to the lessee, and exist only in cases where the power, before it is terminated, is acted upon by the lessee and creditors.^'^ § 771. — Waiver of conditions. The conditions upon the performance of which title is to pass to the bankrupt may be waived by the vendor, and when so waived the property will be held to have vested in the bankrupt notwithstanding nonperformance of the conditions.^* Though, in cases of sales for cash, no title passes until payment, yet this condition may be waived by delay in reclaiming the property or by an absolute and unconditional delivery.^^ § 772. — Resale by bajokrupt. The trustee has been held to obtain no title as against subse- quent purchasers, where the bankrupt was a conditional pur> chaser under an unrecorded contract, the state law requiring the recording thereof.®" Where property is held under a conditional sale contract issued by the bankrupt, and the vendee enters into a similar contract with the original vendor, the trustee of the bankrupt is estopped to assert title to the proceeds of the sale as against the original vendor.®^ § 773. — Assumption of contract by trustee. Even if a conditional sale contract is valid as to creditors, the trustee can take the property, paying what remains unpaid 56— In re Porse & Eoseboom, 182 Fed. 59— In re O 'Callaghan, 30 A. B. E. 97. 212, 25 A. B; E. 134. 60— In re Kellogg, 112 Fed. 52, 7 A. 57 — Nylin v. American Trust & Sav- B. E. 270. ings Bank, 166 Fed. 276, 21 A. B. E. 533. 61— In re Greek Mfg., etc., Co., 167 68—111 re Dixon, 12 A. B. E. 191. Fed. 424, 21 A. B. E. 717. § 774] Pbopebty of Bankbupt and Title Theeeto 563 thereon.^^ The trustee is under no obligation, however, to pur- chase property covered by the contract. If he desires to do so, in order to acquire title to the property, such payment can only be made by an order of the court upon notice to the creditors.®' Whenever it is deemed for the benefit of the estate to relieve property from any conditional contract, and to tender perform- ance of the conditions thereof, the trustee, or the bankrupt, or any creditor who has proved his debt, may file his petition therefor, whereupon the court must appoint a time and place for hearing and notice be given to persons interested.^* § 774. — Necessity of recording. Under the act as it stood prior to the amendment of 1910 there was much diversity of opinion as to the title of the trustee to property held by the bankrupt under a conditional sale contract. Many courts held the trustee entitled to property in the posses- sion of the bankrapt under a conditional contract of sale if such contract, by reason of not being recorded, or for want of a state- ment endorsed thereon, under oath, of the amount of the claim, or other similar reason, was not binding on every creditor.®® Others held that a conditional sale made invalid against execu- tion creditors ®® or against subsequent purchasers in good faith,®'' 62— In re Bozeman, 2 A. B. E.^ 809, v. McAfee, 149 Fed. 254, 17 A. B. B. 1 N. B. N. 479; In re Lyon, 7 N. B. R. 495; In re Franklin Lumber Co., 147 Fed. 182, Fed. Cas. No. 8644; Sawyer v. 852, 17 A. B. E. 443; In re Eunn Hdwe. Turpin, 5 N. B. E. 339, 2 Lowell 29, Fed. & Furn. Co., 132 Fed. 719, 13 A. B. E. Cas. No. 12410. 147. 63— In re Grainger, 160 Fed. 69, 20 A. 66— In re Carpenter, 125 Fed. 841, 11 B. B. 166. A. B. E. 147 j In re WUcox & Howe Co.,, 64— G. O. XXVIII. 70 Conn. 224; Cash Eegister Co. v. Wood- 65^-Press Post Printing Co. v. Landon bury, 70 Conn. 321; In re American Printing & Pub. Co., 2 N. B. N. E. 774; Mach. Works, 174 Fed. 805, 23 A. B. R. In re Leigh Bros., 1 N. B. N. 526, 96 Fed. 483. 806, aff'g 1 N. B. N/425, 2 A. B. E. 606; 67— In re Hess, 138 Fed. 954, 14 A. In re Legg, 1 N. B. N. 420, 2 A. B. E. B. E. 635; In re Smith & Shuck,. 132 805, 96 Fed. 326; Contra, In re McKay, Fed. 301, 13 A. B. E. 103; In re Tweed, 1 N. B. N. 133, 1 A. B. E. 292; In re 131 Fed. 355, 12 A. B. R. 648; In re Ohio Co-op. Shear Co., 1 N. B. N. 477, Faulkner, 181 Fed. 981, 25 A. B. E. 416; 2 A. B. E. 775; In re Bozeman, 2 A. B. Liquid Carbonic Co. v. Quick, 182 Fed. E. 809, 1 N. B. N. 479; In re Perkins, 603, 25 A. B. R. 394; Contra, In re 155 Fed. 237, 19 A. B. R. 134; Unitype American Mach. Works, 174 Fed. 805, 23 Co. V. Long, 143 Fed. 315, 16 A. B. R. A. B. E. 483 ; In re Frazier, 117 Fed. 282, aff'g 136 Fed. 989, 14 A. B. E. 668; 746, 9 A. B. E. 21; In re Garoewioh, 115 In re Press Post Prtg. Co., 134 Fed. 998, Fed. 87, 8 A. B. R. 149; In re Howland, 13 A. B. E. 797; Bradley, Alderson & Co. 109 Fed. 869, 6 A. B. R. 495. 564 BeANDENBUEG on BANKEtJPTOY [§ 774 if not recorded, would be invalid as against the trustee who would be entitled to the property as against the vendor, though the vendee would not have been.*® The matter was finally settled by the supreme court in the case of York Manufacturing Com- pany V. Cassell,*® in which case it was held that the trustee was not an attaching creditor or subsequent purchaser in good faith, but merely stood in the shoes of the bankrupt and could only avoid conditional sale contracts which the bankrupt himself could have avoided, and that the vendor was entitled to posses- sion upon default as against the trustee though the contract was not recorded, where such recording was essential only to validate it as against creditors filing liens prior to its filing. This con- struction was adopted and applied in subsequent decisions of the lower courts.'^'' It was to obviate the effect of the decision in the York Manufacturing Company case that section 47a (2) was amended by the act of June 25, 1910, by inserting the words, "And such trustees, as to all property in the custody or coming into the custody of the bankruptey court, shall be deemed vested with all the rights, remedies and powers of a creditor holding a lien by legal or equitable proceedings thereon; and, also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatis- fied." Under it, the trustee has the same right as a creditor holding a lien by legal or equitable proceeidings, or as judgment creditor holding an execution duly returned unsatisfied,''^ and 68— In re Legg, 1 N. B. N. 420, 96 Co. v. Anderson, 174 Fed. 815, 23 A. B. Fed.. 326, 2 A. B. E. 805, citing and dis- E. 480; In re Bement, 172 Fed. 98, 22 approving In re McKay, 1 N. B. N. 133, A. B. E. 616, rev'g 158 Fed. 885, 20 A.. 1 A. B. E. 292; In re Eabenau, 118 Fed. B. E. 317; In re Atlanta News Pub. Co., 471, 9 A. B. E. 180. 160 Fed. 519, 20 A. B. E. 193; In re 69— Yoik Mfg. Co. V. Cassell, 201 U. S. Dunlop, 156 Fed. 545, 19 A. B. E. 361; 344,, 50 L. edi 782, 15 A. B. E. 633, rev'g In re Cavagnaro, 143 Fed. 668, 16 A. 135 Fed. 52, 14 A. B. E- 52. And see, B. E. 320. Hewitt V. Berlin Machine Works, 194 71 — In re Farmers' Supply Co., 196 V. S. 296, 48 L. ed. 986, 11 A. B. E. Fed. 990, 28 A. B. E. 535; In re Nelson, 709. 191 Fed. 233, 27 A. B. E. 272; In re , 70— In re Walsh Bros., 195 Fed. 576, Kreuger, 199 Fed. 367, 27 A. B. E. 623; 28 A. B. E. 243; In re Hutchins Co., In re Gehris-Herbine Co., 188 Fed. 502, 179 Fed. 864, 24 A. B. E. 647; In re 26 A. B. E. 470; In re Franklin Lumber Bfiiley, 176 Fed. 628, 23 A. B. E. 876; Co., 187 Fed. 281, 26 A. B. E..37; In York Mfg. Co. v. Brewster, 174 Fed. re Dancy Hardware & Furniture Co., 198 566, 23 A. B. E. 474; John Deere Plow Fed. 336, 28 A. B. E. 444. § 774] Peopebty op Bankbupt and Title Thebeto 565 if any creditor under the local statute can obtain priority over an unfiled or unrecorded instrument by levy of attachment or execu- tion, the trustee in bankruptcy, under the amendment, has all the rights and remedies of such creditor.^^ It is not necessary that there should, in fact, have been such lien creditors when the petition was filed.''* While it is held that the trustee is not an innocent purcl^aser,''* and cannot, in his own right, avoid a conditional sale contract filed before the bankruptcy '^^ yet clearly an unrecorded chattel mortgage or conditional sale contract may be void as against the trustee though valid as between the parties, since the trustee occupies the position of a subsequent lien holder without notice.''® Under the amendment the trustee may attack a contract, in form of a bailment, and offer such evidence as will throw light upon the negotiations, between the parties, disclosing its triie meaning to be otherwise. The mere form of the agreement does not bind him, as it might the bankrupt.'"^ The "rights, remedies and powers with which the trustee is vested under 47a (2) arise as of the date of the commencement of the bankruptcy proceedings, and hence he cannot recover from a vendor under an unrecorded conditional sale contract 72 — In re !Panners' Co-operative Co. to trustee though filed only a few days of Barlow, 202 Ped. 1008, 30 A. B. before bankruptcy. John Deere Plow Co. E. 190. V. Edgar Farmer Store Co., 143 N. W. 73— In re Farmers' Co-operative Co. of 194, 81 A. B. E. 156. Barlow, 202 Fed. 1008, 30 A. B. E. 190 ; 76 — Townsend, Leaphart & Meetze v. In re Dancy Hardware & Furniture Co., Ashepoo Fertilizer Co., 212 Fed. 97, 31 198 Fed. 336, 28 A. B. E. 444; In re A. B. E. 682; Millikin v. Second Nat. Calhoun Supply Co., 189 Fed. 537, 26 A. Bank, 206 Fed. 14, 30 A. B. E. 477, rev 'g B. E. 528; In re Bozemore, 189 Fed. 200 Fed. 455, 29 A. B. E. 613; Augusta 236, 26 A. B. E. 494. Grocery Co. v. Southern Moline Plow Co., 74— The amendment of 1910 does not 213 Fed. 786, 31 A. B. E. 677. constitute the trustee an innocent pur- Unfiled conditional sale contract is, chaser, but merely puts him in the pOsi- since the amendment to section 47a (2), tion of a creditor who has reduced his absolutely void as against a trustee rep- claim to judgment. In Ohio a conditional resenting, in part, creditors who have, sale contract being valid as to all but subsequent to the execution of the con- innocent purchasers, is valid as against tract and prior to its filing, extended the trustee, though not recorded until credit to the bankrupt. In re Johnson, within four months of bankruptcy. In 212 Fed. 311, 31 A. B. E. 579. re Superior Drop Forge •& Mfg: Co., 208 77 — In re Franklin Lumber Co., 187 Fed. 813, 31 A. B. E. 455. Fed. 281, 26 A. B. E. 37; In re Gag- 75— Big Four Implement Co. v. Wright, lione & Son, 200 Fed. 81, 28 A. B. E. 207 Fed. 535, 81 A. B. E. 125. ' 694. Conditional sale contract held valid as 566 Beakdenbueg on Bankruptcy [§ 774 property which has been reclaimed by the latter prior to bank- ruptcy though within four months thereof/* though it is held that, where, under the state law, the lien of an execution creditor is superior to the rights of a vendor under a conditional sale contract, the trustee becomes subrogated to the rights of the creditor holding such lien, and may avoid the transfer of the property by the bankrupt to the conditional vendor prior to bankruptcyJ^ The amendment of 1910 may be invoked to avoid a conditional sale made prior to its passage, where the petition in bankruptcy is filed after such passage.*" The date of the delivery of *the contract is to be considered as the *3ate of the contract within the meaning of statutes provid- ing for their recordation within a certain time from their date.*^ § 775. — Effect of record. Property in which the title, by written contract, remains in the vendor until the stipulated price is paid, all of the requirements of the law being fully complied with,*^ does not pass to the trustee. A conditional sale of chattels, where transfer of title is con- templated at the time of reservation of title in the vendor, is invalid, whether filed or not.** § 776. Contracts of bankrupt. , Bankruptcy, where there is no fraud, does not disturb con- tracts or equities growing out of them,** and the trustee may 78 — Hart v. Emerson-Brantingham Co., 83 — In re Walters-Colver Co., 206 Fed. 203 Fea. 60, 30 A. B. E. 218. 845, 80 A. B. E. 763; 79 — Book Island Plow Co. v. Eeardon, 84 — In fe Boschelli, 183 Fed. 864, 25 222 TT. S. 354, 56 L. ed. 231, 27 A. B. A. B. E. 528. But see. In re National E. 492, afE'g 168 Fed. 654, 22 A. B. E. MeroantUe Agency, 11 A. B. E. 451. 26. An obligee in the bankrupt's bond for 80 — Holt V. Henley, 193 Fed. 1020, 27 a deed has an equitable interest in the A. B. E; 578, affi'g 190 Fed. 871, 27 land which the deed covers which the A. B. E. 178. bankruptcy court will recognize. In re 81— In re Goseh, 126 Fed. 627, 12 A. B. Peasley, 137 Fed. 190, 14 A. B. E. 496. E. 149, rev'g 121 Fed. 602, 9 A. B. E. A railroad company making advance- 610. ments to the bankrupt in anticipation of 82 — In Te Lyon, 7 N. B. E. 182, Fed. the delivery of coal in pursuance to eon- Cas. No. 8644; Sawyer v. Tijrpin, 5 N. tract is entitled to demand from the B. E. 339, 2 Low. 29, Fed. Cas. No. trustee a delivery of coal to cover the 12410. advances made. Hurley v. Atchison, T. § 776] Pkopebty of Bankrupt and Title Thebeto 567 elect to adopt or reject contracts entered into by the bankrupt prior to the commencement of the proceedings."^ A contract which has been assumed by a receiver in bankruptcy, in the absence of any negative intention by the trustee, must be deemed to have been ratified and confirmed by hina.*^ Money due bankrupt under contract is properly paid to the trustee,"^ and where the trustee completes a contract under- taken by the bankrupt he is entitled to the balance due thereon ; even though claims have been filed against such balance by sub- contractors and materialmen, it appearing that the latter have filed their claims in the bankruptcy court and have not inter- vened in mandamus proceedings instituted by the trustee to recover the balance due.** There are, however, certain classes of property which may be in the bankrupt's possession, or under his control, by virtue of some contract, which should not be classed as an asset and would not pass to the trustee, as, for instance, where bankrupt has possession of property for certain purposes, the title to which is in another; *^ or a business conducted in bankrupt's name, but which is the bona fide property of another.^" Nor can the trustee take title to contracts for purely personal service or those involv- ing trust or confidence. The personal confidence which precludes the transfer of rights arising out of a contract to the trustee niust be involved in the nature of the rights themselves. It is not ordinarily involved in the right to receive moneys due or to grow due under a contract and this right is generally assignable with- out the consent of the other party .^^ Accordingly, the right of an insurance agent to receive renewal commissions accruing since the adjudication of such agent passes to his trustee. & S. F. E. Co., 213 U. S. 126, 53 L. ed. 89— In re Noakes, 1 N. B. E. 164, Fed. 729, 22 A. B. E. 17, afE'g 153 Fed. 503j Gas. No. 12281; In re Pusey, 7 N. B. B. 18 A. B. E. 396. 45, Fed. Gas. No. 11478; In re Gohn, 2 85— Gorbett v. Eiddle, 209 Fed. 811, N. B. N. E. 299, 98 Fed. 75, 3 A. B. 31 A. B. E. 330; In re Sterne & Levi, E. 421. 26 A. B. E. 535; In re Big Gahaba Goal 90— In re Beardsley, 1 N, B. E. 121, Co., 190 Fed. 900, 26 A. B. E. 910. Fed. Gas. No. 1184. 86— In re Niagara Eadiator Co., 164 91— In re Wright, 157 Fed. 544, 18 Fed. 102, 21 A. B. E. 55, L. E. A. (N. S.) 193, 19 A. B. E. 454, 87— In re Cramond, 145 Fed. 966, 17 afF'g 151 Fed. 361, 18 A. B. E. 198, A. B. E. 22. rev'g 16 A. B. E. 778. 88— Ford v. State Board of Education, 166 Mich. 658, 27 A. B. E. 236. 568 Bbandenbueg ON Bankkuptcy [§776 Where the trustee elects to complete a contract, the proceed^ of which were assigned by the bankrupt prior to the adjudica- tion, the assignee is entitled to such proceeds.**^ In case the trustee refuses to assume the performance of a contract, the contractual rights and liabilities of the parties remain unaffected by the bankruptcy;®^ A trustee may sue on a written contract, entered into between the bankrupt and another to recover a debt alleged to be due the bankrupt thereunder,"* but he cannot sue on a contract of the bankrupt, a corporation, which is void because of its failure to comply with the local statutes as to registration.®^ §777. Corporate records. Corporate records and stock books of a bankrupt corporation pass to its trustee.®^ §778. Crops. The trustee of a bankrupt, who schedules a farm with grow- ing crops, is vested with the title to the real estate, which carries the growing crops, unless exempt under the state law.®'' The rule is not changed because bankrupt is only a tenant under a contract reserving to the landlord, as rent, a share of the crops raised on the land, and the crops were immature and unsevered when the petition was filed.®® But bankrupt may be allowed a reasonable compensation for the care and labor bestowed on them from the adjudication, and the proceeds of any part of such crops sold will take the place of such part.®® Crops not sown at the time of the adjudication do not pass to the trustee in bankruptcy,^ and a mortgagee of real estate, with 93— In re DeLong Furn. Co., 188 Fed. Barrow, 3 N. B. N. E. 95, 98 Fed. 582, 686, 26 A. B. E. 469. 3 A. B. E. 414; In re Daubner, 1 N. B. 93— In re Schierrmann, 2 N. B. N. E. N. 520, 3 A. B. R. 368, 96 Fed. 805; In 118; In re Big Cahaba Coal Co., 190 Fed. re CofEman, 1 N. B. N. 402, 1 A. B. E. 900, 26 A. B. E. 910. 530, 93 Fed. 422. 94r-Babbit v. Burgess, 7 N. B. R. 561, 98— In re Koester, 15 Ohio Fed. Deo. 2 bill. 169, Fed. Cas. No. 693. 257, 17 A. B. E. 391; In re Barrow, 3 95 — Thomas v. Birmingham Railway, N. B. N. R. 95, 98 Fed. 582, 3 A. B. E. Light & Power Co., 195 Fed. 340, 28 A. 414. B. E. 152. 99— In re Barrow, 98 Fed. 582, 3 N.B. 96— Babbitt v. Dutcher, 216 U. S. 102, N. R. 95, 3 A. B. R. 414. 54 L. ed. 402, 23 A. B. H;. 519. 1— Bank of Nez Perce v. Pindel, 193 97— Spencer v. Lowe, 29 A. B. R. 877; Fed. 917, 28 A. B. R. 69. In re Eastman, 2 N. B, N. R. 86; In re § 781] Pbopeety of Bankeupt and Title Theebto 569 condition broken before the institution of bankruptcy proceed- ings, is entitled to all tlie product of the premises unharvested as against the trustee.^ §779. Equitable titles. The equity of the receiver or trustee in bankruptcy to a fund in the hands of a debtor of the bankrupt is equal to the equity of a creditor of the bankrupt holding ~an order of which the debtor has no knowledge.^ Eeal property actually occupied by an adverse claimant who claims the equitable title thereto is "not in the custody of the bankruptcy court," though the legal title is in the bankrupt. Hence the rights of the trustee in relation thereto are only those of a judgment creditor holding an execution duly returned unsatisfied and, if under the state law, the title of such creditor, without a previous attachment, is inferior to those of the. equit- able owner, the trustee takes no title to the property.* Equitable liens and assignments^ against property of the estate are treated elsewhere.^ §780. Exempt property. , See chapter XXIV. §781. Fixtures. Whether the bankrupt, as lessee, or his trustee, is entitled to fixture depends upon the intention of the parties.^ The presumption is that trade fixtures on premises leased by the bankrupt belong to him, and in the absence of clear language in the lease that they shall become the property of the landlord 2 — ^In re Bruee, 16 N. B. E. 318, 9 custody of the trustee within the mean- Ben, 236, Fed. Gas. No. 2045. But see, iug of section 47a as amended. Id. ilnreEosie, 206 Ted. 789, 30 A. B. K. 83. One who has purchased real property a— In re The Leader, 190 Fed. 624, 26 ^^°'^ t^« bankrupt a long time prior to A. B E 668 bankruptcy and has been in possession ., ™ , -, „. „._ _ , „ .„ „„ thereof ever since the purchase has title 4r-Clark v. Snelling, 205 Fed. 240, 30 . ... .,, ^ „ i, ^ ^ » -.^ T, ,„ «.. „„„ T, , „„ . superior to that of the trustee, though A., B. E. 50, aff'g 202 Fed. 259, 29 A. , ^ . , ;, n ■j^ -r, o c, ^° actual conveyance was ever made, and £. E. 818. . J! ^^ may compel a conveyance from the Eeal estate in the possession of an trustee. Id. equitable owner thereof who purchased 5 gee po^t, § 908. the same from bankrupt , more than ten 6— In re Eodgers & Hite, 143 Fed. years before bankruptcy is not in the 594,. 16 A. B. E. 401. 570 Bbandbnbueg on Bankruptcy [§ 781 at the expiration of the lease, they will pass to the trustee of the tenants However, fixtures, which by the terms of the lease are to remain for the benefit of the lessor do not pass to the lessee's trustee.^ Where a lessee buys certain fixtures under a conditional sale contract and his landlord guarantees payment thereon, the trustee of the latter is estopped to distrain on the fixtures for his unpaid rent, the fixtures not having been paid for.® Where the bankrupt was in possession of real property as vendee under a contract to purchase, any fixtures annexed to the property are presumed to have been annexed with the intention of making them part of the realty unless the vendor has given his consent to removal or has failed to perform his contract to convey.^" § 782. Property fraudulently transferred. § 783. — Statutory provision. By section 67e of the act it is provided, "That all conveyances, transfers, assignments, or incumbrances of his property, or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this act subsequent to the passage of this act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or defraud his creditors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all prop- erty of the debtor conveyed, transferred, assigned, or incum- bered as aforesaid shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by the law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal pro- ceedings or otherwise for the benefit of the creditors. And all conveyances, transfers, or incumbrances of his property made by a debtor at any time within four months prior to the filing 7— In re Howard Laundry Co., 203 9— In re Boschelli, 183 Fed. 864, 25 Fed. 445, 30 A. B. E. 167. A. B. B. 528. 8 — In re Bahl's Ice Cream & Baking 10 — In re Bodgers & Hite, 148 Fed. Co., 195 Fed. 986, 28 A. B. B. 139. 594, 16 A. B. E. 401. § 783] Peopeety of Bankeupt and Title Theeeto 571 of the petition against him, and while insolvent, which are held null and void as against the creditors of such debtor by the laws of the state, territory, or district in which such property is situate, shall be deemed null and void under this act against the creditors of such debtor if he be adjudged a bankrupt, and such property shall pass to the assignee and be by him reclaimed and recovered for the benefit of the creditors of the bankrupt." ^^ The object of this section is to carry out the main purpose of bankruptcy legislation, viz., the equal distribution of the bank- rupt's property among his creditors, and supplements the pro- vision as to voidable preferences,^^ which should be consulted in connection herewith. It provides that all liens acquired during the four months prior to the commencement of the bank- ruptcy proceedings whether by the act of the bankrupt or through legal proceedings against him except as against a pur- chaser in good faith for a valuable consideration shall be void 11— By the Act of February 5, 1903, this subdivision was amended by the in- sertion at the end thereof the words "For the purpose of such recovery any court of bankruptcy as hereinbefore de- fined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction. ' ' Analogous provision of Act of 1867. "Sec. 14. , . . That as soon as said as- signee is aippointed and' qualified, the judge, or, where there is no opposing in- terest, the register, shall, by an instru- ment under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books and papers relating thereto, and siieh assignment shall relate back to' the eonlmeneement' of said proceedings in bankruptcy, and thereupon, by opera- tion of law, the title of all such property and estate, both real and personal, shall vest in said assignee, although the same is then attached on mesne process as the property of the debtor, and shall dis- solve any such attachment made within four months next preceding the com- mencement of said proceedings. . . . And all the property conveyed by the bank- rupt in fraud of his creditors . . . shall, in virtue of the adjudication of bank- ruptcy and the appointment of his as- signee, be at once vested in such as- signee." The Act of 1867 provided that all property conveyed by the bankrupt in fraud of his creditors should, in virtue of the adjudication of bankruptcy and the appointment of an assignee, vest a,t once in such assignee. "It will be ob- served therefore that the present act includes all the former . act, did and in addition makes null and void transfers made subsequent to the passage of the act and within four months of the filing of the petition with intent to defraud creditors and all transfers made within such four months arid while insolvent which are held null and void by the laws of the locality in which the property transferred is situated. Thus there are three classes. Those that the trustee as representative of the creditors is entitled to have set aside and which are identi- cal with those referred to in the former act and the two additional classes just named. 12— Sec. 60b, Act of 1898. 572 Bbandenbueg on Bankbuptcy [§ 783 or the trustee subrogated to tlie rights of the holder of the same, as may be most for the interest of the estate. All liens invalid for want of compliance with some prescribed requisite, as record or the like, by the state laws as agarast creditors, shall be void against the estate and the trustee is subrogated to the rights of the creditors to protect their rights against any lien created or attempted to be created by the debtor. § 784. — Transfers must be subsequent to act. It should be observed that the conveyances, transfers, assign- ments or incumbrances avoided by this subdivision must be subsequent to the passage of the bankruptcy law; ^' and hence if made prior to its enactment with intent to prefer, but in the absence of such knowledge on the part of the creditor they are not void under the bankruptcy law nor at common law. If they are not contrary to the state statutes or are not annulled by proceedings taken under a state law within the time limited thereby, the property cannot be recovered from the creditor by the debtor's trustee.^* It by no means follows that, because a bona fide debt was created before the passage of the act, a mortgage or lien of any kind could be given after its passage to secure such debt, so as to avoid the effect of bankruptcy proceedings.^^ § 785. — What constitutes a transfer. The term "transfer" includes the sale and every other and different mode of disposing of or parting with property, or the possession of property, absolutely or conditionally, as a pay- ment, pledge, mortgage, gift or security, ^^ or a change of bene- ficiaries in an insurance policy.^'' A fraudulent transfer or conveyance as used in the law, is a ti'ansfer of title in fraud of creditors, the transferor usually retaining the beneficial interest.^* 13— In re Brown, 1 N. B. N. 240, 91 16— Sec. 1 (25), Act of 1898. Spencer Ted. 358; In re Meyers, 1 N. B. N. 293, v. Nekemoto, 24 A. B. E. 517. 1 A. B. E. 347. 17— South Side Trust Co. v. Wilmarth, 14— In re Terrill, 100 Fed. 778, 4 A. 199 Fed. 418, 29 A. B. E. 29. B. E. 145. 18— In re Musto, 2 N. B. N. E. 577. 15— In re Sievers, 91 Fed. 366, 369, 1 N. B. N. 68, 1 A. B. E. 117. § 787] Pboperty op Bankbupt and Title Thebeto 573 § 786. — Rights of trustee in general. If, for any reasop, title of property affected by a fraudulent conveyance revests in the bankrupt at the time of filing a peti- tion, it will pass to the trustee;^® or if such conveyance is declared fraudulent and void by a state court, he may claim the property subject to any valid liens against it. ^^ He may set aside a fraudulent conveyance though the bankrupt could not; or bring an action to reach equities beyond legal remedies. He may avoid any transfer by the bankrupt which any creditor might have avoided,^ ^ thus subrogating him to the rights of creditors, as against liens and transfers, which exist at the time of the bankruptcy.^^ § 787. — Validity of transfers determined by local law. The validity of a conveyance alleged to be fraudulent depends upon the state law.^* The question whether the bankrupt was insolvent at the time of a transfer made more than four months prior to bankruptcy, so as to render the same presumptively fraudulent and within the provisions of section 70a njust be determined by the state law.^* Hence, the question whether the exempt property of the bankrupt is to be considered in determin- ing such insolvency is a question of local law.^^ The question whether any conveyance was in fact made with intent to defraud creditors when passed upon by the state court is not a federal question.^^ 19— In re Brown, 91 Fed. 358, 1 N. B, 22 — In re New York Economieal Print- N. 240, 1 A. B. E. 107; see In re ToUett, ing Co., 110 Fed. 514, 6 A. B. E. 615. 105 Fed. 425, 5 A. B. E. 305. 23— Parker v. Sherman, 201 Fed. 155, 20— In re Lesser, 100 Fed. 433, 2 N. 29 A. B. E. 862; In re East End Mantel B. N. R. 599, 3 A. B. E. 815. & Tile Co., 20S Fed. 275, 29 A. B. E. 21— Bush V. Export Stojage Co., 136 793; In re Sehoenfield, 190 Fed. 53, 27 Fed. 918, 14 A. B. E. 138; In re Mc- A. 6. E. 64; First Nat. Bank of Pitts- Namara, 2 N. B. N. E. 341, citing, In re burgh v. Guarantee Title & Trust Co., Leland, Fed. Cas. No. 8230; Bradshaw 178 Fed. 187, 24 A. B. E. 330. V. Klfiin, Fed. Cas. No. 1790; In re Col- 24— tJnderleak v. Scott, 117 Minn. 136, lins, Fed. Cas. No. 3007; Cook v. Whip- 28 A. B. E. 926. pie, 55 N. Y. 150; Southard v. Eenner, 25— Underleak v. Scott, 117 Minn. 136, 72 N. Y. 424; In re Metzger, Fed. Cas. 28 A. B. E. 926. No. 9510; In re Duncan, Fed. Cas. No. 26— Thompson v. Fairbanks, 196 IT. S. 4131; Barker v. Barker, Fed. Cas. No. 516, 49 L. ed. 577, 13 A. B. E. 437, aff'g 986; In re Adams, 1 N. B. N. 167, 1 70 Yt. 558, 13 A. B. E. 75n. A. B. E. 94. 574 Bbandenbubg on Bankeuptcy [§ 788 § 788. — Transfer need not be within four months. Section 67e is limited to transfers invalid under the act when made within the four month period.^^ However, section 70e in- cludes fraudulent conveyances which are such under the common law, by statute law, and by any other recognized rule of law other than the special provisions of the bankruptcy statute, and under it the trustee may avoid any transfer which the creditors of the bankrupt might have avoided,^* w;hile under section 47a (2) as amended in 1910, as to all property not in the custody of the bankruptcy court, he shall be deemed a judgment creditor holding an execution duly returned unsatisfied, and accordingly, a fraud- ulent transfer made more than four months prior to bankruptcy, as well as one made thereafter, may be set aside or the proceeds recovered as against all but bona fide purchasers for value.^* §789. —Intent of bankrupt. The provision saving conveyances to purchasers in good faith and for a present fair consideration prevents such conveyances from being declared void by the act, although made by the bank- rupt with an intent to hinder, delay, or defraud his creditors. But the act does not dispense with the necessity of showing that the bankrupt had the actual intent to hinder, delay or defraud creditors,^" at the time of the transfer. The statute being in the disjunctive, an intent to defraud need not be shown if there is an intent to hinder or delay ,3^ though it has been held that the security given for a present loan is not avoided by the fact that it actually hinders or delays creditors unless it was given with an actual intent to defraud such cred- itors and the recipient had actual or legal notice of that purpose.^^ 27— Bush V. Export Storage Co., 136 tional Discount Co., 227 XJ. S. 575, 57 L. Fed. 918, 14 A. B. E. 138. ed. 652, 29 A. B. R. 478, aflf'g 174 Fed. 28— tTnderleak v. Seott, 117 Minn. 136, 518, 23 A. B. R. 345; In re Thomas, 199 28 A. B. R. 926. ^«^- 214, 29 A. B. R. 945; Underleak v. 29-Corey.v. BlackweU Lumber Co., 24 ^'=°"' "^ ^^^^- ^^^> 28 A. B. R. 926; Idaho 642, 31 A. B. R. 135; In re Down- S°^^' J' ^*«' ^13 U. S. 223, 22 A. B. ing, 192 Fed. 683, 27 A. B. R. 309; State J ^^ ^%'"%^- ^^' ^''l"% T'J! Bank of Chicago v. Cox, 143 Fed. 91, 16 fg J J '^''^/g" '" ^'°''''' "" ^'^- '''' t' ^^of'J^'.^'"'^ ^- ^^'"* ^**"''^^ 3llln re Hughes, 183 Fed. 872, 25 Co., 136 Fed. 918, 14 A. B. R. 138. a. B. R. 556. 30— Lumpkin v. Foley, 204 Fed. 372, 32^Powell v. City Bank, 178 Fed. 29 A. B. B. 673; Van Iderstine v. Na- 609, 24 A. B. R. 316. § 793] Pbopebty of Bankbupt and Title Thebeto 575 § 790. — Participation of transferee in fraud. , The present law is more prohibitive than the act of 1867, for no reasonable belief of insolvency or fraud on the law by the person receiving the preferences is necessary to avoid it. The purpose and intent of the bankrupt alone governs, and if contrary to the act, is sufficient to defeat the transfer except as to purchasers in good faith and for a present fair consideration.** §791. — Insolvency. The insolvency of the bankrupt at the time of the transfer is not an essential element of a fraudulent transfer.** § 792. — Adequaby of consideration not decisive. A sale cannot be attacked solely on the ground of inadequacy of price.*^ While a voluntary conveyance is presumptively fraudulent as to existing creditors, it is not conclusively so.*® And, conversely, if not withstanding a bona fide indebtedness and an adequate consideration for the transfer, there was an intent on the part of the debtor to hinder, delay or defraud his creditors, in which intent the transferee shared, and of which he had notice, the transfer is fraudulent.*'^ § 793. — Preference not necessarily fraudulent. Every preferential transfer must to some extent hinder and delay creditors, but it is not necessarily a fraudulent conveyance. A preferential transfer may be constructively fraudulent, but it is not in and of itself a fraudulent conveyance.** If such transfer is free from actual or constructive fraud, and from any purpose to affect other creditors injuriously beyond the neces- 33— MeKey v. Smith, 255 lU. 465, 28 35— In re Shaw, 19 N. B. E. 512, Fed. A. B. E. 864; In re Hill, 140 Fed. 984, Cas. No. 12716. 15 A. B. E. 499; Bush V. Export Storage 36 — TJnderleak v. Scott, 117 Minn. Co., 136 Fed. 918, 14 A. B. E. 138; In 136, 28 A. B. E. 926. re Moody, 134 Fed. 628, 14 A. B. E. 272; 37— Allen v. Gray, 63 Miso. (N. T.) In re Pease, 129 Fed. 446, 12 A. B. E. 219, 21 A. B. E. 828; In re Pease, 129 66; In re McLam, 97 Fed. 922, 3 A. Fed. 446, 12 A. B. E. 66. B. E. 245, 1 N. B. N. 402; contra, 38 — ^Van Iderstine v. National Dis- Jacobs V. Van Sickle, 127 Fed. 62, 11 count Co., 227 IT. S. 575, 57 L. ed. 652, A. B. E. 470, aff'g 123 Fed. 340, 10 29 A. B. E. 478, affl'g 174 Fed. 518, 23 A. B. E. 519. A. B. E. 345. 34 — Spencer v. Nekemoto, 24 A. B. E. 517. 576 BBANDliNBtJBG ON BABTKBUPTCt^ [§ 793 sary effect of the security or preference^ it is valid and cannot evidence such intent to hinder, delay, or defraud creditors as will make it void under section 67e.^^ § 794. — Transfers held invalid. When transfers are made to defeat the operation of the law they are absolutely void so far as they in any manner stand in the way of enforcing its provisions, where proceedings are insti- tuted within the" prescribed time, although they may be valid between grantor and grantee.*" A conveyance by an insolvent to one creditor of property sufficient to pay his debt in full should be set aside, and that there is .an excess which the creditor pays in cash is immaterial; *^ or a transfer of securities by an insolvent bank as collateral for a loan consisting in part of the lender's deposit ; *^ or of stock to an indorser to secure his indorsement on certain acceptances used to secu(re a creditor; ** or of a claim against the debtor for a cash discount on an account for goods previously sold; ** or where one buys commercial paper and within four months of the bankruptcy takes mortgage security therefor; *^ or a lease by an insolvent to a creditor as part of a scheme to give such creditor an advantage over others.*"' A conveyance absolute on its face in which the grantor secretly reserves the right to possess and occupy for a limited period under a parol agreement as part of the consideration is void ; " or a sale by an insolvent owner to a broker of goods placed with him for sale on commission; ** or a deed of trust by a corpora- 39— In re Thomas, 199 Fed. 214, 29 42— In re Cobb, 1 N. B. N. 557, 96 Fed. A. B. E. 945; Coder v. Arts, 213 U. S. 821, 3 A. B. E. 129. 223, 53 L. ed. 772, 22 A. B. E. 1, aff'g 43— Crooks v. Bank, 3 A, B. B. 238, 152 Fed. 943, 15 L. E. A. (N. S.) 372, rev'g 1 N. B. N. 530. 18 A. B. E. 513; Sargent v. Blake, 160 44— In re Eggert, 2 N. B. N. E. 390, Fed. 57, 17 L. E. A. (N. 8.) 1040, 20 98 Fed. 843, 3 A. B. E. 541. A. B. E. 115; In re Eobertshaw Mfg. 45— In re Glassburner, 2 N. B. N. E. Co., 133 Fed. 556, 13 A. B. E. 409. But 634. see. In re Hill, 140 Fed. 984, 15 A. B. 46— Carter v. Hobbs, 1 N. B. N. 529, E. 499. 94 Fed. 108, 2 A. B. E. 224, s. e, 1 N. B. 40— Stevenson v. McLaren, 14 N. B. N. 191, 92 Fed. 594, 1 A. B. E. 215; see E. 403; In re O'Bannon, 2 N. B. E. 6, Eobinson v. White, 1 N. B. N. 513, 97 Fed. Cas. No. 10394; In re Tomes, 19 Fed. 33, 3 A. B. E. 88. N. B. E. 36, Fed. Cas. No. 1457; In re 47 — Lukins v. Aird, 2 N. B. N. E. 27, Byrne, 1 N. B. B. 122, Fed. Cas. No. 24 Wall. 78. 2270. 48— Avery v. Hackley, 11 N. B. E. 241, 41— Johnson v. Wald, 1 N. B. N. 325, 20 Wall. 407. 93 Fed. 640, 2 A. B. E. 84. § 794] Property of Bankrupt and Title Thereto 577 tion to secure ultra vires notes,*^ or a deed of trust directing the trustee to sell the property and pay the debts according to the state law, as it takes from the creditors the right to have the estate settled in accordance with the bankruptcy law; ^^ or a con- veyance to one creditor of what would otherwise under the provisions of the act go to all; ^^ or where a banker sells a sight draft and next day gives the holder collateral security for it; ^^ or a voluntary conveyance as to subsequent creditors, although there are no existing debts if it be shown by facts and circum- stances that it was made with an actual intent to defraud them.^s A transfer in consideration of a promise to marry is void where the promisee is incapable of entering into the marriage relation.^* A transfer of property in consideration of which the transferee expressly agrees to devise and bequeath the estate transferred in trust for the use of the transferrer, made with intent on the part of the transferrer to hinder creditors is voidable.^' A transfer may be voidable though made by the bankrupt through a third person.^* A transfer of accounts for a past consideration, or even for a present inadequate consideration, where the circumstances as well as the books and instruments themselves indicate that the transfer was not intended to be absolute, but was merely to keep the assets from other creditors, and as security to the assignee, is void, especially where the bankrupt has retained control of the accounts.^'' So, an executory contract to set aside certain book accounts to the payment of a creditor's claim is not effective where there has been no appropiation of the same pro tanto, by transferring them or otherwise, in such manner as to take them out of the hands of the assignor and authorize the debtors on 49— American Wood Working Mach. 53— Smith v. Kehr, 7 N. B. R. 97, 2 Co. V. Norment, 157 Fed. 801, 19 A. B. Dill. 50, Fed. Cas. No. 13071; Beecher E. 679. V. Clark, 10 N. B. R. 385, Fed. Cas. No. 50 — ^Rumsey & Sikemier Co. v. Novelty 1223. Mach. Co., 2 N. B. N. R. 128, 99 Fed. 54— Hosmer v. Tiffany, 115 App. Div. 699, 3 A. B. R. 704. (N. Y.) 303, 17 A. B. R. 318. 51— In re McLam, 1 N. B. N. 402, 97 55— Clowe v. Seavey, 31 A. B. R. 830. Fed. 922, 3 A. B. R. 245. 56— In re Schacht Motor Car Co., 31 52— Merchants ' Nat. Bank v. Cook, A. B. R. 624. 16 N. B. R. 391, 95 IT. S. (5 Otto) 342, 57— Jackson v. Sedgwick, 189 Fed. 24 L. ed. 412. 508, 26 A. B. R. 836. Brandenburg— 37 578 BeandenBubg ok Bankkuptcy [§ 794 the accounts to pay them directly to the assignee.^* But, suc- cessive assignments of accounts by the bankrupt by way of security, in pursuance of a contract under which advances were made to enable the bankrupt to get goods on the faith of his undertaking that the accounts should be assigned are not fraudu- lent per se.^® The fiction of legal corporate entity cannot be so applied by the bankrupt as to work a fraud on a part of his creditors, or hinder and delay them in the collection of their claims, and assets of a corporation, whose stock is owned almost entirely by the bankrupt, and which is maintained to facilitate the business of the bankrupt and acts as its agent may be regarded as assets of the bankrupt for the purposes of admiuistration.^" A lease of property of the bankrupt to another corporation in pursuance to a plan of reorganization adopted by the bond- holders and directors has been held fraudulent.*^ § 795. — Sales out of due course. A conveyance or mortgage by the bankrupt is presiunptively fraudulent if of his entire property or stock of goods *^ or of the whole with a colorable exception, made as a security for a pre- existing debt,®* or otherwise out of the usual course of business."* A transfer of his stock in trade to a creditor in consideration, inter alia, of the payment of an overdraft of insolvent for which the creditor had verbally become responsible is void.®^ 58— In re Wilson, 194 Fed. 564, 27 A. Moody, 134 Fed. 628, 14 A. B. E. 272; B. E. 867. Norton v. Billings, 4 Fed. 623; Keating 59— Greey v. Dockendorff, 231 U. S. v. Keefer, 5 N. B. E. 133, Fed. Gas. No. 513, 58 L. ed. 339, 31 A. B. E. 407. 7635. 60— In re Eieger, 157 Fed. 609, 19 A. But see, Shelton v. Price, 174 Fed. B. E. 622. 891, 23 A. B. E. 431, holding that the 61 — In re Medina Quarry Co., 179 Fed. purchase of a stock of goods and fixtures 929, 24 A. B. E. 769. in bulk is not prima facie fraudulent, but 62 — ^Lumpkin v. Foley, 204 Fed. 372, is merely a circumstance reflecting upon 29 A. B. E. 673; In re Lipman, 201 Fed. the bona fides of the transaction. 169, 29 A. B. E. 189; In re Calvi, 185 63— Eison v. Knapp, 4 N. B. E. 114, Fed. 642, 26 A. B. E. 206; Matter of 1 Dill. 186, Fed. Cas. No. 11861; Carpen- Eosenberg, 22 A. B. E. 900; Houek v. ter v. Karnow, 193 Fed. 762, 28 A. B. Christy, 152 Fed. 612, 18 A. B. E. 330; E. 21. Johnston v. Forsyth Mercantile Co., 155 64 — ^And see, Dean v. Davis, 212 Fed. Fed. 268, 19 A. B. E. 48; Dokken v. Page, 88, 31 A. B. E. 808. 147 Fed. 438, 17 A. B. E. 228; In re 65— Goldman v. Smith, 1 N. B. N. 160, Knopf, 146 Fed. 109, 17 A. B. E. 48, 93 Fed. 182, 1 A. B. E. 266. 144 Fed. 245, 16 A. B. E. 432; In re § 796] Peopekty op Banketjpt and Title Theeeto 579 § 796. — Want of record or delivery. Whether a conditional sale, chattel mortgage, or pledge of personal property is valid as against the general creditors of the vendor, mortgagor, or pledgor, or his trustee in bankruptcy, must be deteinined by the local laws of the state where the transaction was had,®* or the property situated.^^ So the validity of a sale of a shifting stock of goods or other personal property of a transitory nature left in possession of the seller is to be determined by the local laws.®* The bankruptcy act does not abrogate state statutes of fraud but, if under state laws a sale by the bankrupt is void for want of delivery followed by an actual and continuing change of possession, or of record, or other reason, and vests no title in the vendee, the trustee is entitled to the property.®^ Mere failure to record an instrument is not conclusive evidence of fraudulent intent, but an agreement between parties to withhold the instru- ment from record may nevertheless be a circumstance of great weight in determining the good faith of the parties.''" 66— See ante, §§ 769, 787. First Nat. Bank of Pittsburgh v. Guarantee Title & Trust Co., 178 Fed. 187, 24 A. B. E. 330. 67— In re Nuckols, 201 Fed. 437, 29 A. B. E. 867. 68— In re Sohoenfield, 190 Fed. 53, 27 A. B. E. 64. 69— In re East End Mantel & Tile Co., 202 Fed. 275, 29 A. B. E. 793; In re Harrington, 29 A. B. E. 690; In re Bur- lage Bros., 169 Fed. 1006, 22 A. B. E. 410; In re Fitzgerald, 188 Fed. 763, 26 A. B. E. 710; In re G. & K. Trunk Co., 176 Fed. 1007, 23 A. B. E. 914; In re GiUigan,' 152 Fed. 605, 23 A. B. E. 668; Pontiae Buggy Co. v. Skinner, 158 Fed. 858, 20 A. B. E. 206; In re Sehlessel, 18 A. B. E. 434; Harden v. Phillips, 3 N. B. N. E. 46, 103 Fed. 196, 4 A. B. E. 566; In re Taylor, 1 N. B. N. 480, 95 Fed. 956; Murray v. Joseph, 146 Fed. 260, 16 A. B. R. 704; In re Taylor, 1 N. B. N. 480, 95 Fed. 956; In re Leigh Bros., 1 N. B. N. 526, 96 Fed. 806, aff'g 1 N..B. N. 425, 2 A. B. E. 606; Press Post Printing Co. V. Landon Printing & Pub. Co., 2 N. B. N, B, 774; In re Booth, 2 N, 5, N, E, 377, 98 Fed. 975; In re Legg, 96 Fed. 326, 1 N. B. N. 420, 2 A. B. E. 805; Massey v. Allen, 7 N. B. E. 401, 17 Wall. 351; Edmondson v. Hyde, 7 N. B. E. 1, 2 Sawy. 205, Fed. Gas. No. II. 4285; In re Eldridge, 4 N. B. E. 162, Fed. Cas. No. 12610; Potter v. Cogge- shall, 4 N. B. E. 19, Fed. Cas. No. 11322; In re Collins, 12 N. B. E. 379, 12 Blatch. 548, Fed. Cas. No. 3007; Schulze v. Bolting, 17 N. B. E. 167, 8 Biss. 174, Fed. Cas. No. 12489; but see In re Bozeman, 1 N. B. N. 479, 2 A. B. R. 809; In re Ohio Co-op. Shear Co., 1 N. B. N. 477, 2 A. B. E. 775; In re McKay, 1 N. B. N. 133, 1 A. B. E. 292; Hadden v. Dooley, 92 Fed. 274; Barker v. Smith, 12 N. B. E. 474, 2 Wood 87, Fed. Cas. No. 986; but see In re Kindt, 101 Fed. 107, rev'g 2 N. B. N. E. 369, 4 A. B. E. 148. 70 — Davis v. Hanover Savings Fund Society, 210 Fed. 768, 31 A. B. E. 368. In re Hiekerson, 162 Fed. 345, 20 A. B.' E. 682. Brother's withholding deed from rec- ord held a badge of fraud. Peterson v. Mettler, 198 Fed. 938, 29 A, B. E. 158, 580 Bbandenbubg on Bankeuptcy [§ 796 If a transfer made by tlie bankrupt is recorded within the four-month period it is a question of fact whether it was done with intent to defraud or give a preference and a transfer made with this intent may be set aside if recorded within the statutory period.''^ A conveyance prior to the four-month period but recorded within the period, the local law making such con- veyance effective from the time of record as to subsequent pur- chasers and all creditors, is void,'^^ or a deed not at first fraudu- lent but which becomes so by being concealed/^ So, where mortgages are originally fraudulent, possession taken by the mortgagee before adjudication does not validate them.''* Under the 1910 amendment to section 47a the trustee is regarded as a subsequent lienholder or creditor without notice, ai^d may avoid an unrecorded conditional sale contract or mort- gage though the same be valid as between the parties/^ § 797. — Conveyances to relatives, A husbaad out of debt may settle upon his wife or children such portion of his estate as he pleases, if done in good faith, and not to defraud subsequent creditors; '''' but when largely indebted he cannot make a voluntary donation, or even a voluntary con- veyance, to them, to the prejudice of his creditors,'''^ and, where 71— In re MeKane, 155 Fed. 674, 19 30 A. B. E. 477, rev'g 200 Fed. 455, 29 A. B. R. 103. A. B. E. 613; Augusta Grocery Co. v. 72 — Thomhill v. Link, 8 N. B. B. Southern Molina Plow Co., 213 Fed. 786, 521, Fed. Gas. No, 13993. 31 A. B. R. 677; In re Nuekols, 201 Fed. Lien of chattel mortgage filed within 437, 29 A. B. R. 867. four month period held prior to that of A mortgage given by the bankrupt for the trustee. In re Jaeobson & PerriU, a valid- consideration and effective as be- 200 Fed. 812, 29 A. B. R. 603. tween the parties thereto, which is with- 73 — ^Barker v. Smith, 12 N. B. E. 474, held from record so as not to affect the 2 Woods 87, Fed. Cas. No. 986. mortgagor's credit is fraudulent. Na- 74 — Schaupp v. Miller, 206 Fed. 575, tional Bank of Athens v. Shackelford, 30 A. B. R. 699. 208 Fed. 677, 31 A. B. R. 464. Bill of sale absolute, but intended as 76 — In re Jones, 9 N. B. R. 556, 6 Biss. mortgage, executed more than four 68, Fed. Cas. No. 7444; Sedgwick v. months prior to bankruptcy is valid Place, 5 N. B. R. 168, 5 Ben. 184, Fed. though possession is taken within the Cas. No. 12620. four months period, where under the 77 — Henkel v. Seider, 163 Fed. 553, 20 state law, recording was unnecessary. A. B. R. 773; In re Coffey, 19 A. B. R. Coggan V. Ward, 215 Mass. 13, 31 A. B. 148 ; Kehr v. Smith, 10 N. B. R. 49, 20 R. .844. Wall. 31; In re Welsh, 1 N. B. N. 533, 75 — Townsend v. Ashepoo Fertilizer 100 Fed. 65, 3 A. B. R. 93 ; Pratt v. Cur- Co., 212 Fed. 97, 31 A. B. R. 682. MU- tis, 6 N. B. R. 139, Fed. Cas. No. 11375; likin V. Second Nat. Bank, 206 Fed. 14, In re Grabs, 1 N. B. N. 164, 1 A. B. B. §797] Peopeety of Bankeupt and Title Theeeto 581 a debtor conveys property to his wife without consideration and with intent to defraud, it should be set aside.'^^ All transactions between the bankrupt and his wife shortly before bankruptcy ought to be subject to the closest scrutiny by the court. '^^ A transfer of practically all of the bankrupt's property to relatives on eve of bankruptcy is presumptively fraudulent.*" Proof that the bankrupt conveyed property to his wife and soon afterwards embarked into a new enterprise is, however, not sufficient to show fraud,^^ nor is the bare fact that the transferee, a niece of the bankrupt, did not demand or expect payment Of her claim conclusive of fraud.*^ A conveyance by a husband, in embarrassed circumstances, of his real estate to trustees for the use of his wife, in consideration of property and money of hers which he had converted to his own use, the wife to have no power of disposition over the prop- erty during her life, and not by will without the consent, reserved to the grantor and trustees, is void.®* If one commences a settlement on his wife with an honest intent, as by buying a lot, but continues the same project with a fraudulent intent, as by building a house and furnishing it, the whole transaction will be set aside.** If a debtor mortgage his stock in trade to a relative who immediately forecloses, the property being bid in by a stranger, who transfers his bid to a friend of the debtor, and he ostensibly sells the property to debtor's wife, the transfer to the wife will be held to be merely colorable and void.*^ A loan by an insolvent father to his son, who makes a gift of the amount of the loan to his mother, by the purchase of a house in her name, is a fraud upon the father's creditors; *® and 465; Antrim v. Kelly, 4 N. B. E. 189, 80— Horner-Gaylord Co. v. Miller & Fed. Cas. No. 404; In re Antisdel, 18 Bennett, 147 Fed. 295, 17 A. B. E. 257. N: B. E. 289, Fed. Gas. No. 490; In re 81— In re Foss, 147 Fed. 790, 17 A. B. Skinner, 97 Fed. 190, 3 A. B. E. 163. E. 439. 78— In re Snodgrass, 209 Fed. 325, 31 82— Wright v. Sampter, 152 Fed. 196, A. B. E. 601; Thomas v. Fletcher, 153 18 A. B. E. 355. Fed. 226, 18 A. B. E. 623; In re Skin- 83— Fisher v. Henderson,. 8 N. B. E. ner, 97 Fed. 190, 3 A. B. E. 163. 175, Fed. Cas. No. 4820. 79— In re Grandy & Son, 146 Fed. 318, 84— Sedgwick v. Place, 10 N. B. E. 28, 17 A. B. E. 206. Fed. Cas. No. 12621. The burden of proof is upon the wife 85— In re Smith, 100 Fed. 795, IN. B. of the bankrupt to show the bona fides of N. 533, 3 A. B. E. 95. a transfer made to her by the bankrupt 86 — In re Aldred, 3 N. B. E. 61, Fed. shortly before bankruptcy. Woodford v. Cas. No. 4328. Eice, 207 Fed. 473, 30 A. B. E. 455. 582 Bbandbnbueg on Bankbuptcy [§ 797 so is a conveyance by a father to Ms sons, in consideration of his support, " and a conveyance by the bankrupt ^o his brother-in- law for a consideration accepted as equal dollar for dollar but including the payment of two notes indorsed by the father-in- law, being a preference of the latter, is void.^^ A conveyance of property held in trust by the bankrupt to his wife, the cestui que trust, more than four months prior to his bankruptcy will be upheld irrespective of the bankrupt's insolvency at the time.^^ Accordingly, the transfer by the bank- rupt to his wife of property purchased with her funds and held by him in trust for her due to a mistake of the scrivener in mak- ing a deed out to him instead of to her has been held not f raudu- lent.«» A postnuptial settlement made in behalf of the wife of the bankrupt in consideration of her release of dower is only valid to the eixtent of the dower released. ^^ While the assignment of an insurance policy by the bankrupt to his witeywho knew noth- ing thereof has been held fraudulent; ^^ an agreement to assign a life insurance policy in consideration of the wife's release of her dower rights has been upheld.®* The statutory trust of creditors in real estate held by the wife of a debtor, subsequently adjudged a bankrupt, inures as assets to the trustee when purchased by the bankrupt prior to tlie bankruptcy and paid for with his own money in fraud of creditors.^* § 798. — Conveyance by partners. A conveyance by one partner of his interest to "the other, with intent to hinder and defeat creditors, would be void ®^ though 87— In re Johann, 4 N. B. E. 1.43, 2 89— Phillips v. Kleinman, 232 Pa. St. Biss. 139, Fed. Cas. No. 7331 ; but see In 571, 27 A. B. E. 195. re Cornwell, 6 N. B. E. 305, Fed. Cas. No. 90— Silling v. Todd, 112 Va. 802, 27 3250; Adam v. Collier, 122 IT. S. 382, A. B. E. 127. 30 L. ed. 1207. 91— Moore v. Green, 145 Fed. 472, 16 88— In re Taylor, 1 N. B. N. 412; A. B. E. 648. citing Bartholow v. Bean, 10 N. B. E. 92 — Kirkpatriek v. Johnson, 197 Fed. 241, 18 Wall. 635, 21 L. ed. 866; Ahl v. 235, 28 A. B. E. 291. Thome, 3 N. B. E. 118; Seammon v. Cole, 93— In re Grandy & Son, 146 Fed. 318, 3 N. B. E. 393, 5 N. B. E. 257; Graham v. 17 A. B. E. 206. Stark, 3 N. B. E. 357; Cookingham v. 94— In re Mayers, 1 N. B. E. 162, 2 Morgan, 5 N. B. E. 16; Bean v. Laflin, 10 Ben. >424, Fed. Cas. No. 9518. N. B. E. 333. 95— Ifl re EosQ^aum, 1 N. B. N. 541} § 800] Peopeety op Bankeupt and Title Theeeto 583 the mere fact of suoli transfer would not necessarily imply such an intent,'"' and if the succeeding partner sells in good faith to a third person the firm's entire property it is not a preference, the third person not being a creditor,*^ If a dissolution of part- nership is made within four months before the firm is adjudged bankrupt, it will be treated as a void transfer, and the property in the hands of both partners as firm property.®^ When all partners consent, their application of the partner- ship property to the payment of an individual debt of a partner within four months of the filing of a petition in bankruptcy while the partners and the partnership are insolvent does not evidence any intent to hinder delay or defraud creditors of the partner- ship, and is not voidable where the creditor paid has had no reasonable cause to believe a preference was intended.®^ When a person soon after becoming a member of a partner- ship conveys real estate to his wife without consideration, and at the time owes large sums of money, both individually and as a partner, the conveyance is presumptively fraudulent.^ § 799. — Transfer of exempt property. A conveyance of exempted property cannot operate as si fraud upon creditors, since they would not be entitled to subject the property to the payment of their claims, if it had not been so cfenveyed.^ § 800. — Trust for benefit of third persons. If a purchaser of property, paying consideration therefor, causes it to be conveyed to another, that it may be held in trust for the benefit of third persons, and the trust fails because not in conformity to the Statute of Frauds, a trust results in favor of the purchaser.* BurriU v. Lawry, 18 N. B. E. 367, Ted. 99— Sargeant v. Blake, 160 Fed. 57, 17 Cas. No. 2199; In re Rudniek, 2 N. B. L. E. A. (N. S.) 1040, 20 A. B. E. 115. N. E. 975, 102 Ped. 750, 4 A. B. E. 531; 1— Hull v. Hudson, 80 Atl. 674, 26 A. In re Jones, 100 Ped. 781, 2 N. B. N. E. B. E. 725. 193, 4 A. B. E. 141. 2— MeCarty v. Coffin, 150 Fed. 307, 96— In re Munn, 7 N. B. E. 468, 3 18 A. B. E. 148; Cowan v. Burchfield, Bias. 442, Fed. Cas. No. 9925. 180 Fed. 614, 25 A. B. E. 293. 97— In re Eudnick, 2 N. B. N. E. 975, 3— In re Davis, 112 Fed. 1^9, 7 A. B. ] 02 Fed. 750, 4 A. B. E. 531. p. 258. 98— In re Head, 114 Fed. 489, 7 A. B. E. 556. 584 Bbandenbueg on Bankeuptoy [§801 § 801. — Gifts. The gift of an engagement ring from the bankrupt to his fiance upon the occasion of the announcement of their engagement but within four months of bankruptcy is voidable by the trustee without proof of actual intent to defraud creditors.* § 802. — Bona fide trajisf ers for a valid consideration. The law does not prevent an insolvent from dealing with his property prior to the institution of bankruptcy proceedings, pro- vided it is without any purpose to delay or defraud his creditors or to give a preference, and the value of the estate is not im- paired.^ Thus a transfer, in good faith, for a present fair consideration,*' or a grant or conveyance to take effect upon property when it is brought into existence and comes to the grantor in fulfillment of an express agreement which is founded on good and valuable consideration '^ will be upheld, as also a conveyance where the creditor has a lien of greater amount than the value of the property.^ Where security is taken for a loan of money within the four month period, the present fair consideration cannot ordinarily be greater than the amount advanced, and will be held valid only as to that amount with interest.^ A conveyance, though fraudulent, is not made in contempla- tion of bankruptcy, where there are no other creditors and the debt is well secured.^" Sales of property in good faith for a present fair price, cannot be impeached for fraud;" though in violation of a state bulk- 4 — Pollock V. Simon, 205 Fed. 1005, 30 consideration. In re Schacht Motor Car A. B. E. 390. Co., 31 A. B. E. 624. Gifts from husband to wife. See post 7 — Barnard v N. & W. E. E., 14 N. §813. B. R. 469, 4 Cliff. 351, Fed. Cas. No. 5— In re Benjamin, 140 Fed. 320, 15 1007. A. B. E. 351; Clark v. Iselin, 11 N. B. 8— Catlin v. Hoffman, 9 N. B. E. 342, E. 337, 21 Wall. 360, 22 L. ed. 568. 2 Sawy. 486, Fed. Cas. No. 2521. 6— Shelton v. Price, 174 Fed. 891, 23 9 — In re Sawyer, 130 Fed. 384, 12 A. A. B. E. 431; In re Schacht Motor Car B. R. 269. Co., 31 A. B. E. 624; Meservey v. Eoby, 10— In re Johann, 4 N. B. E. 143, 2 198 Fed. 844, 28 A. B. R. 529; LoveU Biss. 139, Fed. Cas. No. 7331. V. Newman & Son, 192 Fed. 753, 27 A. 11— In re Strenz, 8 Fed. 311; Sedg- B. E. 746; Vollmer v. Plage, 186 Fed. wick v. Wormser, 7 N. B. E. 186, Fed. 598, 26 A. B. R. 590. Cas. No. 12636. Pre-existing indebtedness is a valuable § 802] Pkopeety of Bankrupt Xnd Title Theeeto 585 sales lawj^^ or a sale of a portion of debtor's property made in good faith to raise money to discharge a debt, or to pay the costs of contemplated bankruptcy proceedings;" or if there be no fraudulent intention, the bankrupt's continuance, though insolvent, to sell at retail, and endeavor to effect, if possible, a compromise with his cre'ditors.^* The sufSoiency of considera- tion is a question for the jury.^^ While a mortgagee who makes no effort to determine whether the mortgagor may make a transfer which will not be in viola- tion of the act, is not a purchaser in good faith, yet unless the mbrtgagee knows of the purpose of the mortgagor or is in such atmosphere as would lead a reasonably prudent man to inquire, or that good conscience would impel him to investigate, he will be protected as a bona fide purchaser under 67e.^® The purchaser from a first vendee must, in order to invalidate his title, be affected by notice of or participation in the original fraud; that is, must have been a purchaser without valuable consideration or mala fide; ^"^ and a purchaser with notice, who acquires title from a purchaser who formerly acquired the prop- erty by fraud, takes no better title than his vendor had.^* / The transfer of real property, conveyed to the bankrupt by mistake, to the equitable owner thereof is not a fraudulent transfer.^® An attorney who collects in full a note of the bankrupt with knowledge of his bankruptcy and pays the proceeds over to his, client a«ts as agent merely and cannot be compelled to pay over to the trustee an amount equivalent to that collected.^" The trustee has no standing to attack a conveyance to a third party made upon the payment of a consideration by the banjc- rupt.2i 12— Gorham v. Buzzell, 178 Fed. 596, 17— Babbitt v. "Walbrun, 6 N. B. E. 24 A. B. E. 440. ' 359, Fed. Cas. No. 694. 13— Tiffany v. Lucas, 8 N. B. E. 49, 18— Harrell v. Beall, 9 N. B. E. 49, 17 15 Wall. 410, 21 L. ed. 198 ; In re Keef er, "^a"- ^^^> 21 L- ed. 692 ; see Beall v. Har- 4 N. B. E. 126, Fed. Cas. No. 7636. ^'^^' ^ ^- ^- ^- ^O"., ^^d. Cas. No. 1163. ' 19— Young V. AUen, 207 Fed. 318, SO A. B. E. 261; Silling v. Todd, 112 Va. 802, 27 A. B. E. 127. IS-Montgomery v. MeNicholas, 138 gO- In le Martin & Co., 167 Fed. 236, Fed. 956, 15 A. B. E. 93. 20 A. B. E. 705. 16— Lumpkin v. Foley, 204 Fed. 372, 21— London v. Epstein, 138 App. Div. 29 A. B. E. 673. (N. Y.) 513, 24 A. B. E. 557. 14— In re Munger, 4 N. B. E. 90, Fed. Cas. No. 9923. 586 Brandenburg on Bankruptcy [ § 803 § 803. — Substitution of securities. The act does not forbid the giving of other or different secur- ity within the four-month period to replace securities previously given, if such security is equal in value to the one replaced.^^ § 804. — Evidence of fraudulent intent. In an action to set aside a conveyance by an insolvent debtor, on the ground of fraud, such fraud must be proved, not assumed,** though cases may arise where the intent will be inferred from the circumstances of the transaction.^* The ques- tions of intent, motive, and good faith are questions of fact *^ to be determined from a consideration of all the surrounding circumstances,*® unless they appear conclusively from the face of the instrument.*^ If a transaction is susceptible to two pre- sumptions, one of innocence and one of guilt, the former must prevail.** In determining whether a given transaction is made in the ordinary and usual course of business of a party, the question is not whether such transactions are usual in the general conduct of business throughout the community, but whether they are according to the usual course of business of the particular person whose conveyance is the subject of investigation.*^ A sale or conveyance by a bankrupt out of the usual and ordinary course of business is presumptively fraudulent,*" but this presumption may be rebutted by evidence aliunde to be produced by the vendee.*^ 2a;-In re Cutting, 145 Fed. 388, 16 27— Underleak v. Scott, 117 Minn. 136, A. B. R. 751. 28 A. B. K. 926. 23— Campbell v. Waite, 16 N. B. E. 28— Murray v. Joseph, 146 Fed. 260, 93, 9 Ben. 166, Fed. Cas. No. 2374; 16 A. B. E. 704. Crump V. Chapman, 15 N. B. E. 571, 1 29— Eison v. Knapp, 4 N. B. E. 114, Hughes 183, Fed. Cas. No. 3455. Fed. Cas. No. 11861. 24— Lumpkin v. Foley, 204 Fed. 372, 30— Lewis v. Julius, 212 Fed. 225, 31 29 A. B. E. 673; Gattman v. Honea, 12 A. B. E. 515; In re Jacob L. Barthel- N. B. E. 493, Fed. Cas. No. 5271. eme, 11 A. B. E. 67; Sedgwick v. Place, 25— Thomas v. Fletcher, 153 Fed. 226, 5 N. B. E. 168, 5 Ben. 184, Fed. Cas. No. 18 A. B. E. 623. 12620; but see, Houck v. Christy, 152 26— Little V. Alexander, 12 N. B. R. Fed. 612, 18 A. B. E. 830; Bentley v. 134, 21 Wall. 500, 22 L. ed. 625; In re Young, 210 Fed. 202, 31 A. B. E. 506. Larkin, 168 Fed. 100, 21 A. B. E. 711. 31— Norton v. BUlings, 4 Fed. 623 > § 806] Pbopebty of Bankrupt akd Title Thereto 587 § 806. Future contingent interests. The title of the bankrupt as of the date of the adjudication vests in the trustee to all property which he might have trans- ferred or which might have been levied upon prior to the filing of the petition. A bare possibility or mere expectation of acquiring property does not constitute property or title to prop- erty; nor can it be transferred or levied upon. While the right of enjoyment may be uncertain and contingent, it is necessary that an interest or title of some kind be vested in the bankrupt in order that it may pass by operation of law to the trustee. If the uncertainty or contingency be such as relates to the per- son, and not merely to the event, and he who is to take remains unascertained by name, designation or description, no given individual while so unascertained can be held to have a property right to or in the subject matter of the gift or limitation. But if he has no claim or title absolute or defeasible, vested or con- tingent, but merely an expectation of an estate or interest, in the future, then there is nothing in him to pass to the trustee. One may have a right in or to a future contingency. But it cannot be affirmed of any one that he has either a contingent right or a right in or to a contingency unless the person of whom the affirmation is made is ascertained by name, designation or description. Thus a fund being left -to bankrupt's mother in trust for her use during life with power of disposing the fund by will, and in the event she fails to exercise the power, then to the testators surviving next of kin, no interest of the bankrupt would pass to the trustee prior to her death. *^ The title of the trustee extends to the interest of a .bankrupt in an estate, vested before the bankruptcy, although such interest is undetermined,*® but not to inchoate interests which he pos- sessed at the time the petition was filed which could not be Babbitt v. Walbrun, 4 N. B. E. 30, 1 Deane, 2 N. B. E. 29, Fed. Gas. No. Dill. 19, Ped. Cas. No. 694;' Eison v. 3700; Walbrun v. Babbitt, 2 N. B. E. 1, Knapp, 4 N. B. E. 114, Fed. Cas. No. 16 Wall. 577, 21 L. ed. 489; In re Lang- 11861; Collins v. Bell, 3 N. B. E. 587, ley, 1 N. B. E. 155. Fed. Cas. No. 3010; V. S. v. Baker, 13 35— In re Wetmore, 108 Fed. 520, 3 N. B. E. 88, Fed. Cas. No. 14584; In re N. B. N. E. 143, 6 A. B. E. 210. Sims, 19 N. B. E. 57, Fed. Cas. No. 36— In re Hosier, 112 Fed. 138, 7 A. 12889; Webb v. Sachs, 15 N. B. E. 168, B. E. 268. 4 Sawy. 158, Fed. Cas. No. 17325; In re 588 Bbandbnbueg on Bankbuptcy [§ 806 alienated or disposed of by him or levied on and sold or other- wise subjected to his debts," as a grant of public lands which had been declared forfeited, although subsequent to bankruptcy- proceedings had been restored,^* A future contingent in per- sonal property may be alienable and pass to the trustee interest.*^ Interests under wills, see post section 835. §807. Goodwill. The practice and good will of a bankrupt physician cannot be sold by his trustee.*" § 808. Property of husband and wife. §809. —In general. In baiikruptcy proceedings the bankruptcy of the husband in no wise affects the wife or her property and vice versa, and the proper way of reaching property in the hands of the one not bankrupt, alleged to have been conveyed in fraud, in those states where the wife is not a competent witness, is by a bill of discovery,*^ if the examination afforded by the bankruptcy law is insufficient. Where a married woman engages in business on her own account in a state where she is required to file a certifi- cate to make her a feme sole trader,*^ and neglects to do so, her property employed in such business, may be attached by her husband's creditors and, if so attached within four months of the bankruptcy proceedings, the trustee takes title thereto.*' Where, however, through mistake or fraud the husband is vested with title to real estate inherited by the wife, he will be held to be trustee for his wife and it will not be liable for his debts.** In some states the products of a wife's land conveyed 37— In re Harris, 1 N. B. N. 384, 2 38— In re Hansen, 107 Ted. 252, 5 A. B. E. 359; In re Pease, 2 N. B. N. E. A. B. E. 747. 1108, 4 A. B. E. 578; Keegan v. King, 39— Qowe v. Seavey, 31 A. B. E. 830. 96 Fed. 758, 3 A. B. E. 79; In re Legg, 40 — In re Myers, 208 Fed. 407, 31 A. 1 N. B. N. 420, 2 A. B. E. 805, 96 Fed. B. E. 24, 326; but see Carter v. Hobbs, 1 N. B. N. 41— In re Fowler, 1 N. B. N. 265, 1 191, 92 Fed. 599, 1 A. B. E. 215; In re A. B. E. 555, 93 Fed. 417. Gutwillig, 1 N. B. N. 40, 90 Fed. 481, 1 42— Pub. Stat. Mass. e. 147, par. 11. A. B. E. 78; In re Abraham, 1 N. B. N. 43 — ^In re Hammond, 98 Fed. 845, 3 281, 93 Fed. 767, 779, 2 A. B. E. 266; A. B. E. 466. In re Clute, 1 N. B. N. 386, 2 A. B. E. 44— In re Anderson, 23 Fed. 482. 376; In re Becker, 2 N. B. N. E. 245, 98 Fed. 407, 3 A. B. E. 412. §809] Peopeety of Bankeupt and Title Theeeto 589 to her separate use by deed without limitation, and occupied by her husband according to his marital rights, are assets belong- ing to his estate in bankruptcy.*^ Where there has been no consummated conversion of the wife's separate estate, the husband's trustee cannot get the legal title without a decree for its conveyance to him; and the same rule applies where the conversion has been consummated by fraud.*® If a bankrupt, while insolvent, purchases articles of luxury for his wife, though they are not appropriated to her individual use, and she attempts to hold them against his trustee, the. bankrupt must answer the trustee's petition.*''^ The ques- tion whether stock purchased with money borrowed on the joint note of husband and wife and issued to her, can be impounded for the benefit of the husband's estate, can be determined only in a direct proceeding between the proper parties.*® The trustee is not entitled to possession of a note of a fraudulent grantee made payable to the wife of the bankrupt in pursuance of a scheme to defraud creditors, the note having no validity as against the bankrupt or his estate.*^ Where a bankrupt, when solvent and not contemplating bankruptcy, conveys lands to his wife, reserving to himself a power of revocation and also power to appoint to other uses, ^nd several years later ^s adjudged a bankrupt, it has been held that the trustee cannot recover such lands; ^° though the contrary has been held when the conveyance wgs not recorded until after the petition had been filed. The mere application of a trustee to have property of a wife deliv- ered to hiin as her husband's trustee, alleging, but submitting no proof, that she holds the property in her name as a cloak against her husband's creditors, will be denied.®^ A wife, entitled on divorce to one-third of husband's per;, sonal property, who has merely commenced an action for divorce, cannot enjoin his trustee as to the disposition of such one-third.°* 45^In re Eooney, 109 Fed. 601, 6 49— In re Logan, 28 A. B. R. 543. A. B. E. 478. . 50— Jones v. Clifton, 18 N. B. E. 125, 46— In re Campbell, 17 N. B. E. 4, 3 Fed. Cas. No. 7453. Hughes 276, Fed. Cas. No. 2348. 51— Driggs v. EusseU, 3 N. B. E. 39, 47— In re PieTce, 15 N. B. E. 449, 7 Fed. Cas. No.' 4084. Biss. 426, Fed. Cas. No. 11139. 52— Hawk v. Hawk, 102 Fed. 679, 2 48— Fellows v. Freudenthal, 102 Fed. N. B. N. E. 940, 4 A. B. E. 436. 731, 4 A. B. E. 490. 590 Beandenbubg on Bankeuptcy [§ 810 § 810. — Joint estate. The fact that the bankrupt is jointly interested in an estate with another, will not defeat the title of his trustee in bank- ruptcy to such interest. The trustee becomes vested with the title of the husband on his bankruptcy where he invests his wife's money in realty in her name until he accumulates prop- erty by his skill and energy; ^^ or a one-half interest less the amount of homestead right where husband and wife build jointly on land acquired by the wife with their joint funds; ^* or he may sue to recover the reversionary interest of the husband in prop- erty fraudulently conveyed to his wife.^^ While the bankrupt's interest in an estate by the entirety passes to his trustee, the trustee can have no present right to possession as against the wife of the bankrupt, and the bank- ruptcy court will not restrain an attempted conveyance thereof by the bankrupt and his wife after the institution of the bank- ruptcy proceedings.^® Where bankrupt and his wife held real estate as an entirety and she obtained a divorce subsequent to the bankruptcy, if the joint tenancy was thereby transformed into a tenancy in common, the bankrupt's interest has been held to be after acquired property and would not pass to the trustee.^^ In Idaho, the increase of stock purchased by the wife of the bankrupt with her separate property becomes community prop- erty and is exempt.^ ^ §811. —Dower, The bankruptcy law provides that the death of the bankrupt pending the proceedings shall in no wise affect the right of dower and allowances fixed by the law of the state where the bankrupt resides.^® Accordingly in case of the husband's death after filing the petition, lands owned by him at the time of filing 53— Muirhead v. Aldridge, 14 N. B. Co., 16 Lea 371; Eouhs v. Hooke, 3 Lea E. 249, Fed. Cas. No. 9904; comp. In re 302. Mtchard, 2 N. B. K. E. 1075, 103 Ted. 56— In re Beihl, 197 Fed. 870, 28 A. 742, 4 A. E. E. 609. B. E. 310. 54 — Johnson v. May, 16 N. B. E. 425, 57 — In re Benson, 16 N. B. E. 377, 8 Fed. Cas. No. 7397. Biss. 116, Fed. Cas. No. 1328. 55— In re Peltasohn, 16 N. B. E. 265, 58— Bank of Nez p'eree v. Pindel, 193 4 Dill. 107, Fed. Cas. No. 10912 ; In re Fed. 917, 28 A. B. E. 69. Griffith, 1 N. B. N. 546, citing Howell v. 59— Section 8, Act of 1898. See Jones, 7 Pickle 402; Flatt v. Stadler & Chapter XI. § 812] Peopekty of Bankkupt and Title Theeeto 591 will pass to the trustee subject to the wife's right of dower.®" This right is not divested by proceedings in bankruptcy,®^ nor by a sale thereunder,®^ but she is entitled to her one-third of the real estate or of an equitable interest of her husband which passed to the trustee.®* If she joins in a mortgage with him, her dower can be barred only by a sale under the power con- tained in the mortgage.®* Where a conveyance is set aside as an unlawful preference or is surrendered by the creditor, the land becomes again subject to the wife's dower; ®^ and she is not estopped from claiming it by having joined in the deed.®® A reasonable support has been allowed a wife in preference to the husband's creditors, out of the rents and profits of realty conveyed to her by him through a third person without consideration, where they are her only means of support.®'' In states where a lien creditor can issue execution and by a sale of the real property divest the wife of dower, the right of the trustee to real property is superior to that of the wife claim- ing dower.®® The bankrupt's interest in an annuity received by her in lieu of her dower rights passes to her trustee.®® § 812. — Curtesy. _ The interest of a husband as tenant by the curtesy in his wife's real estate during her life time, and after issue bom, is not a power or such property as will pass to the husband's trustee in bankruptcy in the absence of a state law to the contrary,''" 60— In re Heater, 5 N. B. E. 285, Fed. Fed. Cas. No. 3829; McFarland v. Good- Cas. No. 6437. man, 11 _N. B. B. 134. 61— In re Angier, 4 N. B. E. 199, Fed. 66— Coxe v. Wilder, 7 N. B. E. 241, 2 Caa. No. 388. Dill. 45, Fed. Cas. No. 3308, rev'g 5 62— In re Shaeffer, 105 Fed. 352, 5 jj_ g jj 443^ ^ei. Cas. No. 3309. A. B. E. 248; Porter v. Lazear, 109 U. S. 67— Clark v. Hezekiah, 24 Fed. 663; 84, 27 L. ed. 865; contra, Kelly v. j^ ^^ g^^^^^ g Bj^^ 2^7 j,^^^ Cas. No. Strange, 3 N. B. E. 2, Fed. Cas. No. ^^^^ 68— In re Freedman, 29 A. B. E. 135, afE'd 31 A. B. E. 53. 7276. But see, In re Hays, 181 Fed. 674, 24 A. B. E. 669. 63— Walford v. Noble, 19 N. B. E. 440; In re Slack, HI Fed. 523, 7 A. B. 69-In re Burtis, 188 Fed. 527, 26 E. 121. A. B. E. 680. 64— In re Bartenbaeh, 11 N. B. B. 61, 70— In re EusseU, 14 Ohio Fed. Dee. Fed. Cas. No. 1088. 364, 13 A. B. E. 24; Heaseltine v. Prjnc^ 65— In re Detert, 11 N. B. E. 293, 1 N. B. N. 528, 95 Fed. 80S, 2. A. B. E. 592 Bkandenbubg ON Bankkuptcy [§812 as in Tennessee where it does pass to the trustee subject to the statutory right of the husband and wife to continue to hold the land during her life.^^ If a wife mortgages her realty to secure money to pay her husband's debts, in excess of his estate by the curtesy, and he and she unite in a general assignment of all his property, expressly reserving hers, on the death of the wife and the sale of her realty, if a sum is realized greater than the incum- brances, the wife's heirs or representatives are entitled to the fundJ^ § 813. — Gifts. A gift from husband to wife, not made in prejudice of cred- itors, evidenced by a deed duly executed and recorded, is valid, though not suppiorted by any consideration other than the mari- tal relation.''^ A gift by bankrupt to his wife before adjudi- cation, and not in contemplation of bankruptcy, of funds used in improving her separate estate, does not vest him with such an interest therein as would pass to the trustee.''* Money saved by the wife of the bankrupt from an allowance for household expenses ordinarily belongs to the estate, but circumstances may be such as to raise a presumption of a valid gift from the bank- rupt to his wife.''^ § 814. Fire insurance policies. An adjudication terminates bankrupt's interest in his estate and his interest in insurance policies thereon ceases. If at the time of his adjudication a building owned by him is covered by a policy of insurance, providing that transfer or change of title, or assignment without the company's written consent will avoid it, and the building is burned after adjudication, the transfer, being by operation of law, does not avoid the policy, and the trustee can recover.''^ Where the property is destroyed in the interim 600, citing Lynde v. McGregor, 13 Allen 74 — In re Wyatt, 2 N. B. E, 94, Fed. 182, 184; Walsh v. Young, 110 Mass. Cas. No. 18106. 396, 399. ' 75— In re Simon, 197 Fed. 102, 28 A. 71— In re McKenna, 9 Fed. 27. B. E. 616. 72 — Shippen v. Bobbins ' Appeal, 15 76 — Starkweather v. Ins. Co., 4 N. B. N. B. E. 533. E. 110, Fed. Cas. No. 13308; comp. In 73 — Savage v. Savage, 141 Fed. 346, 15 re Carow, 4 N. B. E. 178, Fed. Cas. No. A. B. E. 599, certiorari denied 201 TJ. S. 2426; In re Hamilton, 2 N. B. N. B. 646. 50 L. ed. 904. 957, 102 Fed. 683, 4 A. B. E. 543. § 814] Pbopebty of Bankrupt aiid Title Theeeto 593 between the adjudication and the appointment and qualification of the trustee, the bankrupt may recover on the policy, since when the trustee is appointed there is no property in existence to which the title in the trustee can vest." i Where the bankrupt agreed with a mortgagee of a portion of his property to insure such property, and because of the incon- venience of separating his insurance in different policies insures property covered by the mortgage and property not so covered, the mortgagee is not entitled to the insurance on property on which he has no lien J® Where contrary to the terms of a conditional sale contract under which property has been delivered to him, the bankrupt insures the property in his own name rather than in the name of his vendor, and the property is destroyed within four months of bankruptcy, an equitable lien in favor of the vendor will attach to the proceeds, which may be enforced after bankruptcy though the contract has not been recorded.'^® Where a fire insurance policy provides that the same shall be void if any change in title occurs, other than by the death of the bankrupt, whether such change is due to legal process or other- wise, the appointment and qualification of a trustee in bankruptcy avoids' the policy though the appointment of a receiver in bankruptcy has been noted on the policy, and the trustee was not liable for premiums becoming due after his qualification.*" Proceeds of insurance taken out by a fraudulent transferee are not proceeds of conveyed or transferred goods and do not belong to the estate. This is on the theory that the fraudulent trans- feree has title, and therefor an insurable interest in the property and that when he insures it, a personal contract is made between him and the insurer.®^ 77 — Gordon V. Meehanios' & Traders' 80 — In re Hibbler Mach. Supply Co., Ins. Co., 120 La. Ann. 441, 22 A. B. R. 192 Fed. 741, 27 A. B. E. 612. 649. 81— Lewis v. Julius, 212 Fed. 225, 31 78— In re Holmes Lumber Co., . 189 A. B. E. 515. Fed. 178, 26 A. B. B. 119. 79— In re Zttron, 203 Fed. 79, 30 A. B. B. 172. I Brandenburg — 38 594 Beandenbueg on Bankeuptcy [§ 815 § 815. Life insurance policies. § 816. — Cash surrender value as affecting right of trustee. Section 70a (5) of the act provides that any policy of insur- ance held by a bankrupt, having a cash surrender value payable to himself, his estate or personal representatives, passes to his" trustee for the benefit of the estate, unless within thirty days after the ascertainment of its surrender value, the bankrupt pays or secures to the trustee the sum so ascertained, in which event he can continue to hold, own and carry such policy free from the claims of his creditors. If a policy is not exempt under the state law, it passes to the trustee, subject only to the right of the bankrupt to redeem it upon paying its surrender value,®^ as provided in the proviso in the foregoing section. The decisions are not uniform as to what policies pass to the trustee under that proviso. One line of decisions favors the view that only policies having a cash surrender value are intended to pass to the trustee.** The other conceding that the proviso deals with this class of policies maintains that, although by its terms the policy has no cash surrender value, if it has a large actual value, and is assignable or transferable by its term^, it wiU pass to the trustee®* Who may hold it for the benefit of the estate if the bankrupt does not die within the period for which issued, or turn it over to the party to whom payable in case of death, if he does die.®^ The first of these views was adopted by the supreme coui-t in a recent decision s" in which it is said: "Life insurance policies 82— In re Moore 173 Fed. 679, 23 Soo., 143 Fed. 175, 16 A. B. E. 137; In A. B. E. 109; In re Whelpley, 169 Fed. re Phelps, 15 A. B. E. 170; In re 1019, 22 A. B. E. 433; In re Welling, Coleman, 136 Fed. 818, 14 A. B. E. 1I3 Fed. 189, 7 A. B. E. 340; In re Sling- 461- i^ ^e Welling, 113 Fed 1897 A B luff, 106 Fed. 154; 5 A. B. E. 76. r. 340 ; in re Slinglnff, 106 Fed. 154, 5 83-Gould V. N. Y. L. Ins. Co., 132 j,_ 3. E. 76; In re Becker, 106 Fed. 54 Fed. 927, 13 A. B. E. 233; In re Joseph- = a ri t, .,„ o ? xr ,7 101 -c, ^ 1^0 n A T. X. oAed. 834, 27 A. B. E. 704, 188 Fed. 702, 26 A. B. E. 834. 1— Everett v. Judson, 228 U. 8. 474, 57 L. ed. 927, 46 L. E. A. (N. S.) 154, 30 A. B. E. 1, aff'g 192 F,ei. 834, 27 A. B. E. 704, 188 Fed. 702, 26 A. B. E. 834; Andrews v. Partridge, 228 U. 8. 479, 57 L. ed. 929, 30 A. B. E. 4, rev'g 191 Fed. 325, 41 L. E. A. (N. S.) 123, 27 A. B. E. 388. 2— In re Young, 208 Fed. 373, 31 A. B. E. 29; In re Carlon, 189 Fed. 815, 27 A. B. R. 18; In re Loveland, 192 Fed. 1005, 27 A. B. E. 765; In re Johnson, 176 Fed. 591, 24 A. B. E. 277; In re Moore, 173 Fed. 679, 23 A. B. E. 109; In re PfafSngeri 164 Fed. 526, 21 A. B. E. 255; Holden v. Stratton, 198 U. S. 202, 49 L. ed. 1018, 14 A. B. E. 94, rev'g 113 Fed. 141, 7 A. B. E. 615; contra. In re Boardmau, 103 Fed. 783, 2 N. B. N. E. 821, 4 A. B. E. 620; Jn re Lange, 1 N. B. N. 44, 60, 91 Fed. 361, 1 A. B. E. 186, 189; In re Steele, 2 N. B. N. R. 281, 98 Fed. 78, 3, A. B. E. 549; see reversal, 104 Fed. 968, 5 A. B. E. 165; In re Buelow, 2 N. B. N. E. 26, 3 A. B. E. 389, 98 Fed. 86; In re Scheld, 104 Fed. 870, 5 A. B. E. 102. Ordinary life policy payable to bank- rupt's wife, having surrender value at the time of bankruptcy, is exempt under G. 8., Kansas 1901 § 3463. In re Morse, 206 Fed. 350, 30 A. B. E. 917. ^ A twenty year endowment policy in force the greater part of that period, which is payable to the bankrupt in case he is living at the end of the period, and to his wife in case he dies prior thereto, held a mere speculative policy which passes to the estate. In re "Young, 208 Fed. 373, 31 A. B. E. 29. 598 Beandenbueg on BANKBUPiCi [§ 817 bankrupt by limiting the character of the interest in a non- exempt life insurance policy which should pass to the trustee, and not to cause such a policy when exempt to become an asset of the estate. " ^ A statute exempting ' ' all life insurance ' ' applies to a semi-tontine fully paid up in which the wife is named as beneficiary in ease she survives her husband.* So, an endowment policy providing for payment to the bankrupt's wife in case he dies within the endowment period otherwise to the bankrupt has been held exempt.^ § 818. — Power to change beneficiary not aji asset. The power to change a beneficiary is not property passing to the trustee,® and the fact that the wife secured a divorce from the bankrupt subsequent to the adjudication thereby giving him the right to change his beneficiary, does not vest the title in the trustee, the right to change the beneficiary not having been exercised.'^ § 819. — Policies payable to wife. An insurance policy on a bankrupt's life payable to his wife is her separate property.* It cannot be assigned by him,® nor surrendered to his trustee with the purpose of cutting off his wife's interest." Accordingly, property bought with money obtained by surrendering such policy is hers.^^ A policy payable to bankrupt's wife with no surrender value at the time of the filing of the petition does not become vested in the trustee upon the subsequent death of the bankrupt prior to his discharge.^^ 3 — Holden v. Stratton, 198 U. S. 202, v. Equitable Life Assurance Society, 132 49 L. ed. 1018, 14 A. B. E. 94, rev'g lls Mass. 395; see, In re Carlon, 189 Fed. Fed. 141, 7 A. B. B. 615. 815, 27 A. B. E. 18. 4 — Holden v. Stratton, 198 U. S. 202, 9— In re Bear, 11 N. B. E. 46, 3?ed. 49 L. ed. 1018, 14 A. B. E. 94, rev'g 113 Cas. No. 1178. Fed. 141, 7 A. B. E. 615. 10— Central Bank of Washington v. 5— In re Booss, 154 Fed. 494, 18 A. B. Hume, 128 IJ. S. 195, 32 L. ed. 370. E. 658. 11— In re Dews, 1 N. B. N. 411, 96 6— Sanders v. Aetna Life Ins. Co., 95 Fed. 181, 2 An B. E. 283. S. 0. 36, 31 A. B. E. 854. 12— Sanders v. Aetna Life Ins. Co., 95 7— In re Orear, 189 Fed. 888, 26 A. S. C. 36, 31 A. B. E. 854. B..E. 521. The fact that a bankrupt after adjudi- 8 — In re Johnson, 176 Fed. 591, 24 cation applies for a change of beneficiary A. B. E. 277; In re Steele, 2 N. B. N. E. and fraudulently represents to the in- 281, 98 Fed. 78, 3 A. B. E. 549; Atkins surance company that he is not then in- §819],. Pbopeety or Bankeupt and Title Theeeto 599 The trustee succeeds to interest of the bankrupt in a policy payable to his wife, if living at the bankrupt's death, and, if not, then to the bankrupt's representatives or assigns.^^ So, it is held that where the insured is given the option to at any time change the beneficiary, and the policy is not made payable to the wife's estate if she predecease, the policy is not the absolute property of the wife and passes to the trustee.^* Where the wife is the surviving partner of the bankrupt firm consisting of herself and deoeaspd husband, the proceeds of a policy on his life made payable to her become part of the bank- rupt estate.^^ Where a policy provides for the payment of an annuity to the insured, the bankrupt, and, for the payment of an affixed sum, to his wife upon his death, the trustee is entitled only to the value of the annuity and not to the entire present surrender value of the policy.^® A bankrupt, whose wife takes out an insurance policy on her own life for his benefit, pays the premiums out of her separate estate, and dies after the adjudication, is entitled to the pro- ceeds of such policy as against his trustee.^'' Where an endowment policy payable to the wife if the bank- rupt died during the term, or to himself if he survived it, was issued upon their joint application, and for several years the wife saved the policy, by paying the premiums, she had an equitable Hen upon the cash surrender value for the amount so paid, and the bankrupt should assign to the trustee his interest in the surrender value, after the premiums so paid by her were deducted; or the policy should be assigned to the wife, if desired, on payment of his interest therein.^® solvent, will not enlarge the rights of the 13 — In re Coleman, 136 Fed. 818, 14 trustee, upon the death of the bankrupt A. B. B. 461. prior to his discharge. Id. 14 — In re Hettling, 175 Fed. 65, 23 A policy payable to the wife of the A. B. R. 161 ; In re White, 174 Fed. 333, bankrupt, who was his partner and had 26 L. R. A. (N. S.) 451, 23 A. B. R. 90. also been adjudicated, which had no sur- 15— In re Day, 176 Ted. 377, 23 A. B. render value at the time of bankruptcy R. 785. has been held not to belong to the 16— In re Sehaefer, 189 Fed. 187, 26 trustee of the husband where prior to Ms A. B. R. 340. discharge but subsequently to the dis- 17 — ^In re Owen, 8 N. B. B. 6, Fed. charge of his wife the bankrupt changed Cas. No. 10627. the beneficiaries in the policies and later . 18 — In re Diack, 2 N. B. N. R. 664, died. Id. 100 Fed. 770, 3 A. B. R. 723. 600 Bkandbnbueg on Bankexjptoy [§820 § 820. — Policies for creditor's benefit. The fact that a creditor who holds an insurance policy as security is credited with the present value thereof on his debt does not require a surrender thereof. The creditor has a right to retain the policy as security, for any balance and any premium he may pay to keep it alive, and need not surrender it unless the trustee elects to pay the debt.^® When a debtor, at his own expense, insures his life as security to a creditor, he is entitled to have the policy, if he pays the debt during his life; and, if not, -upon his death, his representa- tive is entitled to any surplus over the debt. If the insurance is effected and the premiums paid by the creditor, who after- wards proves his debt in bankruptcy and receives dividends thereon, and then upon the death of the bankrupt prior to the last dividend receives the full amount from the insurance com- pany, after deducting premiums paid with interest, the creditor must pay to the trustee all over an amount sufficient, with the dividends and payments previously made, to pay the debt in full.2o §821. —Dividends. "Where the bankrupt has withdrawn the surplus at the end of the tontine period, and made his wife beneficiary of the policy, the annual dividends payable to the beneficiary do not belong to the estate of the bankrupt where they are exempt under the' state law at the time of the adjudication, even though the bank- rupt still has the right to change the beneficiary.^^ § 822. — Unearned premiums. Unearned premiums on a voided policy which are returned by the insurer belong to the trustee,^^ but a trustee has been held not entitled to rescind a contract of insurance providing for the payment of an annuity to the bankrupt to commence in the future, and to recover the premiums paid thereon, although the bankrupt was guilty of fraud.^^ 19— In re Davison, 179 Ted. 750, 24 22— In re Judson, 188 Fed. 702, 26 A. A. B. E. 460. B. E. 775, afl'd 192 Ped. 834, 27 A. B. 20— In re Newland, 9 N. B. E. 62, 7 E. 704, 228 U. S. 474, 57 L. ed. 927, 46 Ben. 63, Ted. Cas. No. 10171. L. R. A. (N. 8.) 154, 30 A. B. E. 1. 21 — Allen v. Central Wisconsin Trust 23— Mutual Life Ins. Co. of New York Co., 143 Wis. 381, 25 A. B. B. 126. v. Smith, 184 Fed. 1,. 33 L. E. A. (N. S.) § 826] Peopeety of Bankeupt and Title Thereto 601 § 823. — Proceeds upon death of bankrupt. Where the bankrupt dies before the adjudication, his executor may become entitled to the proceeds of the insurance on the bankrupt's life by tendering to the trustee the cash surrender value of the policies at the date of the filing of the petition,^* but where the bankrupt dies after adjudication, none of the proceeds of a policy having no surrender value or actual value at the date of the filing of the petition pass to his trustee.^^ However, where the permanent disability resulting in death of the bankrupt after his adjudication existed prior to the filing of the petition, the proceeds of an insurance policy insuring him against permanent disability pass to the trustee.^® § 824. — Policy on life of third person. The interest of the bankrupt as beneficiary in an insurance policy on the life of another, which has no cash surrender value, as well as the proceeds thereof, pass to the trustee, if the policy is transferable and vested at the timie of the filing of the peti- tion.^'' However, the interest of the baakrupt in such policy does not pass to the trustee where not vested at the time of the filing of the petition, and where the insured dies after the adjudica- tion the bankrupt and not his trustee is entitled to the pro- ceeds.^^ § 825. Rights arising out of relation of landlord and tenant. § 826. — Lease not terminated by bankruptcy. A lessee's bankruptcy does not in and of itself terminate a lease, but it becomes an asset of his estate.^^ A stipulation in a 439, 25 A. B. E. 768, rev'g 178 Fed. 510, 26— In re MatscEke, 193 Fed. 284, 27 24 A. B. E. 514; see also s. c. 158 Fed. A. B. E. 770. 365, 19 A. B. E. 707. 27— In re Judson, 188 Fed. 702, 26 24— Everett v. Judson, 228 TT. S. 474, A. B. E. 775, aff'd 192 Fed. 834, 27 57 L. ed. 927, 46 L. E. A. (N. S.) 154, A. B. E. 704, 228 U. S. 474, 57 L. ed. 30 A. B. E. 1, aff'g 188 Fed. 702, 26 A. 927, 46 L. E. A. (N. S.) 154, 30 A. B. E. 75, 192 Fed. 834, 27 A. B. E. 704; B. E. 1. Andrews v. Partridge, 228 XT. S. 479, 57 28— In re Hogan, 194 Fed. 846, 28 L. ed. 929, rev'g 191 Fed. 325, 41 L. E. A. B. E. 166. A. (N. S.) 123, 27 A. B. E. 388. 29— Dunlap v. Goodman, etc., Co., (Pa. 25— Gould V. New York Life Ins. Co., Ct. Com. PI.) 31 A. B. E. 504; In re 132 Fed. 927, 13 A. B. E. 233; Burling- Frazin & Oppenheim, 174 Fed. 713, 23 ham V. Grouse, 228 TJ. 8. 459, 57 L. ed. A. B. E. 289; In re Adams, 134 Fed. 920, 46 L. E. A. (N. S.) 148, 30 A. B. E. 142, 14 A. B. E. 23; In re Ells, 2 N. B. 6, afE'g 181 Fed. 479, 24 A. B. E. 632. N. E. 360, 98 Fed. 967, 3 A. B. E. 564; 602 Bbandbnbubg on Bankbuptoy [ § 826 lease against subletting or assignment, in the absence of some provision requiring it, wiU not be construed as a condition but as a covenant, the breach of which does not work a forfeiture.^" While there are eminent authorities which sustain the posi- tion that, if the lease specifically so provides, the insolvency or bankruptcy of the tenant operates to cancel the lease, they are evidently under laws which materially differ from that in force in this country, for if that position be true, a tenant holding a valuable lease may be adjudged a bankrupt on the petition of his landlord, when the sole purpose of the proceedings may be to destroy the contract of lease and thereby result in profit to the bankrupt or the landlord. Having in view one of the main purposes of the bankruptcy law, which is the equitable distribu- tion of the assets of an insolvent to his creditors, the true rule would seem to be that notwithstanding such a provision, the assignment being by operation of law, the trustee would assume the lease.^^ A general assignment by a lessee within four months of bankruptcj^ is not a breach of a covenant not to assign, and does not prevent the lease from passing to the trustee.^^ § 827. — Trustee's election. The trustee has a reasonable time within which to elect whether he will assume the lease, and the right to assume it exists although there is the ordinary covenant against sublet- ting or assignment by the tenant; since the transfer to the trustee in case of the tenant's bankruptcy is by operation of law and not the act of the bankrupt against which the ordinary covenant in a lease is in restraint.^^ If he elects to assume it, the vesting In re Thiesgen, 2 N. B. N. E. 625; Wild- Goodbehen, 3 M. & S. 353; Ouslow v. man v. Taylor, Fed. Gas. No. 17654; Corrie, 2 Madd. 330. Starkweather v. Ins. Co., 4 N. B. E. 110, 32 — In re Bush, 126 Fed. 878, 11 A. Fed. Gas. No. 13308; In re Pennewell, B. E. 415. 119 Fed. 139, 9 A. B. E. 490; but see 33— In're Sherwood's, Inc., 210 Fed. In re Brick & Schermerhorn, 12 N. B. E. 754, 31 A. B. E. 769; In re Scruggs, 215, 8 Ben. 93, Fed. Gas. No. 1822; and 205 Fed. 6-73, 31 A. B. E. 94; In re see also In re Hays, Foster and Ward Sterne & Levi, 26 A. B. E. 535- In re Co., 117 Fed. 879, 9 A. B. E. 144. Frazin & Oppenheim, 174 Fed. 713, 23 30— In re Pennewell, 119 Fed. 139, 9 A. B. E. 289, s. c. 183 Fed. 28, 33 L. E. A. B. B. 490; In re Gutman, 197 Fed. A. (N. 8.) 745, 24 A. B. E. 903; Watson 472, 28 A. B. E. 643. v. Merrill, 136 Fed. 359, 69 L. E. A. 31— In re Frazin & Oppenheim, 174 719, 14 A. B. E. 453; In re Thiessen, 2 Fed. 713, 23 A. B. E. 289; see Del v. N. B. N. E. 625; In re Ells, supra; In re § 827] PeopebtY of Bankbupt and Title Thbeeto 603 of the title relates back to the time of the adjudication,^* and he has the same rights and obligations as the bankrupt had; ^* but, if he rejects it, it remains the property of the bankrupt and is binding upon the latter,^® and the trustee is not liable for rent thereunder.^'' The gathering of growing crops by the trustee of a tenant is an election to assume the obligations of the lease,^* and an offer by the trustee to pay rentals due, within five days of the customary date of payment is sufficient to prevent a forfeiture of the lease.^' Notwithstanding the fact that the trustee assumes the lease, he is not required to remain the tenant, but the covenant against assignment is relaxed in his favor, and he may dispose of the same for the best price obtainable, and tbus be relieved from further liability thereunder,*" or he may sublet a part of the premises and occupy the remainder.*^ Where the trustee accepts : a lease and sells the interest so acquired to the lessor, the guar- antor of the lease is discharged from all liability accruing after the bankruptcy.*^ Without assuming the lease, the trustee may occupy and use the leased premises for the estate, and, under such circumstances, reasonable compensation for such use and occupation will be chargeable to the estate, not as rent under the lease, but as costs and expenses of administration.*^ Gose, 3 N. B. N. R. 840 ; In re Mahler, 3 38 — In re Koester, 15 Ohio Fed. Dec. N. B. N. E. 39, 44; see Atkins v. Wil- 257, 17 A. B. R. 391. cox, 3 N. B. N. E. 497; Farnam v. Hef- 39— In re Gutman, 197 Fed. 472, 28 ner, 79 Calif. 580, s. e. 92 id. 543; Smith A. B. E. 643. V. Putnam, 3 Pick. 221 ; see In re Steed- 40 — Dol v. Gooibehen, 3 M. & S. 353 ; man, 8 N. B. E. 319, Fed. Gas. No. Onslow v. Gorrie, 2 Madd. 330. 13330; In re Pennewell, 119 Fed. 139, 41— In re J. Frank Stanton Co., 162 9 A. B. E. 490. Fed. 169, 20 A. B. E. 549. 34— In re Frazin & Oppenheim, 183 42— White v. Griffin, 18 N. B. E. 399. Fed. 28, 33 L. E. A. (N. S.) 745, 24 43 — In re Grignard Lithographic Co., A. B. E. 903. 155 Fed. 699, 19 A. B. E. 101; Bray v. 35— In re Montello Brick Works, 163 Cobb, 2 N. B. N. R. 586, 100 Fed, 270, Fed. 624, 20 A. B. E. 859, aff 'd 167 Fed. 3 A. B. E. 788; In re JefEerson, supra. 482, 21 A. B. E. 896. Trustee liable for reasonable rent if he 36 — See post § 829. occupies the premises. Eent stipulated 37 — In re Sterne & Levi, 26 A. B. R. in lease should be accepted as reasonable 535; In re Criblier, 184 Fed. 338, 25 in the absence of clear proof of unrea- A. B. E. 765; In re Frazin & Oppenheim, sonableness. In re Sherwood's, Inc., 210 183 Fed. 28, 33 L. E. A. (N, S.) 745, Fed. 754, 31 A. B. R. 769. 24 A, B. E. 903, Vbere th? trustee takes possegsips o( 604 Beandenbxjbg on Bankeuptcy [§ 828 § 828. — Distraint for rent and forfeiture of lease. A landlord's right to distraint for rent in arrear must be exer- cised prior to adjudication to be'of avail,*^ though it is held that the forfeiture clause in a lease may be enforced for failure of the lessee to perform his covenants after his adjudication.*® A judg- ment of the state court against the bankrupt lessee in an action of unlawful detainer is binding upon the trustee where not appealed from within the time provided for by the state laws.*'' Where notice to quit has been served upon the lessee, his sub- sequent adjudication and the appointment of a trustee do not abrogate the service nor necessitate reservice upon the trustee.** § 829. — Bankrupt's liability not released. While there has been some diversity of opinion as to the effect of an adjudication of bankruptcy upon a lease, the weight of authority sustains the proposition that the adjudication or dis- charge in no wise releases the lessee from liability under the lease for rent accruing subsequent to the filing of the petition, but the lease remains a binding contract between the parties,*" unless the landlord re-enters or the trustee assumes the lease, in which case the adjudication or discharge acts like any other assignment and aU liability of the tenant ceases.®" property and sublets a part thereo£ m Washburn, 11 N. B. R. 66, Fed. Cas. No. accordance with the terms of the lease, 17211; In re Laurie, 4 N. B. K. 7; he is liable only for a reasonable rent of White v. Griffing, 18 N. B. E. 399; In re the part not sublet. In re Stanton Co., Ten Eyek, 7 N. B. R. 26, Fed. Cas. No. 162 Fed. 169, 20 A. B. E. 549. 13829; In re Webb, 6 N. B. R. 302, Fed. 45 — In re Printograph Sales Co., 210 Cas. No. 17315; Ex p. Houghton, 1 Low. Fed. 567, 31 A. B. R. 539. > 554, Fed. Cas. No. 6225. 46 — Lindeke v. Associates Realty Co., A lease remains in force after bank- 146 Fed. 630, 17 A. B. E. 215. ruptcy, as between the landlord and his 47 — In re Van Da Grift Motor Car Co., bankrupt tenant, though the trustee of 192 Fed. 1015, 27 A. E. R. 474. the latter has elected not to continue 48 — ^Lindeke v. Associates Realty Co., it for the benefit of the estate. In re 146 Fed. 630, 17 A. B. R. 215. Sapinsky & Sons, 206 Fed. 523, 30 A. 49 — ^Witthaus v. Zimmerman, 91 App. B. R. 416. Div. (N. T.) 202, 11 A. B. R. 314; In re 50— In re Koester, 15 Ohio Fed. Dec. EUs, 2 N. B. N. R. 360, 98 Fed. 967, 257, 17 A. B. R. 391; In re Houghton, 1 3 A. B. R. 564; disagreeing with In re Lowell 554, 12 Fed. Cas. No. 584; Sar- Jefferson, 1 N. B. N. 288, 93 Fed. 948, ory v. Stocking, 4 Cush. 667; Treadwell 951, 2 A. B. R. 206; In re Schierman, 2 v. Harden, 123 Mass. 390,; In re Mahler, N. B. N. R. 118; In re Rhoads, 2 N. B. 2 N. B. N. R. 70; In re'Sallignon, 2 N. N. R. 301, 98 Fed. 399, 3 A. B. R. 380; B. N. R. 660; In re Frankel, 2 N. B. N. In re Gose, 3 N. B. N. R. 840; In re R. 840; In re Curtis, 33 So. 125, 9 A. B. § 834] Peopebty of Bankeupt ajStd Title Thereto 605 § 830. — Trustee or receiver as trespasser. A receiver or trustee entering under a lease cannot ordinarily be regarded as a trespasser,^^ but where tlie lease under which the trustee is in possession of premises is cancelled at the suit of the lessor, the trustee will be regarded as a trespasser during the time of his occupation of the premises.^^ § 831. — Injunction against landlord. Where immediate vacation of the premises will cause unneces- sary loss and embarrassment to the estate, the landlord may be restrained from interfering with the trustee's possession.^^ § 832. — Fixtures. See ajite, section 781. § 833. — Recovery of payments and deposits. A deposit made by a lessee to be held by his landlord as security for the faithful performance of the covenants of the lease will ordinarily be regarded as one of indemnity against loss, and the trustee in bankruptcy of the lessee is entitled to a return of so much thereof as is not needed to make good the defaults upon the covenants.®* A payment made by a bankrupt to secure the extension of the term of his lease should be repaid to the trustee where the term of the original lease had not expired when bankruptcy interven,ed, since such payment is without consideration.^® § 834. — Bankruptcy of lessor. Where a lease is made for a term of years and is transferred to a creditor to secure a debt, and the lessor beconies bankrupt, the trustee takes the estate subject to such lease,®" and takes the movable property found upon such premises subject to the rights of all other persons. E. 286; contra, In re Jefflerson, 93 Ted. 53 — In re Sehwartzman, 167 Fed. 399, 951, 2 A. B. E. 206; Bray v. Cobb, 100 21 A. B. E. 885. Fed. 270, 3 A. B. R. 788; In re Hays, 54 — In re Sherwood's, Inc., 210 Fed. 117 Fed. 879, 9 A. B. E. 144. 754, 31 A. B. E. 769. 51— In re Eubel, 166 Fed.' 131, 21 A. 55— In re Abrams, 200 Fed. 1005, 29 B. E. 566. A. B. E. 590. 52 — In re St. Louis & Kansas Coal Co., 56 — Meador v. Everett, 10 N. B. E. 168 Fed. 934, 22 A. B. E. 56. 421, Fed. Cas. No. 9376. 606 Bbandbnbueg on Bankeuptcy [§ 835 § 835. Legacies— Wills— Inheritance, Any interest which the bankrupt may have in a decedent's estate, whether as a legacy or otherwise, which is vested at the time of the filing of the petition, passes to the trustee for the benefit of the creditors.^'' The unpaid balance of a legacy passes to the trustee, and the bankruptcy court may summarily order the bankrupt to execute a transfer of such legacy, or the executor may be ordered to pay it to the trustee.^* Property inherited by the bankrupt prior to the filing of the petition, although on the same day, would pass to the trustee, notwithstanding the fact that fractions of a day are not ordinarily considered.^® Property thus acquired after the filing of the petition, although prior to the adjudication, remains the bankrupt's.®" "Where under the state law, an insolvent who contests his father's last will, may abandon or settle the contest at any stage of the proceedings upon any terms he pleases, his subsequent adjudication in bankruptcy will not give the trustee any cause of action growing out of such settlement or abandonment, unless it be to recover any sum the bankrupt may have received and afterwards transferred in derogation of the bankruptcy law.®^ Where a bankrupt under a will takes merely a future con- tingent interest, which is not vested or alienable, it is not such an interest as would pass to the trustee,®^ nor where it is sub- ject to be divested by the happening of a contingency men- 57 — Legacy vesting in bankrupt prior income to which the bankrupt is entitled to filing of petition passes. In re Mc- under a will. In re Morris, 204 Fed. Kenna, 137 Fed. 611, 15 A. B. E. 4. 770, 30 A. B. E. 319; contrary rule prior Trustee entitled to the bankrupt's to 1910, see Butler v. Baudouine, 84 App. share in his mother's estate though the Div. (N. Y.) 215, aff'd 177 N. Y. 530, 16 same is not determined by the surrogate A. B. B. 238n; but see, In re Baudouine, court until after the commencement of 101 Fed. 574, 3 A. B. E. 651. the bankruptcy proceedings, the decree 58 — In re May, 3 N. B. N. E. 128, 5 of such court fixing his rights as of a A. B. E. 1. date prior to the commencement of the 59 — In re Stoner, 3 N. B. N. E. 423; proceedings. McNaboe v. Marks, 51 In re Pettit, 1 Ch. Div. 478. Misc. (N. Y.) 207, 16 A. B. E. 767. 60— In re Wetmore, 108 Fed. 520, :! Interest of the bankrupt under her N. B. N. E. 143, 6 A. B. E. 210; In re father 's will, the latter having died after Braentigan, 3 N. B. N. E. 461. the adjudication of the bankrupt, does 61 — Edington v. Masson, 177 Fed. 209, not pass. In re Woods, 133 Fed. 82, 13 24 A. B. E. 183. A. B. E. 240. 62— In re Gardner, 106 Fed. 670, 5 A. The trustee, under 47a (2) as amended, B. E. 432; In re Ehle, 109 Fed. 625, 6 ma^ maintain an action to reach 9urplu3 A. B. E. 476, §837] . Propeety of Bankrupt and Title Thereto 607 tioned in a will as by the death of the bankrupt before the property is divisible, he being merely one of a class to which he may or may not belong on the vesting of the gift.®^ If the interest which the bankrupt takes is vested or if it be such as would be alienable under the laws of the state, it would pass to the trustee,** and upon this question a decision of the state court in a suit between the trustee and an adverse claimant is con- clusive upon the bankruptcy court.*® The trustee has no title to an interest under a will, which gives the trustee absolute discretion which he is not obliged to exer- cise in favor of the bankrupt.** An adjudication in bankruptcy does not revoke the bank- rupt's will, but if at the time of his death he has any assets upon which it would operate, it would be of as much force and effect as though bankruptcy had not intervened.*^ §836. Property in partnership cases. §837. — Partnership property. Whether property is partnership or individual property is purely a question of intention of the partners, to be inferred from their actions and the surrounding circumstances.*® In the 63 — In re Hoadley, 2 N. B. N. E. 704, tator's two sons, who were named, the 101 Fed. 233, 3 A. B. R. 780; In re Ehle) interest taken by the Sons in the trust 109 Fed. 625, 6 A. B. R. 476. fund, under the statutes of certain states, 64 — ^In re Twaddell, 3 N. B. N. E. 752, is a vested remainder which is alienable; IIT) Fed. 145, 6 A. B. R. 539; In re St. and, on the bankruptcy of one of the John, 3 N. B. N. E. 114, 105 Fed. 234, sons while the life estate is still out- 5 A. B. E. 190; In re Wood, 98 Fed. 972, standing, will pass to his trustee, as as- 3 A. B. E. 572. ' sets. In re St. John, 105 Fed. 234, 3 Where there is a devise to one for life N. B. N. R. 120, 5 A. B. E. 190. and at her decease to her surviving chil- 65 — In re Seavey, 195 Fed. 825, 27 A. dren, and after the death of the testator B. E. 373. and before that of the beneficiary, one of 66 — In re Vetmore, 102 Fed. 290, 4 such children was adjudged a bankrupt, A. B. E. 335, s. e. 99 Fed. 703, 3 A. B. E. his interest, being vested and alienable, 700; In re Hoadley, 2 N. B. N. E. 704, passes to his trustee in bankruptcy. In 100 Fed. 233, 3 A. B. R. 780; Nicholas v. re Twaddell, 110 Fed. 145, 6 A. B. E. Baton, 13 N. B. R. 421, 91 TJ. S; (1 Otto) 539; In re McHarry, 111 Fed. 498, 7 716, 23 L. ed. 254. A. B. R. 83; In re Haslett, 116 Fed. 680. 67— Charman v. Charman, 14 Ves. 580. Where a will bequeathed a sum to 68 — Art. on Part., 17 Am. & Eng. Eno. trustees, with directions to apply the in- of Law, p. 945; Burleigh v., Foreman, come for the benefit of a daughter of the 130 Fed. 13, 12 A. B. E. 88, rev'g 118 testator during her life, the principal on Fed. 348, 9 A. B. E. 237. her death to be divided between the tes- 608 Beandenbueg on Bankbuptoy [§ 837 absence of express agreement, attention must be paid to the "source whence the property was obtained, the purpose for which it was acquired, and the mode in which it has been dealt with."«9 The rule stated by Lindley in his work on Partnership, is that it is for the partners to determine by agreement amongst them- selves what shall be the property of them all, and what shall be the separate property of some one or more of them, and by agree- ment they may convert what is the joint property of all into the separate property of some one or more of them and vice versa, though this would not be true if made within four months of the bankruptcy of the firm or one of its members, and it was shown that the purpose was to hinder, delay, defraud or prefer one class of creditors over another. Whatever, at the commence- ment of a partnership is thrown into the common stock, and whatever has, from time to time during the continuance of a partnership been added thereto, or obtained by means thereof, whether directly by purchase, or circuitously by employment in trade, belongs to the firm and in case of bankruptcy its status could not be changed.™ Property originally owned by one part- ner and used in the business of the partnership, may be joint or separate as the partners agree, in writing or by parole, and the general intent of the partnership will be carried out.''* An adjudication against a partnership in an involuntary pro- ceeding is not conclusive as to the title to partnership assets upon the trustee of a partner not permitted to intervene in the proceedings. ''^ In law, real estate owned by members of a firm is held as ten- ants in common, but it is presumptively firm property if purchased with partnership funds,''* although the title stands in the name of a member,''* and the intent to consider it a partner- ship asset may be shown by evidence '^^ or implied from the fact that the losses are to be sustained by the firm assets, and the 69— Lindley on Part., 329. 73— Osbom v. McBride, 16 N. B. E. 70— In re Swift, 118 Fed. 348, 9 A. 22, 3 Saw. 590, Fed. Cas. No. 10593. B. E. 237, rev'd 130 Fed. 13, 12 A. B. B. 74— In re Groetzinger, 127 Fed. 814, 88. 11 A. B. R. 723, aff'g 110 Fed. 366, 6 71— Lindley on Part., 323. A. B. E. 399. 72— Manson v. Williams, 213 U. S. 75— In re Farmer, 18 N. B. E. 207, 453, 53 L. ed. 869, 22 A. B. R. 22, aff'g Fed. Cas. No. 4650. 153 Fed. 525, 18 A. B. E. 674. § 838] Pkopebty op Bankbupt and Title Thereto 609 profits are to augment the capital,'''' and out of whicla firm cred- itors are entitled to priority of payment even against individual creditors having judgments operating as liens upon the individ- ual partner's interests.'''^ As between the creditors of a firm and a member thereof, real estate is assets of the firm, although the legal title is allowed to stand in the name of such member, where the consideration moves from the firm.''® An insolvent firm's property is a trust fund for the payment of the firm's creditors, and the rule, supported by the weight of authority is that individual partners cannot claim individual exemptions out of iU" A partnership is not entitled to retain toward the payment of its debts, the surplus arising from securi- ties held by one partner for his debt.*" A partner or joint adventurer who has advanced all the money for the purchase of property for himself and bankrupt has a lien on such of the property as has been delivered to him.®^ §838. — Individual property. By individual property or estate, or separate estate, is meant that property in which each partner is separately interested to the exclusion of the other partners at the time of the bank- ruptcy.*^ Where, upon the dissolution of a partnership, one partner takes the accounts and notes of the firm and the other the stock in trade, to which he adds, and with which he continues the busi- ness, the stock in the hands of the latter, upon the subsequent bankruptcy of the former, will be held primarily liable for his individual debts.** The classification in the schedule as part- nership assets of real estate held by partners as tenants in com- 76— Hiscoek v. Jayeox, 12 N. B. E. Fed. 529, 2 A. B. E. 730; In re Duguid, 507, Fed. Cas. No. 6531. 2 N. B. N. E. 607, 100 Fed. 274, 3 A. B. 77— Marrett v. Murphy, 11 N. B. E. E. 794; In re Friedrieh, 100 Fed. 284, 3 131, Fed. Cas. No. 9103. A. B. E. 801; In re Wilson, 101 Fed. 571, 78— In re Groetzinger, 110 Fed. 366, 4 A. B. E. 260. For a full discussion, see 6 A. B. E. 399, aff'd 127 Fed. 814, 11 post Chapter XXIV. A. B. E. 723. 80— Sparhawk v. Drexel, 12 N. B. E. 79— In re Lentz, 2 N. B. N. E. 190, 97 450, Fed. Caa. No. 13204. Fed. 486; In re Stevenson, 1 N. B. N. 81— In re Kessler & Co., 174 Fed. 906, 531, 93 Fed. 789, 2 A. B. E. 230; In re 23 A. B. E. 391. Camp, 1 N. B. E. 142, 1 A. B. E. 165, 91 82— In re Lowe, 11 N. B. E. 221, Fed. Fed. 745; In re Grimes, 1 N. B. N. 339, Cas. No. 8564. 94 Fed. 800, 2 A. B. E. 160, 1 N. B. N. 83— In re Montgomery, 3 N. B. E. 109, 426, 2 A. B. E. 610, 1 N. B. N. 516, 96 3 Ben. 567, Fed. Cas. No. 9727. Brandenburg — 39 610 Bkandenbubg on Bankruptcy [§ 838 mon, will not convert the individual partner's separate property into firm property, in derogation of the rights of separate cred- itors, but the real estate is an asset of the individual partners.** Buildings built with partnership funds by one partner on his own property become part of the realty and such partner's separate property,*^ but although real estate stands in the name of a member, if it be in fact firm property, the unsecured indi- vidual creditors of such member have no claim upon the pro- ceeds.*" The assets of a business conducted by the bankrupt under a firm name will be held to pass to his trustee, where no partnership in fact exists.*'' § 839. — Conversion of joint estate into separate estate and vice versa. It may be generally stated that partners may convert that which was partnership property into the separate property of an individual partner, or vice versa, by agreement amongst them- selves.** "The nature of the property may be thus altered by any agreement to. that effect, for neither a deed nor even a writ- ing is absolutely necessary."*® But so long as the agreement is dependent upon an unperformed condition, so long will the ownership of the property remain unchanged.®" Since the cred- itors of an individual have no lien on his property and cannot prevent him from disposing of it as he pleases, so the ordinary creditors of a firm have no lien on the firm property to enable them to prevent it froni disposing of it to whomsoever it chooses.®^ Accordingly it has frequently been held that agree- ments made between partners converting firm property into the separate estate of one or more of its members, and vice versa are, unless fraudulent, binding, not only as between the partners themselves, but also on their joint and on their respective several 84— In re Zugg, 16 N. B. E. 280, Fed. 88— Lindley on Part., p. 334; ex parte Cas. No. 18222. Euffiu, 6 Ves. 119; ex parte Williams, 11 85— In re Parks, 9 N. B. E. 270, Fed. id. 3 ; ex parte Fell, 10 id. 348. Cas. No. 10765. 89— Pilling v. Pilling, 3 De G. J. and 86 — In re Groetzinger, 110 Fed. 366, Sm. 162; ex parte Williams, 11 Ves. 3. 6 A. B. E. 399, aff'd 127 Fed. 814, 11 90— Ex parte Wheeler, Buck. 25. A. B. E. 723. 91— Wilcox v. Kell, 11 Ohio 394; 87— In re Gibson, 191 Fed. 665, 27 White v. Parish, 20 Tex. 688. A. B. E. 401. § 840] Pbopebty of Bankrupt and Title Theeeto 611 creditors, and that in the event of bankniptcy the trustee must give effect to such agreement.®* In case of the bankruptcy of the firm or an individual member thereof, since the act confines each class of creditors to the cor- responding estate, separate creditors to the separate estate and joint creditors to the joint estate, any agreement changing the situation of property, if within four months of the bankruptcy, would be regarded as a transfer to hinder, delay and defraud, or prefer one class of creditors over the other. For this reason the foregoing rule stated would probably fall in a proceeding under the present law. § 840. — Title and rights of trustee. The same rule applies with reference to the title of the trustee to partnership property, as to that of individuals. The trustee of a bankrupt firm takes all the firm's property with like right, title, power and authority as the firm had, but subject to any valid lien existing thereon.®^ The actual interest of the trustee of a bankrupt partner is the bankrupt's proportion of the surplus, which may be either sold to the other partner, or an accounting be had,®* or, if the remaining partner continues the business without a settlement, the trustee may take an interest.®^ If a partnership is adjudged bankrupt, the assets of the part- nership and of its members are brought into the bankruptcy administration,*® and the court may, by summary order, compel the individual partners to transfer their property to the trustee,®^ or, if prior to the adjudication, one of the individual partners makes an assignment for the benefit of his creditors, the assignee may be required by summary order to transfer to the trustee all the property so coming to him.®® The trustee of a 92— Lindley on Part. 335; ex parte 96— Francis v. McNeal, 186 Fed. 481, Euffin, 6 Ves. 119; ex parte WiUiams, 26 A. B. E. 555, aff'd 228 U. S. 695, 57 11 Ves. 3. L. ed. 1029, L. E. A. 1915 B 706, 30 A. 93— In re Leland, 5 N. B. E. 222, 5 B. E. 244; In re Duke & Son, 28 A. B. Ben. 168, Fed. Cas. No. 8228; In re E. 195. Temple, 17 N. B. E. 345, 4 Sawy. 62, 97— In re Latimer, 174 Fed. 824, 23 Fed. Cas. No. 13825. A. B. E. 388. 94— Section 5L, Act of 1898. Ex p. 98— In re Stokes, 106 Fed. 312, 6 A. Motion, L. E. 9 Ch. 192. B. E. 262. 95— Ex p. Finch, 1 Dea. & Ch. 274; Ex p. Freeman, Id. 464. 612 Beandenbueg on Bankruptcy [§ 840 partnership may administer the separate estate of non-adjudi- cated members,"" especially with the latter 's consent,' and it is held that an alleged partner is not entitled to a jury trial of the issue of whether he is in fact a member of a bankrupt part- nership for the purpose of determining whether his estate may be administered.^ In discussing this rule the supreme court, in the case of Francis v. MoNeal,^ says, "It would be an anomoly to allow proceedings in bankruptcy against joint debtors from some of whom, at any time before, pending, or after the proceed- ing, the debt could be collected in full. If such proceedings were allowed, it would be a further anomoly not to distribute the part- nership assets. Yet the individual estate, after paying private debts, is part of those assets, so far as needed. (Section 5f.) Finally, it would be a third incongruity to grant a discharge in such a case from the debt considered as joint, but to leave the same persons liable for it considered as several. ... If the partnership and individual estates together are not enough to pay the partnership debts, the rational thing to do, and one cer- tainly not forbidden by the act, is to administer both in bank- ruptcy. ' ' Where less than all the members of a partnership, hvCt not the partnership, have been adjudged bankrupt, the trustee is elected by joinfand separate creditors and takes the bankrupt partners' individual assets and their proportionate share of the surplus of the firm's assets, but has nothing to do with ijhe partnership estate unless by consent of the partners not adjudged bankrupt,* 99— In re Samuels & Lesser, 207 Fed. Ludvigh v. Umstadter, 148 Fed. 319, 17 195, 30 A. B. R. 293; In re Duke & Son, A. B. R. 774; In re Junek & Balthazard, 199 Fed. 199, 29 A. B. E. 93; contra, 169 Fed. 481, 22 A. B. R. 298; Francis In re Bertenshaw, 157 Fed. 363, 17 L. v. McNeal, 186 Fed. 481, 26 A. B. R. 555, R. A. (N. S.) 886, 19 A. B. R. 577. aff 'd 228 U. S. 695, 57 L. ed. 1029, L. B. 1— Francis v. McNeal, 228 TJ. S. 695, A. 1915 E 706, 30 A. B. E. 244; Mills v. 57 L. ed. 1029, L. R. A. 1915 E 706, 30 Fisher & Co., 159 Fed. 897, 16 L. R. A. A. B. B. 244, aff'g 186 Fed. 481, 26 A. (N. S.) 656, 20 A. B. R. 237; American B. R. 555. Steel & Wire Co. v. Coover, 27 Okla. 131, 2— In re Samuels & Lesser, 207 Fed. 25 A. B. R. 58; Ludowici Roofing TUe 195, 30 A. B. R. 293. Co. v. Pa. Inst, for Blind, 116 Fed. 661; 3—228 U. S. 695, 57 L. ed. 1029, L. 8 A. B. R. 739; In re Mercur, 116 Fed. E. A. 1915 E 706, 30 A. B. E. 244, aff'g 655, 8 A. B. E. 275; In re PoUdori, 186 Fed. 481, 26 A. B. R. 555. 2 N. B. N. E. 945; In re Wilcox, 1 N. B. 4r— Section 5L, Act of 1898; New York N. 286, 494, 94 Fed. 84, 2 A. B. R. 117; Inst, for Deaf & Dumb v. Crockett, 117 In re Blair, 2 N. B. N. E. 364, 99 Fed. App. Div. (N. Y.) 269, 17 A. B, R. 233; 76, 3 A. B, E, 588; In re Meyer, 98 § 841] Peopeety of Banketjpt and Title Thebeto 613 although, the bankruptcy court will require the partners not adjudged bankrupt to settle the business expeditiously, or con- sent to the administration of the partnership assets in bank- ruptcy.^ A creditor of a partner may proceed against him individually, though the partnership estate is being administered by a pro- bate court, and it has been held in such case that the court of bankruptcy has complete jurisdiction over the case, and juris- diction over the partnership estate, provided such court will surrender possession of the assets to the trustee.® If a secret partner keeps silent and allows the partnership assets to be administered in bankruptcy, he will be held to have consented.'' The trustee of one partner will be subrogated to the rights of the creditors of another partner to the extent that their claims against the latter have been satisfied by the sale of the property of the former.^ The trustee has the same right to the property of a bankrupt partner as in the case of any individual, and may recover from a solvent partner, what is due under the articles of copartner- ship.^ A trustee of a partner who seizes goods belonging to the partnership will not be charged with interest thereon.^" Where a firm after giving a mortgage is dissolved, one of the partners taking its assets and assuming its debts, and bankruptcy pro- ceedings are instituted against him, in the course of which the property is sold, the balance, after paying the mortgage, should be retained by the trustee.^^ § 841. Patents ajid copyrights. The trustee is vested with the interest owned by the bankrupt at the time of adjudication in patents already issued and in Fed. 976, 3 A. B. E. 559, aff 'g 1 N. B. N. In 're Harris, 2 N. B. N. R. 868, 4 A. 304, 92 Fed. 896, 1 A. B. E. 565. B. E. 132. 5— Section 5h, Act of 1898; Mills v. 8— In re Mason, 1 N. B. N. 331, 2 Fisher & Co., 159 Fed. 897, 20 A. B. B. A. B. R. 60. 237; In re Meyer, 98 Fed. 976, 3 A. B. E. 9— Wilkins v. Davis, 15 N. B. E. 60, 550; In re O 'Brian, 2 N. B. N. E. 312. 2 Lowell 5ll, Fed. Cas. No. 17664. 6— See In re Pierce, 2 N. B. N. E. 979, 10— In re Hudson Clothing Co., 148 102 Fed. 977, 4 A. B. E. 489; In re Fed. 305, 17 A. B. E. 826. Daggett, 8 N. B. E. 433, Fed. Cas. No. 11— In re Sanderlin, 109 Fed. 857, 6 3536. A. B. E. 384. 7— In re Eushmore, 24 A. B. E. 55; 614 Beandenbueg on Bankbuptcy [§ 841 force, or allowed, whether as patentee, assignee of the patent or part thereof, or holder of rights acquired nnder a patent to a third person, such as licenses or manufacturing rights; btit he does not take the interest of the bankrupt in a patentable inven- tion, or in a pending application for a patent.^^ While the title to patents and the like vests in the trustee by operation of law without any order of court, a certified copy of the decree of adjudication,^^ together with a certified copy of the order approving the bond of the trustee, should be filed in the Patent or Copyright Office, as the case may be, as evidence of the title of the trustee to such patents or copyrights.^* If one holds a lien on bankrupt's letters patent as security, the court may order them sold jointly by the trustee and the lien-holder, and the proceeds will be deposited pending settlement of the respec- tive-claims.^^ A copyright which has been transferred to the bankrupt by an absolute and unqualified assignment thereof passes to" his trustee,^^ but where a contract whereby a copyright was assigned to the bankrupt involves personal trust and confidence, the rights thereunder do not pass to the trustee, and the assignor may* reclaim the copyrights so assigned." § 842. Payments and deposits. Money paid to the bankrupt under mistake of fact may be recovered from the trustee.^^ An exception to the rule that money paid tmder a mistake of law cannot be recovered is made in case of such payments to a trustee in bankruptcy.^^ Payments made by a stockholder upon a subscription to stock upon, express condition that like subscriptions should be made by all stockholders will be returned to him in toto where the condition has not been complied with.^"* 12— In re McDonald, 101 Fed. 239, 4 16— In re Howley-Dresser Co., 132 Fed. A. B. E. 92; In re Dann, 129 Fed. 495, 1002, 13 A. B. E. 94. 12 A. B. E. 27. 17— In re McBride & Co., 132 Fed. Patents, as well as applications there- 285, 12 A. B. E. 81. for pass to the estate. In re Myers-Wolf 18— In re Berry & Co , 147 Fed 208 Mfg. Co., 205 Fed. 289, 30 A. B. E. 572; 16 A. B. E. 564; In re Berry & Co., 147 In re Cantelo Mfg. Co., 185 Fed. 276, 26 Fed. 208, 17 A. B. E. 491. A. B. E. 57. 19— Carpenter v. Southworth, 165 Fed. 13— See. 47e, Act of Feb. 5, 1903. 428, 21 A. B. E. 390. 14— Sec. 21e, Act of July 1, 1898. 20— In re North Carolina Car Co., 127 15 — In re Columbia Metal Works, 3 Fed. 178, 11 A. B. E. 488 N. B. E. 18, Fed. Cas. No. 3039. § 842] Pbopebty of Bankrupt and Title Theeeto 615 No payment by or to a bankrupt subsequent to the bankruptcy in relation to transactions anterior thereto is valid, though made or received bona fide or without notice.^^ The trustee of the estate of a bankrupt vendee may sue to recover from the vendor the amount of the purchase price paid where, after bankruptcy, the vendor repudiates his contract by refusing to convey the property and by leasing it to a third party." Money obtained by the bankrupt through grossly false and fraudulent representations may be recovered notwithstanding the money was to be used in a gambling venture and the •depositors were apprised of this fact.^^ Like any other assets of the bankrupt, funds deposited in a bank or stock therein pass to the trustee on the adjudication.^* The trustee of a bankrupt depositor has been held entitled to funds in the bankrupt's name as against the payee in a check presented prior to adjudication, payment of which was withheld because of rumors of bankruptcy .^^ A trustee may have set aside any conveyance to a bank in fraud of creditors, and deposits made by one subsequently becoming bankrupt become a part of the assets of the estate and will be turned over to the trustee. Hence, where a sheriff having made a levy and sale of the bankrupt's property after the title had passed to the trustee, deposited the proceeds with the judgment creditor, a bank, and received a certificate of deposit instead of a receipt, or where a bank as creditor, collects money due the bankrupt, and gives the same to the sheriff who applies it on the bank 's judgment, it constitutes a fraudulent preference and may be recovered by the trustee.^* Where a bank receives 21 — ^Mays v. Bank, 4 N. B. R. 147; In trustee seeking to recover the payment, re Hayden, 7 N. B. K. 192, Fed. Gas. No. Toof v. City Nat. Bank, 206 Fe^. 250, 6257; Babbett v. Burgess, 7 N. B. E. 30 A. B. R. 79. 561, 4 Dill. 169, Fed. Gas. No. 693; Duf- 22— Durham v. Wick, 210 Pa. St. 128, field V. Horton, 16 N. B. R. 59; s. e. 19 14 A. B. E. 385. N. B. R. 13; Booth v. Meyer, 14 N. B. 23— In re Arnold & Co., 133 Fed. 789, R. 575. 13 A. B. R. 320. While the payment by the bankrupt, 24— In re Ransford, 194 Fed. 658, 28 after the filing of the petition, of a debt A. B. R. 78. previously incurred, is unauthorized, yet 25 — In re Grive, 151 Fed. 711, 18 A. if the payment is one to which the cred- B. R. 202. itor was entitled as against the trustee, 26 — Traders' Nat. Bk. v. Campbell, 6 the court may refuse the petition of the N. B. R. 353, 14 Wall. 87. 616 !Bbandenbueg on Bankruptcy [§ 842 a deposit after it is insolvent, of which fact its officers have knowledge, the fraud avoids the implied contract and prevents the money becoming the bank's property and the trustee is entitled to it,^'' and the same is true of drafts and checks deposited for collection, but which had not been collected when the bank closed its doors, notwithstanding they were endorsed to the bank without qualification; or that on the day of such deposits drafts equal to the whole deposit were purchased, which were subsequently returned unpaid, as such purchase formed a separate transaction,^* and the deposit might therefore be reclaimed. But the original pledgor of a certificate of stock, wrongfully deposited as collateral by a pledgee, may follow the fund received by the bank into the hands of the trustee of the pledgee, and recover the proceeds of his stock, less his indebtedness to the bankrupt.^^ To entitle a depositor in a bankrupt bank to a return of his deposits it is essential that the bank was insolvent at the time the deposits were made, that the bank knew that fact and that the depositor did not.^" A depositor in a bankrupt bank is entitled to funds in its hands as against other creditors only so far as his deposits are capable of identification,*^ and where his specie deposit has been appropriated by the bankrupt, he can only come in pari passu with other creditors,*^ unless the deposit was procured through the fraud of the latter.^* A banker's liability is not fiduciary, but that of an ordinary debtor, and his trustee will not pay out of the bank's funds a note and interest, because deposited for collection simply, the customer's account being overdrawn at the time the proceeds were credited on the bank's books,** but the banker is not entitled to a deposit, for which the depositor simultaneously draws a check in payment of a draft which the banker issued, though insolvent, and aware it would be dis- 27 — ^Richardson v. New Orleans Deb. 31 — ^In re Nichols, 166 Fed. 603, 23 Eedemp. Co., 102 Fed. 780, 52 L. B. A. A. B. E. 216. 67; same v. New Orleans Coffee Co., 32 — In re King, 9 N. B. E. 140; In re Id. 785. Hosie, 7 N. B. E. 601, Fed. Gas. No. 6711. 28 — Eichardson v. New Orleans CofEee 33 — In re Stewart, 178 Fed. 463, 24 Co., 102 Fed. 785. A. B. E. 474. 29— In re Hutchinson, 113 Fed. 202; 34 — In re Bank of Madison, 9 N. B. In re Swift, 108 Fed. 212. B. 184, 5 Biss. 515, Fed. Cas. No. 890. 30— In re Stewart, 178 Fed. 463; 24 A. B. E. 474. § 843] Peopeety of Bankeupt and Title Theeeto 617 honored, but such depositor is entitled to have the funds returned before the payment of other claims.^'* The bank is entitled to funds as against the purchaser from it of a check upon another bank, not presented until after the drawer's bankruptcy, when payment was refused, and such pur- ^chaser is not entitled to priority of payment; ^^ or to the deposit with a bank, as agent for another for clearing house purposes, under an arrangement requiring the latter 's deposit to be suffi- cient to meet its checks received at the clearing house.*'^ § 843. Personal privileges, licenses and memberships. A seat in a stock exchange, as well as the profits on stock transactions therein pass to the trustee subject to the rules of the exchange.** The same is true of any other license, right or privilege, which the bankrupt njight have transferred by any means prior to filing his petition.*^ A performance by the bank- rupt of the conditions or formalities necessary to the transfer will be ordered by the court.*" In the case of a seat in a stock exchange where the articles of membership provide that it may be sold in case there is no 35— Eiohardson v. Coffee Co., 102 Fed. 39— Sec. 70a (5) Act of 1898. 785. 40— In re Page, 2 N. B. N. E. 1069, 36— In re Smith, 12 N. B. E. 459, 102 Fed. 746, 4 A. B. E. 467; In re Fed. Cas. No. 12990. Becker, 2 N. B. N. E. 241, 245, 98 Fed. 37— Phelan v. Bank, 16 N. B. E. 308, 407, 3 A. B. E. 412; In re May, 3 N. B. 4 DiU. 88, Fed. Cas. No. 11069. N. E. 128; In re Emrich, 2 N. B. N. E. 38—111 re Gregory, 174 Fed. 629, 27 656, 101 Fed. 231, 4 A. B. R. 89; In re L. E. A. (N. S.) 613, 23 A. B. E. 270; Brodbine, 1 N. B. N. 279, 326, 93 Fed. Wrede v. Clark, 132 App. Div. (N. Y.) 643, 2 A. B. B. 53; Sparthawk v. Yerkes, 293, 21 A. B. B. 821, rev'g 61 Misc. 530, 142 U. S. 1, 35 L. ed! 915; Id. v. Aekley, 21 A. B. E. 170; In re Hurlbutt, Hatch & Id.; In re Fisher, 1 N. B. N. 206, 1 A. B. Co., 135 Fed. 504, 13 A. B. R. 50; Page E. 557; afl'd 2 N. B. N. E. 221, 98 Fed. V. Edmunds, 187 U. S. 596, 47 L. ed. 318, 89; affi'd 103 Fed. 860, 51 L. E. A. 292, 9 A. B. E. 277; In re Gaylord, 111 Fed. citing In re Ketchum, 51 Fed. 840; Hyde 717, 7 A. B. E. 195; In re Hutchinson, v. Woods, 94 U. S. (4 Otto) 523, 24 L. 8 A. B. E. 382; see lii re Swift, 118 Fed. ed. 264; Fish v. Fiske, 154 Mass. 302; 348, 9 A. B. E. 237, rev'd 130 Fed. 13, In re Warder, 10 Fed. 275; s. o. 15 Fed. 12 A. B. E. 88. 789; In re Gallagher, 19 N. B. E. 224, Although the bankrupt's seat in a 16 Blatch. 410, Fed. Gas. No. 5197; stock exchange is property passing to the Shearman v. Bingham, 3 Cliff. 552, Fed. . trustee. It can become available to the Cas. No. 12672; Lathrop v. Prake, 91 trustee only in the manner- provided for U. S. (1 Otto) 516, 23 L. ed. 414; Good-, by the terms of thecontraot under which all v. Tuttle, 7 N. B. E. 193; In re it is obtained. In re Currie, 185 Fed, Sievers, 91. Fed. 366; Ex p. Butler, 1. 263, 26 A. B. E. 345. Atk. 210. 618 Beandenbubg on Bankruptcy [§ 843 unsettled contract or claiin against him by any otlier member of the exchange, arising out of the business of the exchange, the seat will pass to the trustee after the satisfaction of such claim, or the court may order that the seat be sold by the trustee for the benefit of the estate, in which event the prior right of mem- bers of the exchange to any claim held by them will be passed upon by the court and first paid from the proceeds.*^ In the case of the expulsion of a member, the seat would pass to the trustee, where the constitution of the organization does not provide for the forfeiture of the money value of the membership in such case.*^ Whether a liquor license issued to the bankrupt becomes an asset of the estate depends upon the question of whether it is regarded as property under the state law. In those states where it is regarded as a salable privilege, and transferable property of the bankrupt, it passes to the trustee,** while in those states where it is not regarded as a contract or property right, but as a mere permit to do what otherwise would be an offense, it does not pass.** The trustee is entitled to the money realized from the bank- rupt's liquor license as against the equitable assignee thereof where the policy of the state prohibits assignments thereof.*^ A liquor license granted to the bankrupt after his adjudication does not belong to the estate.** If the bankrupt and another hold a liquor license, the court of bankruptcy has no jurisdic- tion to pass on the rights of such other party in a summary pro- ceeding, but the trustee may file a bill in equity, or take other steps, to realize >the bankrupt's interest.*'^ Where the bankrupt holds title to a patented article subject to restrictions contained in a license to sell the same, the trustee is bound by the restrictions.*® 41 — Page V. Edmunds, supra; In re 44 — ^In re Keller, 16 A. B. E. 727; In Hutchinson, supra. re Olewine, 125 Fed. 840, 11 A. B. B. 40. 42— In re Gaylord, supra. 45— In re Flaherty, 184 Fed, 962, 25 43— In re May, 5 A. B. E. 1; In re A. B. E. 943. Baumblatt, 153 Fed. 485, 18 A. B. E. 720. 46— Whitloek's License, 39 Pa. Super. Liquor license and right to renewal is Ct. Eep. 34, 22 A. B. E. 262. asset. In re Doyle & Son, 209 Fed. 1, 47 — In re Brodbine, 1 N. B. N. 279, 31 A. B. E. 571, rev'g 205 Fed. 543, 30 326, 93 Fed. 643, 2 A. B. E. 53. A. B. E. 58; In re WIesel & Knaup, 173 48— In re Spitzel & Co., 168 Fed. 156, Fed. 718, 23 A. B. E. 59. 21 A. B. E. 729. § 844] Pbopeety of Bankbupt and Title Theeeto 619 § 844. Property purchased prior to bankruptcy. The test of the trustee's title to property alleged to have been purchased by the bankrupt is whether title passed at the time of the filing of the petition.*^ Goods sold to the bankrupt in the ordinary course of business cannot be reclaimed by the vendor,^" especially where the con- tract has not been rescinded prior to bankruptcy .°^ An arrangement whereby the banlirupt, after adjudication, returns property to one from whom he had purchased it, in satis- faction of the unpaid purchase price will not defeat the trustee's title.** The trustee is entitled to property purchased by the bankrupt in good faith from one holding the same under an unre- corded conditional sale contract.®^ Where a party by fraudulently concealing his insolvency and his intent not to pay for goods or property, induces the owner to sell them to him on credit, the vendor, if no innocent third party has acquired an interest in them, is entitled to disaffirm the contract and recover his property,** even though he has filed 49— In re Planett Mfg. Co., 157 Ted. 916, 19 A. B. E. 729. 50— In re Johnson, 208 Fed. 164, 30 A. B. E. 787. A vendor selling goods to the bank- rupt five months prior to bankruptcy but who has failed to rescind the sale, cannot reclaim the goods on the ground of fraud. 51— Becker Co. v. Gill, 206 Ted. 36, 30 A. B. E. 429. 52— In re Connelly, 204 Ted. 479, 30 A. B. E. 340. 53 — In re Builders' Lumber Co., 148 Fed. 244, 17 A. B. E. 449. 54 — Kellogg-Mackey-Cameron Co. v. Curtice, 162 Mfi. App. 124, 28 A. B. E. 906; In re Appel Suit & Qoak Co., 198 Fed. 322, 28 A. B. E. 818; In re Sol. Aarons & Co., 193 Fed. 646, 28 A. B. E. 399; Halsey v. Piamond Distilleries Co., 191 Fed. 498, 27 A. B. E. 333; In re Bendall, 183 Fed. 816, 25 A. B. E. 698; In re Spann, 183 Fed. 819, 25 A. B. E. 551; Gillespie v. Piles & Co., 178 Fed. 886, 44 L. E. A. (N. S.) 1, 24 A. B. E. 502; Haywood Co. v. Pittsburgh Indus- tMal Iron Works, 163 Fed. 799, 19 A. B. E. 780; Openhym & Sons v. Blake, 157 Fed. 536, 19 A. B. E. 639; In re Levi & Picard, 148 Fed. 654, 16 A. B. E. 756; Standard Varnish Works v. Haydock, 143 Fed. 318, 16 A. B. E. 286; Donald- son V. Farwell, 93 U. S. 631, 23 L. ed. 993; Turner v. Ward, 154 U. S. 618, b L. ed. 391; In re Weil, 111 Fed. 897, 7 A. B. E. 90; In re Gauy, 103 Fed. 930; In re Epstein, 109 Fed. 876; Blooming- dale V. Eubber Mfg. Co., 114 Fed. 1016, 8 A. B. E. 74; In re Hamilton Furniture & Carpet Co., 117 Fed. 774, 9 A. B. E. 65; Oil Co. v. Hawkins, 74 Fed. 395, 33 L. E. A. 739; In re O'Connor, 114 Fed. 777, 9 A. B. E. 18. To entitle vendor to rescind and re- claim (1) bankrupt must have been in- solvent at time of purchase (2) bankrupt must have concealed insolvency (3) false and fraudulent representations must have been made with intent to deceive and defraud and to induce vendors to sell and deliver goods to bankrupt, with in- tent not to pay for them. In re Marengo Co. Merc. Co., 199 Fed. 474, 29 A. B. E. 46. Where, under the laws of the state, the rights of a defrauded vendor prevaU 620 Bbandenbubg on Bankbuptcy [§ 844 his claim in the bankruptcy court as for goods sold and delivered.®^ While mere knowledge of insolvency on the part of the debtor is not sufficient to set aside a sale made to him,^* it is not essential that the financial statement by the bankrupt shall have been made with intent not to pay, to authorize a rescission, provided it was fraudulent.^''^ Nor is it necessary that the false representation should be the sole and exclusive consideration for the credit, only that it was the material con- sideration without which the credit would not have been given; *^ thus the representations made to a commercial agency of the financial standing of the purchaser, if false, would hardly by itself be sufficient to warrant a rescission of the sale and a recovery of the property, but in connection with the representa- tions made to the vendor or his agent, it would be.^® The subse- quent discovery of the insolvency of the debtor through bank- ruptcy proceedings will hot be permitted as an excuse for a creditor to rescind the sale, but actual fraudulent representation in obtaining the property must be shown by the creditor, and the disaffirmance of the contract must have been promptly made.®" Prior to the amendment of 1910, the trustee took no better title than the bankrupt, in property thus obtained by the bankrupt. Accordingly the defeasible title of the bankrupt which could be determined by a prompt disaffirmance of the contract by the vendor passed to the trustee.®^ over the claims of a lien creditor, goods 57 — ^EUet-Kendall Shoe Co. v. Ward, fraudulently obtained from a vendor by 187 Fed. 982, 26 A. B. E. 114; In re the bankrupt do not pass to the estate. Epstein, 109 Fed. 874, 6 A. B. B. 60,'and In re Gold, 210 Fed. 410, 31 A. B. R. eases cited; In re O'Connor, 114 Fed. 18. 777, 7 A. B. E. 428; Contra, In re Levi Where under state law vendor is not v. Picard, 155 Fed. 262, 17 A. B. E. 430. entitled to rescind where property 58 — ^In re Gany, 103 Fed. 930. fraudently obtained has been transferred 59 — In re Appel Suit & Cloak Co., 198 to an innocent purchaser for a valuable Fed. 322, 28 A. B. E. 818; In re Hamil- consideration, or a lien has been acquired ton Furniture & Carpet Co., supra; In re thereon for a valuable consideration, no Weil, supra; In re Epstein, supra. right to reclaim from estate of buyer Property sold to bankrupt in reliance exists. In re Whatley Bros., 199 Fed. upon his rating with a commercial agency 326, 29 A. B. E. 64. to which the bankrupt has made a false 55 — ^In re Stewart, 178 Fed. 463, 24 report may be recovered by the vendee. A. B. E. 474. In re Johnson, 208 Fed. 164, 30 A. B. But see. Standard Varnish Works v. E. 787.' Haydoek, 143 Fed. 818, 16 A. B. E. 286. 60— In re Sweeney, 168 Fed. 612, 21 56— In re Berg, 183 Fed. 885, 25 A. A. B. E. 866. B. E. 170. 61 — ^Donaldson v. Farwell, supra. 1 846] Property of Bankrupt and Title Thereto 621 Where goods are obtained through misrepresentation by a firm, composed of several members, a return of the goods or their proceeds will be valid, as against the trustee of two of the creditors, if the goods have not lost their identity.^^ .But it is not in harmony with the purpose of the bankruptcy act, which is to secure equality between creditors, to permit all creditors who sold goods to a bankrupt, which they can identify, to rescind the sales and reclaim the goods on the ground of fraud, where other creditors having an equal right to a rescis- sion, cannot enforce it because their goods were disposed of. Clear proof of fraudulent representations is required.®* §845. Rents ajid profits. § 846. — In ca^e of mortgage. Eents and profits arising from a bankrupt's estate after bank- ruptcy and collected by the trustee, belong to the general estate, and not to the mortgagee, notwithstanding the mortgagee's security is insufficient, the mortgage itself not pledging them by its terms, and no proceedings having been taken to sequestrate them as by obtaining the appointment of a receiver before bank- ruptcy or by direct application to the bankruptcy court after- ward,** or by foreclosure.*^ If the mortgagee purchases mortgaged property at a fore- closure sale subject to the taxes then due and the property remains in the possession of the trustee during the redemption period and the latter collects the rents, the mortgagee is not entitled to be reimbursed out of such rents, for taxes due on the property when sold;** nor is a second mortgagee entitled, the 62— Montgomery v. Bueyrus Mach. Dickinson, 15 Id. 350; In re Bennett, 12 Wis., 14 N. B. E. 193, 92 U. S. 257, 23 Id. 257, 2 Hughes 156, Fed. Cas. No. L. ed. 656. 1313; In re Torchia, 188 Fed. 207, 26 63— In re Murphy-Barbee Shoe Co., A. B. E. 579. 11 A. B. E. 428; In re O'Connor, 112 65— The trustee has the right to the Fed. 666, 7 A. B. E. 428. rents and profits upon property mort- 64 — In re Chase, 133 Fed. 79, 13 A. B. gaged- until the mortgagee asserts his E. 294; In re Cass, 6 A. B. E. 721; In right of entry and forecloses his lien and re Dole, 110 Fed. 926, 7 A. B. E. 21; but bars the equity of redemption. In see In re Sink, 2 N. B. N. E. 645; comp. re Hasie, 206 Fed. 789, 30 A. B. E. 83. In re Snedaker, 4 N. B. B. 43; In re 66— In re Hollenfeltz, 1 N. B. N. 503, ElUa, 107 Mass. 1; Foster v. Ehodes, 10 94 Fed. 629, 2 A. B. E. 499; In re Veitch, N. B. E. 533, Fed. Cas. No. 4981; Hays v. 101 Fed. 251, 4 A. B. E. 112. 622 Bbandenbueg on Bankeuptcy [§ 846 first consenting, to take and hold the mortgaged property to foreclose his mortgage, as against the trustee, nor to appropriate the rents and profits to the payment of his debt." An agreement by a mortgagor to collect the rents from the mortgaged property, which was in his possession, and to pay the same to the mortgagee on the mortgage debt, does not make him the agent of the mortgagee to collect such rents, nor give to the mortgagee right to such as are uncollected or have not been paid over at the time the mortgagor is adjudged a bankrupt.^^ § 847. — In case of fraudulent conveyance. ^ A tenant of a fraudulent vendee or mortgagee in possession after bankruptcy may offset against his liability for rent, such amounts as have been paid by him for* taxes, interest and repairs.®* A decree of a state court in a suit by the trustee to set aside an alleged fraudulent conveyance and for an accoimting for rents and profits cannot be reopened in the bankruptcy court, and any amount paid by the defendant therein under the decree of the state court cannot be recovered from the trustee.'^'' § 848. — In case of general assignment. Profits realized in the operation of the bankrupt's business by the general assignee for creditors do not pass to the trustee.''* § 849. — Building and loan association. Generally, upon the bankruptcy of a member of a building and loan association the right to impose and collect fines ceases. Such bankruptcy does not, however, operate as a voluntary with- drawal, so as to give the association the right to retain the profits theretofore actually earned and duly credited. But the trustee of the bankrupt estate is not entitled to credit for profits or interest on the dues paid for the time between the last appor- tionment and credit of profits and the bankruptcy.''^ 67— Hutehins v. Iron Wis., 8 N. B. E. 70— In re Chase, 133 Fed. 97, 13 A. B. 458, Ted. Cas. No. 6952. R. 294. 68— In re Dole, 110 Fed. 926, 7 A. B. 71— Gill v. Bell's Knitting Mills, 128 E. 21. App. Div. (N. Y.) 691, 21 A. B. E. 282. 69— In re Chase, 133 Fed. 79, 13 A. B. 72— In re Davis, 180 Fed. 148, 25 A. E. 294. B. E. 1. § 852] Property or Bankrupt and Title Thereto 623 § 850. Property sold prior to bankruptcy. Whether property sold by the bankrupt prior to his adjudica- tion nevertheless passes to his trustee, depends upon whether the sale has been completed by delivery or not J^ §851. Stocks, bonds and other securities. Any stock, bonds or other securities of the bankrupt having a transferable value upon his adjudication become a part of the assets of the estate for the benefit of creditors, title to which passes to the trustee without the necessity of transfer unless in a foreign corporation, in which event the necessary assignment must be made by the bankrupt. The trustee is not bound by the bankrupt's ratification or acquiescence in a sale of collaterals made after the commence- ment of bankruptcy proceedings;''* and he is entitled to the surplus over and above the amount necessary to liquidate the debt, where the security of a creditor is reduced to money ,''^ and to any and all securities held for the debt where a secured creditor proves his claim as unsecured and thereby relinquishes his right to the seourities.^^ A creditor cannot be compelled to part with or surrender his security because he has received a dividend, or as a condition of receiving a dividend, after crediting the present value of the security as determined by arbitration or by litigation, as the court directs.'''' § 852. Property held in trust by bankrupt. The possession by a bankrupt of assets, though by a defeasible title, makes a sufficient title for his trustee, until it shall be successfully disputed,''* but a trustee takes no title to property 73— A sale of hops by the bankrupt 75 — ^In re Newland, 9 N. B. E. 62, 7 held fuUy consummated before bank- Ben. 63, Fed. Cas. No. 10171. niptcy where prior to the adjudication 76 — ^In re Granger, 8 N. B. R. 30, Ted. the hops had been boiled, and had been Cas. No. 5684. inspected, accepted and branded by the 77 — In re Davison, 179 Fed. 750, 24 A. purchaser, though not removed from the E. R. 460. bankrupt 's premises. Williamson v. 78 — In re Cobb, 1 N. B. N. 557, 3 A. Richardson, 205 Fed. 245, 30 A. B. R. B. R. 129, 96 Fed. 821; In re Beal, 2 559. N. B. E. 178, 1 Lowell 823, Fed. Cas. No. 74— Sparhawk v. Drexel, 12 N. B. E. 1156. 450, Fed. Cas. No. 13204. 624 Bbandenbukg on Bankbuptcy [§ 852 held by a bankrupt merely in trust, altbough if the trust be coupled with an interest, he is vested with such interest.''® Trustees and receivers in baiikruptcy take the assets of the bankrupt, in the absence of fraud, subject to all equitable liens in favor of third persons to the extent that such assets have been augmented by the wrongful act of the bankrupt.*" Accordingly, trust funds which have been fraudulently diverted or appropriated by the bankrupt can be recovered from the receiver or trustee whenever such funds are capable of identification,®^ or, if they have been intermingled with the general funds of the estate so as to render their identification impossible, the court of bankruptcy will decree their restitution to the cestui que trust if the unlawful appropriation of the trust funds resulted in increasing the assets of the estate.*^ Where the funds in the hands of the bankrupt at all times exceeded the amount of such trust funds the cestui que trust is entitled to the amount of the fund though it cannot be specifically identi- fied in the hands of the trustee,** but, if, at any time after the misappropriation of the funds and mingling them with those of the bankrupt, all money is withdrawn, including that wrongfully commingled, the equities are lost, although moneys from other sources are subsequently placed in the same place.®* Or if a 79— Walker v. Siegel, 12 N. B. E. 394, In re Molntyre, 185 Fed. 96, 26 A. B. E. Fed. Cas. No. 17085. Checks sent to 51 ; Block v. Eiee, 167 Fed. 693, 21 A. B. automobile manufacturers by their sell- E. 691; In re Dunn & Co., 193 Fed. 212, ing agent in advance of a delivery of the 28 A. B. E. 127; In re MeGehee, 166 machines held a trust fund. In re Lind- Fed. 928, 21 A. B. E. 656. sley & Co., 185 Fed. 684, 25 A. B. E. 239. The cestui que trust of property held 80 — In re Dunn & Co., 193 Fed. 212, 28 by the bankrupt as trustee may follow A. B. E. 127. And see Parker v. Bates, and retake it from the possession of the 203 Fed. 294, 30 A. B. E. 198; Gage trustee in bankruptcy, whether such prop- Lumber Co. V. McEldowney, 207 Fed. erty remains in the original form or in 255, 30 A.'B. E. 251. some other substituted form, so long ad The amendment of June 25, 1910, to it is ascertained to be the same product section 47a does not make the receiver or the proceeds thereof. In re Dorr, or trustee a bona fide purchaser entitling 21 A. B. E. 752. him to hold property received by the C2 — In re Dunn & Co., 193 Fed. 212, 28 bankrupt in trust and misappropriated A. B. E. 127. and commingled with other funds by the 83 — ^In re Eoyea, 143 Fed. 182, 16 A. bankrupt. In re Dunn & Co., 193 Fed. B. E. 141. 212, 28 A. B. E. 127. 84— In re Dunn & Co., 193 Fed. 212, 28 81— Welch v. PoUey, 177 N. Y. 117, 11 A. B. E. 127. And see In re T. A. Me- A. B. E. 215, rev'g 86 App. Div. 260; In Intyre & Co., 181 Fed. 960, 25 A. B. K. re Taft, 133 Fed. 511, 13 A. B. E. 417; 93. § 852] Peopebty of Bankrupt and Title Theeeto 625 part of the funds so commingled is withdrawn, and the fund reduced to a smaller amount than the trust fund, the latter must be regarded as dissipated except as to this balance. Sums sub- sequently added to the fund from other sources cannot be sub- jected to the equitable claim of the cestui que trust.*^ Where a bankrupt converts a trust fund but later substitutes another fund to make good that converted, the substituted fund is impressed with precisely the same trust as the original fund.^^ Where goods wrongfully converted by the baiikrupt are com- mingled with his property, the lien of the owner attaches to the entire mass to which his property can be traced.*'' If the bankrupt purchases merchandise with the trust funds, it is unnecessary to show that the identical merchandise passed into the hands of the trustee, for if the merchandise is com- mingled with the bankrupt's general stock the lien will apply to a general stock or the proceeds thereof, whether money, credits, or other property, forming a part of the general assets of the estate.** Money due from the bankrupt as trustee, and which cannot be distinguished from other moneys in his possession, or which is due from him only because he has used trust funds for his own purposes, or otherwise misapplied them, cannot be con- sidered as property held in trust by the bankrupt.*^ If money is given another to invest or as security which he misappropriates, so that it does not remain in specie, on his becoming bankrupt the cestui que trust cannot claim the money from the trustee and can only come in pari passu with the othet creditors.^" Where the bankrupt made investments after the receipt of a trust fund, it will be presumed that they were made with other 85— In re Dunn & Co., 193 Ted. 212, 28 21 A. B. R. 721 ; In re Biehard, 2 N. B. A. B. E. 127. N. E. 1029, 104 Fed. 792; Hosmer v. 86— In re City Bank of Dowagiae, 186 Jewett, 6 Ben. 208, Fed. Cas. No. 6713. Fed. 250, 25 A. B. E. 236. See, also, In re Marsh, 116 Fed. 396, 8 87— Smith v. Township of Au Gres, A. B. E. 576, In re Mulligan, 116 Fed. 150 Fed. 257, 9 L. E. A. (N. S.) 876, 17 715, 9 A. B. R. 8. A. B. E. 746; Erie E. Co. v. Dial, 140 90— In re See, 209 Fed. 172,. 31 A. B.. Fed. 6^9, 15 A. B. E. 559. See In re E. 360; In re Faneway, 4 N. B. R. 26; Brunsing, Tolls & Postel, 169 Fed. 668, Ungewitter v. Von Saohs, 3 N. B. B.. 22 A. B. E. 129. 178, 4 Ben. 167, Fed. Cas. No. 14343; In 88— In re Brunsing, Tolle&i Poatel, 169 re Swift et al., 5 A. B. R. 232; see In re Fed. 668, 22 A. B. R. 129. Richard, 2 N. B. N. R. 1029, 104 Fed. 89— In re Dorr, 196 Fed. 292, 28 A. 792. B. R. 505; In re Kearney, 167 Fed. 995, Brandenburg— 40 626 Beandenbubg on Bankruptcy [§ 852 than trust funds and no lien will attach thereto where it is not shown that at the time the investments were made there was not enough cash remaining to repay the trust fund.®^ Where bonds illegally issued by a city were sold by the bank- rupt and the proceeds applied to the esta^blishment of a factory upon which the city was given a mortgage, it was held that the city was not entitled to priority as against general creditors, nor was it entitled to possession of the property, the other assets of the bankrupt being insufficient to pay its debts.^^ Where a creditor has received from his debtor money, under circumstances which are entirely lawful, it is free from all trust and claim on behalf of the cestui que trust, unless it be shown that the creditor knew of the trust, and passes to the creditor's trustee.^* One claiming the right to recover a sum from a trustee on the ground that it was a trust fund held by the bankrupt, has the burden of proving that such, fund was in some form a part of the bankrupt's estate, when it passed into the hands of the trustee,®* subject to the qualification that when trust property is traced into a new form in the hands of the bankrupt or his trustee, it will be presumed that it entered exclusively into the new form, and if, as a matter of fact other property is also represented, the burden is on the trustee to show what proportion such other property bears to whole property and what he cannot distin- guish will be considered trust property.®^ § 853. Property held in trust for bankrupt. Whether the income and profits of a fund held in trust for the benefit of the bankrupt pass to his trustee depends upon whether under the laws of the state where the trust was created the interest of the beneficiary is inalienable or not.®* The 91 — In re City Bank of Dowagiae, 186 The burden of showing that his prop- Fed. 413, 25 A. B. E. 276. erty has been wrongfully mingled in a 92 — ^In re Manistee Watch Co., 197 Fed. mass of the property of the bankrupt is 455, 28 A. B. E. 316. upon the owner; but when this is done 93 — ^White v. Jones, 6 N. B. E. 175, the burden shifts to the trustee. Smith Fed. Gas. No. 17550. v. Mottley, 150 Fed. 266, 17 A. B. B. 863, 94— In re Leigh, 208 Fed. 486, 31 A. rev'g 143 Fed. 407, 16 A. B. E. 226. B. E. 379; In re Acheson Co., 170 Fed. 95— In re Dorr, 21 A. B. E. 752. 427, 22 A. B. E. 338; In re Kearney, 167 96— In re McKay, 143 Fed. 671, 16 Fed. 995, 21 A. B. E. 721; In re Marsh, A. B. E. 238; McNaboe v. Marks, 61 116 Fed. 396, 8 A. B. E. 576. Mise. (N. Y.) 207, 16 A. B. E. 767. § 854] Pbopekiy of Bankrupt and Title Theeeto 627 trustee, ordinarily, has no title to the income, or any aliquot part thereof, derived from a sum deposited in trust, such income to be applied to the support of the cestui que trust and his wife, and for the maintenance and education of their children, the annuity and principal sum being declared to be inalienable by the grantees, and not subject to their debts or control,®'^ and where property is left in trust to the use of a person with power of appointment, and, even if the power of appointment be not exercised, the person who would take thereafter remained uncer- tain until the death of the former, the latter takes no estate during the life of the former that can pass to his trustee in bank- ruptcy.^® The surplus income of a trust fund beyond the sum necessary for the support of the beneficiary passes to th^ trustee in bankruptcy of the beneficiary."" Any property, in which there is a secret trust for the bank- rupt 's benefit no matter how much covered up, passes to the trustee.^ Hence where land is sold under a deed of trust and bid in by the secured creditor for enough to cover his debt and the amount of a superior lien, and conveyed to him without collecting the bid, there is a resulting trust in favor of the original owner which might be subjected in equity to his debts and therefore passes to his trustee in bankruptcy.^ Trusts under a will, see ante, section 835. § 854. Claiitis against the United States. There is considerable distinction between the character of the various claims which arise against the government, which dis- tinction necessarily determines whether they do or do not pass to the trustee in bankruptcy. In the first place, such claims as are choses in action upon which a suit can be maintained as a matter of legal right and which arise out of a contract, express or implied, and for which the government is liable, if there be a jurisdiction to hear and determine the same, and in which there is no element of a donation in the payment ultimately 97— Durant v. Ins. Co., 16 N. B. E. 2 N. B. N. E. 964, 4 A. B. E. 274; In re 324, Fed. Cas. No. 4188. Berner, 2 N. B. N.'E. 268; In re Hofl- 98— In re Wetmore, 108 Fed. 520, 6 man, 2 N. B. N. E. 969, 102 Fed. 979, A. B. E. 210. 4 A. B. E. 331. 99— Brown v. Barker, 68 App. Div. (N. 2— In re Dunavant, 1 N. B. N. 542, 3 T.) 592, 8 A. B. E. 450. A. B. E. 41, 96 Fed. 542. 1— In re Quaekenbush, 102 Fed. 282, 628 Bbandenbueg on Bankbtjptcy [§ 854 made,* pass in bankruptcy and may be prosecuted by the trustee or by the purchaser in bankruptcy proceedings.* Secondly, the title to what is known as abandoned and cap- tured property not having been divested by capture, and being a claim for the proceeds in the treasury; ^ or a right to recover a portion of the sum awarded by the tribunal of arbitration at Geneva when paid, which constituted a national fund, in which there was a moral obligation on the part of the govern- ment to do justice to those who had suffered in property," or a claim for a part of the award made by the Spanish and American Claims Commission, or for property taken by the army in states which had not seceded, but for which there would be a right of action, if brought within the statutory period, are causes of action which pass to the trustee, although no jurisdiction existed at the time in which such claims could be prosecuted. Third. A mere expectancy, such as a claim founded on no legal right known to courts of law or equity, but which is an appeal to the clemency of congress for the redress of an injury, where there is no obligation on the part of the government, and the granting of relief is purely a matter of legislative discretion, cannot be regarded as property and does not pass in bankruptcy.'^ By the Federal law all transfers and assignments made of any claim upon the United States, or of any part or share thereof, or interest therein, whether absolute or conditional, and all powers of attorney, or orders, for receiving payment of any such claim or of any part or share thereof, are absolutely null and void, unless executed after the allowance of such claim, the ascertainment of the amount due, and the issuing of a warrant for the payment thereof,^ and where the bankrupt assigns a claim against the United States before the allowance thereof and the issuance of a warrant for the payment thereof, the assignee is not entitled to the proceeds.^ Although, therefore, a claim 3— Phelps V. McDonald, 99 XJ. S. (9 7— CampbeU'a Case, 28 C. da. E. 512; Otto) 298, 25 L. ed. 473. Dockery's Case, 26 C. Cls. R. 148; Heard 4— McKay's Case, 27 C. Cls. R. 422; v. Sturgis, 146 Mass. 545; Taft v. Ma- Burk's Case, 13 Id. 241; Campbell's risly, 120 N. T. 474; Brooks v. Ahrens, Case,, 28 Id. 512. 68 Md. 212; Kingsbury v. Mattocks, 81 5— Klein v. U. 8. 13 Wall. 128, 20 L. Me. 310; Estate of Moore, 26 C. Cls. E. ed. 519; Erwin v. II. S., 19 N. B. E. 172, 254; Heirs of Emerson v. Hall, 13 Pet- 97 U. S. (7 Otto) 392, 24 L. ed. 1065. ers E. 409, 415. 6— Williams v. Heard, 140 U. S. 529, 8— U. S. Rev. Stat. 3477. 35 L. ed. 550. 9 — Guarantee Title & Trust Co. v. § 855] Pbopeety of Bankrupt and Title Thereto 629 against the government is not assignable, it will pass to the trustee, if of one of the classes indicated above, the bankruptcy proceedings constituting an assignment by law which is valid.*" A government award made to the bankrupt after his adjudica- tion for information given prior thereto passes to his trustee.*^ §855. Wages. Wages or salary due the bankrupt at the date of the filing of the petition belong to the trustee in the absence of a claim of exemption,*^ but wages earned after adjudication become the property of the bankrupt,*' clear of any claim of a creditor holding an assignment thereof executed prior to the filing of the petition.** It has been held that the trustee is entitled to have the compensation apportioned between himself and the bankrupt in proportion to the value of the services rendered before and after the bankruptcy, where the bankrupt, under a general con- tract, has rendered partial service, but has not completed the contract, prior to filing the petition, but subsequently fulfills the same; unless the contract is contingent upon full performance of the services.*^ The earnings of a minor son who has been emancipated by his father, do not pass to the trustee of the latter; " nor is a relin- quishment by a parent of his rights to the future earnings of a minor child fraudulent as to creditors though the parent be insolvent at the time.*'' First Nat. Bank of Huntingdon, 185 Fed. In re Karns, 148 Fed. 143, 16 A. B. E. 373, 26 A. B. E. 85; Nat. Bank of Com- 841; In re Lineberry,^ 183 F^d. 338, 25 meree of Seattle v. Downie, 218 U. S. A. B. R. 164; In re Home Discount Co., 345, 54 L. ed. 1065, 25 A. B. B. 199, afC 'g 147 Fed. 538, 17 A. B. E. 168. 161 Fed. 839, 20 A. B. E. 531. 14r-In re Home Discount Co., 147 10— Phelps V. McDonald, 16 N. B. B. Fed. 538, 17 A. B. E. 168; In re 217, 99 U.S. (9 Otto) 298, 25 L. ed. 473 ; West, 128 Fed. 205, 11 A. B. E, 782; s. c. 19 N. B. E. 187; Erwin v. U. S. contra, MoUin v. Wenkam, 209 111. 252, 19 N. B. E. 172, 97 U. S. (7 Otto) 392, 13 A. B. E. 210; Citizens Loan Ass'n v. 24 L. ed. 1065. Boston & Maine E. Co., 196 Mass. 528, 11— In re Ghazal, 174 Fed. 809, 23 A. 14 L. E. A. (N. S.) 1025, 124 Am, St. B. B. 178, rev'g 163 Fed. 602, 20 A. B. 584, 19 A. B. E. 600. E. 807. 15— In re Jones, 4 N. B. E. 114, Fed. 12— In re Driggs, 171 Fed. 897, 22 A. Cas. No. 7448. B. E. 621. 16— In re Dunav^nt, 1 N. B. H.! 542, 13— In re Harrington, 200 Fed. 1010, 96 Fed. 542, 3 A. B.E. 41. 29 A. B. E. 666; Leitch v. Northern Pac. 17— Merrill v. Hussey, 101 Me. 4'39| 16 By. Co., 95 Minn. 35, 14 A. B. E. 409; A. B. E. 816. CHAPTER XXII Liens § 856. Valid liens recognized. § 857. Comparison of acts of 1898 and 1867. § 858. Nature and validity of liens determined by state law. § 859. Eights of trustee in general. 8 860. Trustee to enforce creditors' rights. § 861. Trustee is proper party to attack liens. § 862. Lien claimants are not represented by trustee. § 863. Bona fide purchasers. § 864. Liens after l)ankruptey. I 865. Liens upon exempt property. § 866. Liens void for "want of record or other reasons" — ^In general. § 867. Effect of record. § 868. The four-month period. § 869. — Fraudulent conveyances and incumbrances. § 870. — Liens by legal proceedings. § 871. Eelease and abandonment of liens. §872. Eedemption by trustee. § 873. Subrogation of creditors. § 874. Formal discharge of lien. i 875. Enforcement of lienor's or mortgagee's rights. § 876. — In general. § 877. — Costs and fees. § 878. Liens through legal proceedings. § 879. — Statutory provisions. § 880. — Comparison of Acts of 1867 and 1898. § 881. — Constitutionality of provisions. §882. — Conflict between subdivisions "c" and "f" of section 67. § 883. — Provisions apply to voluntary and involuntary cases, § 884. — Liens affected in general. § 885. — Insolvency. § 886. — Active participation of debtor. § 887. — Creation of preference. § 888. — Lien acquired by state. § 889. — Lien acquired in foreign country. § 890. — Attachments. g 891. — Creditors ' suits. § 892. — Garnishments. § 893. — Judgment and execution liens. i 894. — Eeplevin. § 895. — Sale under attachment or execution. § 896. — Preservation of lien for estate. § 897. — Beimbursement of creditors for costs. 630 § 856] Liens 631 § 898. Assignments for creditors and receiverships. § 899. Assignments of money or wages. §900. Attorney's lien. §901. Banker's lien. § 902. Chattel mortgages ard trust deeds. § 903. — Eights of trustee. § 904. — Validity in general. § 905. — Change of possession. • § 906. — Mortgage of after acquired property. § 907. — Beeital of mortgage in note. § 908. Squitable assignments and liens. §909. — In general. § 910. — Parol assignments. §911. Factor's lien. §912. Landlord's lien. § 913. Livery stable keeper 's lien. §914. Materialman's or mechanic's lien. § 915. Mortgage liens. § 916. Liens held by officers of bankrupt corporation. § 917. Pawnbroker 's lien. § 918. Pledges and warehouse receipts. § 919. Lien for taxes. § 920. Lien on trust fund or property devised to bankrupt, §921. Vendor's lien. § 922. — In general. § 923. — Beclamation. I 924. — Stoppage in transitu. § 856. Valid liens recognized. "When not prohibited by the bankruptcy act, liens and prefer- ences are entitled to the same protection from the bankruptcy courts as other legal rights ; ^ and whatever is treated as a valid levy and a valid and subsisting lien by the state" laws and courts will be so treated by the bankruptcy courts provided it is not in conflict with the provisions of the bankruptcy act.^ The declaration in Mueller v. Nugent,^ that the filing of the 1— Barron v. Morris, 14 N. B. E. 371, N. B. E. 557, Fed. Cas. No. 6657; Ex p. Fed. Cas. No. 1055. Tremont Nail Co., 16 N. B. E. 448, Fed. a— In re Yoke Vitrified Brick Co., 180 Cas. No. 14168; In re Coan Carriage Fed. 235, 25 A. B. E. 18; In re Hersey, Mfg. Co., 12 N. B. E. 203, 6 Biss. 315, 171 Fed. 1004, 22 A. B. E. 863; Crim v. Fed. Cas. No. 2915; In re Mitchell, 8 N. Woodford, 136 Fed. 34, 14 A. B. E. 302; B. E. 47, Fed. Cas. No. 9657; Armstrong Gardner v. Cook, 7 N. B. E. 346, Fed. v. Eickey, 2 N. B. E. 150, Fed. Cas. No. Cas. No. 5226; In re Bigelow, 1 N. B. E. 546. 202, 2 Ben. 469, Feu. Cas. No. 1395; In Valid liens recognized though not re- re Boseberry, 16 N. B. E. 340, 8 Biss. corded. In re Lane Lumber Co., 210 Fed. 112, Fed. Cas. No. 12052; In re Burt & 82, 31 A. B. E. 792. Towne, 13 N. B. E. 137, 12 Blatch. 252, 3—184 V. S. 1, 46 L. ed. 405. Fed. Cas. No. 2309; The "Home," 18 632 Brandenbueg ON Bankruptcy [§856 petition in bankruptcy is a caveat to all the world, has no appli- cation to those holding substantial claims antedating the filing, to liens upon or titles to property claimed as property of the bankrupt. In the absence of proper proceedings to make such claimants parties to the bankruptcy proceedings they are strangers thereto and their claims are.unaffected thereby.* If the property of a bankrupt is subject to valid liens which exceed in value the estate encumbered by them, there is no necessity for the exercise of the powers of the bankruptcy court.^ § 857. Comparison of acts of 1898 and 1867. The provision in section 67d is much broader than that in the act of 1867, since that applied only to mortgages, while this applies to any liens. No distinction is made between the dif- ferent kinds of liens, whether given by the laws of the United States or of the different states or by the act of the parties, but each is recognized and respected according to its dignity. When- ever the creditor has the right to have a debt satisfied from the proceeds of property, or before the property can be otherwise disposed of, he has a lien on such property for the security of the debt.^ All valid liens which exist on a bankrupt 's property when the proceedings in bankruptcy are commenced are pre- served and will be respected by the bankruptcy court, and enforced and allowed to be paid out of the proceeds of the prop- . erty on which they are liens.'' § 858. Nature and validity of liens determined by state law. The courts of bankruptcy follow the state law in ascertaining the validity and priority of liens against the property of the bankrupt. If under the state law the lien is valid against the trustee it is valid against him under the bankruptcy law and vice versa.^ The Bankruptcy Act, however, recognizes the State Law . 4r-ln re Eathman, 183 Fed. 913, 25 7— In re Grinnell, 9 N. B. E. 35, 7 Ben. A. B. E. 246. 42, Fed. Gas. Na. 5830. 5 — MejKean v. Eaokey, 3 McLean, 235, 8 — ^In re United State's LiHnber C!o., Fed. Gas. No. 8891; In re DUlard, 9 N.. 206 Fed. 236, 30 A. B. E. 682; In re B. E. 8, 2 Hughes 190, Fed. Gas, No. Dancy Hardware & Furniture Co., 198 3912; see also In re Lambert, 2 N. B. E. Fed. 336, 28 A. B. E. 444; Holt v. Gru- 138, Fed. Gas. No. 8026; Mattock v. Far- cible Steel Go. of America, 224 U. 8. 262, rington, 2 Hask. 331, Fed. Gas. No. 9298. 56 L. ed. 756, 27 A. B. E. 856, aff'g 174 6— Meeks v. Whatley, 10 N. B. E. 498. Fed. 385, 23 A. B, E. 302; Eode & Horn § 859] Liens 633 only to the extent of giving effect to valid liens thereunder exist- ing at the date of the filing of the petition.^ If the filing of suit or notice is merely to enforce a perfected lien, the limitation within which such filing must be done is governed by the lex fori in the state courts and does not apply to the bankruptcy court, which gives one year in which to file olaims.^"* Whether an instrument is a deed of trust or a chattel mort- gage must be determined by the laws of the state where the prop- erty is situated." § 859. Rights of trustee in general. Prior to the amendment of June 25, 1910, to section 47, sub- division "a" (2) of the act, it was held that the trustee could not acquire a better title than the bankrupt had, except as to property which had been transferred contrary to the provisions of the law. He took the estate subject to all liens and equitable assignments valid as against the bankrupt,^^ gjid subject to incumbrances other than such as were void for want of record or for other reasons would not have been valid liens as agaiiist V. Phipps, 195 Fed. 414, 27 A. B. B. 827; Pennsylvania Act of 1907 (P. L. 228). Detroit Trust Co. v. Pontiac Savings In re Kemmerer, 205 Fed. 108, 30 A. B. Bank, 196 Ped. 29, 27 A. B. B. 821; E. 72. Sturdivan\ Bank v. Schade, 195 Fed. 188, Commission merchant selling consign- 27 A. B. E. 673, rev'g 189 Fed. 636, 26 ment of goods shipped by customer held A. B. E. 916; In re Ottenwess & HuxoU, a mere debtor of such customer and lat- 193 Fed. 851, 27 A. B. E. 579; In re ter held not entitled to lien on funds in Jackson Brick & Tile Co., 189 Fed. 636, hands of trustee, especially where same 26 A. B. E. 915; Eitehie County Bank v. were not identified as being proceeds of McFarland, 183 Fed. 715, 24 A. B. E. sale. In re Emerson, Marlow & Co., 199 893, aff'g 174 Fed. 859, 23 A. B. E. 530; . Fed. 95, 29 A. B. E. 173. In re McDonald, 173 Fed. 99, 23 A. B. 9 — In re Sterin & Levi, 26 A. B. R. E. 51, aff'g 21 A. B. E. 358; In re 535. See also ante §856. Hiekerson, 162 Fed. 345, 20 A. B. E. 682; 10— In re Sabin, 12 N. B. E. 142, Fed. In re Barker, 20 A. B. E. 674; Moore Cas. No. 12194; In re Brunquest, 14 N. V. Green, 145 Fed. 472, 16 A. B. E. 648; B. E. 529, 7 Bias. 208, Fed. Cas. No. . Morgan v. First Nat. Bank of Manning- 2055; In re Duke, 9 N. B. E. 430, Fed. ton, 145 Fed. 466, 16 A. B. E. 639; In Cas. No. 4227. re Sogers & Woodward, 132 Fed. 560, 13 11 — ^In re Southern Textile Co., 174 A. B. E. 75; Deland v. Miller & Cheney Fed. 523, 23 A. B. E. 172. Bank, 119 Iowa 368, il A. B. E. 744; In 12— York Mfg. Co. v. Cassell, 201 TJ. 8. re Cozart, 3 N. B. E. 126, Fed. Cas. No. 344, 50 L. ed. 782, 15 A. B. E. 633, rev'g 3313; contra: In re O'Callaghan, 30 A. 135 Fed. 52, 14 A. B. E. 52; In re B. E. 97. Hanna et al., 105 Fed. 587, 5 A. B. E. Dyer held not entitled to lien under 127; In re Wright, 1 N. B. N. 381, 2 634 Bbandbnbueg on Bankeuptcy [§ 859 the claims of the creditors of the bankrupt; " and could dispute any that either the bankrupt or any of his creditors could have legally objected to," and hold property of the bankrupt as against a chattel mortgage or a contract of conditional sale which was void as against general creditors for want of record.^^ By the terms of that amendment the trustee "as to all prop- erty in the custody of or coming into the custody of the bank- ruptcy court, shall be deemed vested with all the rights, reme- dies, and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the cus- tody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied. ' ' By virtue of 67c of the original act, the trustee was subro- gated to a lien by legal or equitable proceedings, if created within four months, and could enforce it for the benefit of the estate. If created beyond four months, from the filing of the petition, it was valid as against the trustee, under both the original and the amended acts. The class of cases, unprovided for by the original act and intended to be reached by the amendment, were those in which no creditors had acquired liens by legal or equit- able proceedings. The amendment was passed to overcome the effect of the decision of the supreme court in York Manufactur- ing Company v. Cassel,^® under which liens valid as against the bankrupt were held valid as against the trustee irrespective of the rights of creditors, and under the amendment the trustee may A. B. E. 364, 96 Fed. 187; In re Kansas 80, 15 A. B. K. 810; In re Barker, 20 A. City S. & M. Mfg. Co., 9 N. B. E. 76, B. R. 674; In re Leigh Bros., 1 N. B. N. Fed. Cas. No. 7610; Duplan SUk Co. v. 425, 2 A. B. E. 606, a. c. 1 N. B. N. 526, Spencer, 115 Fed. 689, 8 A. B. E. 367. 96 Fed. 806; In re Kindt, 2 N. B. N. E. See ante §747. 269; In re MeNamara, 2 N. B. N. B. Statutory term "creditor" as used in 341; Press Post Printing Co. v. London Kentucky recording act does not include Printing and Pub. Co., 2 N. B. N. E. trustee in bankruptcy. Toof v. City Nat. 774; contra: In re McKay, 1 N. B. N. Bank, 206 Fed. 250, 30 A. B. E. 79. 133, 1 A. B. E. 292 ; In re Ohio Co-op. 13— In re EmsUe, 2 N. B. N. E. 992, Shear Co., 1 N. B. N. 477, 2 A. B. E. 102 Fed. 291, 4 A. B. R. 126; In re 775; In re Metropolitan Store & Saloon Bozeman, 2 A. B. E. 809, 1 N. B. N. Fixture Co., 15 A. B. E. 119. 479; In re Legg, 1 N. B. N. 420, 96 Fed. 15— In re Andrae & Co., 117 Fed. 561, 326, 2 A. B. R. 805; In re Booth, 2 N. 9 A. B. E. 135. See post §902. B. N. E. 377, 98 Fed. 975, 3 A. B. E. 16— York Mfg. Co. v. Cassell, 201 V. S. 574; In re Burkle, 116 Fed. 766, 8 A. B. 344, 50 L. ed. 782, 159 B. E. 633, rev'g R. 542. 135 Fed. 52, 14 A. B. E. 52. 14— SkUton V. Codington, 185 N. T. § 860] Liens 635 avoid any lien void as to creditors.^'' The language of the amendment aptly refers to such rights, remedies, and powers as a creditor holding a lien by legal or equitable proceedings or a judgment creditor holding an execution duly returned unsatis- fied is entitled to under the law rather than to the rights, reme- dies, and powers of a creditor who has actually fastened a lien on the property or obtained a judgment with an execution returned unsatisfied, and its application is not restricted to cases in which a creditor has in fact a lien by legal or equitable pro- ceedings or has levied an execution which has been returned • unsatisfied.^® Where an alleged lien on certain property is held to be invalid, the trustee is entitled to the property free of any lien, even though an appeal is taken from the decree declaring the lien invalid, especially where no stay has been secured.^' § 860. Trustee to enforce creditors' rights. Section 67b of the act provides that, "Whenever a creditor is prevented from enforcing his rights as against a lien created, or attempted to be created, by his debtor, who afterwards becomes a bankrupt, the trustee of the estate of such bankrupt shall be subrogated to and may enforce such rights of such creditor for the benefit of the estate. ' ' This practically means that, if at the time the bankruptcy proceedings- are commenced, there are any outstanding rights which the creditors of the bankrupt or any one of them might enforce, the trustee is subrogated to such rights and may enforce them for the benefit of the estate. It will be observed that such rights are thus preserved, but what was previously available to possibly but a limited number of the creditors, is by the act given for the benefit of all. The trustee so far represents the general creditors that, when they wish to set aside a fraudulent conveyance, he can attack the same though the bankrupt could not.^'o 17— In re Hartdagen, 189 Fed. 546, 26 537, 26 A. B. E. 528; In re Bazemore, A. B. E. 532 ; Sturdivant Bank v. 189 Fed. 236, 26 A. B. E. 494. See also Schade, 195 Fed. 188, 27 A. B. E. 673, ante, § 748. rev'g In re Jaekson Brick & Tile Co., 19^In re National Lock & Metal Co., 189 Fed. 636, 26 A. B. E. 916, and see 155 Fed. 690, 19 A. B. E. 106. cases cited in ante, §748. 20 — Sec. 67e, Act of 1898; Patten v. 18— In re Calhoun Supply Co., 189 Fed.. Carley, 8 A. B. E. 482; In re New York 636 Bbandenbueg on Bankruptcy [§ 860 Under the former act there was at first much doubt as to the power of a trustee to bring a judgment creditor's action,^^ but the authorities now generally recognize the trustee as so far a judgment creditor as to have a proper standing in an action to reach equities beyond the domain of legal remedies,^ ^ which right the present act -* seems to have settled. The title to the bankrupt 's property and to the rights of action to recover it are vested by the adjudication in the trustee, and thereafter he must bring, the action. He may abide by the result of the adjudica- tion dissolving an attachment or the like, or he may retain the benefit of the attachment if for the good of the estate.^* , If a lien be invalid as to one creditor but valid as to others, or only one may enforce his rights against it, the trustee can avoid it only to the extent of the claim of such creditor.^^ § 861. Trustee is proper party to attack liens. The trustee is the proper person to attack chattel mortgages, bills of sale, contracts of conditional sale and bonds for the sale of real estate for want of record and other like grounds of avoid- ance; 26 to recover the property held under levy by the sheriff, the proceeds of property sold on execution and any rents col- lected by him in a case where the liens acquired by a creditor by judgment, judgment creditor's bill or execution are 'dis- solved by an adjudication in bankruptcy ,2^ or to recover prop- erty which was given as a voidable preference.^^ Economical Printing Co., 110 Fed. 514, 24— Watschke v. Thompson, 85 Minn, 6 A. B. R. 615; In re Leland, 9 N. B. 105, ?• A. B. E. 504. See also, § 896. R. 209, 7 Ben. 156, Ted. Cas. No. 8230; 25— In re N. Y. Economical Printing Bradshaw v. Klein, 1 N. B. R. 146, 2 Co., 110 Fed. 514, 6 A. B. B. 615. Biss. 20, Fed. Cas. No. 1790; In re Hart- 26 — In re Adams, 1 N. B. N. 503, 97 man, 185 Fed. 196, 26 A. B. E. 76. Fed. 188, 2 A. B. E. 415; In re Loud, 21— In re CoIlinB, 12 N. B. E. 379, 1 N. B. N. 502; In re Wright, 1 N. B. 12 Blatch. 548, Fed. Cas. No. 3007; Cook N. 381, 96 Fed. 187, 2 A. B.' B. 364- V. Whipple, 55 N. T. 150. In re Booth, 2 N. B. N. B. 377, 98 Fed'. 22— Southard v. Benner, 72 N. Y. 975, 3 A. B. R. 574. 424; In re Metzger, 2 N. B. R. 114, Fed. 27— In re Fellerath, 1 N. B. N. 292, Cas. No. 9510; In re Duncan, 14 N. B. 95 Fed. 121, 2 A. B. R. 40; In re Ken- E. 18, 8 Ben. 365, Fed. Cas. No. 4131; ney, 2 N. B. N. R. 141, 97 Fed. 554, 3 Barker v. Barker's Ass., 12 N. B. R. A. B. R. 353; In re Kenney, 105 Fed. 474, 2 Woods 87, Fed. Cas. No. 986. 897, 5 A. B. R. 355. 23— See. 70e, Act of 1898, Sec. 47a (2) 28— In re McLam, 97 Fed. 922, 3 A. as amended in 1910; Patten v. Carley, B. R. 245; In re Burrus, 97 Fed. 926 3 8 A, B, R. 483. .A. B. R. 296. ' § 863] Liens 637 A trustee can take advantage of the fact tliat a chattel mort- gage is void for want of filing, by simply taking possession of the property, but if such chattel mortgage has been once filed and is claimed to be invalid for failure to refile, he must take proper proceedings to have such invalidity established by a competent court; since neither a creditor at large nor a judg- ment creditor can bring any action against the bankrupt, tending to individually benefit himself.^^ The trustee may oppose without pleading, the petition of a creditor to be awarded a lien.*" § 862. Lien claimants are not represented by trustee. The trustee does not represent lien claimants; nor can he do anything to preserve or protect a lien against the estate of the bankrupt, for if he did, it would violate the main purpose of the act, which is to distribute such estate equally among the creditors.^^ § 863. Bona fide purchasers. By the express provisions of sections 67d and 67f, the title of a bona fide purchaser or incumbrancer for value is protected.** To constitute a bona fide purchaser for value, he must not only show that he had no notice, but he must have paid a con- sideration at the time of the transfer either in money or other property, or by a surrender of existing debts or securities, which would exclude a second purchaser knowing of bankrupt's failure and that seller held under mortgage from bankrupt.** An agree- ment to give security for a loan followed at a subsequent date by the giving thereof pursuant to the agreement is not the giv- ing of security on the date of the loan, and the security so given cannot be held to be for a present consideration.** No person can be a purchaser in good faith if title or security was accepted "in contemplation of or in fraud upon" the bank- ruptcy act, or if for any reason it would not have been valid 29 — ^In re Harrison, 2 N, B. N. B. purchaser in section 67f corresponds to S41. section 67d. In re Alabama Coal & Coke 30— In re Mulligan, 116 Fed. 715, 9 Co., 210 Fed. 940, 31 A. B. E. 387. A. B. E. 8. ' S3— Eison v. Knapp, 4 N. B. E. 114, 31— Goldman v. Smith, 1 N. B. N. 291, Fed. Gas. No. 11861. 2 A. B. E. 104. . 34r-In re Thomas, 199 Fed. 214, 29 38 — ^Provision regarding bona fide A. B. E, 945, 638 Beandenbukg on Bankexjptcy [§ 863 against the creditors of the bankrupt, even though a present fair consideration be given.^^ The standard of good faith on the part of the purchaser is the same as that of a creditor in accepting payments or transfers of property from the bankrupt within the four month period, i. e., he must exercise ordinary prudence and diligence to ascer- tain whether his transferee can make a valid conveyance.*® The transferee, to merit condemnation, must have had either actual or constructive notice of the fraudulent intent of the bankrupt.*^ The knowledge of the mortgagee or purchaser of the fraudu- lent intent of the bankrupt, as derived from knowledge of his financial condition, is a question of fact, and mere inability to pay debts does not invalidate a transfer or mortgage, if a present valid consideration be giVen therefor, by one who has no reason to know that a fraud will thereby be committed.** The fact that a voluntary conveyance by the bankrupt was recorded is not conclusive on the question of the good faith of the parties thereto.*^ § 864. Liens after bankruptcy. A petition in bankruptcy is a caveat to all the world prevent- ing interference with the property of the bankrupt by attach- ment or other means in derogation«of the interests of the estate.** Accordingly, attachments filed and liens acquired between the filing of the petition and the adjudication or after the adjudica- tion are void; *^ and a levy then made will give the petitioning 35— MoAtee v. Shade, 185 Fed. 442, 39— Beasley v. Coggins, 48 Fla. 215, 26 A. B. R. 151; In re Pease, 129 Fed. 12 A. B. E. 355. 446, 12 A. B. E. 66. 40— Mueller v. Nugent, 184 TJ. S. 1, 46 ,36— In re Moody, 134 Fed. 628, 14 L. ed. 405, 7 A. B. B. 224, rev'g 105 A. B. B. 272. Fed. 581, 5 A. B. B. 176; Blake, Moffitt A bona fide purchaser for value under & Towne v. Valentine Co., 89 Fed. 691, the provisions of 67f is one who obtains 1 A. B. B. 372; Matter of York Silk the property of a bankrupt without (1) Mfg. Co., 188 Fed. 735, 26 A. B. B. 650, notice or (2) reasonable cause for in- aff'd 192 Fed. 81, 27 A. B. B. 525; quiry. In re Alabama Coal & Coke Co., In re Granite City Bank of Dell Bapids, 210 Fed. 940, 31 A. B. R. 387. 137 Fed. 818, 14 A. B. B. 404, aff 'g 131 37 — But see Wright v. Sampter, 152 Fed. 1004, 12 A. B. B. 727; State Bank Fed. 196, 18 A. B. R. 355; Van Ider- of Chicago v. Cox, 143 Fed. 91, 16 A. stine v. National Discount Co., 174 Fed. B. E. 32. 518, 23 A. B. B. 345. 41— Acme Harvester Co. v. Beekman 38— In re Mahland, 184 Fed. 743, 26 Lumber Co., 222 U. S. 300, 56 L. ed. 208, A. B. E. 81; Shelton v. Price, 174 Fed. 27 A. B. E. 262; In re FrankUn Lumber 891, 23 A. B. E. 431. .Co., 147 Fed. 852, 17 A. B. B. 443; In § 864] Liens 639 creditors no greater or different rights from the creditors at large.*^ Those acquiring rights to the bankrupt's property sub- sequent to such filing are not bona fide purchasers, without notice,*' as to be such they must be without notice of the rights and equities sought to be enforced at the time of payment of the consideration.** That proceedings to establish a lien were pending at the date of the adjudication is insufficient to establish the same,*® and the fact that the proceeds of an attachment levied subsequent to the filing of the petition gave the creditor no greater percentage of his debt than that received by other creditors upon distribu- tion of the estate is immaterial.** However, a lien existing prior to the filing of the petition is valid though it is not completed by filing within the statutory time until after adjudication,*'^ and a mechanic's lien filed after the adjudication of the contractor but within the time required by the state law, is not affected by the adjudication.*^ After the filing of a petition in bankruptcy either by or against the bankrupt, he is prohibited absolutely from giving a mort- gage or any security on property to which he had title at the time of filing the petition and the same will be summarily set aside as void,*® though there is nothing to prevent him giving the mortgage if on property acquired by him subsequent to the filing of the petition for a debt either due prior thereto or incurred subsequently. The bankrupt's property is not subject to levy by a sheriff to satisfy a judgment against the trustee, who is entitled to an re Eng!e, 105 Fed. 893, 5 A. B. B. 372; Fed. Cas. No. 2521. See Hull v. Burr, citing Kinmouth v. Braentigam, 46 Atl. 61 Fla. 625, 26 A. B. E. 897. 769; McLean v. Eackey, 3 McLean 235, 44 — Marsh v. Armstrong, 11 N. B. Fed. Cas. No. 8891; Sieard v. E. E. Co., E. 125. 15 Blatch. 525, Fed. Cas. No. 12831; In 45 — In re Monroe Lumber Co., 186 re TifEt, 19 N. B. E. 201, Fed. Cas. No. Fed. 252, 24 A. B. E. 371. 14034; Stuart v. Hines, 6 N. B. E. 416; 46 — State Bank of Chicago v. Cox, 143 Winters v. Clayton, 18 N. B. E. 533; Fed. 91, 16 A. B. E. 32. Smith V. Buchanan, 4 N. B. E. 133, Fed. 47 — In re Lillington Lumber Co., 132 Cas. No. 13016; Cox v. State Bank of Fed. 886, 13 A. B. E. 153. Chicago, 125 Fed. 654, 11 A. B. E. 112. 48— Hildreth Granite Co. v. City of 42— In re Lawrence, 18 N. B. E. 516, Watervliet, 146 N. Y. Supp. 449, 31 A. Fed. Cas. No. 8133. B. E. 703, rev'g 30 A. B. E. 789. 43— In re Lake, 6 N. B. E. 542, 3 49— In re Sims, 16 N. B. E. 251, Fed. Biss. 304, Fed. Cas. No. 7992; Catlin v. Cas. No. 12888. Hoffman, 9 N. B. E. 342, 2 Sawy. 486, 640 Beandenbubg ON Banketjptcy [§864 order restraining such a threatened levy.^" Funds in the hands of the trustee or deposited by him are not subject to trustee process,®^ even after distribution is ordered, and checks are drawn and countersigned, but not delivered.®^ § 865. Liens upon exempt property. See post, chapter XXTV. §866. Liens void, for "want of record or other reasons" — In general. Section 67a of the act provides that, "Claims which for want of record or for other reasons would not have been valid liens against the claims of the creditors of the bankrupt shall not be liens against his estate. ' ' The words used are claims invalid for ' ' want of record or for other reason. ' ' Provision is made else- where for preferences and transfers in fraud of creditors,^^ and besides, the words "for other reasons" refer to something similar to that which precedes it; as filing or recording a chattel mortgage or bill of sale,^* filing of notice in the case of mechanic's,®^ or labor liens,^® or asserting a lien within the time prescribed,®'^ or filing a renewal statement,®* or delivery of pos- session in case of a sale or chattel mortgage.®^ The liens meant by this provision are those in which something required to be done before they are complete has been omitted. After the pro- ceedings in bankruptcy are commenced a creditor can do nothing to perfect a lien. If it is not then perfect the creditor is pre- 50— In re Neely, 108 Fed. 371, 5 A. A. E. R. 809, 1 N. B. N. 479; In re B. B. 836. McKay, 1 N. B. N. 133, 1 A. B. E. 292. 51 — Cowart v. Caldwell, 134 Ga. 544, 56 — In re Beck Provision Co., 2 N. 24 A. B. E. 546; In re Argonaut Shoe B. N. E. 532; In re Emslie, 2 N. B. N. E. Co., 187 Fed. 784, 26 A. B. E. 584. 992, rev'g 2 N. B. N. E. 324, 98 Ted. 52— Eockland Sav. Bank v. Alden, 103 716, 2 N. B. N. E. 171, 3 A. B. E. Me. 230, 14 L. E. A. (N. S.) 1220, 19 282, 97 Fed. 924; In re Drolesbaugh, 2 A. B. E. 886. N. B. N. E. 1079. 53 — Section 60, Act of 1898. 57 — In re Kerby Denis Co., 1 N. B. 54— Section 67e, Act of 1898. N". 337, 2 A. B. E. 218, 94 Fed. 818, 55— Press Post Printing Co. v. Lon- aff'd 1 N. B. N. 399, 2 A. B. E. 402, don Pr. & Pub. Co., 2 N. B. N. E. 95 Fed. 116. 774; In re Legg, 1 N. B. N. 420, 96 Fed. 58— In re Thomas, 199 Fed. 214, 29 326, 2 A. B. E. 805; In re Ohio Co-op. A. B. E. 945. Shear Co., 1 N. B. N. 477, 2 A^. B. E. 59— Low v. Taylor, 73 N. J. Eq. 406, 775; In re Leigh Bros., 1 N. B. N. 19 A. B. E. 879; In re Bellevue Pipe 526, 96 Fed. 806; In re Bozeman, 2 & Foundry Co., 22 A. B. E. 97. § 869] Liens 641 vented from obtaining it.®" In other words, it is only valid existing liens which are preserved by the act. The language used in the present act nieans that claims which for want of record, or for other reasons, are invalid under the laws of the state as construed by the state courts, shall not be liens against the bankrupt's estate.*^ Congress evidently intended to recognize all liens equitable and legal, created under the state laws and to leave them as it found them and n,ot to level them to a common plane; ''^ although the lien must be com- plete when the bankruptcy proceedings are commenced; ®^ and, if the statutory requisites have not been complied with, it is invalid.®* While a mortgage not recorded until after the adjudication in bankruptcy will be treated as an unrecorded mortgage,®^ the intervention of bankruptcy proceedings within the period pre- scribed by the state laws for the recording of liens does not dispense with the necessity of such recording to validate the lien as against the trustee.®® §867. Effect of record. The provision that claims which for want of record or other reason are invalid against creditors are not valid against bank- rupt 's estate, implies that claims properly recorded will be. It is this implication with which the provision ®'^ from the former act corresponds. The provision raade in the present a,ot is new. § 868, The four-month period. § 869. — Fraudulent conveyajices and incumbrances. Section 67e of the act providing that all conveyances, trans- fers, assignments or incumbrances made or given by the bank- 60— Goldman v. Smith, 1 N. B. N. 291, Fed. Cas. No. 5305; In re Lukens, 138 2 A. B. E. 104. Pad. 188, l4 A. B. R. 683. 61— Bosenbluth v. DeForest & Hotch- 64 — Goldman v. Smith, 1 N. B. N. 291, kiss Co., 85 Conn. 40, 27 A. B. E. 359; 2 A. B. R. 104. Goldman v. Smith, 1 N. B. N. 291, 2 65— Hanson v. Blake & Co., 155 Fed. A. B. R. 104, citing Morgan v. Campbell, 342, 19 A. B. E. 325. 22 Wall. 381, 22 L. ed. 796. 66— In re Danoy Hardware & Furni- 62— In re Harrison, 2 N. B. N. R. 541. ture Co., 198 Fed. 336, 28 A. B. R. 444. 63— In re Falls City Shirt Mfg. Co., 67— Sec. 20, Act of 1867: "When a 1 N. B. N. 565, 98 Fed. 592, 3 A. B. R. creditor has a mortgage or pledge of real 437; Fletcher v. liloney, 2 Story 555, Fed. or personal property of the bankrupt, or Cas. No. 4864; Ex p. General Assignee, a lien thereon for securing the payment Brandenburg — 41 642 Beandenbueg on Bankbuptcy [§ 869 rupt within four months prior to the filing of the petition in bankruptcy shall be void if given with intent to hinder, delay or defraud creditors, covers frauds upon the act, whether actual or constructive, committed within four months prior to the filing of the petition. It may be construed as the enactment of a _ federal statute of fraudulent conveyances with respect to pro- ceedings in bankruptcy properly so called, that is, proceedings in the bankruptcy court.*® But the trustee is not restricted to the four months' period in the case of property transferred in fraud of creditors whose claims existed at the time of the trans- fer, but he is subrogated to the rights of such creditors ®^ and . may institute proceedings to have the same set aside at any time within the period fixed by the statute of limitations of the state in which the property is situated. '''' The distinction is between those transfers made wrongful and void by this subdivision if within four months, but which are not forbidden by the state laws or at common law, and those generally fraudulent as to creditors, irrespective of a bankruptcy law. Thus he cannot impeach the title of one who purchased property of the bank- rupt, on the ground that it enabled the lattei" to pay some of his creditors in preference to others, the entire transaction occur- ring prior to the four months' period; ''^ or a transfer made on the payment of a bona fide debt, though intended as a preference, provided the transfer was recorded more than four months, or if not, that there had been continuous, notorious or exclusive possession for that period.''^ A mortgage executed and delivered more than four months prior to bankruptcy but not recorded until within four months will.be upheld unless void under the local laws.''* An assign- of a debt owing to him from the bank- A. B. R. 465; In re Taylor, 1 N. B. N. rupt he shall be admitted as a creditor 480, 95 Ted. 956. only for the balance of the debt after 71 — In re Kindt, 101 Fed. 107, 4 A. B. deducting the value of such property." E. 148, rev'g 2 N. B. E. 369. 68— In re Adams, 1 N. B. N. 167, 1 72— In re Woodward, 1 N. B. N. 352, A. B. E. 94. 2 A. B. E. 233. 69 — In re Adams, supra; Skillen v. 73 — ^Bean v. Orr, 182 Fed. 599, 25 A. Endelman, 39 Misc. (N. Y.) 261, 11 A. B. R. 400 ; ITnderleak v. Scott, 117 Minn. B. E. 766; Underleak v. Scott, 117 Minn. 136, 28 A. B. E. 926. But see Morgan 136, 28 A. B. E. 926. v. First Nat. Bank of Mannington, 145 70— In re Grahs, 1 N. B. N. 164, 1 Fed. 466, 16 A. B. E. 639. § 869] Liens 643 ment of property within the four-month period to pay off an incumbrance on the homestead is valid. '^* Where the summons in a creditor's action to set aside firm transfers is served upon one partner more than four months prior to bankruptcy the lien acquired thereby will be upheld as against the trustee of the firm, though the other partner is served within the four-month periodJ^ Such provisions as that of the Civil Code of Louisiana "that a mortgage given and inscribed within three months previous to the failure of the debtor, shall be null and void, and pi^sumed to be in fraud of creditors, unless the person to whom the mort- gage is given shall prove that he paid, in obtaining it, a real and effective value at the moment of the contract," are in effect incorporated in the bankruptcy law, and such mortgages are void under it, as well as under the state statute^® In accordance with equitable principles, a mortgage, bill of sale, or assignment executed just prior to the bankruptcy in pursuance of a parol agreement for a present valuable considera- tion more than four months prior to the filing of the petition has been held valid as against the trustee, as relating back to such agreement,'^'' but this position does not appear tenable in view of the drastic provisions of section 67 of the law, and if it were valid such transaction would be open to the closest scrutiny and would be sustained only in case of proof to a high degree of certainty. In computing the four-month period, the day of the filing of the petition is excluded and the day of transfer included,'^* A petition is filed within the meaning of the bankruptcy law when delivered to the clerk personally and by him marked "Filed," though it be outside of his office and after office hours,'^^ but in order to mark the date with reference to which the validity of 74— Southern Irrigation Co. v. Whar- bin, 5 N. B. R. 11; In re Wood, 5 N. B. ton Nat. Bank, 144 S. W. 701, 28 A. B. R. 421, Fed. Cas. No. 17937; Burdiok v. R. 941. Jackson, 15 N. B. R. 318; but see Gra- 75— Ninth Nat. Bank v. Moses, 39 ham v. Stark, 3 N. B. R. 92, 3 Ben. 520, Misc. (N. Y.) 664, 11 A. B. R. 772. Fed. Cas. No. 5676; Moore v. Green, 145 76— In re Jacobs, 1 N. B. N. 183, 1 Fed. 472, 16 A. B. R. 648. A. B. R. 518. 78— In re HiU, 140 Fed. 984, 15 A. B. 77— Goodnough Mercantile & Stock Co. E. 499. V. Galloway, 171 Fed. 940, 22 A. B. R. 79— In re Von Borcke, 1 N. B. N. 505, 803; Sabin v. Camp, 2 N. B. N. R. 375, 94 Fed. 352, 2 A, B. R. 322, 9§ F?^, 974, 3 A. B. R. 578; Post v. Cqt- 644 Beandenbubg ON Bankruptcy [§869 liens and preferential transfers are to be determined, it must be sufiSicient to confer jurisdiction.^" Where the petition is defec- tive on its face because of failure to show the requisite number of petitioning creditors, the time does not commence to run until the petition is made sufficient by the appearance and joinder of a sufficient number of creditors.*^ § 870. — Liens by legal proceedings. Under section 67f of the act all levies, judgments, attachments, or other liens obtained through legal proceedings against the bankrupt, at any time within four months prior to the filing of the petition are null and void. The four months run from the date of that step in the pro- ceedings which creates the lien. In the case of a judgment creditor's bill, the filing of the same and service of process creates a lien in equity on the judgment debtor's equitable assets,®^ and while it may be defeated, so long as it exists, it is a charge or specific lien on the assets. Hence the four months' period begins to run from the filing of the bill and not from the date of the judgment or decree in enforcement of what is an ^otherwise valid pre-existing lien.*^ The computation is made by counting back the four months from the date of the filing of the petition, which latter date is excluded.®* Every one obtaining a lien through legal proceedings does so subject .to the contingency that he may lose the advantage he would otherwise have by the institution of bankruptcy pro- ceedings within four months thereafter and adjudication therein.®^ Liens obtained through legal proceedings more than four months before the filing of the petition in bankruptcy are not affected,®* and a lien acquired within the four months is not invalid if the debtor was solvent at the time.®'' 80 — In re Eogers, 10 N. B. R. 444. 85 — In re Kenney, 2 N. B. R. 140, 97 81— Manning v. Evans, 156 Fed. 106, Fed. 554, 3 A. B. E. 353; Corner v. Mll- 19 A. B. E. 217. ler, 1 N. B. R. 98. 82— Miller v. Sherry, 2 WaU. 237, 17 86— In re Lesser, 2 N. B. N. R. 599, 100 L. ed. 827; Freedmen's Savings & Trust Fed. 433, 3 A. B. R. 815 aff'd 5 A. B. Co. V. Earle, 110 TJ. S. 710, 28 L. ed. 301. E. 320; In re Dunavant, 1 N. B. N 542 83— Metcalf v. Barker, 187 TJ. S. 165, 96 Fed. 542, 3 A. B. R. 41; In re Fergu- 47 L. ed. 122, 9 A. B. R. 36. But see son, 95 Fed, 429, 2 A. B. R. 586; Hatch Marsh v. Wilson Bros., 124 Minn. 254, 31 v. Seely, 13 N. B. R. 380; Batehelder v. A. B. E. 874. Putnam, 13 N. B. E. 404; Smith v. Mei- 84 — In re Warner, 144 Fed. 987, 16 senheimer, 1 N. B. N. 19 47 S. W 1087 A. B. R. 519; Jones v. Stevens, 94 Me. 87— Newberry Shoe Co. v. ColUer 111 382, 5 A. B. E. 571. Va. 288, 25 A. B. E. 130. §872] Liens 645 § 871. Release and abandonment of liens. A secured creditor will not be held to have released his security in the absence of clear and convincing evidence.®* While a lien may be waived by filing a claim in the bankruptcy court,** yet the lienor's filing a claim in the bankruptcy court for the balance of his claim after applying the sum upon which a lien is claimed as part satisfaction will not have that effect.®" A lien may be considered abandoned where the creditor issues an execution and allows the same to be retained by the officer for a long period of time under an arrangement with the debtor that he is to make periodical payments upon the claim.®* The lien of a mortgage is lost by the substitution therefor of a mortgage on property of another corporation.^^ * §872. Redemption by trustee. Whenever it is deemed for the benefit of the estate to redeem and discharge any mortgage or other pledge, or deposit or lien, upon any property, real or personal, or to relieve property from any conditional contract, and to tender performance of the con- ditions thereof, the trustee, or the bankrupt, or any creditor who has proved his debt, may file his petition therefor, where- upon the court must appoint a time and place for hearing and notice be given to persons interested.®^ Where under the state laws, the legal title to mortgaged prop- erty remains in the mortgagor, such title vests in his tmstee in bankruptcy, together with his statutory right of redemption from a foreclosure sale imder a decree rendered after the ladjudi- cation.®* Accordingly, upon payment by the trustee of the amount due upon a mortgage executed by the bankrupt, the court may compel the mortgagee to execute an assignment thereof to the trustee or such other person as it may direct.®^ A trustee, who redeems pledges is subrogated to the rights of 88— In re Qyelopean Co., 167 Fed. 971, 92— Long v. Gump, 144 Fed. 824, 16 21 A. B. E. 679. A. B. E. 501. 89— Brown v. City National Bank, 72 93— G. O. XXVIII. Mise. (N. Y.) 201, 26 A. B. E. 638. See 94— In re Novak, 111 Fed. 161, 7 A. also chapter XV. B. E. 27; In re Eoger Brown & Co., 196 90— Kneeland v. Pennell, 54 Misc. (N. Fed. 758, 28 A. B. E. 336. Y.) 43, 18 A. B. E. 538 95— In re Bacon, 132 Fe'd. 157, 12 A. 91— In re Thaekara Mfg. Co., 140 Fed. B. E. 730; 126, 15 A. B. E. 258. 646 Bbandenbubg on Bankruptcy [§ 873 tlie pledgee until, from tlie proceeds of the pledges redeemed, the fund is made good.®* § 873. Subrogation of creditors. Conventional subrogation may result from a direct agreement between the bankrupt and a third person who pays the de) t, that he shall be subrogated, to all the right and securities existing in favor of the creditor whose claim has been paid. But nothing short of an express agreement to that effect will suffice. The mere fact that one pays off a debt> at the instance of the debtor or lends money to pay off such debt, or a mere understanding on the part of the person paying the debt that he will be subrogated does not entitle him to subrogation to the liens of the creditor paid off.9^ The doctrine of subrogation by agreement with the debtor alone to the liens and equities of a creditor who has been paid by a volunteer originated in the civil law, and is enforced only when the agreement creates equitable rights against the debtor which will not impair or overthrow equitable rights of the creditor or of innocent third persons. The rights of the creditor to the remainder of his debt must not be prejudiced.^® A surety who pays the debt of the bankrupt has been held entitled to subrogation to the rights of the creditor who has obtained a lien by attachment.®^ § 874. Formal discharge of lien. Although by the express provision of the statute an attach- ment is made null and void and the property affected thereby is deemed wholly discharged and released from the same by the adjudication in bankruptcy within four months, the proper prac- tice is for the trustee to apply to the state court for an order formally discharging the attachment and releasing the property of the bankrupt from this levy. An order thus obtained would be authority for the sheriff to release the levy which might otherwise be valid but for the adjudication. It is the duty of 96— McLean v. Cadwalader, 15 N. B. 98— Browder & Co. v. Hill, 136 Fed. K. 383. 821, 14 A. B. R. 619. 97 — Browder & Co. v. Hill, 136 Fed. 99— Moody v. Huntley, 149 Fed. 797, 821, 14 A. B. R. 619 ; but see In re Mc- 17 A, B, R, 90^, Qvire, 137 Fed. 967, 13 A, P, R. 704, § 876] Liens 647 the court, upon these facts being called to its attention, to vacate the attachment and remove the lien.^ A similar application should be made by the trustee in the case of any other lien ■which it may be necessary to have released. § 875. Enforcement of lienor's or mortgagee's rights. § 876. — In general. A creditor claiming a lien or equity in bankrupt's property may at once appear in the court of bankruptcy and be heard without first having his lien established in another tribunal.^ As already pointed out, valid existing liens may be enforced after the filing of the petition in bankruptcy. This does not give one creditor an advantage over an.other nor diminish the estate, except as always occurs in the recognition of different degrees among creditors. Where a creditor has secured a valid existing lien before the four months' period, the bankruptcy court may authorize him to proceed to have the same satisfied if convinced that full value will be obtained for the property on which his lien exists, or may direct the redemption of the prop- erty as seems most for the interest of the estate.^ It has been held that the provisions of the act with reference to the preserva- tion of valid liens relates only to the obligation of the contract and not to the remedy provided therein.* Where there is no reason to question the validity of a mort- gage, the court of bankruptcy will entertain the summary petition of the mortgagee for the sale of the property,^ and upon request may authorize its foreclosure in the usual way making the trustee a party,® or take upon itself the duty of ascertaining and liquidating the lien by its sale and applying 1— Hardt v. SehuylkiU Plush & Silk In re Hasie, 206 Fed. 789, 30 A. B. E. Co., 74 N. Y. S. 549, 8 A. B. E. 479. 83. 2— In re Byrne, 2 N. B. N. E. 246, 97 5— In re Sacchi, 6 N. B. E. 497, 43 Fed. 762, 3 A. B. E 268 ^°^- P""" ^^2, i'ed. Cas. No. 12200. 9 T TT i! 1 -.o -NT T. T, ,r,r^ 6— In re Davis, 2 N. B. E. 125, Fed. P r? ''.r «"«?,' i ; ; f ' Cas. No. 3618; i; re Sabin, 9 N. B. E. Fed. Cas. No. 6837; Kneeland v. Pen- 3^3 ^^^ ^aL No. 12193; Smith v. nell, 54 Misc. (N. Y.) 43, 18 A. B. E. 138. ^J^,^ 7 jj. B. E. 97, 2 Dill. 50, Fed. 4— A mortgagee is not entitled to fore- Cag_ jjo. 13071; Loekett v. Hodge, 9 close a mortgage after the bankruptcy n. b. E. 167, Fed. Cas. No. 8444; of the mortgagor, but must accept the contra. In re Hasie, 206 Fed. 789, 30 remedy provided by the Bankruptcy Act. A. B. E. 83. 648 Bbandenbueg on Bankbuptct [§ 876 the proceeds in payment, after first deducting, the costs of court, and the care and preservation of the property, and of the sale and taxes.'' It may sell the property free of encumbrances, remitting the lien-holders to the proceeds on the application of subsequent encumbrancers or other parties having a right in the equity of redemption; ® but in such case the right of a mort- gagee not a party to the proceedings is not affected.® The cred- itor may sell the property according to the terms of his contract where there is no claim that such power will be exercised in a fraudulent or oppressive manner.^'* It has been held that a peti- tion for an order that the trustee make sale of simply the right of redemption will not be considered. ^^ The filing of a petition in bankruptcy by the defendant in a; state court in a proceeding to foreclose a lien on realty, created more than four months before the filing of the peti- tion, does not affect the right of the plaintiff to proceed with the foreclosure, unless he proves his demand in bankruptcy. ^^ If the mortgagee has relied upon his security and not proved his claim and the property has not been disposed of as above stated, he may enforce his lien by appropriate proceedings in the state court after the discharge of the bankrupt.^^ A sale by a creditor of property of a debtor, in his posses- sion and on which he hais a valid lien will not be disturbed because of the fact that the debtor was insolvent and that the creditor knew that bankruptcy was inmainent, provided there was no fraud and the property was sold at a fair price. ^* The court may enjoin the sale of property in the possession of an adverse claimant,'® as well as a sale of an entire stock of merchandise, only part of which is covered by a mortgage, in 7— In re Sink, 2 N. B. N. E. 645; 11— Ferguson v. Peokham, 6 N. B. In re EUerhorst, 7 N. B. R. 49, 2 Sawy. R. 569, Fed. Cas. No. 4741; In re 218, Fed. Cas. No. 4380; In re Frick, Oxley & White, 182 Fed. 1019, 25 A. B. 1 N. B. N. 214, 1 A. B. R. 719. R. 656. 8 — Sutherland v. Lake Sup. Ship Canal, 12 — Reed v. Equitable Trust Co., 115 R. R. and Iron Co., 9 N. B. R. 298, Fed. Ga. 780, 8 A. B. R. 242. Cas. No. 13643. 13— Wieks v. Perkins, 13 N. B. E. 208, 9— Ray v. Brigham, 12 N. B. R. 145. 1 Woods, 383, Fed. Cas. No. 17615. 10— In re Brown, 104 Fed. 762. But 14 — In re Roseberry, 16 N. B. E. 340, see In re Jersey Island Packing Co., 8 Biss. 112, Fed. Cas. No. 12052. , 138 Fed. 625, 2 L. E. A. (N. S.) 560, 15— In re Norris, 177 Fed. 598, 24 A. 14 A. B. E. 689. B. R. 444. §877] Liens 649 pursuance of a decree of a state court directing such sale to satisfy the mortgage.^" A suit being brought in a state court within four months of the filing of the petition and all proceedings therein being null and void, the bankruptcy court has power to restrain all parties, including the officers of the state court, from interfering with the bankrupt's property, and whenever because of such inter- ference the law cannot be properly administered, it should not hesitate to exercise its authority. It may restrain the prosecu- tion of a replevin or attachment suit, or stay proceedings supplementary to execution, or permit such proceedings to con- tinue, in which ease upon the appointment therein of a receiver, the creditor acquires no lien upon or specific interest in the bank- rupt's property, since the entire estate being under the control of the bankruptcy court when such receiver was appointed, he takes no title that could relate back to the commencement of the supplementary proceedings.^'^ § 877. — Costs and fees. \ As the costs, fees and disbursements in a lien proceeding which is rendered void by the bankruptcy proceedings are an incident of the lien and fall with it,^® the trustee is not called upon to pay them ; nor can the officer in possession of such prop- erty retain it until his fees are paid, but he should have them taxed in the proper court as the basis for his claim against the estate in bankruptcy.^® Where a judgment creditor, who has 16— In re Oxley & White, 182 Fed. But see In re W. J. Schmidt & Co., 165 1019, 25 A. B. R. 656. Fed. 1006, 21 A. B. E. 593. 17— Booth V. Niokerson, 1 N. B. N. 19— In re Francis- Valentine Co., IN. 476, 96 Fed. 943, 2 A. B. E. 770; In re B. N. 529, ,532, 94 Fed. 793, 2 A. B. E. Kletehka, 1 N. B. N. 160, 92 Fed. 901, 1 522; In re Young, 1 N. B. N. 428, 96 A. B.E. 479; citing Johnson V.Rogers, 15 ^ed. 606, 2 A. B. E. 673; In re Stev- N. B. E. 1, 10, Fed. Cas. No. 7408; In re ^^^' ^ ^- ^- ^- 298> 2 Biss. 373, Fed. Cas. Pitts, 9 Fed. 542; Becker v. Torrance, ^°- 1^392. The rule under the former 31 N. T. 631; Bk. v. Shuler, 153 N. T. *"* *^^* '=°'*' "'^^ P^^^^^^ °^* °^ *''! 170 m m ■■« -n %■-■„, ,,., estate if the lien proceedings were used 172 Olney v. Tanner, 10 Fed. 101, 113 . ..,».,,, ^ j- . j -«)j io T, :, -.„„ ^■. , ' ■, in aid of the bankruptcy proceedings and ^o, Jt ' ^ "^ ^- ^°^''^' for the benefit of creditors or if incurred 127 N. T. 53; In re Agins, 1 N. B. N. , ^^ i^^otox's request would probably be 133, 180, 184; Bear v. Chase, 99 Fed. 920, adopted by the court now. (In re Irons, , 3 A. B. E. 746; In re O'Connor, 2 N. B. jg jj. -b. r. 95^ Fed. Cas. No. 7067; In N. E. 90, 95 Fed. 943. re Preston, 6 N. B. B. 545, Fed. Cas. No, 18— In re Jennings, 8 A. B. E. 358. 11394.) 650 . Bbandenbubg on Bankktjptcy [§ 877 set aside a fraudulent conveyance, loses his prior right to the fund by the adjudication of the debtor a bankrupt within four months of the decree, the state court can make a reasonable allowance for costs and expenses before directing its receiver to turn over the property to the trustee.^" This, in effect, pays out of the estate, where an attachment is dissolved, so much of the costs as was incurred prior to the filing of the petition.^^ § 878. Liens through, legal proceedings. § 879. — Statutory provisions. Section 67o of the act provides that, "A lien created by or obtained in or pursuant to any suit or proceeding at law or in equity, including an attachment upon mesne process or a judg- ment by confession, which was begun against a person within four months before the filing of a petition in bankruptcy by or against such person shall be dissolved by the adjudication of such person to be a bankrupt if (1) it appears that said lien was obtained and permitted while the defendant was insolvent and that its existence and enforcement will work a preference, or (2) the party or parties to be benefited thereby had reason- able cause to believe the defendant was insolvent and in con- templation of bankruptcy, or (3) that such lien was sought and permitted in fraud of the provisions of this act; or if the dis- solution of such lien would militate against the best interests of the estate of such person the same shall not be dissolved, but the trustee of the estate of such person, for the benefit of the estate, shall be subrogated to the rights of the holder of such lien and empowered to perfect and enforce the same in his name as trustee with like force and effect as such holder might have done had not bankruptcy proceedings intervened." ^* Section 67f provides, that "all levies, judgments, attachments, 20 — ^In! re Lesser, 2 N. B. N. E. 599, shall relate back to the eommenoement 100 Fed. 433, 3 A. B. K. 815. of the proceedings in bankruptcy, and 21 — ^In re AUen, 96 Fed. 512, 3 A. B. thereupon, by operation of law, the title R. 38. to all such property and estate . . . 22 — 23 — Analogous provision of act of shall vest in the said assignee, although 1867. "Sec. 14. That as soon as said the same is then held attached on mesne assignee is appointed and qualified, process as the property of the debtor, the judge . . . shall . . . assign and shall dissolve any such attachment . . . ^H the estate ... of the made within four months next preceding bankrupt . , . and such assignment the commencement of said proceedings." §881] Liens 651 or other liens, obtained through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case h^ is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment, or other lien shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid. And the court may order such conveyance as shall be necessary to carry the purposes of this section into effect : Provided, That nothing herein contained shall have the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry." ^* Section 67f has not been repealed by the amendment of 1910 to section 60b.2* § 880. — Comparison of the a,cts of 1867 and 1898. The provision in the act of 1867 dissolved any attachment on mesne process provided it was made within four months of the bankruptcy proceedings. The provisions of the present act dis- solve any "lien" (a broader term) obtained through legal proceedings- against a person who is insolvent,^® at any time within four months prior to the filing of a petition in bankruptcy. § 881. — ConstitutionaJity of provisions. The fact that in voluntaiy proceedings Hens acquired prior to the passage of the act are affected by it does not render it unconstitutional since it does not impair the obligation of exist- ing contracts, and hence is not open to constitutional objection on that ground, but simply affects the remedy to enforce such contracts. The difference between the obligation of a contract and the remedy given by the legislature to enforce that obliga- 24— In re Petersen, 200 Fed. 739, 29 25— Section 1 (15), Act of 1898. A. B. B. 26. 652 Bbandbnbueg on Bankeuptcy [§ 881 tion, exists in the nature of things. Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.*^® Irrespective of this, the inhibition to the impairment of contracts applies merely to the states and not to the federal government, and although in case a contract was impaired the provision would not be uncon- stitutional.^^ §882. — Conflict between subdivisions "c" and "f" of sec- tion 67. Subdivision "c" of section 67 provides that liens obtained through judicial proceedings begun within four months of bank- ruptcy shall be dissolved by the adjudication provided either of three conditions exists, or for the subrogation in certain circum- stances of the trustee to the rights of the lien-holder. Subdivi- sion "f" provides for the unconditional dissolution by the adjudication of all liens obtained through legal proceedings within such four months with a similar reservation for the bene- fit of the estate. The two subdivisions appear antagonistic and irreconcilable and under the well-known rule of construction the latter subdivision must prevail.^* While statutes should, if possible, be construed so as to give every part effect, it is sometimes impossible to harmonize them, as appears to be the case here. It is quite clear that congress either inadvertently left subdivision "c" in the biU after adding subdivision " f , " or intended to strengthen the act by the broader and more drastic provisions of the latter clause. Subdivision 26 — ^In re Ehoads, 2 N. B. N. K. 301, ruptey bills were presented to Congress; 98" Fed. 399, 3 A. B. R. 380; citing one to the Senate and one to the House Sturges V. Crowninshield, 4 Wheaton of Eepresentatives, broadly divergent in 122, 4 L. ed. 529. See Metcalf v. Barker, spirit, the Senate bill supposed to be in 187 U. 8. 165, 47 L. ed. 122, 9 A. B. B. the interest of the creditor while the 36. House bill favored the debtor. TJpon a 27 — ^In re Jordan, 8 N. B. R. 180, Fed. disagreement between the two houses the Gas. No. 7514; In re Smith, 14 N. B. R. matter was referred to a conference com- 295, Fed. Cas. No. 12996 ; In re Everett, mittee near the end of the session, result- 9 N. B. R. 90, Fed. Cas. No. 4579. ing in the incorporation into the House 28 — Cook V. Robinson, 194 Fed. 785, bill of subdivision "f," which was in the 28 A. B. B. 182. See In re Richards, 2 Senate bill, for the avowed purpose of N. B. N. R. ^8, 96 Fed. 935; 3 A. B. R. strengthening it. See also In re Rhoads, 145 ; s. c. below, 95 Fed. 258, 2 A. B. R. 2 N. B. N. E. 301, 98 Fed. 399, 3 A. B. 518, in which the origin of the conflict R. 380; In re Kemp, 101 Fed. 689, 2 was explained by the fact that two bank- N. B. N. R. 565, 4 A. B. E. 242. i882] Liens 653 "c" provides that liens of a certain character shall be void under certain conditions, while subdivision "f" provides that all the liens embraced by subdivision "c" shall be void without refer- ence to any conditions save the insolvency of the debtor and their being obtjiined within four months. Subdivision "t" is the latest expression of the legislative will and is in harmony with the general purpose of the act to avoid preferences obtained after insolvency and an express inhibition against, and a declara- tion of the unlawful character of, liens which subdivision "c," if it sustains, does so by implication only. Subdivision "f " is therefore the law governing liens obtained within four months prior to the filing of a petition in bankruptcy through legal proceedings against an insolvent debtor.^^ Notwithstanding the fact that subdivision "o" is undoubtedly superseded by subdivision "f" where the two are in conflict, the former has nevertheless been resorted to by some courts in determining the validity of a lien.^" 29— In re Ehoads, 2 N. B. N. R. 301, 98 Fed. 399, 3 A. B. R. 380; s. c. 2 N. B. N. R. 176; citing The Attorney Gen- eral V. Chelsea Water Wks., Fitzgibbon, 195, followed in Townsend v. Brown, 4 Zabriskie, 88, and Puffendorf s Rules, p. 132, Potter's Dwarria on Statutes; see also In re Richards, 2 N. B. N. R. 38, 96 Fed. 935, 3 A. B. R. 145; s. c. 95 Fed. 258, 2 A. B. E. 518; In re Peck Lumber Co., 1 N. B. N. 262, 1 A. B. E. 701; In re Moyer, 1 N. B. N. 260, 93 Fed. 188, 1 A. B. R. 577 ; In re Francis- Valentine Co., 1 N..B. N. 529, 94 Fed. 793, 2 A. B. R. ,522. 30— See First Nat. Bank of Pitts- burgh, Pa. V. Guarantee Title & Trust Co., 178 Fed. 187, 24 A. B. R. 330; In re Polhnan, 156 Fed. 221, 19 A. B. R. 474. In order to reconcile the conflict be- tween subdivisions "a" and "f," vari- ous interpretations have been given the former. In one case it was held to apply to liens acquired within four months in proceedings begun prior thereto and sub- division "c" to liens acquired within the period, which were avoided under cer- tain conditions (In re Hopkins, 1 N. B. N. 71, 1 A. B. R. 209) ; in another, that both subdivisions would apply in most cases and if it came within the terms of either or both, either or both applied (In re Friedman, 1 N. B. N. 208, 1 A. B. E. 510; Peck Lumber Co. v. Mitchell, 1 N. B. N. 262, 1 A. B. R. 701) ; in an- other, that subdivision "c" applied to liens obtained by the acquiescence or con- nivance of the debtor, or in view of his known insolvency and contemplated bank- ruptcy (In re O'Connor, 2 N. B. N. E. 90, 95 Fed. 943). Notwithstanding the conflict, other courts have held this sub- division to be in full force being gov- erned in such conclusion by the desire if possible to give every portion of the law effect. (See In re Arnold, 1 N. B. N. 334, 94 Fed. 1001, 2 A. B. E. 180; In re Burrus, 97 Fed. 926, 3 A. B. E. 296; In re Collins, 1 N. B. N. 290,, 2 A. B. E. 1; In re Hammond, 98 Fed. 845, 3 A. B. E. 466; In re Ehoades, 2 N. B. N. R. 176; In re Kemp, 2 N. B. N; E. 565, 101 Fed. 689, 4 A. B. E. 242. 654 Bkandenbueg on Bankeuptcy [§883 § 883. — Provisions apply to voluntary and involuntary cases. The language, "filing of a petition in bankruptcy against him," in section 67f taken literally means an involuntary pro- ceeding; but "a person against whom a petition has been filed" is defined ^^ to include "a person who has filed a voluntary peti- tion," and therefore justifies the position that this subdivision applies to voluntary as well as involuntary proceedings. It is only in this way that a harmonious design can be evolved from the law. To restrict its application to involimtary, proceedings would defeat the manifest purpose to secure equality in the treatment of creditors and to avoid all transactions within a limited time, which are in fraud of creditors. By a race of diligence between debtor and creditor, the former might antici- pate the action of the latter and, by voluntary bankruptcy legalize fraudulent transactions which the act would avoid upon involuntary proceedings. This could never have been intended and should be so interpreted only if the language were so clear and precise, as would admit of no other construction.^^ § 884. — Liens affected in general. The expression "liens obtained through legal proceedings," in section 67f, is restricted to suits or proceedings at law or in equity. A legal proceeding is any proceeding in a court of justice by which_a party pursues a remedy which the law affords him, and embraces any of the formal steps or measures employed in the prosecution or defense of a suit.^^ Section 67f makes no exceptions in favor of any lien creditor 31— Section 1 (1), Act of 1898. 208, 1 A. B. E. 510; Peek v. Mitchell, 1 32— In re Belknap, 129 Fed. 646, 12 N. B. N. 262, 1 A. B. R. 701; In re Hop- A. B. B. 326 ; MoKenney v. Cheney, 118 kins, 1 N. B. N. 71, 1 A. B. E. 209 ; In re Ga. 387, 11 A. B. E. 54; In re Lesser, 2 Dobson, 98 Fed. 86, 3 A. B. E. 420; N. B. N. E. 599, 100 Fed. 433, 3 A. B. contra: In re O'Connor, 2 N. B. N. E. E.'815; In re Ehoads, 2 N. B. N. E. 301, 90, 95 Fed. 943; In re DeLue, 1 N. B. 98 Fed. 399, 3 A. B. E. 380; s. c. 1 N. B. N. 555, 1 A. B. E. 387, 91 Fed. 510; In N. 176; In re Eicharda, 2 N. B. N. R. re CoUins, 1 N. B. N. 290, 2 A. B. E. 1; 38, 96 Fed. 935, 3 A. B. E. 145; s. c. 95 In re Easley, 1 N. B. N. 230, 93 Fed. 419, Fed. 258, 2 A. B. E. 518; In re Speeht, 1 A. B. E. 715; In re Brown, 91 Fed. 358, 2 N. B. N. E. 238; In re Higgins, 2 N. 1 A. B. R. 107; In re Benedict, 75 N. T. B. N. E. 115, 97 Fed. 775, 3 A. B. E. S. 165, 8 A. B. E. 463; Brown v. Case, 364; In re Vaughan, 2 N. B. N. E. 101, 180 Mass. 45, 6 A. B. E. 744. 97 Fed. 560, 3 A. B. R. 362; In re Fel- 33— See In re Drolesbaugh, 2 N. B. N. lerath, 1 N. B. N. 292, 95 Fed. 121, 2 E. 1079. A. B. E. 40; In re Friedman, 1 N. B. N. §886] Liens 655 whose lien has been obtained tlirougli legal proceedings against the bankrupt within four months of the filing of the petition, other than such person as may have obtained title by virtue of such proceedings and who has been a bona fide purchaser for value and without notice or reasonable cause for inquiry.^* It does not apply solely to liens upon property which, if such liens were annulled, would pass to the trustee, but applies as well to liens upon property which but, for the filing of fin attachment, would have passed to a third person.^^ It is not necessary that the lien was obtained for the benefit of the bankrupt's creditors in general, it being sufficient that it was obtained for the benefit of one or more creditors less than all of them.^® See Mechanic's Liens, Landlord's Lien, etc. §885. — Insolven.(gr. To render the lien void, the bankrupt must have been insolvent at the time it was acquired.^'^ However, a lien acquired within the four-month period at a time when the bankrupt was solvent may be lost by a sale of the property by the bankruptcy court without objection frohi the attaching creditor.^* Creditors who are charged with receiving preferences alleged as acts of bankruptcy are parties to the bankruptcy proceed- ings and, as such, are precluded upon the issue of insolvency of the debtor at the time their lien was acquired.*® § 886. — Active participation of debtor. Neither subdivision "o" or "f " requires any active participa- tion in the process of transfer through legal proceedings to render the lien void. It is enough that the creditor is active and the debtor permits the activity to be unopposed.*" 34— In re Green, 179 Fed. 870, 24 A. & Lead Co., 157 Mo. App. 315, 27 A. B. B. E. 665. B. 445. 35— First Nat. Bank of Baltimore v. 38— Wise Coal Co. v. Columbia Zinc & Staake, 202 V. S. 141, 50 L. ed. 967, 15 I^^ad Co., 157 Mo. App. 315, 27 A. B. E. A. B. E. 639, aff'g 133 Fed. 717, 13 A. '*^f- „ , „ ^. ,„,.„, „„, T! T> 001 T -El 1- lofl t:i J -rn oc 39— Cook V. Eobmson, 194 Fed. 785, B. E. 281 ; In re Forbes, 186 Fed. 79, 26 .„._,,,, ^^ ' ' . g 28 A. B. E. 182. .a. D. a. 000. 40— In re Koslowski, 153 Fed. 823, 18 3&-See First Nat. Bank of Pittsburgh ^, ^ r, 733. Henderson v. Mayer, 225 V. Guarantee Title & Trust Co., 178 Fed. xj. S. 631, 56 L. ed. 1233, 28 A. B. E. 187, 24 A. B. E. 330. 387; In re Pollman, 156 Fed. 221, 19 A. 37— Wise Coal Co. v. Columbia Zinc B. E. 474. 656 Bbandenbukg on Bankeuftcy [§ 887 §887. — Creation of preference. Section 67f is not confined to liens that create a preference,*^ and reasonable cause to believe a preference was intended is not essential to avoid a lien thereunder.** § 888. — Lien acquired by state. The fact that the state is the judgment creditor does not make its lien enforceable if obtained within four months.*^ § 889. — Lien acquired in foreign country. The fact that the lien was obtained in a foreign country has been held to make no difference in the meaning of the phrase, "in fraud of the provisions of this act," in section 67c.** §890. —Attachments. Under both the present and the former acts attachments sued out and levied upon the property of an insolvent, within four months of the filing of a petition in bankruptcy, whether volun- tary or involuntary,*^ are dissolved by the adjudication thereon,** though the suit may have been pending several years; ^'' and the property attached should pass to the trustee for the benefit of the estate.** The trustee is entitled to prop- 41— In re Baird, 126 Fed. 845, 11 A. field v. Horton, 16 N. B. E. 59, 19 N. B. E. 435. , B. 3. 13; Bennington v. Lowenstein, 1 42— In re Peterson, 200 Fed. 739, 29 N. B. E. 157, Fed. Cas. No. 10938; Ap- A. B. E. 26. pleton v. Stevers, 10 N. B. E. 515; In 43— In re Green, 179 Fed. 870, 24 A. re Ellis, 1 N. B. E. 154, Fed. Cas. No. B. E. 665. 4400 ; Kaiser v. Eiehardson, 14 N. B. E. 44— In re Pollman, 156 Fed. 221, 19 391; Miller v. Bowles, 10 N. B. E. 515, A. B. E. 474. 58 N. Y. 263; Bk. v. Overstreet, 13 N. 45— In re McCartney, 109 Fed. 621, 6 B. E. 154; King v. Loudon, 14 N. B. E. A. B. E. 367; In re Eiehards, 96 Fed. 383; In re Kanpisch Creamery Co., 107 935, 3 A. B. E. 145. Fed. 93, 5 A. B. E. 790; see Metcalf v. 46— In re Baird, 126 Fed. 845, 11 A. Barker, 187 U. S. 165, 47 L. ed. 122, 9 B. E. 435; Cook v. Eobinson, 194 Fed. A. B. E". 36, 44; Hart v. Schuylkill Plush 785, 28 A. B. E. 182; In re Downing, 148 & Silk Co., 69 App. Div. (N. Y.) 90, 8 Fed. 120, 15 A. B. E. 423; In re Gohn, 18 A. B. E. 479; In re Beals, 116 Fed. 530, A. B. E. 786; Bear v. Chase, 99 Fed. 920, 8 A. B. E. 639; Watschke v. Thompson, a A. B. E. 746; In re Francis- Valentine 85 Minn. 105, 7 A. B. E. 504. Co., 1 N. B. N, 529, 94 Fed. 793, 2 A. 47— In re Higgins, 2 N. B. N. E. 115, B. E. 522, aff'g 1 N. B. N. 532, 93 Fed. 97 Fed. 775, 3 A. B. E. 364. 953, 2 A. B. E. 188; In re Kemp, 2 N. 48— Peck v. MiteheU, 1 N. B. N. 262, B. N. E. 565, 101 Fed. 689, 4 A. B. E. 1 A. B. E. 701, citing and criticising, In 242; In re Arnold, 1 N. B. N. 334, 94 re Delue, 1 N. B. N. 555, 91 Fed. 510, Fed. 1001, 2 A. B. E. 180; In re Burns, 1 A. B. E. 387. 97 Fed. .926, 3 A. B. E. 296 ; In re Ham- The adjudication operates as a seizure mond, 98 Fed. 845, 3 A. B. E. 466; Duf- of attached property, and it is in custo- § 890] Liens 657 erty in the bankrupt's possession free of lien notwithstanding the sheriff, more than four months before bankruptcy, having attachments against him, took receipts for such property but left it in the bankrupt's possession.*^ The adjudication of a partner does not defeat an attachment lien of a firm creditor who has caused an attachment to be levied on the firm assets within four months prior to the adjudication of the partner.^" When a writ of attachment has been fully executed and the proceeds paid over to the creditor, the provisions of section 67f do not apply. That section applies only when the rights of cred- itors exist by way of liens, and does not reach cases where property or its proceeds are no longer held under the writs.^^ However, an attachment within four months of bankruptcy may be vacated upon motion of the trustee, though prior to bank- ruptcy it has been discharged by giving an undertaking, the surety having taken security from the bankrupt sufficient to indemnify it.®^ A lien is not invalidated under section 67f, that is obtained by the levy of an attachment more than four months prior to the bankruptcy proceedings, though dependent for enforcement on a judgment obtained within four months,^* or after the dis- charge in bankruptcy.^* A bond which stands in the place of the attachment levied within the four months, as well as the attachment lien, is relieved dia legis from that time; and upon ap- 50 — American Steel & Wire Co. v. pointment and qualification of the trustee Coover, 27 Okla. 131, 25 A. B. K. 58. the title and right to the property pass 51 — Johnson v. Anderson, 70 Neb. 233, to the trustee, who becomes the legal 11 A. B. R. 294. custodian for the court of bankruptcy, 52 — Tennant Sons & Co. v. N. J. Oil & and that court will award the property M. Co., 31 A. B. B. 901. to whomever it pghtfully belongs. In re 53 — ^In re Crafts-Eiordan Shoe Co., Walsh Bros., 159 Fed. 560, 20 A. B. E. 185 Fed. 931, 26 A. B. R. 449; In re 472. SneU, 125 Fed. 154, 11 A. B. R. 85; In The discharge of an attachment imder re Beaver Coal Co., 110 Fed. 630, 6 A. section 67f has the effect merely to place B. E. 404; In re Beaver Coal Co., 113 title to the property in the trustee for Fed. 889, 7 A. B. B. 542; In re Blair, the benefit of all creditors', subject only 108 Fed. 529, 6 A. B. E. 206; contra. In to the rights of bona fide holders. Corey re Lesser, 108 Fed. 201, 5 A. B. R. 326, V. Blackwell Lumber Co., 24 Idaho 643, and In re Johnson, 108 Fed. 373, 6 A. B. 31 A. B. E. 135. E. 202. 49— In re Ashley* 19 N. B. E. 237, Fed. 54^Sohunaok v. Art Metal Novelty Gas. No. 581. Co., 84 Conn. 331, 26 A. B. E. 731. Brandenburg — 42 658 Beandenbubg on Bankbuptcy [§ 890 and released, and-^the liability of the surety thereon is extin- guished.^^ Stay of discharge to enable plaintiff in attachment to enforce his rights against the sureties on the attachment bond, see post, chapter XXXIV. §891. —Creditors' suits. A creditor who files a bill to reach equitable assets or set aside a fraudulent conveyance or the like thereby acquires an equit- able lien,^® which although contingent in the sense that it may possibly be defeated by the event of the suit, yet so long as it exists it is a specific lien or charge on the assets, and if filed more than four months before the filing of the petition in bank- ruptcy, would not be defeated by the adjudication, although the judgment or decree in enforcement of such lien is rendered within the four months.^'' If in such suit a state court acquired jurisdiction of the subject matter and the property was in its actual possession^ or that of its receiver more than four months before the adjudication in bankruptcy, the bankrupt act does not interfere with the state court's jurisdiction, possession or con- trol of the property, without regard to whether the receiver had taken actual possession, or not, but the latter will be permitted to dispose of the same under its own decrees.^® When property fraudulently conveyed before the passage of the bankruptcy act is in the hands of a receiver and beyond the reach of the bankruptcy court, but the fraudulent grantee sub- sequently voluntarily restores title to the grantor and the latter is afterwards adjudged bankrupt, the possession and adminis- tration of the property belong to the court of bankruptcy.®* 55 — Crook-Homer Co. v. Gilpin, 112 58 — ^Metcalf v. Barker, 187 V. S. 165, Md. 1, 23 A. B. R. 350; contra, King v. 47 L. ed. 122, 9 A. B. E. 36; Peek v. Block Amusement Co., 126 App. Div. (N". Jenness, 7 How. 612, 12 L. ed. 320 ; Piek- Y.) 48, 20 A. B. R. 784. ens v. Dent, 106 Fed. 653, 5 A. B. E. 644; 56 — Metcalf v. Barker, 187 U. S. 165, Frazier v. Southern L. & T. Co., 99 Fed. 47 L. ed. 122, 9 A. B. E. 36; MUler v. 707, 3 A. B. R. 710; Eyster v. GafE, 91 Sherry, 2 Wall. 237, 17 L. ed. 827; Freed- U. S. (1 Otto) 521, 23 L. ed. 403; see man's Trust Co. v. Earle, 110 U. 8. 710, also Johnson v. Rogers, 15 N. B. E. 1, 28 L. ed. 301. Fed. Gas. No. 7408; In re Kavanaugh, 2 57 — Metcalf v. Barker, supra; contra, N. B. N. E. 528, 99 Fed. 928, 3 A. B. E. In re Lesser, 3 N. B. N. R. 599, 100 Fed. 832. 433, 3 A. B. R. 815; In re Fellerath, 1 59— In re Brown, 1 N. B. N. 240, 91 N. B. N. 292, 95 Fed. 121, 2 A. B. R. 40. Fed. 358, 1 A. B. E. 107. § 893] Liens 669 Where state laws confer on contract creditors the right to en- force their claims as against fraudulent transfers, no resort to legal remedies is necessary to establish such creditors' interests."** A lien acquired by commencement of creditor's suit is waived by proof of the judgment and its allowance in the bankruptcy court without the disclosure of the pendency of the suit.®^ It has been held that, the right of a creditor, under the state law, to have a preferential transfer set aside, is in the nature of an inchoate lien, and where the transfer complained of is made more than four months prior to bankruptcy, the lien may be perfected by the bringing of a suit within the four-month period without violating the provisions of the bankruptcy act.*^ §892. — Garmshments. The phrase "legal proceedings" in section 67f applies to pro- ceedings in garnishment,®^ and the court may receive from one indebted to the bankrupt the amount of such debt, although garnished within four months of the adjudication in bank- ruptcy, the judgment therefor being entered in a state court, and may make such order as may be necessary to protect the garnishee.®* A lien acquired more than fouF months prior to bankruptcy by serving a writ of garnishment upon an assignee for the benefit of creditors, will be upheld, the creditors not having assented to the transfer or accepted the garnishee as a trustee."® Stay of discharge to enable plaintiff in garnishment proceed- ings to enforce his rights against the garnishee and his bond, see post, chapter XXXIV. § 893. — Judgment and execution liens. A judgment does not necessarily constitute a lien upon prop- erty unless made so by, statute. Usually as it respects personal 60— In re Andrae, 117 Fed. 561, 9 A. 63— In re Eansford, 194 Fed. 658, 28 B. E. 135. A. B. E. 78. 61— Dunn Salmon Co. v. Pillmore, 55 64 — ^In re McCartney, 109 Fed. 621, 6 Mise. (N. Y.) 546, 19 A. B. E. 172. A. B. E. 367. 62— Moore v. Green, 145 Fed. 472, 16 65— In re Culpepper, 31 A. B. E. 762. A. B. E. 648. But see Dunn Salmon Co. V. Pillmore, 55 Mise. (N. Y.) 546, 19 A. B, E. 172. 660 Bbandenbueg ON Bankeuptcy [§893 property, it only becomes a lien by virtue of an execution and levy. From the time of the levy the lien is deemed to attach but not before.*® Congress made facts, not intentions, the test of the validity of execution liens attaching within four months of the adjudica- tion in bankruptcy. These facts are the date of the lien and the then insolvency of the debtor.*'' Execution liens attaching to an insolvent's property within four months of his bankruptcy are overthrown and made ineffectual for any purpose, unless pre- served for the benefit of the estate, and the sheriff's lien incident thereto, also falls.** It is immaterial when the suit was begun or the judgment entered, or that the debt on which the judgment rests was valid, due when the action was commenced, or not released by a dis- charge,*^ and that the judgment was entered and levy made with- out collusion, or that the judgment was entered upon a judgment note given more than four months prior to the bankruptcy pro- ceedings, or even prior to the passage of the act. The court will not consider the facts leading up to the creation of the lien complained of, but only the lien itself even though such facts took place more than four months before the bankruptcy and there- fore would not themselves subject the debtor to proceedings in bankruptcy.'^'' The nullity and invalidity relate back to the time of the entry of the judgment and affect that and all subsequent proceedings,''^ 66— In re Bailey, 144 Fed. 214,. 16 A. s. c. 95 Fed. 258, 2 A. B. E. 518; In re B. E. 289. Eichaids, 1 N. B. N. 487, 94 Fed. 633, 67— Act of 1898, § 67f. Keystone 2 A. B. E. 506; In re Spaeht, 2 N. B. N. Brewing Co. v. Sehermer, 241 Pa. 361, E. 238; In re Vaughan, 2 N. B. N.. E. 31 A. B. E. 279. 101, 97 Fed. 560, 3 A. B. E. 362; In re 68 — Clarke v. Larremore, 188 TJ. S. Nelson, 1 N. B. N. 567, 98 Fed. 76, 1 486, 45 L. ed. 555, 9 A. B. E. 476; In re A. B. E. 63; In re Whalen, 1 N. B. N. Jennings, 8 A. B. E. 358; In re Burton 228; In re Huffman, 1 N. B. N. 215, 1 A. Bros. Mfg. Co., 134 Fed. 157, 14 A. B. E. b. E. 587; In re Myers, 1 N. B. N. 207, 21^- 1 A. B. E. 1; In re Wilson, 101 Fed. 69-In re Green, 179 Fed. 870, 24 A. ^ ^ ^ ^ j^ ^^ ^^5 B. E. 665; In re S. Ah Mi, 18 A. B. E. -p /i qoo c a t, -d o-ro t t^ ■ ,oo T X, J- i o,T -nr- /ivT -xT-s J^ed. 893, 5 A. B. E. 372; In re Darwin, 138; In re Benedict, 37 Misc. (N. Y.) ,,„^ ',„„ „ . „ „ ^ „ 230 8 A B E 463 ^^ *°^' ^ ^- ^- ^- ^°^' ^ ^^ ^^^' 70-In re' BaUeyi 144 Fed. 214, 16 g"^°°' ^^ I^ed. 429, 2 A. B. E. 586; Le- A. B. E. 289; In re Ehoads, 2 N. B. N. E. ''°^ ^- Seiter, 34 Misc. (N. Y.) 382, 5 301, 98 Fed. 399, 3 A. B. E. 380; s. c. 2 -*■■ B. E. 576. N. B. N. E. 176; In re Eichards, 2 N. B. 71— Mohr & Sons v. Mattox, 120 Ga. N. E. 38, 96 Fed. 935, 3 A. B. E. 145; 962, 12 A. B. E. 330; Clarke v. Larre- § 893] Liens 661 but, if the judgment has been satisfied and the matter entirely closed before the commencement of the bankruptcy proceedings, then the provisions of 67f do not apply J ^ Subdivision "f" applies to the lien created by a levy, or a judgment, or an attachment, or otherwise, that is invalidated, and where the lien is obtained more than four months prior to the filing of the petition, it is not only not to be deemed null and void on adjudication, but its validity is recognized. When it is obtained within four months, the property is discharged therefrom, but not otherwise. A judgment or decree in enforce- ment of an otherwise valid pre-existing lien is not the judgment denounced by the statute. The judgment liens intended are such judgments as of themselves create liens.''^ Where the lien has come into existence more than four months prior to the filing of the petition in bankruptcy, by the creative power of a statute, as an incident to a judgment, levy or otherwise, and the legal proceeding begun within the four months, or even after the adjudication, is intended to preserve or enforce such lien, the subdivision has no application.'^* It is not the judgment, that is, the determination of the con- troversy, but the judgment lien and proceedings tending to enforce the judgment which are annulled, and, if such a judg- ment is offered for proof, it can be attacked only on the ground of fraud, collusion or want of jurisdiction.'^ It must appear that there was property of the bankrupt estate subject to an attach- ment or judgment lien which could be released from the same, or which could pass to the trustee for the benefit of the estate." more, 188 U. S. 486, 45 L. ed. 555, 9 A. 74^In re Eohrer, 177 Fed. 381, 24 A. B. E. 476. B. R. 52; Fairlamb v. Smedley Construo- 72— Levor v. Seiter, 69 App. Div. (N. tion Co., 36 Pa. Super. Ct. 17, 22 A. B. Y.) 33, 8 A. B. R. 459; Rodolf v. First E. 824; Woods v. Klein, 223 Pa. St. 256, Nat. Bank, 28 A. B. R. 897; In re Wait- 22 A. B. R. 722; In re Resnek, 167 Fed. zel, 191 Fed. 463, 27 A. B. E. 370. 574, 21 A. B. R. 740; In re Koslowski, 73— Metcalf v. Barker, 187 U. S. 165, 153 Fed. 823, 18 A. B. R. 723; In re Mo- 47 L. ed. 122, 9 A. B. E. 36; In re Blair, Kane, 152 Fed. 733, 18 A. B. E. 594; In 108 Fed. 529, 6 A. B. E. 206; In re re Bailey, 144 Fed. 214, 16 A. B. R. 289; Beaver Coal Co., 110 Fed. 630, 6 A. B. Hiller v. LeEoy, 179 N. Y. 369, 12 A. B. E. 404; In re Pease, 4 A. _B. R. 547; R. 733. Doyle V. Heath, 22 R. I. 213J 4 A. B. E. 75— In re Pease, 2 N. B. N. R. 657, 4 705; Taylor v. Taylor, 59 N. J. Eq. 86, A. B. R. 547; contra, , St. Cyr v. Diag- 4 A. B. R. 211; In re Kavanaugh, 2 N. nault, 103 Fed. 854, 4 A. B. R. 638. B. N. E. 528, 99 Fed. 928, 3 A. B. E. 76— Eodolf v. First Nat. Bank of, 832. Tulsa, 30 Okla. 631, 28 A. B. E. 897. 662 Beandenbubg ON Bankruptcy [§893 A judgment obtained against an insolvent debtor without fraud or collusion would be as conclusive evidence of the claim and its amount as if given against a solvent debtor. '"^ In certain states an execution placed in the sheriff's hands, but never levied, creates an inchoate lien although the judg- ment was not recorded, but it will not avail against the estate in bankruptcy ''^ any more than in the case of one who takes an inchoate security, such as a judgment note, on which judgment has not been entered; ''^ or a judgment docketed on a holiday, which by statute is dies non juridicus; *" or where goods taken upon execution have been relinquished before the petition in bankruptcy is filed.** In case of money collected on execution and turned over to the execution creditor, recovery can only be had if the creditor had reasonable cause to believe a preference would be affected.*^ The act in dealing with the property owned by the bankrupt at the time the petition is filed annuls judgment liens affecting it, but if the bankrupt fails to obtain a discharge, there seems no good reason why the judgment, which may have been entered long before bankruptcy proceedings, should not be valid as to after acquired property. To require the creditor to resort to his original cause of action would merely put him to additional cost and trouble without any compensating benefit to any one.®* 77 — CatKn v. Hoffman, 9 N. B. E. 342, under that act on this point do not now 2 Sawy. 486, Fed. Cas. No. 2521. apply. But some of the decisions being 78 — ^In re Hopkins, 1 N. B. N. 71, 1 on general principles do; as that where A. B. E. 209. a creditor advanced money to pay a valid 79 — Clark v. Iselin, 9 N. B. E. 19, 10 execution and took judgment for his own Blateh. 204, Fed. Cas. No. 2825. claim and such advance it was good as 80— In re Worthington, 14 N. B. E. to the advance (Lathrop v. Draie, 13 N. 488, Fed. Cas. No. 18052; s. c. 16 N. B. B. E. 472, 91 U. S. (1 Otto) 516, 23 L. E. 52, 7 Biss. 455, Fed. Cas. No. 18051. ed. 414) ; that a judgment recovered 81— Sage V. Wyncoop, 16 N. E. E. 363, after an assignment for the benefit of Fed. Cas. No. 12215. creditors created no lien though such as- 82 — Act of 1898, § 60b as amended signment was afterwards set aside by as- 1910. In re Blair, 102 Fed. 987, 2 N. B. siguee in bankruptcy (Belden v. Smith, N. E. 890, 4 A. B. E. 220. 16 N. B. E. 302, Fed. Cas. No. 1242) ; 83 — In general it was held under the that in an action by lien-holders a judg- Act of 1867 that the law did not affect ment, limited to the property subject to the lien of a judgment or execution (Ha- the lien, could be rendered uotwithstand- worth V. Travis, 11 N. B. E. 145; In re ing the liankruptcy proceedings (Eeed Gold Mountain Min. Co., 15 N. B. E. 545; v. Bullington, 11 N. B. E. 408) ; that a 3 Sawy. 601, Fed. Cas. No. 5515; In re judgment creditor whose judgment was a Wimm, 1 N. B. E. 131, Fed. Cas. No. valid lien on such property could enforce 17876) ; and consequently the decisions his claim against it though the bankrupt i895] LiEirs 663 §894. —Replevin. A seizure under a writ of replevin is a levy .within the mean- ing of section 67f.®* § 895. — Sale under attachment or execution. The ultimate property in attached goods being in the debtor,*^ the trustee in bankruptcy is entitled to the proceeds of a sale under a judgment entered or an attachment or execution levied on the debtor's property within four months of his adjudica- tion ih bankruptcy,®'' less reasonable costs of sale, whether the proceeds be in the hands of the sheriff or of a state court; and the sheriff may be enjoined from paying the proceeds to the judgment creditor, and may be required upon a stmimary petition to pay it over to the trustee,*'^ but if the trustee brings suit for the same he must allege that the execu- tion debtor was insolvent when the execution was made.** After the period of redemption from an execution sale has expired before the appointment of a trustee, he takes nothing but the bankrupt's naked title, which is valueless, since the purchaser had sold it before the eomineneenient of the proceedings! in bankruptcy (Phillips V. Bowdoin, 14 N. B. R. 43) ; or although he had levied on personalty but subse- quently abandoned such levy permitting the personalty to return to defendant (Winship V. Phillips, 14 N. B. E. 50). 84 — In re Hymes Buggy & Implement Co., 130 Fed. 977, 12 A. B. E. 477; In re Weinger, Bergman & Co., 126 Fed. 875, 11 A. B. E. 424. 85— In re Hull, 18 N. B. E. 1, 14 Blatch. 257, Fed. Cas. No. 6857. 86 — Clarke v. Larremore, 188 U. S. 486, 45 L. ed. 555, 9 A. B. E. 476; In re Kenney, 105 Fed. 897, 5 A. B. E. 355; In re Moyer, 97 Fed. 324; Wallace v. Conrad, 3 N. B. E. 10; In re Duguid, 100 Fed. 274, 2 N. B. N. E. 607, 3 A. B. E. 794; Bear v. Chase, 99 Fed. 920, 3 A. B. E. 746; In re Franks, 95 Fed. 635, 2 A. B. E. 634; In re Kenney, 2 N. B. N. E. 140, 97 Fed. 554, 3 A. B. E. 353; In re Francis- Valentine Co., 1 N. B. N. 529, 94 Fed. 793, 2 A. B. E. 522; s. c. 1 N. B. N. 532, 93 Fed. 953, 2 A. B. E. 188; Eeese v. Vinton, 1 N. B. N. 544; In re Moyer, 1 N. B. N. 260, 93 Fed. 188, 1 A. B. E. 577; In re Fellerath, 1 N. B. N. 292, 95 Fed. 121, 2 A. B. E. 40; In re Eichards, 95 Fed. 258, 2 A. B. E. 518; see also In re Globe Cycle Works, 1 N. B. N. 570; In re Mullen, 101 Fed. 413, 4 A. B. E. 224; Long v. Conner, 17 N. B. E. 540, Fed. Cas. No. 8479; In re Black, 1 N. B. E. 81, 2 Ben. 196, Fed. Cas. No. 1457. 87— In re Kenney, 2 N. B. N. E. 140, 97 Fed. 554, 3 A. B. E. 353; s. c. 1 N. B. N. 401, 95 Fed. 427, 2 A. B. E. 494; In re Francis-Valentine Co., 1 N. B. N. 529, 2 A. B. E. 522, 94 Fed. 793; s. c. below 1 N. B. N. 532, 93 Fed. 953, 2 A. B. E. 188; Eeese v. Vinton, 1 N. B. N. 544; In re Moyer, 1 N. B. N. 260, 93 Fed. 188, 1 A. B. E. 577; s. c. 97 Fed. 324; In re Fellerath, 1 N. B. N. 292, 95 Fed. 121, 2 A. B. E. 40; In re Franks, 95 Fed. 635, 2 A. B. E. 634: See Bryan v. Bern- heimer, 181 U. S. 188, 5 A. B. E. 623. 88— Siiiipsou v. Van Etten, 108 Fed. 199, 6 A. B. E. 204. 664: Beandenbubg on Bankeuptcy [§895 can, at any time, demand a deed from the sheriff-®® Where a sale has been made upon an execution on a judgment obtained within the four-month period, and the proceeds have been paid to the judgment creditor, it is held that the purchaser at the sale is entitled to the property as against the receiver or trustee in bankruptcy.*" § 896. — Preservation of lien for estate. If no sale has been made undpr an attachment on execution, the trustee is entitled to the property, or, if deemed for the best interests of the estate, he will be subrogated to the rights of the attaching or judgment creditors as respects the lien, and the lien will be preserved for the benefit of the estate,*^ and so much of the value of the property attached or levied upon as is repre- sented by the attachment or execution passes to the trustee for the benefit of all creditors."^ The statute was designed to pre- serve some interest acquired by virtue of an attachment, which would not pass to the trustee by virtue of the bankruptcy pro- ceeding. If the property passes at any rate to the trustee, there is no necessity for invoking the order of the court. The attach- ment being dissolved, the trustee is not further embarrassed in his settlement of the estate. It is therefore for preserving some interest that the attaching creditor has acquired for the benefit of the estate, that would not otherwise pass to the trustee, that the court's order may be brought into requisition.®* This is the view taken by the supreme court which, speaking through Brown, J., has construed the act as follows: "Section 67f makes two distinct provisions for the disposition 89— In re Goldman, 2 N. E. N. E. 818, B. R. 435; Watsohke v. Thompson, 85 102 Fed. 122, 4 A. B. E. 100. Minn. 105, 7 A. B. E. 504; In re Ham- 90— In re Weitzel, 191 Fed. 463, 27 mond, 98 Fed. 845; In re Francis-Val- A. B. E. 370. eutine Co., 1 N. B. N. 529, 94 Fed. 793, 91— Act of 1898, §§ 67c, 67f. Martin 2 A. B. E. 522; s. c. 1 N. B. N. 532, 93 V. Globe Bank & Trust Co., 193 Fed. 841, Fed. 953, 2 A. B. E. 188; Eefid v. Bul- 27 A. B. E. 545; In re Waite-Eobbins lington, 11 N. B. E. 408; Morris v. Dav- Co., 192 Fed. 47, 27 A. B. R. 541; First idson, 11 N. B. E. 454; In re Preston, 6 Nat. Bank of Pittsburgh v. Guarantee N. B. E. 545, Fed. Cas. No. 11394; In re Title & Trust Cp., 178 Fed. 187, 24 A. B. Houseberger, 2 N. B. E. 33, 2 Ben. 504, E. 330; Miller v. New Orleans Acid & Fed. Cas. No. 6734. Fertilizer Co., 211 IT. 8. 496, 53 L. ed. 92— Cortti v. Sunseri, 18 A. B. E. 891. 300, 21 A. B. E. 416, aff 'g 117 La. 821; 93— Goodnough Mercantile & Stock Co. In re Merrow, 131 Fed. 993, 12 A. B. E. v. Galloway, 171 Fed. 940, 22 A. B. B. 615; In re Baird, 126 Fed. 845, 11 A. 803. § 896] Liens 665 of the property of an insolvent attached within four months prior to the filing of a petition in bankruptcy against him. First, such attachments shall be declared null and void, and the property affected shall be deemed released, and shall pass to the trustee of the estate of the bankrupt; or, second, the court may order that the right acquired by the attachment shall be preserved for the benefit of the estate. In the first case the whole property passes free from the attachment. In the second, so much of the value of the property attached as is represented by the attachments passes to the trustee for the benefit of the entire body of creditors; that is, for the benefit of the estate^- in other words the statute recognizes the lien of the attachment, but distributes the lien among the whole body of creditors. The first provision contemplates the attachment of property to which the bankrupt has the complete, legal and equitable title, which, as soon as the attachment is dissolved, passes at once to the bankrupt's estate as part of his estate: The second provision evidently does not apply to this, as there is no object in pre- serving the lien of the attachment for the benefit of the estate, since under the first clause the entire value of the property attached passes to the trustee free from the attachment. The second clause contemplates property in which the bankrupt has an interest which has been secured to attaching creditors by the levy of the writ, but which might have passed to another person, as, for instance, a purchaser under an unrecorded deed, but for the fact that the attaching creditors had acquired a prior lien thereon. In such case the statute recognizes the validity of the lien, but preserves it for the benefit of the entire body of creditors, by reason of the fact that the attachment was dis- solved as a preferential lien in favor of attaching creditors, by the institution of proceedings in bankruptcy. ' ' ^* The trustee is not by section 67f subrogated by mere operation of law to the rights of a levying creditor. He must obtain an order of court preserving the rights of the levying creditor for the benefit of the bankrupt's estate,®^ and where an execution 94— rirst Nat. Bank of Baltimore v. 516, 49 L. ed. 577, 13 A. B. E. 437, aff 'g Staake, 202 U. S. 141, 50 L. ed. 967, 15 70 Vt. 558, 13 A. B. E. 75n; First Nat. A. B. E. 639, afe'g 133 Fed. 717, 13 A. Bank of Pittsburgh v. Guarantee Title & B. E. 281. Trust Co., 178 Fed. 187, 24 A. B. E. 330. 95— Thompson v. Fairbanks, 196 TJ. S. 666 Bkandenbubg ON" Bankeuptoy [§896 or attachment lien is sought to be preserved for the benefit of the estate, steps must be taken to that end before the lien is dis- charged.®* The subrogation of the trustee as plaintiff in the attachment suit after the lien has been discharged does not revive the lien.®'' Where an execution creditor seeks to subject equitable assets to his judgment and there are no assets to pay the costs of litiga- tion, or the same is of doubtful outcome, or only one creditor is interested, it has been held proper, on notice to all the cred- itors that a single creditor or class of creditors desires to conduct such litigation through the trustee, to order a suit brought for the benefit of creditors so sharing in the expense.®* § 897. — Reimbursement of creditors for costs. A trustee cannot be compelled to pay the costs incurred by creditors in procuring a preferential attachment as a condition precedent to obtaining possession of the property attached.®® § 898. Assignments for creditors and receiverships. A voluntary general assignment for the benefit of creditors, with or without preferences, made within the prescribed four months, is constructively fraudulent and void, though innocent as a matter of fact. Its purpose is to "hinder, delay and defraud" creditors, within the meaning of section 67e, because its necessary effect is to defeat the operation of the bankruptcy act, by depriving creditors of the choice of a trustee, of the sum- mary jurisdiction of the bankruptcy court and ,of the ample control which th| law intended to give them over the estate of their insolvent debtor.^ Such assignment is voidable, not void, 96— Davis v. Compton, 158 Ted. 735, 160 Fed. 57, 17 L. R. A. (N. S.) 1040, 20 A. B. R. 53; In re Walsh Bros., 195 20 A. B. R. 115; West Co. v. Lea Bros., Fed. 576, 28 A. B. R. 243. , 174 U. S. 590, 43 L. ed. 1098, 1 N. B. N. 97— In re Walsh Bros., 195 Fed. 576, 409, 2 A. B. R. 463 ; s. c. 1 N. B. N. 79, ' 28 A. B. R. 243. 91 Fed. 237, 1 A. B. E. 261; In re Siev- 98— In re MeNamara, 2 N. B. N. R. ers, 91 Fed. 366, 1 N. B. N. 68, 1 A. B. 341. R. 117; s. c, as Davis v. Bohle, 92 Fed. 99— In re Shoemaker, 205 Fed. 113, 30 325, 1 N. B. N. 216, 1 A. B. R. 412 ; A. B. R. 349. Leidigh Co. v. Stengel, 95 Fed. 637, 1 1— Eiehholz v. Polaek, 140 App. Div. N. B. N. 387, 2 A. B. E. -383 ; In re Cur- (N. Y.) 551, 25 A. B. R. 243; Cohen v. tis, 1 N. B. N. 163, 91 Fed. 737, 1 American Surety Co., 192 N. Y. 227, 20 A. B. R. 440 ; Ins. Co. v. Ins. Co., 14 N. A. B. R. 65, aff 'g 123 App. Div. (N. Y.) B. R. 311, Fed. Cas. No. 5486; In re Gut- 519, 19 A. B; R. 901; Sargent v. Blake, willig, 1 N. B. N. 40, 90 Fed. 475, 1 A. §898] Liens 667 and will remain valid unless invalidated by subsequent bank- iTiptcy proceedings, differing in this from proceedings under the state insolvency laws which are void.'' The assignee or receiver takes no title against the' creditors,^ but is a mere naked bailee for them without a shred of title or lawful authority to the possession of the bankrupt's estate,* the acts of the creditors under an assignment being void; " and, he may, by summary order be compelled to surrender the a.ssets to the trustee in bank- ruptcy.^ The trustee may maintain an action upon the bond of the assignee to recover the amount which the latter fails to turn over.'' A title or lien acquired by a general assignee that is to the advantage of the estate when it has passed into bankruptcy, is not necessarily destroyed by the suppression of the assignment proceedings, but upon order of the court of bankruptcy it may be retained by the trustee for the benefit of creditors.® If the assignment was made prior to the four-month period the property would not pass to the trustee.® He takes title to B. R. 78, afe'd 1 N. B. N. 554, 92 Fed. 337, 1 A. B. E. 388; In re Smith, 1 N. B. N. 356, 92 Fed. 135, 2 A. B. R. 9; Barnes v. Eattew, !Ped.v Cas. No. 1019 ; Globe Ins. Co. v. Ins. Co., 14 N. B. E. 311, Fed. Caa. No. 5486; In re Biesen- thal, 15 N. B. E. 228, 3 Fed. Cas. No. 76; In re Galvin, 2 N. B. N. E. 146; In re Burt, 1 DUlon 440, Fed. Cas. No. 2210; Hobson v. Markson, Fed. Cas. No. 6555; In re Smith, Fed. Cas. No. 12974; In re Goldachmidt, 3 N. B. E. 164; Boese V. King, 108 XT. S. 385, 27 L. ed. 763. But see Gill v. BeU's Knitting Mills, 128 App. Div. (N. Y.) 691, 21 A. B. E. 282; In re Hirose, Doing Business Under the Name of Hirose Shoten, 12 A. B. E. 154. 2— Randolph v. Scruggs, 190 TJ. S. 533, ^7 L. ed. 1165, 10 A. B. E. 1; Patty- Joiner & Eubank Co. v. Cummins, 93 Tex. 598, 4 A. B. R. 269; Mayer v. Hell- man, 91 TJ. S. 496, 23 L. ed. 377; In re Andrae & Co., 117 Fed. 561, 9 A. B. E. 135. 3— In re Knight, 125 Fed. 35, 11 A. B. E. 1; In re Bruss-Eitter Co., 1 N. B. IT. 39, 90 Fed. 651, 1 A. B, E. 58; L?^ V. Geo. M. West Co., supra; In re Ha- thorn, Fed. Cas. No. 6214; In re Binin- ger, Id. 1420; In re Wallace, Id. 17094; In re Washington Marine Ins. Co., Id. 17246; In re Merchant's Ins. Co., Id. 9441; ThornhiU v. Bk., Id. 13992; Mfg. Co. V. Hamilton (Mass.), 51 N. E. 529; Detroit Trust Co. v.. Pontiae Savings Bank, 196 Fed. 29, 27 A. B. R. 821. 4^In re Smith, 1 N. B. N. 536, 92 Fed. 135, 2 A. B. R. 9. 5— In re GfutwUlig, 91 Fed. 475, 1 N. B. N. 40, 1 A. B. E. 78. 6— In re Hecox, 164 Fed. 823, 21 A. B. E. 314; In re Cameron Currie & Co., 20 A. B. R. 790. 7 — Cohen v. American Surety Co., 192 N. T. 227, 20 A. B. E. 65, afC'g 123 App. Div. (N. Y.) 519, 19 A. B. E. 901. 8— In re Fish Bros. Wagon Co., 164 Fed. 553, 26 L. E. A. (N. S.) 433, 21 A. B. E. 149. 9— In re Arledge, 1 N. B. R. 195, Fed. Cas. No. 533 ; In re Shinn, 185 Fed. 990, 25 A. B. E. 833; and see In re Farrell, 176 Fed. 505, 23 A, B, E, 826, 668 Bbandenbueg on Bankruptcy [§ 898 property in the hands of a common law assignee although a replevin suit or other proceedings with reference thereto are pending. 1" It has been held that the title of a trustee who was also the assignee under a voluntary assignment relates back to such assignment, and his acts after receiving the property, if not inconsistent with his duty as trustee, will be ratified.^^ The application of a corporation for voluntary dissolution and the appointment of a temporary receiver is not the equivalent of a general assignment and upon that ground will not be avoided by bankruptcy proceedings; ^^ but a general assignment made by a corporation is equally with one made by an individual avoided by bankruptcy proceedings.^^ The title of a receiver in proceedings in a state court relates back to the commencement of the proceedings, and where such proceedings are conamenced more than four months prior to the institution of the bankruptcy proceedings, the title of the receiver is superior to that of the trustee in bankruptcy,^* but the re-establishment of a lien by the appointment of a receiver within four months prior to bankruptcy does not give the receiver title as against the trustee in bankruptcy. ^^ Where a receiver appointed under state laws is not invested with title until a certified copy of the order appointing him is filed with the clerk of the county, a receiver who has not complied with the law, has no title as against the subsequently appointed trustee in bankruptcy.^® On application to the state court by the trustee in bankruptcy of an insolvent corporation, the funds in the hands of the receiver of the corporation, appointed shortly before the filing of the petition, should be turned over to him.^'' This is likewise true 10— In re Solomon, 2 N. B. N. E. 460; L. ed. 1098, 1 N. B. N. 409, 2 A. B. E. In re Kenney, 2 N. B. N. E. 140, 97 Fed. 463, afE'g 1 N. B. N. 79, 1 A. B. E. 261, 554, 3 A. B. E. 353; comp. MaeDonald 91 Fed. 237. V. Moore, 15 N. B. E. 26, 8 Ben. 579, Fed. 14— Wrede v. Clark, 132 App. Div. (N. Gas. No. 8763. Y.) 293, 21 A. B. E. 821; In re English, 11— In re Walker, 18 N. B. E. 56, Fed. 127 Fed. 940, 11 A. B. E. 674, rev'g 122 Cas. No. 17063. Fed. 113, 10 A. B. E. 133. 12— In re Harper, 2 N. B. N. E. 605, 15 — In re Matthewa & Sons, 163 Fed. 100 Fed. 266, 3 A. B. E. 804; In re Em- 127, 20 A. B. E. 570. pire Metallic Bedstead Co., 2 N. B. N. E. 16 — In re Tyler, 104 Fed. 778, 5 A. B. 304, 98 Fed. 981, afE'g 1 N. B. N. 386, 2 E. 152. A. B. E. 329, 95 Fed. 957, rev'g s. c. 1 17 — Mauran v. Carpet Lining Co., 23 N. B. N. 301, 1 A. B. E. 136. E. I. 324, 6 A. B. E. 734. 13— Lea v. West Co., 174 V. S. 590, 43 §899] Liens 669 in the case of a partnership,^* as well as in the case of an indi- vidual. The state court is without authority to make an order for the delivery of property in the possession of its receiver to the trustee in bankruptcy contingent upon the payment of fees of the receiver, and his attorneys, or cause the property in the hands of such receiver to be sold for the purpose of raising such funds.^^ § 899. Assignments of money or wages. An unrecorded assignment of money to become due has been held valid as against the trustee where under the state law, such assignment was valid as to general creditors, and creditors who, though entitled to a lien, failed to file their liens.*" An assignment of wages to be earned in the future under an existing contract of employment to secure a present debt or future advances is valid as an agreement, and takes effect as an assignment as the wages are earned, but an assignment of wages to be earned, without limit as to amount or time, is void.*^ The courts are not agreed as to the effect of an adjudication in bankruptcy upon an assignment of future wages. Some courts hold that wages earned after adjudication become the property of the bankrupt clear of any claim of a creditor holding an assignment thereof executed prior to the filing of the peti- tion,*2 while others rule that a valid assignment of future wages may be enforced as against wages earned after the filing of the petition in bankruptcy even though a discharge has been granted.*^ The former seems to be the better rule, inasmuch as the policy of the courts has always been to liberally construe the act in favor of honest debtors. The validity of an assignment of wages earned by the bank- rupt prior to bankruptcy must be determined in a plenary suit.** • 18— Wilson V. Pair, 115 Ga. 629, 8 A. Home Discount Co., 147 Fed. 538, 17 A. B. E. 230. B. E. 168. 19 — Hanson v. Stephens, 116 Ga. 722, 23 — Citizens' Loan Ass'n v. Boston & 11 A. B. E. 172. M. Ey., 196 Mass. 528, 14 L. E. A. (N. 20— In re Interstate Paving Co., 197 S.) 1025, 124 Am. St. 584, 19 A. B. E. Ped. 371, 28 A. B. E. 573. 650; Mallin v. Wenham, 209 111. 252, 13 21 — Leitch v. Northern Pae. Ry. Co., A. B. E. 210. See also post, Chapter 95 Minn. 35, 14 A. B. E. 409. XXXV. 22— In re West, 128 Ped. 205, 11 A. B. 24— In re Driggs, 171 Ped. 897, 22 A, E. 782; Leitch v. Northern Pae. Ey. Co., B. E. 621. 95 Minn. 35, 14 A. B. E. 409; In re 670 Beandenbueg on Bankbuptcy [§ 900 § 900. Attorney's lien. The lien of an attorney is a possessory one.^® An attorney's lien on the papers of his client will be recognized, though, where the papers relate to property in the possession of the trustee or sold by him, the attorney may be required to surrender them for the purpose of recordation on condition that they shall be returned to him after being recorded.^® In the absence of statute or agreement of the parties an attorney has no lien on a judg- ment recovered by him.'^'' § 901. Bajiker's lien. The validity of a banker's lien depends upon the state law. If valid under such law it will be recognized by the bankruptcy court. ^® A bank making a loan to the bankrupt and placing it in the general deposit account of the bankrupt has no lien thereon.^^ § 902. Chattel mortgages and trust deeds. § 903. — Rights of trustee. The provision in section 70a (5) vesting in the trustee title to property of the bankrupt which prior to the filing of the peti- tion he could by any means have transferred, covers personal property which, although mortgaged, the bankrupt was author- ized to sell by the terms of the mortgage.^" A chattel mortgage void as against creditors under a state law ^^ under which the mortgagee had taken possession, having reasonable cause to believe the debtor insolvent, is void as to the trustee.^^ A chattel mortgage within four months of bankruptcy, made to hinder, delay and defraud creditors, or which is invalid under the state law for want of record, or because the mortgagor retains 25— Attorney not entitled to lien 31 A. B. E. 291, afE'g 201 Fed. 664, 29 where assets not in his possession. In re A. B. E. 289. Marble Products Co., 199 Fed. 668, 29 30— In re Hull, 115 Fed. 858, 8 A. B. A. B. E. 384. E. 302. 26— In re Brown & Fleming Co., 21 31— Thomhill v. Link, 8 N. B. E. 521, A. B. E. 662. Fed. Cas. No. 13993; Edmondson v. 27— In re Austin, 13 A. B. E. 136. Hyde, 7 N. B. E. 1, 2 Sawy. 205, Fed. 28— In re Gesas, 146 Fed. 734, 16 A. Cas. No. 4285. B. E. 872. 32— Harvey v. Crane, 5 N. B. E. 218, 29— National City Bank of New York 2 Biss. 496, Fed. Cas. No. 6178; In re y. Hotchkiss, 231 TJ. S. 50, 58 L. ed. 115, Griffiths, 3 N. B. -E. 179, § 904] Liens 671 possession, is void under the bankruptcy proceedings and may be set aside upon suit by the trustee, who becomes vested with the title thereto. Where, however, it is for a present bona fide valuable consideration, and valid under a state law, the mort- gagee's title cannot be divested. Prior to the amendment of 1910 if the lien was valid under the state law as against the bankrupt and his general creditors it was held valid as against the trustee. But this rule has been changed by the amendment of 1910, and the trustee may now avoid liens on property in the custody or coming in the custody of the bankruptcy court if the same could have been avoided by a creditor holding a lien by legal or equitable proceedings, and may avoid liens on property not in the custody of the court if the same could have been avoided by a judgment creditor holding an execution duly returned unsatisfied.*^ He may seize property in the hands of a mortgagee who has failed to file a renewal statement as required by law, or recover its proceeds from such mortgagee who took possession before bankruptcy.** When a mortgage is declared void, the trustee holds the mort- gaged property unincumbered by the mortgage, and i^ is sub- ject to pro rata distribution just as any other property of the bankrupt.*^ Where the trustee voluntarily submits himself to the juris- diction of a state court he will be bound by its decision as to the validity of a mortgage involved in the suit.*® The interest of the bankrupt, as grantor in property con- veyed by a trust deed passes to the trustee in bankruptcy.*'' § 904. — Validity in general. The lien depends on the state law, as construed by the state courts.** Cases, decided both prior and subsequent to the amend- 33— See mie § 859. In re Geiver, 35 — In re Duggan, 183 Fed. 405, 25 A. 193 Fed. 128, 28 A. B. E. 413. B. E. 479, aff'g 182 Fed. 252, 25 A. B. In Missouri, an unrecorded trust deed E. 105. is valid as to judgment creditors and 36 — ^In re Eeynolds, 133 Fed. 82, 13 hence as to trustee if recorded before a A. B. E. 245. sale under the judgment. Sturdivant 37 — ^In re Jersey Island Packing Co., Bank v. Schade, 195 Fed. 188, 27 A. B. 138 Fed. 625, 2 L. E. A. (N. S.) 560, 14 E. 673, rev'g 189 Fed. 636, 26 A. B. E. A. B. E. 689. 915. 38— Bank of Dillon v. Murchison, 213 34— In re Thomas, 199 Fed. 214, 29 Fed. 147, 31 A. B. E. 740; In re Thomas, A. B. E. 945. 199 Fed. 214, 29 A. B. E. 945; In re 672 Bbandenbueg on Bankbtjptcy [§904 ment of 1910, determining the validity of chattel mortgages and trust deeds in the following states, may be found cited in the notes: Alabama,^® California,*" Colorado,*^ Georgia,*^ Idaho,** Iowa,** Kentucky,*^ Minnesota,** Michigan,*'^ Missouri,*^ Ne- Ozark Cooperage & Lumber Co., 180 Fed. 105, 24 A. B. E. 835; Swager v. Smith, 194 Fed. 762, 27 A. B. B. 660; Dodge v. Norlin, 133 Fed. 363, 18 A. B. E. 176; Dougherty v. First Nat. Bank of Canton, 197 Fed. 241, 28 A. B. E. 263; In re Geiver, 193 Fed. 128, 28 A. B. E. 413; In re First Nat. Bank of Canton, 135 Fed. 62, 14 A. B. E. 180; In re Harrison, 2 N. B. N. E. 541; Btherbridge v. Sperry, 139 V. 8. 266, 35 L. ed. 171; see ante §858. Where the property at the time of the execution of a chattel mortgage thereon is situated in a state other than that where the mortgagor is domiciled and the mortgage executed, the question of the preservation of the mortgage lien under the laws in reference to registration and priority of such' lien is to he determined by the laws of the place where the prop- erty is situated at the time the mortgage is executed. In re Nuckol^, 201 Fed. 437, 29 A. B. E. 867. 39 — ^Mortgage without change of pos- session. In re Marengo Co. Mere. Co., 199 Fed. 474, 29 A. B. R. 46. 40 — Unfiled chattel mortgage valid as against general creditors and trus- tee. In re Grainger, 160 Fed. 69, 20 A. B. E. 166. But see Guras v. Porter, 118 Fed. 668. 41 — ^Unfiled chattel mortgage void as to other creditors. In re Leigh Bros., 1 N. B. N. 425, 2 A. B. E. 606, s. c. 96 Fed. 806. 42 — ^Unrecorded chattel mortgage is void both as to existing and subsequent creditors. In re Duggan, 183 Fed. 405, 25 A. B. E. 479, aff'g 182 Fed. 252, 25 A. B. E. 105. But see In re Josephson, 116 Fed. 404, 8 A. B. E. 423. 43 — Trustee and simple creditors may attack validity of unfiled chattel mort- gage. In re Hiekerson, 162 Fed. 345, 20 A. B. E. 682. 44 — Chattel mortgage void as to credi- tors becoming such after its execution and prior to its recordation. Post v. Berry, 175 Fed. 564, 23 A. B. E. 699. 45 — Unrecorded mortgage is valid as against subsequent creditors without no- tice who have not secured a lien. Holt V. Crucible Steel Co. of America, 224 U. S. 262, 56 L. ed. 756, 27 A. B. E. 856, aff'g 174 Fed. 127, 23 A. B. E. 302. The mere failure to record is not conclusive of an agreement between the parties to that effect. In re Doran, 154 Fed. 467, 18 A. B. E. 760, modf'g 148 Fed. 327, 17 A. B. E. 799. 46 — Only subsequent purchasers acquir- ing the property while the mortgage is unfiled, and creditors laying hold of the property by legal proceedings during that time, can attack an unrecorded chattel mortgage. Title Guaranty & Surety Co. V. Witmire, 195 Fed. 41, 28 A. B. E. 235. 47 — The statutory invalidity of an un- filed chattel mortgage is not confined to those who obtained judgment or levied attachment before the filing, but extends to all creditors who became such after the giving and before the filing of the mortgage. In re Ottenwess & Huxoll, 193 Fed. 851, 27 A. B. E. 579. And see In re Adams, 1 N. B. N. 503, 2 A. B. R. 415, 97 Fed. 188; In re Loud, 1 N. B. N. 502. 48 — ^Unfiled chattel mortgage void as to persons becoming creditors between the dates of the giving of the mortgage and the filing thereof. In re Martin, 173 Fed. 597, 23 A. B. E. 151. And see In re Frazier, 117 Fed. 746. §904] Liens 673 braska,*® New Mexico,^" New York," North Carolina,^^ Ohio,''^ Oregon,^* Ehode Island,^^ South Carolina,^^ Virginia," Wash- ington,^® West Virginia,"^ and Wisconsin.®" A chattel mortgage may under a state law be void for insuffi- ciency of description,® 1 or for lack of refiling."^ In certain states a chattel mortgage, executed long before the bankruptcy but not 49 — ^Unfiled chattel mortgage held void. In re Perkins Plow Co., 112 Ted. 308, 7 A. B. E. 369. 50 — ^Mortgage on stock of goods with- out change of possession held valid. In re Harnden, 200 Fed. 175, 29 A. B. B. 507. 51 — Unfiled chattel mortgage is void as to general creditors but they cannot take advantage of invalidity until they ob- tain judgment and execution thereon is returned. It is sufficient however that the judgment is obtained and the execu- tion levied after the commencement of the bankruptcy proceedings. In re Beede, 138 Ped. 441, 14 A. B. E. 697. See also In re Schmidt, 181 Ped. 73, 24 A. B. E. 687; Gove v. Morton Trust Co., 96 App. Div. (N. T.) 177, 12 A. B. E. 297; In re Beede, 138 Ped. 441, 14 A. B. E. 697; Stephens v. Perrine, 143 N. Y. 476j Stephens v. Meridian Britanniea Co., 160 N.Y. 178; Sheldon v. Wickham, 161 Id. 500; In re Harrison, 2 N. B. N. E. 541. Trustee may attack unfiled chattel mortgage unaccompanied by change of possession. In re Gerstman, 157 Ped. 549, 19 A. B. E. 145; In re Noethen, 201 Ped. 97, 29 A. B. E. 234. The adjudication in bankruptcy does not affect the right of creditors to assert the invalidity of an unfiled mortgage. In re- Beede, 138 Ped. 441, 14 A. B. E. 697. 52 — Unfiled chattel mortgage held void. In re Tatem, 110 Ped. 519, 6 A. B. E. 426; In re Jones, 116 Ped. 431, 8 A. B. B. 626. 53 — Unfiled chattel mortgage held void. In re Ohio Co-op. Shear Co., 1 N. B. N. 477, 2 A. B. E. 775. 54— -Unfiled chattel mortgage held Brandenburg — 43 void. In re Booth, 2 N. B. N. E. 377, 98 Ped. 975, 3 A. B. E. 574. 55 — Unfiled chattel mortgage held void. In re Wright, 107 Fed. 428. 56 — ^Mortgage on 'shifting stock not void per se. Bank of DiUon v. Murehi- son, 213 Ped. 147, 31 A. B. E. 740. Mortgage is good without recording as to the bankrupt and all creditors whose rights accrued prior to its execu- tion, and it is of no effect as to those creditors, whether simple or lien credi- tors, whose rights accrued between the exepution of the mortgage and its re- cording. Simmons v. Greer, 174 Fed. 654, 23 A. B. E. 443, aff 'g 164 Ped. 300, 21 A. B. E. 34. See also Stroud v. Mc- Daniel, 106 Fed. 493, 5 A. B. E. 695. 57 — Unrecorded deed of trust invalid as to trustee. In re Thorp, 'l30 Ped. 371, 12 A. B. E. 195. 58 — Unrecorded chattel mortgage is void both as to prior and subsequent creditors. In re Mission Fixture & Man- tel Co., 180 Ped. 263, 24 A. B. E. 873. 59 — Unrecorded chattel mortgage held valid as against creditors who became such after it was given and without knowledge of it, where none of the other creditors, have secured a lien. In re Charles Town L. & P. Co., 199 Ped. 846, 29 A. B. E. 721. 60 — ^Unfiled chattel mortgage held void. In re Andrae Co., 117 Ped. 561, 9 A. B. E. 135. 61— Stroud v. McDaniel, 106 Fed. 493, 5 A. B. E. 695; In re Durham, 114 Ped. 750, 8 A. B. E. 115. 62— In re Thomas, 199 Fed. 214, 29 A. B. E. 945; In re Watts-Woodward Press, Inc., 181 Ped. 71, 24 A. B. E. 684; In re N. Y. Economical Printing Co., 110 Ped. 514, 6 A. B. E. 615, 674 Beandenbueg on Bankeuptcy [§ 904 recorded until a month prior thereto, is void only as to creditors who became such between the execution and record by a new credit or by the extension of an old indebtedness existing at or prior to the execution of said mortgage.^* The withholding of a mortgage from record is a matter open to explanation.^* But if it appears that the mortgage was withheld from record to enable the mortgagor to remain in possession of a stock of goods, and to deal with it as his own and thereby aid him in obtaining further credit, the mortgagee will be estopped from asserting his mortgage.®^ Unreasonable delay in the filing of a chattel mortg'age executed within four months of the filing of thel petition in bankruptcy, may invalidate it as to both prior and subsequent creditors.®" A chattel mortgage properly recorded in the state where the chattels are located is not invalidated by the fact that it is not recorded in the state of the residence of the parties thereto.®'' Where property is transferred to the bankrupt subject to an existing mortgage the mortgage cannot be attacked by the bank- rupt 's creditors on the ground that the mortgage is not recorded as required by statute.®* A chattel mortgage made in good faith to secure a present advance either in money or property is valid though made within four months of the bankruptcy; but, if made within that time with intent to hinder, delay or defraud creditors and not for such present advance, or if for any reason void under the state law as to creditors, as for want of filing, it is avoided by the bank- ruptcy. If it shows on its face that it was given in part to secure a pre-existing debt, and in part a new advance of money made at the same time with the mortgage, in the absence of actual fraud it is good as to the new advance,®^ though the mortgagee 63 — In re Adams, 1 N. B. N. 503, 2 68 — In re Standard Laundry Co., 112 A. B. E. 415, 97 Fed. 188; and see In Fed. 126, 7 A. B. E. 254; In re Columbia re Kaufmann, 2 N. B. N. E. 778. Fireproof Door Trim Co., 168 Fed. 159, 64— Mitchell v. Mitchell, 147 Fed. 280, 21 A. B. E. 714. 17 A. B. E. 382. 69— In re CUfEord, 136 Fed^ 475, 14 65— Mitchell v. Mitchell, 147 Fed. 280, A. B. E. 281; In re Wolf, 98 Fed. 84, 3 17 A. B. E. 382. A. B. E. 555; In re Barman, 14 N. B. 66— In re Sehiebler, 165 Fed. 363, 21 E. 125, Fed. Cas. No. 999; In re Stowe, A. B. E. 309. 6 N. B. E. 429, Fed. Cas. No. 13513; In 67— In re Greene, 134 Fed. 137, 13 A. re Hull, 115 Fed. 858. B. E. 504. §905] Liens 675 knew the mortgagor was financieilly embarrassed^" If on all the debtor's personalty given to secure a much larger sum than is due to protect the property from creditors, and the mortgagee with knowledge of the facts files it with an affidavit that the whole amount is due, it is void,''^ as is one made for a present considera^ tion though not recorded until within four months of the bankruptcy.'^^ Where a creditor invested the amount of his debt in a part-* nership business, received stock in a corporation organized to take over that business, in exchange, and then allowed the cor- poration to repurchase the stock by the giving of a chattel mortgage and by the payment of cash, all parties having knowl- edge of the entire transaction, the payment and mortgage will be held fraudulent J3 A chattel mortgage given upon the payment of cash, which goes into the hands of the bankrupt and is used for the purpose of his estate, and of which his creditors have the benefit, is a valid mortgage, even if made within the four months' period, if no actual fraud is shown.''* A mortgage of a liquor license has been held to be contrary to public policy J^ § 905. — Change of possession. "Where the mortgagor, by an arrangement, express or implied, is permitted to retain possession of the propeirty with power to sell, the mortgage is unavailing against his creditors,'^® unless 70— In re Eousseau, 2 N. B. N. K. A. B. E. 544; In re Hartman, 185 Fed. 1066. 196, 26 A. B. E. 76; In re Standard Tel. 71— In re Hugill, 2 N. B. N. E. 433, & Elee. Co., 216 U. S. 545, 54 L. ed. 610, 100 Fed. 616, aff'g 2 N. B. N. E. 429. 24 A. B. E. 761, afC'g 162 Fed. 675, 20 72— In re Barman, 14 N. B. E. 125, A. B. R. 671; In re Beihl, 176 Fed. 583, Fed. Cas. No. 999. 23 A. B. E. 905; In re Bellevue Pipe & 73— In re Levine, 196 Fed. 589, 28 Foundry Co., 22 A. B. E. 97; In re A B. B. 481. Tucker, 161 Fed. 584, 20 A. B. E. 404; 74— In re Mahland, 184 Fed. 743, 26 In re Gerstman, 157 Fed. 549, 19 A. B. E, A. B. E. 81. , 145; Zartman v. First Nat. Bank of 75— In re MeArdle, 126 Fed. 442, 11 Waterloo, 189 N. T. 267, 12 L. E. A. A. B. R. 358. (U. S.) 1083, 19 A. B. E. 27, aff'g 109 76— In re Noethen, 201 Fed. 97, 29 App. Div. (N. Y.) 406, 16 A. B. E. 152; A. B. E. 234; In re Marengo Co. Mere. In re Ditsch, 17 A. B. E. 912; MitcheU Co., 199 Fed. 474, 29 A. B. E. 46; In re v. Mitchell, 147 Fed. 280, 17 A. B. R. Geiver, 193 Fed. 128, 28 A. B. E. 413; 382; In re Marine Construction and Dry Swager v. Smith, 194 Fed. 762, 27 A. Dock Co., 144 Fed. 649, 16 A. B. R. 325, B. B. 660; Orr v. Park, 183 Fed. 683, 25 modfg. 135 Fed. 921, 14 A. B. E. 466; 676 Beandenbueg on Bankeuptcy [§905 the mortgage also requires the mortgagor on making sales to pay over the proceeds thereof and apply them to the payment of the mortgage debt.^'^ A mortgage on a shifting stock of merchan- dise, obviously intended for daily sale, and the proceeds whereof go to the mortgagor, is void as against creditors and as against the receiver in bankruptcy, not only as to stock after acquired,''* but also as to stock on hand at the time of the delivery of the mortgage '^^ and as to fixtures which are included therein.*** The inference of fraud arising in such case is not rebutted by proof that the debt secured is bona fide, and that the insolvency of the mortgagor was unknown to the mortgagee at the time of the execution of the mortgage.*^ Where such mortgage is voidable as to part of the mortgaged property it is voidable as to all.*^ Possession taken by the mortgagee after the filing of the peti- tion cannot operate to validate the mortgage as against the trustee.** The trustee is not a party to a chattel mortgage withiu the meaning of a statute making unrecorded chattel mortgages void as to persons not parties thereto unless there has been a delivery of the property to the mortgagee.** § 906. — Mortgage of after acquired property. Whether a mortgage is operative as to after-acquired property must be determined by the laws of the state where executed.*^ Skilton V. Codington, 185 N. T. 80, 15 den, 200 Fed. 175, 29 A. B. E. 507; In re A. B. E. 810; In re First Nat. Bank of KuUberg, 176 Fed. 585, 23 A. B. B. 758. Canton, 135 Fed. 62, 14 A. B. R. 180; 77— In re Hartman, 185 Fed. 196, 26 Dodge V. Norlin, 133 Fed. 363, 13 A. B. A. B. R. 76. R. 176; Skillen v. Endelmau, 39 Mise. 78— In re Noethen, 195 Fed. 573, 27 A. (N. T.) 261, 11 A. B. R. 766; In re B. E. 910; In re Volence, 197 Fed. 232, Leigh Bros., 1 N. B. N. 526, 96 Fed. 806, 27 A. B. R. 914. aff'g 1 N. B. N. 425, 2 A. B. E. 606; 79— In re Noethen, 195 Fed. 573, 27 In re Ohio Coop. Shear Co., 1 N. B. N. A. B. E. 910. 477, 2 A. B. R. 775; In re Foster, 18 N. 80— In re Volence, 197 Fed. 232, 27 B. R. 64, Fed. Cas. No. 4964; Bk. v. A. B. R. 914. Hunt, 4 N. B. R. 198; Kane v. Rice, 10 81— Mitchell v. Mitchell, 147 Fed. 280, N. B. E. 469, Fed. Cas. No. 7609 ; Eobin- 17 A. B. R. 382. son V. Elliott, 11 N. B. R. 553, 22 Wall. 82— Dodge v. Norlin, 133 Fed. 363, 13 513, 22 L. ed. 758 ; Smith v. Ely, 10 N. A. B. R. 176. But see In re Soudan Mfg. B. R. 553, Fed. Cas. No. 1344; In re Co., 113 Fed. 804, 8 A. B. E. 45. Gurney, 15 N. B. R. 373, 7 Biss. 414, 83— In re Jules & Frederic Co., 193 Fed. Cas. No. 5873 ; but see Harvey v. Fed. 533, 27 A. B. R. 136. Crane, 5 N. B. R. 218, 2 Biss. 496, Fed. 84^In re Julea & Frederic Co., 193 Cas. No. 6178; In re Hull, 115 Fed. 858. Fed. 533, 27 A. B. R. 136. But see Bank of Dillon v. Murchiaon, 213 85 — ^In re Burnham, 140 Fed. 926, 15 Fed. 147, 31 A. B. E. 740; In re Harn- A. B. E. 548; Thompson v. Fajrbank?, §906] ■ Liens 677 The words of the mortgage are to be strictly construed,®® and it will not be held to cover after-acquired property unless expressly so provided in the mortgage.®^ The indorsement by the debtor upon the back of an otherwise valid chattel mortgage given by him, that such mortgage should cover property acquired after its execution, made with the purpose of delaying creditors, is void.** The enforcement of a lien by the taking of possession, with the consent of the mortgagor, of after-acquired property, covered by a valid mortgage, is not a conveyance or transfer within the meaning of the act,*** and it is held that a mortgagee of after- acqiiired property talking possession within the four-month period may hold as against the trustee, though at the time of his taking possession the property was subject to an attachment, such attachment being invalidated by the filing of the petition in bankruptcy.®" A mortgagee's right to take possession of after-acquired property covered by his mortgage is terminated by the adjudica- tidn,*^ and even though possession be taken before bankruptcy the mortgage may be held void as to the trustee.®* It is held that where there are no creditors Other than the lien claimant the provision of section 47a (2) as amended in 1910 cannot be invoked in attacking a mortgage covering after- acquired property,®^ but this is contrary to the majority rule.®* 196 TT. S. 516, 49 L. ed. 577, 13 A. B. 88— Whithead v. Pillsbury, 13 N. B. E. 437, aff 'g 70 Vt. 558, 13 A. B. E. 75n; E. 241, Fed. Cas. No. 17572. Zartman v. First Nat. Bank, 189 N. Y. 89 — Thompson v. Fairbanks, 196 TJ. S. 267, 12 L. E. A. (N. S.) 1083, 19 A. B. 516, 49 L. ed. 577, 13 A. B. E. 437, afE'g B. 27, aff'g 109 App. Div. (N. Y.) 406, 70 Vt. 558, 13 A. B. E. 75n. 16 A. B. E. 152. 90— Thompson v. Fairbanks, 196 U. S. After-acquired personal property used 516, 49 L. ed. 577, 13 A. B. E. 437, aff 'g in the business of the bankrupt consisting 70 Vt. 558, 13 A. B. E. 75n; In re of machinery, tools, and ofdee fittings, Clough, 197 Fed. 185, 28 A. B. E. 828. held not to pass to mortgagee under 91 — ^In re Hurley, 185 Fed. 851, 26 A. after-acquired property clause. In re B. E. 434. Niagara Lead & Battery Co., 202 Fed. 92 — Zartman v. First Nat. Bank, 189 298, 29 A. B. E. 788. N. Y. 267, 12 L. R. A. (N. S.) 1083, 19 86— In re Adamant Plaster Co., 137 A. B. E. 27, aff'g 109 App. Div. (N. Y.) Fed. 251, 14 A. B. E. 815. 406, 16 A. B. E. 152. 87— York Mfg. Co. v. Cassell, 201 U. 93— In re Flatland, 196 Fed. 310, 28 S. 344, 50 L. ed. 782, 15 A. B. E. 633, A. B. E. 476. rev'g 135 Fed. 52, 14 A. B. E. 52. 94— See ante §§748, 859-. 678 Bkandenbubg on BANKEtrpioy [§ 907 § 907. — Recital of mortgage in note. The failure of a note to state that it was secured by chattel mortgage as provided by statutes has been held to invalidate the mortgage as against the trustee in bankruptcy.®^ § 908. Equitable assignments and liens. §909. —In general. The, validity of an equitable assignment of or lien against property in the hands of the trustee, is determined by the state law as construed by the highest courts of the state.®^ Such lien or assignment, if valid under the state law, may be enforced against the trustee,®'' and the court of bankruptcy will not hesi- tate to effectuate the actual intent of transactions honestly had with a bankrupt, without much restraint as to formality or pro- cedure.®* An equitable lien never arises nor is enforced except against property in the hands of a party to the original transaction out of which it is claimed to grow, or his voluntary representatives, or one who has notice of it and is affected with it as a superior right.®® An equitable lien which involves a fraud upon the law is none the less obnoxious because not in the form a chattel mortgage or a, conditional sale.^ A personal claim of indebtedness against the bankrupt's estate does not constitute a lien upon property of the estate in the hands of one making such claim,^ and a general promise of 95— In re Birck & Co., 142 Fed. 438, Chantler Cloak & Suit Co., 151 Fed. 952, 15 A. B. R. 694. 18 A. B. E. 498. 96 — Eode & Horn v. Phipps, 195 Fed. 98 — Gage Lumber Co. v. McEldowney, 414, 27 A. B. R. 827 ; Godwin v. Murehi- 207 Fed. 255, 30 A. B. E. 251. son Nat. Bank, 145 N. C. 320, 22 A. B. 99— Fourth Street Nat. Bank v. Mill- E. 703. bourne Mill Co. 's Trustee, 172 Fed. 177, 97 — Gage Lumber Co. v. MeEldowney, 30 L. E. A. (N. S.) 552, 22 A. B. E. 442,, 207 Fed. 255, 30 A. B. E. 251 ; In re Dunn a« 'g 162 Fed. 988, 20 A. B. E. 746. & Co., 193 Fed. 212, 28 A. B. E. 127; 1— In re Liberty SUk Co., 152 Fed. 844, Goodnough Mercantile & Stock Co. v. Gal- 18 A. B. E. 582. loway, 171 Fed. 940, 22 A. B. E. 803, 156 2— In re Eude, 2 N. B. N. E. 498; Gold- Fed. 504, 19 A. B. E. 244; In re Hanna, man v. Smith, 1 N. B. N. 291, 2 A. B. E. 105 Fed. 587, 5 A. B. E. 127; Hanson v. 104; In re Falls City Shirt Mfg. Co., 1 Blake & Co., 155 Fed. 342, 19 A. B. E. N. B. N. 565, 98 Fed. 592, 3 A. B. E. 437; 325. But see In re Faulhaber Stable Co., In re Brunquest, 14 N. B. E. 529, 7 Ben. 170 Fed. 68, 22 A. B. E. 381 ; In re 208, Fed. Cas. No. 2055. §910] Liens 679 the bankrupt to give security on demand cannot be enforced as a lien against his estate.^ An agreement made, when a debt is created, to make payment out of a particular fund, or the pro- ceeds of. a particular enterprise, does not create a lien upon the fund or the proceeds of the enterprise.* One of whom a bankrupt borrowed money to use in the pur- chase of property, has an equity in the property purchased which will be recognized by the bankruptcy court,^ but, it is held that one advancing money to the bankrupt upon an executory contract for future delivery of fish to be caught by the bankrupt has no title to the fish subsequently caught where there had been no delivery to him.* § 910. — Parol assignments. In both legal and equitable assignments it is essential that the parties contemplate an assignment. While at law a mere agree- ment is unenforceable, in equity snch assignment may be had between the parties and others having notice thereof. Such agreement may be express or implied. Implication must neces- sarily and exclusively point to an assignment, and not to a mere designation of a fund or assets out of which, a payment is to be made. Where enforcement of an agreement to assign is sought against the trustee, it is essential that there was a purpose to presently transfer all that the bankrupt assignor had or was to obtain in the funds or accounts which are the subject of the transaction. The test is whether the transaction, if assented to by the debtor of the assignor, creates an absolute personal indebtedness payable to the assignee, or merely an obligation by such assignor to make payment out of that particular debt. Whiat shall amount to the present appropriation which consti- tutes an equitable assignment is a question of intention to be gathered from all the circumstances. It is not essential that 3 — Mechanios' & Metals Nat. Bank v. under an agreement whereby lie is to Ernst, 231 U^ S. 60, 58 L. ed. 121, 31 A. have an interest in the property pur- B. E. 302, aff 'g 201 Fed. 664, 29 A. B. chased may enforce his rights as againA E. 289. the trustee and general creditors. In re 4^Torrance v. Winfield Nat. Bank, 66 McConnell, 197 Fed. 438, 28 A. B. E. Kan. 177, 11 A. B. B. 185. 659. 5 — Parker v. Bates, 203 Fed. 294, 30 6 — In re Alaska Fishing & Develop- A. B. E. 198. ment Co., 167 Fed. 875, 21 A. B. E. One who has advanced money to the 685. , bankrupt to purchase certain property 680 Bbandenbubg on Bankbuptcy [§ 910 the subject matter be actually in being, if it exists pdteHtiallyi'' though in order that an equitable assignment may be effective against the receiver or trustee in bankruptcy, notice to the debtor or fundholder is ordinarily held necessary.* A bill of exchange or draft drawn against a specified fund and accepted by the drawee constitutes an equitable assignment pro tanto of the fund.® A parol assignment of choses in action to be acquired in the future made in good faith more than four months prior to the adjudication for the purposes of security has been held to create a valid lien upon choses of action which came into the possession of the trustee.^** Where the beneficiaries in a policy on the life of the bankrupt assigned the same to "him under an agreement that the same was to be used as third collateral for a loan and reassigned to them in case the primary collateral was sufficient to satisfy the debt, and the policy was used to satisfy the debt in place of the real estate mortgaged, it was held that the bene- ficiaries were entitled to a lien on the real estate or the pro- ceeds thereof.^* § 911. Factor's lien. It is essential to the validity of a factor's lien that the prop- erty consigned shall be delivered to the consignee.^^ § 912. Landlord's lieu. Whether or not the landlord has a lien for the rent and, if so, to what extent, is to be determiaed by the lex loci and the bank- ruptcy court will recognize and enforce such lien.** Where under the state law the landlord is given a right to a lien upon 7 — ^Evidence held in suffieient to show 12 — Ommen v. Taleott, 188 Fed. 401, a present appropriation of outstanding 26 A. B. B. 689. book accounts at the time of an alleged 13 — ^In re Scruggs, 205 Fed. 673, 31 A. equitable assignment, thereof by bank- B. B. 94j In re Sapinsky & Sons, 206 nipt. In re Steger, 209 Fed. 148, 31 A. Fed. 523, 30 A. B. E. 416; Des Moines B. E. 634, aff'g 202 Fed. 791, 29 A. B. E. Nat. Bank v. Council Bluffs Sav. Bank, .253. 150 Fed. 301, 18 A. B. E. 108; Martin 8— In re The Leader, 190 Fed. 624, 26 v. Orgain, 174 Fed. 772, 23 A. B. E.'454; A. B. E. 668. In re Meyer & Bleuler, 195 Fed. 653, 28 9— In re Oliver, 132 Fed. 588, 12 A. A. B. E. 17; In re Jefferson, 1 N. B. N. B. E. 694. 288, 2 A. B. E. 206, 93 Fed. 948; In re 10— Union Trust Co. v. Bulkeley, 150 Gerson, 1 N. B. N. 315, 2 A. B. E. 170; Fed. 510, 18 A. B. E. 35. In re Goldstein, 1 N. B. N. 422, 2 A. B. 11— In re Mao Dougajfl, 175 Fed. 400, E. 603; In re Cronson, 1 N. B. N. 474; 23 A. B. E. 762. In re Shilladay, 1 N. B. N. 475; In re § 912] Liens 681 the execution of the lease and the tenant's entry into possession, his lien will be preserved if the lease is executed and recorded more than four months prior to the bankruptcy proceedings, though it does not actually attach until the levy of a distress warrant within such four-month period.^* As said by Lamar, J., in a recent case before the supreme court: "The statute was not intended to lessen rights which already existed, nor to defeat those inchoate liens given by statute, of which all creditors were bound to take notice and subject to which they are presumed to have contracted when they dealt with the insolvent." ^^ Where, however, the lien does not attach until the levying of a distress warrant or the issuance of an execution, the bank- ruptcy of the tenant within four months thereafter will avoid the lien so acquired.^® A lien given the landlord for the term of one year from the date of the insolvency of the lessee cannot be defeated by the trustee's surrendering possession before the expiration of such time." Goods sold at retail in the ordinary course or conduct of a mercantile business are not sold subject to the landlord's lien, since in such case it is not practicable for the lien to follow the goods.^® If at the time the petition ^® is filed the landlord has no lien Euppel, 2 N. B. N. E. 88, 3 A. B. R. 233, 18— In re Varley & Bowman do. Co.,' 97 Fed. 778; In re Arnstein & Bonn, 2 188 Fed. 761, 26 A. B. R. 104. N. B. N. B. 106; but see In re Sunseri, 19 — Under the Act of 1867, it was held 3 N. B. N. R. 65. that the law made no provision for a 14 — In re Robinson & Smith, 154 Fed. landlord's lien, but that in its adminis- 343, 18 A. B. R. 563; Henderson v. tration it was the court's duty to recog- Mayer, 225 IT. S. 631, 56 L. ed. 1233, 28 nize and enforce any lien that he might A. B. R. 387; Plant v. Gorham Mfg. Co., have by virtue of the State law (In re 174 Fed. 852, 23 A. B. E. 42; In re West MoConnell, 9 N. B. R. 387, Fed. Cas. No. Side Paper Co., 162 Fed. 110, 20 A. B. 6712) ; and that a lien for rent would R. 660, rev'g 159 Fed. 241, 20 A. B. E. accordingly be respected (In re Trim v. 289. Wagner, 5 N. B. R. 23; 2 Hughes, 355, 15— Henderson V. Mayer, 225 U. S. 631, Fed. Cas. No. 14174; Bowne, 12 N. B. 56 L. ed. 1233, 28 A. B. R. 387.. E. 529, Fed. Cas. No. 1741; Barne's. Ap- 16 — In re Whealton Eestaurant Co., peal, 13 N. B. R. 543 ; Longstreth v. Pen- 143 Fed. 921, 16 A. B. B. 294; In re nock, 7 N. B. E.' 449, Fed. Cas. No. Dougherty Co., 109 Fed. 480, 6 A. B. E. 8488) ; but would not attach to the goodg 457. of a bankrupt found on the premises. 17— In re Meyer & Bleuler, 195 Fed. BaUey v. Lqeb, 11 N. B. E. 271, 2 Woods, 653, 28 A. B. E. 17. 578, Fed. Cas. No. 739. 682 Bbandenbueg ok[ Bankexjptcy [§ 912 on a bankrupt tenant's goods as against the bankrupt, he has none subsequently against the trustee; '"' nor would the levying of a distress warrant after bankruptcy give the landlord a lien on the property as against the trustee.^^ A lien created by a mining lease, consisting of a pledge of machinery for the purpose of securing the royalty fixed by the lease, has been held not a conveyance within the recording statutes.^^ Such lien may be waived by re-entering the prem- ises. § 913. Livery stable keeper's Uen. In some states, the lien given livery stable keepers by statute is a perfect lien at the time the lien is created and is not voidable because notice thereof is filed within four months of bank- ruptcy.^^ § 914. Materialman's or mechanic's lien. A materialman's or mechanic's lien is only equivalent to the additional value which the creditor has by his skill given the debtor's property, and does not diminish the assets applicable to the payment of his pre-existing debt, but stands on the same footing as a mortgage, pledge, or any other security given on a new and full consideration, and is not a preference of an antece- dent debt. Being created by state statute and not the federal law, the requirements to their validity vary with the provisions of the several state laws with reference thereto, and if valid in accordance with such laws, will be so recognized by the court of bankruptcy, provided they are not in contravention to the bank- ruptcy law.^* A number of situations may arise in bankruptcy proceedings as regards the lien of a mechanic or materialman. (1) The mechanic or materialman may become bankrupt, or (2) the owner of the property on which the lien is filed may become 20— In re Butler, 6 N.. B. E. 501, Fed. 22— In re Gallagher Coal Co., 205 Fed. Cas. No. 2236. 183, 29 A. B. R. 766. 21— In re Cress-McCormiok Co., 25 A. 23 — In re Pratesi, 126 Fed. 588, 11 A. B. B. 464; In re Bishop, 158 Fed. 304, B. R. 319. 18 A. B. E. 635; Morgan v.' Campbell, 11 24 — In re Starks-TJllman Saddlery Co., N. B. R. 529; contra. In re Appold, 1 171 Fed. 834, 22 A. B. R. 596; In re Coe N. B. B. 178, Fed. Caa. No. 490. Powers Co., 109 Fed. 550, 6 A. B. B. 1. 1 914] Liens 683 tiankrupt, or (3) the cphtractor employing the mechanic and erecting the building for the owner may become bankrupt. These three situations may arise under two conditions connected with bankruptcy proceedings, that is, the notice of the lien may be filed within four months of the filing of the petition in bank- ruptcy, or it may be filed after the filing of such petition. If the lien be filed after the filing of the petition in bankruptcy by or against the owner of the property, it is clear that such lien is not effective for the reason that whatever is due in such case to the contractor, the materialman or the mechanic passes to the trustee by virtue of the adjudication in bankruptcy, as of the date of filing the petition. The title of the trustee can in no wise be affected by proceedings instituted thereafter. The prop- erty of the bankrupt being then in custodia legis, no lien of any character whatsoever can attach. ^^ The bankruptcy of the contractor does not affect the right of a materialman to perfect his lien by filing notice thereof after bankruptcy,*® nor is the service of a stop-notice by a workman or materialman upon the owner of a building within four months of bankruptcy to compel the retention of the amount of a claim from the contract price to be paid the bankrupt such a lien as will be avoided.*'^ A lien upon motor vehicles for materials furnished the owner within four months of bankruptcy, has been held valid as against the trustee, though the lien statement is not filed until after bankruptcy.^* Materials brought by a contractor upon the owner's premises and appropriated to the building contracted for, are to be con- sidered as so far delivered into the possession of the owner as to raake them security for advances made by him on the contract, and to vest in him a qualified right of property in the same, con- 25— In re Eoeber, 121 Fed. 449, 9 A. B. 146 N. T. S. 449, 31 A. B. E. 703, rev'g R. 303; Lazzari v. Havens, 39 Mise. 255, 30 A. B. R. 789; In re Grissler, 136 Fed. 79 n; T. S. 375; see In re Huston, 7 A. 754, 13 A. B. E. 508; Crane Co. v. B. E. 92; but see In re Georgia Handle Smythe, 94 App. Div. (N. Y.) 53, 11 A. Co., 109 T"ed. 632, 6 A. B. E. 472; Mott B. E. 747. V. Wissler Mining Co., 135 Fed. 697, 14 27— FeWing v. Goings, 67 N. J. Eq. A. B. E. 321 ; Henderson v. Mayer, 225 375, 13 A. B. E. 154. U. S. 631, 56 L. ed. 1233, 28 A. B. E. 387. 28— In re MeAllister-Newgord Co., 193 26— Hildreth Granite Co. v. Watervliet, Ted. 265, 27 A. B. E. 459. 684 Bbandenbueg on Bankeuptcy [§ 914 sistent with the right of the owner to use them in the fulfilhnent of his contract.^* A lien may be waived or be avoided by the omission of any of the things directed by the state statute to be done or to be included in the notice which must be filed,^" or if not filed within the time required by the statute, or by such delay in demanding payment as will amount to a waiver of the lien.^^ Neither would there be any right to a lien where the building contract expressly provided that there should be no lien or right of lien thereunder, and such contract has been recorded in compliance with the provisions of a state law.^^ Where a mechanic's Hen statute requires notice to the owner without any language to indicate that a written notice is intended, an oral notice is suflicient.^^ An artisan performing work upon the property of the bank- rupt after the filing of the petition but before the adjudication is entitled to a lien upon the proceeds of the property.^* § 915. Mortgage liens. The bankruptcy law does hot prohibit a person from loaning money at legal rates, or selling goods or other property to one whom he has reason to believe is insolvent, and taking security for the same, provided it be bona fide and without intent or participation in any intent to defraud or defeat the execution of the law.^^ Section 67 of the law contains several specific pro- 29— Duplan Silk Co. v. Spencer, 115 The Kimball, 3 Wall, 37, 43, 18 L. ed. 50. Fed. 689, 8 A. B. K. 367. 32— Ludowiei Eoofing Tile Co. v. 30— In re Emslie, 2 N. B. N. R. 992, Penna Inst., 116 Fed. 661, 8 A. B. E. 102 Fed. 291, 4 A. B. E. 126, rev'g 2 739. N. B. N. E. 324, 98 Fed. 716, 3 A. B. 33— In re Farmers' Supply Co., 170 E. 516, 2 N. B. N. R. 171, 97 Fed. 929, 3 Fed. 502, 22 A. B. E. 460. A. B. E. 282; In re Drolesbaugh, 2 N. 34 — In re Eich, 15 Ohio Fed. Dee. 255, B. N. K. 1079; In re Beck Provision Co., 17 A. B. E. 893. 2 N. B. N. E. 532; In re Kerby-Denia 35 — Grinstead v. tJnion Savings & Trust Co., 1 N. B. N. 399, 95 Fed. 116, 2 A. B. Co., 190 Fed. 546, 27 A. B. E. 123. Crook E. 402, aff 'g 1 N. B. N. 337, 94 Fed. 818, v. Bk., I. N. B. N. 530; Darby v. Boat- 2 A. B. E. 218; In re Dey, 9 Blatch. 285, man's Sav. Inst., 4 N. B. E. 195, Fed. Fed, Cas. No. 3871; In re Coulter, 5 N. Cas. No. 3571; Barbour v. Priest, 19 N. B. E. 64, 2 Sawy. 42, Fed. Cas. No. 3276; B. E. 518, 103 U. S. 293, 26 L. ed. 478; Sabin v. Connor, Fed. Cas. No. 12197; In re Morrison, 10 N. B. E. 106, Fed. In re Cook, 3 Biss. 116 Fed. Cas. No. Cas. No. 9839; Tiffany v. Boatman's 3151. Sav. Inst., 9 N. B. E. 245, 18 Wall. 375, 31— See In re Lowensohn, 2 N. B. N. 21 L. ed. 868, Potter v. Coggeshall, 4 E. 871, 100 Fed. 776, 4 A. B. E. 79; N. B. E. 19, Fed. Cas. No. 11322; Camp- 1 915] , Liens 665 visions under which a mortgage, although valid as between the mortgagor and mortgagee, would be avoided on the subsequent adjudication of the mortgagor as a bankrupt. Thus, under sub- division "a," if under the laws of the state, such mortgage must have been recorded in order to have been a valid lien as against the claims of the creditors of the bankrupt, such mortgage will not be a lien against his trustee unless a record was duly made.^" In some states, an unrecorded mortgage is void as to those cred- itors who extended credit to the bankrupt after it was made and before it was recorded, but to avoid the mortgage as to other creditors, actual fraud in which the mortgagee participated, as distinguished from a mere preferential transfer or constructive fraud, must be shown.*'' In others, neglecting to promptly record a mortgage is not in itself fraudulent as against other creditors, and it is not made fraudulent by the additional fact that brothers-in-law are adverse parties to the mortgage.^* In Georgia, the failure to attest renders a mortgage void as against subsequent and younger lienors.^" Under subdivision " e, " any mortgage or encumbrance on th e property of a person adjudged a bankrupt within four months prior to the filing of the petition either by or against him, with the intent and purpose on his part to hinder, delay or defraud his creditors or any of them, will be null and void as against the creditors of such debtor except as to purchasers in good faith and for a present fair consideration, and such property will remain a part of the assets and estate of the bankrupt and passes to his trustee,*** whose duty it is to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. Hence, a mortgage made by the bankrupt within four months of the bankruptcy proceedings to secure an antecedent debt, is void if given with intent to hinder, delay or defraud creditors, bell V. Waite, 16 N. B. R. 93, 9 Ben. 166, 37— MeAtie v. Shade, 185 Fed. 442, 26 Fed. Gas. No. 2374; Clark v. Iselin, 9 A. B. E. 151. N. B. E. 19, 10 Blateh. 204, Fed Cas. No. 38— Bean v. Orr, 182 Fed. 599, 25 A. 2825; Gattman -v. Honea, 12 N. B. R. B. E. 400. 493, Fed. Gas. No. 5271; In re Soudans 39— In re Moore, 19 A. B. E. 271. Mfg. Co., Stiles V. Dunnahoo, 113 Fed. 40 — For a full discussion of the ques- 804, 8 A. B. R. 45; In re Davidson, 109 tion of fraudulent conveyances by mort- Fed. 882, 5 A. B. E. 528; McDaniel v. gage or otherwise, see ante §782. Stroud, 106 Fed 486, 5 A. B. R. 685. 36— In re Pettingill & Co., 137 Fed. 143, 14 A. B. E. 728. 686 Beandenbueg on Bankeuptct [§ 915 or with the intent to interfere with the operation of the bank- ruptcy law or to prefer the mortgagee.*^ A mortgage will also be void if it be given to secure one creditor and it covers all the property then available for the general creditors ; *^ or if given for an amount much larger than the debt, the balance being in- tended to protect bankrupt or for his secret benefit ; ** or where the debtor transfers his property to a third person who executes a mortgage thereon to secure a creditor of the insolvent.** If an obligation be assumed upon a valid agreement that the bankrupt will execute a mortgage upon certain specific property to secure the assumed liability, a mortgage executed and deliv- ered in pursuance of such agreement, within a reasonable time thereafter, is valid, and the liability assumed will be deemed a present consideration for the conveyance.*^ In Pennsylvania as between judgment creditors and general creditors in bankruptcy, machinery of a factory, which is a necessary part of it, is a fixture subject to the lien of a mortgage on the realty, regardless of the fact that the machinery has been conveyed to the owner by a bill of sale.*® Although a person may have been solvent, a mortgage made by him with intent to hinder, delay or defraud his creditors, will become null and void if bankruptcy proceedings are instituted against the mortgagor within four months thereafter. If a mort- gage is given to cover a pre-existing debt as well as a new , advance, it will be upheld to the extent of the advance,*'^ or if given to secure present and future advances, it will be upheld unless given with an intent to hinder, delay or defraud cred- 41— PoweU V. Gate City Bank, 178 Fed. 43— In re HugiU, 100 Fed. 616, 3 A. B. 609, 24 A. B. E. 316; American Wood E. 686. Working Maeh. Co. v. Norment 157 Fed. 44 — Gibson v. Dabil, 14 N. B. E. 165, 801, 19 A. B. R. 679; In re Glicman, 1 5 Biss. 198, Fed. Cas. No. 5394. N. B. N. 58; In re Jacobs, 1 N. B. N. 45 — In re Farmers' Supply Co., 170 183, 1 A. B. E. 518 ; In re Teague, 1 N. Fed. 502, 22 A. B. E. 460. B. N. 310, 2 A. B. E. 168 ; In re Stendts, 46 — In re Beeg, 184 Fed. 522, 25 A. B. 1 N. B. N. 509; In re Tine, 1 N. B. N. E. 572. 402, 95 Fed. 425, 2 A. B. E. 493; In re 47— In re Eousaeau, 2 N. B. N. E. Durham, 114 Fed. 750, 8 A. B. E. 115; 1066; City National Bank v. Bruce, 109 In re Eagan State Bank v. Eice, 119 Fed. Fed. 69, 6 A. B. E. 311 ; In re Davidson, 107; In re Barrett, 6 A. B. E. 48. supra; In re Sanderlin, 109 Fed. 857, 6 42— In re MeLane, 97 Fed. 922, 3 A. A. B. E. 884; Steadman v. Bank of Mon- B. E. 245; In re Steininger Mercantile roe, 117 Fed. 237. Co., 107 Fed. 669, 6 A. B. E. 68; In re Schuller, 108 Fed. 591, 6 A. B. E. 278. § 915] Liens ' 687 itors.*^ The same is true where a mortgage is made shortly before bankruptcy in pursuance of a parol agreement made long before upon a valuable consideration,*^ but a general promise made at the time a debt is contracted to give security if required, cannot be executed after the debtor has become insolvent.^" A inortgage executed in blank and in which the blanks are subse- quently filled takes effect from the latter date, and if within four months and for an antecedent debt wiU be void.^^ Where sureties receive an indemnity mortgage from their principal, the bankrupt, to secure them against liability incurred in his behalf during a fixed period and to a limited amount, such security is not confined to the existing debts or mere renewals, but extends to new debts within the amount limited for which they become liable within the fixed period.^* A mortgage given by a partnership on its property is not affected by bankruptcy proceedings against one partner, though after the mortgage is given, the firm was dissolved and such partner took the assets and assumed its liabilities.^* The taking possession of mortgaged property by the mort- gagee and omission to sell within a reasonable time operates as a satisfaction of the debt to the extent of the value of the prop- erty when the mortgagee took possession.®* Formal defects in a mortgage executed by the bankrupt prior to his bankruptcy may be corrected.^® Where a mortgage is defective for want of acknowledgment or attestation, and the property passes into the hands of the trustee in bankruptcy before any proceedings are taken to reform the instrument, the trustee takes the property in the plight in which it then stood, and the instrument must be reformed to render it enforceable agaiast him.®^ One who, in reliance upon the agreement of the 48— Ex p. Ames, 7 N. B. E. 230, Fed. 52 — Courier Journal Job Printing Co. Cas. No. 332. v. Brewing C6., 101 Fed. 699, 4 A. B. E. 49— Sabin v. Camp, 98 Fed. 974, 2 N. 183; Curry v. MoCauley, 20 Fed. 583. B. N. E. 375, 3 A. B. E. 578; Burdiok v. 53— In re Sanderlin, 109 Fed. 857, 6 Jackson, 15 N. B. E. 318; Post v. Cor- A. B. E. 384; MeDaniel v. Stroud, 106 bin, 5 N. B. E. 11; In re Wood, 5 N. B. Fed. 486, 5 A. B. E. 685; MeNair v. E. 421, Fed. Cas. No. 17937; but see Molntyre, 113 Fed. 113, 7 A. B. E. 638. Graham v. Stark, 3 N. B. E. 92, Fed. 54— In re Haake, 7 N. B. E. 61; 2 Cas. No. 5676. ' Sawy. 381, Fed. Cas. No. 5883. 50 — Lloyd V. Strobridge, 16 N. B. E. 55 — In re International Mahogany Co., 197, Fed. Cas. No. 8435; Ex p. Ames, 7 147 Fed. 147, 16 A. B. E. 797. N. B. E. 8435, Fed. Cas. No. 323. 56 — Foerstner v. Citizens' Sav. & 51— In re Barrett, 6 A. B. E. 48. Trust Co., 186 Fed. 1, 26 A. B. E. 377. 688 Bbandenbukg on Bankbuptoy [§915 bankrupt to give Mm a first lien on the latter's property to secure his repayment, loans money to pay off a prior incum- brance and takes a defective mortgage or other security, may be subrogated to the rights of the prior creditor to secure the pay- ment of his claim.^''^ The trustee takes property mortgaged or pledged, subject to the amount legally due thereon. It is his duty to investigate the liens claimed to be held against the property and the value of the property on which held; and in case of doubt test the validity of the liens by suit.^^ The trustee should plead usury as long as any part of the debt on which usurious interest was paid remains unpaid.^® If he finds there is any interest in the prop- erty which" might be obtained for the general creditors, he should intervene in the suit to foreclose the security, or take other steps to realize such interest.®" Where a state court has rendered a decree fixing the mortgagor's liability and orders a sale prior to the bankruptcy, he is entitled to any surplus proceeds and takes the title subject to such decree ; ®^ or to the proceeds of the sale of mortgaged property in the possession of a state court, not car- ried there by final process to enforce the mortgage, and the mort- gagee must assert his claim in the bankruptcy court.^^ Unless there is some benefit to be gained for the estate, it is not necessary for the trustee to move in the matter of a mort- gage.®* Where the legal title to a bankrupt's mortgaged property is held by the trustee, the federal court has jurisdiction to hear and determine a question as to the validity and amount of the mortgage lien.®* After a petition in bankruptcy is filed the court will punish either the mortgagor or the mortgagee for 57— In re Lee, 182 Fed. 579, 25 A. B. HoUoway, 1 N. B. N. 264, 93 Fed. 638; E. 436. 1 A. B. E. 659. 58— In re N. Y. Kerosene Oil Co. 3 N. 61— In re Gerdes, 102 Fed. 318, 4 A. B. E. 31, Fed. Cas. No.«7726; In re B. E. 346, 2 N. B. N. E. 131. Metzger, 2 N. B. E. 114, Fed. Cas. No. 62— Morris v. Davidson, 11 N. B. B. 9510. 454. 59— In re Preseott, 9 N. B. E. 385, 5 63— In re, Lambert, 2 N. B. E. 138, Bias. 523, Fed. Cas. No. 11389. Fed. Cas. No. 8026; In re Gibbs, 109 Fed. 60— In re Coffin, 1 N. B. N. 507, 2 A. 627, 6 A. B. E. 485. B. E. 344; Heath v. ShafCer, 1 N. B. N. 64^-In re Kellogg, 113 Fed. 120, 7 A. 399, 93 Fed. 647; 2 A. B. E. 98; In re B. E. 623. § 918] Liens 689 interfering with the mortgaged property,®" as the title to such property has then passed to the trustee."® A creditor who relinquishes a security by mistake, either of law or fact, should be reinstated in his security by the court of bankruptcy, if the estate will be left by the reinstatement no worse off than if the security had been originally retained.®'' Eedemption, see ante, § 726. t § 916. Liens held by officers of bankrupt corporation. A lien acquired by an officer of the bankrupt who is also a creditor, to the detriment of other creditors, by reason of the official position of such officer, is unenforceable.®* § 917. Pawnbroker's lien. A pledge redeemed from a pawnbroker by a third party is no longer the subject of the pawnbroker's lien.®^ § 918. Pledges and warehouse receipts. The present law differs from the act of 1867 in that it makes a distinction between the liens created by the pledge of property and those created by mortgage.''® A pledge being a bailment of personal property as security for some debt or engagement in which delivery of possession is generally essential, it may cover not only goods and chattels and money, but negotiable paper, choses in action, patent rights, bonds, policies of insur- ance, and other things of like nature.''^ If made within more than fo^ir months prior to bankruptcy, in fraud of creditors,''^ upon suit of the trustee it will be set aside. If made vithin four 65— In re Amett, 112 Ped. 770, 7 A. 95 U. S. (5 Otto) 764, 24 L. ed. 589) ; B. E. 522. nor could proceedings in bankruptcy de- 66 — In re Gutman, 114 Fed. 1009, 8 A. prive creditors of their just possession of B. E. 252. property held as security for a debt with- 67— -In re Swift, 111 Fed. 503, 7 A. out discharging the debt (Davis v. R. E. B. E. 117; In re Condon, 9 Ch. App. 609; Co., 12 N. B. E. 253, 1 Woqds, 661, Fed. Oil Co. V. Hawkins, 74 Fed. 395; Bank v. Cas. No. 3648). Where stock was pledged McKey, 102 Fed. 662; In re Parkes, 10 to secure call loans, leave of court was N. B. E. 82, Fed. Cas. No. 10754. not necessary on the pledgor's bank- 68— In re Eichards, Inc., 28 A. B. E. ruptcy, to sell the pledged stock and pay 636. the surplus into court (In re Grinnell, 9 69— In re Eudd, 180 Fed. 312, 25 A. N. B. E. 137, Fed. Cas. No. 5829). B. E. 35. 71— See In re Webb, 2 N. B. N. E. 289, 70— Under the Act of 1867 the rights 98 Fed. 404, 3 A. B. E. 386. of a pledgee were not impaired or affect- 72 — See In re Woodward, 1 N. B. N. ed by any provision of the bankrupt law 352, 2 A. B. E. 233. (Yeatman v. Sav. Inst., 17 N. B. E. 187; Brandenburg — 44 690 BeANDENBUEG ok BAWKETTPTCy [§ 918 montlis for a present fair consideration and not with intent to give the pledgee or one creditor an advantage over another or in fraud of the law, it will be preserved and the trustee may either redeem the pledge or suffer its disposition and reclaim for the benefit of the estate the amount obtained therefor in excess of the pledgee's claim, which may include reasonable expenses incurred in keeping and caring for the pledged property.''^ A pledge of insurance policies by a solvent corporation to certain stockholders as collateral security for loans, is valid, although the policies expire and are renewed during the insolvency of the corporation and within four months of its bankruptcy J* "Where a creditor has a general lien, and the debtor, on receiving an advance or other accommodation from the creditor, deposits with him a particular security, specially intended or appropri- ated, or even pledged, to meet such advance or cover such accommodation, the security is subject not only to a particular lien for the advance or liability, but also to the creditor's general lien.'^s The questions of the validity and extent of a pledge are local questions.'^' In those states where a pledge is merely security for the debt, and the superior title remains in the pledgor, it passes to the trustee on the bankruptcy of the pledgor or mort- gagor.'^'^ A pledge of property to secure notes executed within four months of the bankruptcy is not a preference, such notes, being renewals of notes g;iven prior to the four months and secured by a pledge of the same property and, under the lex loci contractus, each original pledge being valid.''* The United States alone can complain of a transaction whereby a national bank accepts pledge of its own stock.''^ 73.— Gregory V. Pike, 67 Fed. 837; In 28, 51 L. ed. 945, 18 A. B. R. 1, aff'g, re Peacock, 178 Fed. 851, 24 A. B. E. 144 Fed. 818, 15 A. B. R. 362, rev'g. 134 159; Love v. Export Storage Co., 143 Fed. 101, 14 A. B. E. 226. Fed. 1, 16 A. B. E. 171; Jones v. Coates, 77 — In re CoflSn, 1 N. B. N. 507 2 A 196 Fed. 860, 28 A. B. E. 249. B. E. 344. ' ' 74— In re Little Eiver Lumber Co., 1 78— Chattanooga Nat. Bk. v. Eome N. B. N. 307, 92 Fed. 685, 1 A. B. E. Iron Co., 102 Fed. 755, 4 A. B. E. 441. *^3- 79— First Nat. Bank v. Lanz, 202 Fed. 75— Sparhawk v. Drexel, 12 N. B. R. 117, 29 A. B. E. 247. Under E. S. 5201 a 450, Fed. Cas. No. 13204; In re Peebles, national bank may accept a pledge of its 13 N. B. E. 149, 2 Hughes 394, Fed. Cas. own stock when necessary to secure the No. 10902. payment of an unsecured, pre-existing 76 — Hisoock v. Varick Bank, 206 V. S. debt. Id. < §918] Liens 691 To preserve the lien of a pledge in bankruptcy, the essentials of a pledge must appear, to which delivery of possession or its equivalent is indispensable, there being no lien as there is no pledge, without it.*" Whether any agreement which seeks to transfer the title to personal property is to be construed as a formal sale or a formal pledge, it is in either case ineffective against creditors unless there is a visible change of possession.^^ A transaction invalid as a pledge for want of delivery, cannot give rise to an equitable lien enforceable against the, trustee.®^ A delivery of possession at any time before bankruptcy has been held sufficient, the rights of creditors not having, intervened.** In determining the sufficiency of delivery in a pledge, the nature of the property, the surrounding circumstances, the objects of the pledge, and the reasonable convenience of the pledgor and pledgee should be considered. There need not in all cases be an actual moving of the property, but only such a delivery as the property is reasonably capable of, and as is rea- sonably suitable under the circumstances.** A delivery of stock may constitute a sufficient pledge without a transfer on the books of the corporation,*^ though it is held that certificates of stock deposited with a creditor as security but not assigned to him belong to the trustee.*® A transfer or indorsement of warehouse receipts is a sufficient delivery,*'' and possession by the pledgee will be held sufficient 80 — ^In re Shulman, 206 Ted. 129, 30 pledge was valid between parties with- A. B. E. 238; In re Grozinger, 199 out change of possession, claimant's title Fed. 935, 28 A. B. E. 732; In re held superior to trustee's where former Bartlett, 172 Fed. 679,. 22 lA. B. E. took, possession prior to bankruptcy and 981; Fourth Street Bank v. MiU- before rights, of ijiceditors had intervened, bourne Mills Co., 172 Fed. 177, 30 In re Bast End Mantel & Tile Co., 202 L. E. A. (N. S.) 552, 22 A. B. E. 442, Fed. 275, 29 A. B. E. 793. aff'g 162 Fed. 988, 20 A. E. E. 746; Se- : 84— Bush y. Export Storage Co., 136 curity Warehouse COk v. Hand, 206 IT. 8. Fed. 918, 14 A. B. E. 138; Chatt. Nat. 415, 51 L. ed. 117, 19 A. B. E. 291, aff'g Bank v. Eome Iron Co., 102 Fed. 755, 4 143 Fed. 32, 16 A. B. B. 49; Eyttenberg A. B. E. 441. V. Schefer, 131 Fed. 313, 11 A. B. E- Tagging and numbering piles of lum- 652. ber held sufficient symbolic delivery to 81 — In re Gebbie & Co., 167 Fed. 609, complete pledge. Ward y.i First National 21 A. B. E. 694. Bank, 202 Fed. 609, 29 A. B. E. 312. 82— Fourth Street Nat. Bank v. Mill- 85 — First Nat. Bank v. Lanz, 202 Fed. bourne Mills Co. 's Trustee, 172 Fed. 177, 117, 29 A. B. E. 247. 30 L. A. (N. S.) 552, 22 A. B. E. 442, 86— French v. White, 78 Vt. 89, 22 aff 'g 162 Fed. 988, 20 A. B. E. 746. L. E. A. (N; S.) 804, 18 A. B. E. 905. 83— Where under state law contract of 87 — ^Bush v. Export Storage Co.,, 136 692 Beandbnbubg ON BankbxtI'TCy [§918 where the warehouse whose receipts he holds has the goods under lock and key in a place to which it has legal title and right of access by lease.** Warehouse receipts are, however, only quasi negotj.able securities, and the fact that a person takes a transfer of them in good faith gives him no right over the property on which they purport to be issued, if it was not, in fact, in the custody or possession of the warehouseman at the time when the receipts were issued.*® An actual warehouse is not essential to the warehousing of goods, the only essential being a change of possession from the owner to the warehouse- man,®" and a warehouseman may obtain exclusive control and possession of property by means of placards.®^ An innocent pledgee of a bonded warehouse receipt can get a good title to the whiskey without taking actual possession within the four months.®^ A pledgee does not lose his lien by a surrender of the pledged property to the receiver in bankruptcy; *' nor is title to pledged property lost by a mixture with other property of the pledgor where its identity is not lost thereby.®* The trustee takes title to property pledged subject to the superior title of the pledgee,®^ and subject to the pledgee's right to sell the property and apply the proceeds to the debt.®^ Hen6e, a sale by the pledgee of property of the bankrupt held by him under a valid agreement of pledge, made pursuant to the terms of the pledge, cannot be restrained,®^ though it has been held Fed. 918, 14 A. B. R. 138; TJnion Trust See also, Pathison v. Dale, 196 Ted. Co. & Security Warehouse Co. v. Wilson, 5, 27 A. B. E. 897. 198 U. S. 530, 49 L. ed. 1154, 14 A. B. E. 93— In re Stroum, 192 Fed. 762, 27 A. 109. B. E. 721. Delivery of -warehouse receipts held to Delivery, by the secured creditor to the create a valid pledge of whiskey in receiver for the purposes of collection, bonded warehouse. Pattison v. Dale, 196 of certain insurance policies pledged to it Fed; 5, 27 A. B. E. 807. held not an abandonment of its lien. 88— TJnion Trust Co., v. Wilson, 198 V. Ward v. First Nat. Bank, 202 Fed. 609, S. 530, 49 L. ed. 1154, 14 A. B. E. 109. 29 A. B. E. 312 89— Whitney v. Wenman, 140 Fed. 959, 94 — ^In re Stroum, 192 Fed. 762, 27 14 A. B. E. 591. A. B. E. 721. 90— Love V. Export Storage Co., 143 95— In re Twining, 185 Fed. 555, 26 Fed. 1, 16 A. B. E. 171. A. B. E. 200. 91— Love V. Export Storage Co., 143 96— In re Peacock, 178 Fed. 851, 24 Fed. 1, 16 A. B. E. 171. A. B. E. 159. 92— In re Miller Pure Eye DistiUing 97— In re Mayer, 157 Fed. 836, 19 A. Co., 176 Fed. 606, 23 A. B. E. 890. B. E. 356. § 918] Liens 693 that the. right of a pledgee to dispose of the property pledged will be stayed from the filing of the petition in bankruptcy against or by the pledgor, and until consent is obtained of the coilrt of bankruptcy or the trustee signifies his purpose to aban- don any claim thereto.®* If the sale of property pledged by the bankrupt, is, either in respect to time, place, manner or price, improvident or regardless of the rights of the trustee, the pledgee is liable for the loss occasioned thereby.®^ In case of an alleged invalid pledge of the bankrupt's prop- erty, the trustee may elect to repudiate the loan and pledge, surrendering title to and possession of the property to the claim- ant, or to retain the property and ratify the loan. But he cannot claim the property and at the same time repudiate the loan as , security for which the pledge was made.^ - Securities delivered by an insolvent bank to a creditor as collateral for a loan, must be surrendered to the trustee, who may reduce them to money when the court of bankruptcy will determine the right of the creditor to priority.^ Where there has been a valid pledge of goods, the money paid to redeem them cannot be recovered.^ Where a license owned by a bankrupt and converted into money by his trustee had previously been pledged by the bank- rupt, the pledgee is entitled to intervene in the bankruptcy proceedings to assert his right to payment from the proceeds.* Where the bankrupt pledged certain liquor-license certificates which it held as security for a loan to a third person, any money collected by the trustee from such third person should be sur- rendered to the pledgee to extinguish its debt and cannot be retained by the trustee for the benefit of the estate." If sm. insur- ance policy had been given as security for the indorsement of a note, negotiated by bankrupt, the cash surrender value should be applied by the trustee first to the payment of such note; ® and the same is true where moneys are advanced upon the pledge of such policies.'^ 98— In re Grinnell, 9 N. B. R. 29, 7 3— Jenkins v. Mayer, 3 N. B. N. R. Ben. 42, Fed. Cas. No. 5830. 189, 2 Bias. 303, Fed. Cas. No. 7272. 99— In re Peaeoek, 178 Fed. 851, 24 A. 4— In re Fisher, 103 Fed. 860, 51 L. B. B. 159. R. A. 292, 4 A. B. B., 646. 1— In re Automobile Livery Service 5 — In re Elm Brewing Co., 132 Fed. Co., 176 Fed. 792, 23 A. B. R. 799. 299, 12 A. B. R. 623. 2— In re Cobb, 1 N. B. N. 557, 96 Fed. 6— In re Weil, 2 N. B. R. 295. 821, 3 A. B. R. 129. 7— In re Little River Lumber Co., 92 694 Bbandenbueg ON Bankeuptcy [§918 Where securities, are pledged to the bankrupt, who withouit authority repledges them, the right of the trustee to the securi- ties is no greater than that of the bankrupt^®, The maker of a note who pledges as security collateral fraudulently obtained by a co-maker is not entitled to the collateral upon payment of the note as against the trustee in bankruptcy of the person who made the fraudulent transfer.® §919. Lien for taxes. While property in the course of administration is not exempted from taxation, or freed from tax liens or claims theretofore fastened upon it, it is nevertheless in custodia legis, and a pre- existing tax lien or claim cannot be converted into full title by the procurement of a tax deed without the court's sanction.^" A municipality is not entitled to a lien for taxes where the property assessed never passed into the hands of the triistee.^^ § 920. iiieii on trust fmid.or property devised to bankrupt. A lien upon property devised to the bankrupt follows the property or its proceeds.^^ A lien procured against the income from a trust fund payable to the bankrupt within four months of bankruptcy has been held voidable.^^ §921. Vendor's liens. §922. —In general. The lien of an unpaid vendor will be recognized ^* though acquired, within four months of bankruptcy,^^ unless procured through fraud.;'® A lien waived by the extension of credit to Fed.. 585, 1 A. B. R. 483, 1 Ni B. N. 13— In re Tiffany, 133 Ped. 799, 13 A. 30f7;' In re Sands Ale BreTving Co., 6 N. B. E. 310. B. E. 101, 3 Biss. 175, Fed. Cas. No. 14:— In re Portunodo Co., 135 Fed. 592, 12307.; . . ; , 14 A. B. E. 337. See also ante, § 844. 8— InreMelntyre, 18l'Ped.955, 24 A. 15— The statuory lien of an unpaid g jj Q2Q vendor of personalty is , not affected '9-In re Zinner, 202 Fed. 197, 29 A. *^°"Sli acquired within four months of g jj ggg banjcruptcy. Norris v. Trenholm, 209 10— In re Epsteiri, 156 Fed. 42, 17 L. Fed. 827, 31 A. B. E. 353. ■D » /-Nt o N \ifltr in A Tt T, on ^^ — ^^®i assorted by vendor by virtue E. A. (N. S.) 465, 19 A. B. E. 89. „« x ^ ■, i. , .,, i , ^ ^ ' . ', of agreement upon back of bill of sale to 11-City of Waco v. Bryan, 127 Fed. ^^^^^ bankrupt's attention was not called 79, 11 A. B. E. 481, cannot be enforced against trustee. In 12— In re.L'Hommedieu, 146 Fed. 708, re Hassam & Son, 153 Fed. 93l2, 18 A. 16 A. B. E. 850. B. E. 745. §924] Liens 695 the vendee, revives upon expiration of the term, even though the vendee may not then be insolvent.^'' The vendor's suing: for the purchase price is a waiver of his right to claim title as against the bankrupt or his trustee,^* and a vendor delivering a chattel to the bankrupt under a contract calling for cash on delivery cannot rescind the sale and recover the property from the trustee.^® A vendor of real estate may be entitled to a lien for the unpaid purchase price upon land sold though he has, prior to bank- ruptcy, commenced no action to foreclose his lien.^" §923. — Reclamation. See ante, § 844. § 924. — Stoppage in transitu. The right of stoppage in transitu which is an equitable exten- sion of the seller's lien for the price of goods of which the buyer has acquired the property but not the possession, recognized by the courts of common law, is also recognized in the courts of bankruptcy. Hence, if a purchaser becomes bankrupt previous to the receipt of the goods, or is insolvent at the time of their purchase and has actually filed his petition prior to their receipt; ^^ or while insolvent actually employed counsel in con- templation of bankruptcy proceedings, and then purchased and had delivered to him goods, no title can be considered to have passed and the seller may retake them; ^^ or if goods are ordered upon false representations and are received shortly before the purchaser's bankruptcy, the sale may be rescinded as fraudu- lent.*^ The right of stoppage in transitu continues until the delivery at the final point of destination as determined by the contract between the parties,** but cannot be exercised after 17— In re Portunodo Co., 135 Fed. 592, Donaldson v. Farwell, 15 N. B. E. 277; 14 A. B. B. 337. Stewart v. Emerson, 8 N. B. E. 462; In 18— In re' Cohn, 18 A. B. E. 786. re Alsberg, 16 N. B. E. 116, Fed. Cas. 19— Guarantee Title & Trust Co. v. No. 261; In re Eogers, 3 N. B. E. 139, First Nat'l Bank, 185 Fed. 373, 26 A. B. 1 Lowell 123, Fed. Cas. No. 12001. E. 85. 23— In re Weil, 111 Fed. 897, 7 A. B. 20 — ^lu re Lane Lumber Co., 210 Fed. E. 90, and cases there cited; Blooming- 82, 31 A. B. E. 792. dale v. Empire Eubber Mfg. Co., 114 Fed. 21— In re Christensen, 2 N. B. N. 1016, 8 A. B. E. 74. E. 670; In re Foot, 11 N. B. E. 158, 11 24— In re Burke & Co., 140 Fed. 971, Blatch. 530. 15 A. B. E. 495. 22— In re McPeek, 2 N. B. N. E. 172; 696 Bbandbnbubg on Bankexjptoy [§ 924 delivery of the goods to the receiver in bankruptcy ,^^ or if a prior demand is made by the receiver or trustee in bankruptcy or any creditor of the bankrupt.^® Notice must be given by the consignor to the person in charge of the property sought to be reclaimed or served on the principal in time to permit notice to be communicated to its agent in charge. Notice to the prin- cipal not in possession is not sufficient.'^ '^ Where a bankrupt bought wine (to arrive) and it was stored in bond in the seller's name, a part being withdrawn with the seller's consent prior to the bankruptcy, the remainder was held to be stored subject to the right of stoppage in transitu.^* 25— In re AUen, 178 Fed. 879, 24 A. B. 27— In re White, 205 Fed. 393, 29 A. E. 574. B. B. 385. 26— In re White, 205 Fed. 393, 29 A. 28— In re Beams, 18 N. B. E. 500, Fed. B. E. 358; In re Darlington, 163 Fed. • Cas. No. 1191. 385, 20 A. B. E. 800. CHAPTER XXm Peefebenoes § 925. Nature and elements of preferences in general. § 926. As of what date determined. § 927. Transferee must have been a creditor. § 928. Immaterial whether voluntary or involuntary. § 929. Intent to prefer. §930. Creditor's intent. § 931. Insolvency. § 932. — As of what time determined. § 933. — How determined. § 934. — Insolvency of partnership. §935. —Question of fact. §936. — Evidence. § 937. — Conclusiveness of adjudication. § 938. Depletion of bankrupt 's estate. §939. —In general. § 940. — Where right of set-off exists. § 941. Advantage over other creditors. § 942. — Creditors of the same class. § 943. — Exchange of property or securities. § 944. — Transfers for present consideration. § 945. Within four months. § 946. — In general. § 947. — Computation of time. § 948. —Date of transfer. § 949. Preference from procuring or suffering a judgment. § 950. Foreign attachment. § 951. Transfer of property. § 952. — In general. § 953. — Creditor must receive property. § 954. — Indirect transfer to creditor. § 955. — Assignments. S 956. — Deposit of money. § 957. — Transfer of exempt property. § 958. — Transfer by partnership or members. § 959. — Payment of money. § 960. — Payment by bankrupt or agent to himself. § 961. — Performance of labor. § 962. — Beclamation by vendor. §963. — Bestoration of stolen money. § 964. — Eetention of fund held- in trust. § 965. — Stoppage in transitu. § 966. — Taking possession under a contract of purchase. 697 698 Beandekbubg on Bankeuptct [§ 925 § 967. Reasonable cause to believe a preference would be effected. § 968. — In general. §969. — As of what date determined. § 970. — What constitutes. § 971. — Knowledge of or belief in insolvency. § 972. — Knowledge of agent or attorney. ; ■ ; ; ; § 973. — Transactions out of the usual course. §974. — Absconding of debtor. § 975. — Payment under compromise. § ^76. — Question of fact. § 977. — Evidence. § 978. Effect of preference. § 979. — In general. § 980. — Fraudulent preferences voidable, not void. S 981. — Bona fide purchasers. § 981%. Injunction against transferee. § 982. Set-offs against preferential transfers. § 983. Payments to attorney in contemplation of bankruptcy. § 984. Actions affecting preferences. § 925. Nature and elements of preferences in general- Section 60 ( a) defines a preference as follows : "A person shall be deemed to liave given a preference if, being insolvent, he has, within four months before the filing of the petition, or after the filing of the petition and before the adjudication, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class." ^ This subdivision expressly defines a preference and provides that the existence of three elements in any transaction shall make it a preference. These are "insolvency," "procuring or suffering a judgment or making a transfer," provided the pref- erence occurred within four months before the filing of the petition, or after the filing of the petition and before the adjudi- cation, and "that it result in one creditor receiving more than others of the same class." It constitutes a rule of evidence in 1 — Subdivision "a" was amended by favor of any person, or made a trans- the Act of February 5, 1903, by the sub- fer of any .of his property, and the 3titution of the matter in the text for the effect of the enforcement of such judg- following: "A person shall be deemed to ment or transfer will be to enable any have given a preference if, being insolv- one of his creditors to obtain a greater ent, he has procured or suffered a judg- percentage of his debt than any other ment to be entered against himself in of such creditors of the same class." §925] Pkefekences 699 bankruptcy proceedings and makes it a conclusive presumption' that the debtor intended to give a preference if he does any one of the three and the result is as stated without referenbe to the intent.* ' ' Subdivision "b" of the same section "If a bankrupt shall have procured or suffered a judgmeiit tO be entered against him in favor of any person or have made a transfer of any of his property, and if, at the time of the transfer, or the entry of the judgmelit, or of the recording or registering of the transfer, if by law recording or registering thereof is requited, and being -vtrithin: ' four months before the filing of the petition in bankruptcy or after the filing thereof and before the adjudication, the bank- rupt be insolvent and the judgment or transfer then operate as a preference, and the person receiving it or to be benefited 'thereby, • or his agent acting therein, shall then haive reasonable cause to believe that the enforcement of such judgment br transfei' wbuld' effect a preference, it shall be voidable by the trustee and he may recover the property or its value frpm such person."^ The two subdivisions must 'be construed together, and a preference under section "a" is not, voidable unless the, elements enumer^ ated in section "b" exist.* To bring a transaction within their requirements (1) the debtor must have. been insolvent at the time; (2), l^e niust have procured or suffered the judgment, or made the transfer; (3) its result must be to give one creditor a greater percehtgige of his claim than others; (4) such creditor must have had reason- able cause to believe such would be the result; and (5) it must, have been within four months of the filing of the petition, or 2— In re Piper, 2 N. B. N. E. 7. See subdiyision read: "If a bankrupt shall also post § 929. . have given a 'prE!felene& within four 3 — Subdivision "b" was amended by jndnths before the filing of a petition, or the Act of Jtine 25, 1910, by the subati- after the filing of the petition, and before tution of the ^matter in the text for the the adjudication, and the person receiv- following: "If a bankrupt shall have ing it, or to be benefited thereby, or his given a preference, and the person re- agent acting therein, shall have reason- ceiving it, or to be benefited thereby, or able cause to believe that it was intended his agent acting therein, shall have had thereby to give a preference, it shall be reasonable cause to believe that it was voidable by the trustee; land he- may re- intended thereby to give a preference^ it cover the property or its value from such shall be voidable by the trustee, and he person.'' may recover the property or its value 4 — In re Carlile, 199 Fed. 612, 29 A. from such person." B. E. 373.' Piior to the amendment Of 1903 the 700 BBANDENBtTEG ON BaNKBUPTCT [§ 925 between the filing and adjudication.'' All the foregoing proposi- tions involve questions of fact.^ A preference involves no element of moral or actual fraud. It is simply a constructive fraud established by law upon the existence of certain facts and prohibited by it. There is nothing dishonest or illegal in a creditor obtaining payment of a debt due him from a failing debtor; nor in his attempting by proper and ordinary effort to secure an honest debt, though such act may afterwards become a constructive fraud by reason of the filing of a petition and adjudication in bankruptcy. '^ It will be observed that the latter subdivision makes prefer- ences under the conditions named voidable by the trustee. Another provision of the act^ provides that "a, lien created by . . . any proceeding at law . . . including attachment on mesne process or a judgment by confession, which was begun within four months before the filing of a petition . . . shall be dissolved by the adjudication . . ." if (1) such lien was R. 18; Hastings v. Fithian, 71 N. J. L. 5 — ^In re Chicago Car Equipment Co., 211 Fed. 638, 31 A. B. E. 617; Newman V. Tootle-Campbell Co., 31 A. B. E. 899; Debus v. Yates, 193 Fed. 427, 30 A. B. E. 823; In re Sam Z. Lorch & Co., 199 Fed. 944, 28 A. B. E. 784. See also, Eodolf V. First Nat. Bank of Tulsa, 30 Okla. 631, 28 A. B. E. 897; TJtah Ass 'n of Credit Men v. Boyle Fum. Co., 39 Utah 518, 26 A. B. E. 867; Bos- well Nat'l Bank v. Simmons, 190 Fed. 735, 26 A. B. E. 865; Kimmerle v. Farr, 189 Fed. 295, 26 A. B. E. 818; Brown v. City National Bank, 72 Mise. (N. T.) 201, 26 A. B. E. 638; Morris v. Tannen- baum, 26 A. B. E. 368; Sparks v. Marsh, 177 Fed. 739, 24 A. B. E. 280; Harder V. Clark, 66 Mise. (N. Y.) 584, 23 A. B. R. 756; Taylor v. Nichols, 134 App. Biv. (N. Y.) 787, 23 A. B. E. 310; In re Leech, 171 Fed. 622, 22 A. B. E. 599; In re Neill-Piekney-Maxwell Co., 170 Fed. 481, 22 A. B. E. 401; Tumlin v. Bryan, 165 Fed. 166, 21 L. E. A. (N. S.) 960, 21 A. B. R. 319; McDonald v. Clear- water Shortline Ey. Co., 264 Fed. 1007, 21 A. B. E. 182; In re Armstrong, 145 Fed. 202, 16 A. B. R. 583; In re Alden, 15 Ohio Fed. Deo. 120, 16 A. B. E. 362; In re Montague, 143 Fed. 428, 16 A, B. 311, 13 A. B. E. 676; Brittain Dry Goods Co. V. Bertenshaw, 68 Kan. 734, 11 A. B. E. 629; In re Broich, 15 N. B. E. 11, 7 Biss. 303, Fed. Cas. No. 1921, decided under the act as existing prior to the amendment of 1910. 6 — ^Utah Ass 'n of Credit Men v. Boyle Fum. Co., 39 Utah 518, 26 A. B. E. 867. 7 — Des Moines Savings Bank v. Mor- gan Jewelry Co., 123 Iowa 432, 12 A. B. E. 781; Sherman v. Luekhardt, 67 Kan. 682, 11 A. B. E. 26; In re Jacobs, 1 N. B. N. 183, 1 A. B. E. 518; In re Baker, 2 N. B. N. R. 195; Whithed v. Pills- bury, 13 N. B. E. 241, Fed. Cas. No. 17572; In re Eiorden, 14 N. B. E. 332, Fed. Cas. No. 11852; In re Bousefleld & Poole Mfg. Co., 16 N. B. E. 489, Fed. Cas. No. 1703; Kohlsatt v. Hoguet, 5 N. B. R. 159, 4 Ben. 565, Fed. Cas. No. 7919; In re Lewis, 2 N. B. R. 145; Sharpe v. Warehouse Co., 19 N. B. E. 378; Waring v. Buchanan, 19 N. B. E. 502, Fed. Cas. No. 17176; Sedgwick v. Place, 5 N. B. R. 168, 5 Ben. 184, Fed. Cas. No. 12620; In re Tonkin, 4 N. B. R. 13, Fed. Cas. No. 14094; In re Rosen- field, 1 N. B. R. 161, Fed. Cas. No. 12058. 8— Section 67c, Act of 1898. § 925] Peefebences 701 obtained while defendant was insolvent and will work a pref- erence, or (2) the party benefited had reasonable cause to believe defendant was insolvent and in contemplation of bankruptcy, or (3) such lien is in fraud of the act; and still another provi- sion provides that **all . . . liens obtained through legal proceedings . . . within four months prior to the filing of the petition . . . shall be . . . void:" and yet another,^ that "all conveyances, transfers . . . within four months prior to the filing of a petition, with intent ... to hinder, delay or defraud his creditors . . , shall be void.". Thus a preference given by a bankrupt within four months of the filing of a petition is voidable by the trustee if the party benefited had reasonable cause to believe a preference was intended.^" But a preference is the procuring or suffering a judgment the enforce- ment of which enables a creditor to get a greater percentage of his debt than any other creditor of like class," which if the proceeding was' begun within the four months would by the pro- vision above ^^ be rendered void by the adjudication and by the other provision ^* the same effect is produced by the adjudica- tion without regard to the time the proceeding was commenced. So, too, if the preference is by "transfer of property" it would, in many cases, come within the provision " avoiding transfers which hinder, delay or defraud creditors. As far as possible, however, the act should be construed so as to give effect to every part of it, and this to some extent may be accomplished by limiting section 60b to preferential judg- ments and transfers including payments of money, where the party benefited had reasonable cause to believe that a preference was thereby intended; section 67e to conveyances, transfers, assignments or incumbrances of property other than money which were not made in good faith and supported by a present consideration; section 67c to liens obtained through legal pro- ceedings begun within four months of the filing of the petition; and section 67f to liens acquired within four months of the filing of the petition through legal proceedings without regard to when such proceedings were commenced.^^ The provisions over- 9— Sections 67f and e, Act of 1898. 13— Section 67£, Act of 1898. 10— Section 60b, Act of 1898. 14— Section 67e, Act of 1898. 11— Section 60a, Act of 1898. 15— Blakey v. Bank, 1 N. B. N. 411, JS— Sectioq 67c, Act 9* 1898, 95 Fed. 267, 2 A. B. R, 459, 702 Bbandenbubg on Bankeuptcy [§ 925 lap, but this may have been done for greater certainty; and since these inconsistencies cannot be reconciled, under the rale of construction that the last provision is to be preferred, the facts of each case should be tried by each of the provisions set forth, commencing at the last, which is also the broadest; ^^ or the conflict between the provisions may be due to their being taken from different proposed bills and not having been examined as a wholfe. § 926. As of what date determined. The questions of insolvency, reasonable cause to believe, and the operation of the transfer as a preference may be determined as of the time of the transfer or of the entry of judgment, or of the recording or registering, of the transfer if by law recording or registering is required.^^ If these elements existed at either time the transaction will be held a preference.^* A different rule prevailed prior to the amendment of 1910.^^ In determining whether a payment by certified note operated as a preference, the date of certification is controlling.^" § 927. Transferee must have been a creditor. Only a" creditor can be preferred, and if the person who receives the benefit is not a creditor, the question of preference does not arise.^^ A creditor is defined as "any one who owns a demand or claim provable in bankruptcy, " ^^ and it is only with reference to claims provable that preferences can be declared. On the other hand, anything which can be proved for a dividend is within the purview of the act, whether or not it is strictly shadowed out by the words "creditor" and "debt" as especially defined in the act or as otherwise reasonably under- 16 — In re Richards, 2 N. B. N. 38, 20 — ^In re Frazin & Oppenheim, 201 96 Fed. 935, 3 A. B. E. 145. Fed. 86, 29 A. B. R. 214. 17 — ^Aet of 1898 § 60b as amended 21 — In re Hersey, 171 Fed. 1004, 22 June 25, 1910. A. B. R. 863 ; McAtee v. Shade, 185 Fed. 18— In re Watson, 201 Fed. 962, 30 442, 26 A. B. R. 151; In re Rudniek, 2 A. B. R. 871; Ogden v. Reddish, 200 N. B. N. R. 975, 102 Fed. 750, 4 A. B. Fed. 977, 29 A. B. R. 531. R. 531; Darby's Tr. v. Lucas, 5 N. B. 19— Debus V. Yates, 193 Fed. 427, 30 E. 437, Fed. Cas. No. 3572. A. B. R. 823; In re Watson, 201 Fed. Transfer to creditors of his wife can- 962; 30 A. B. E. 871; Dougherty v. not be set aside as preferential. In re First Nat. Bank of Canton, 197 Fed. 241, Kayser, 177 Fed. 383, 24 A. B. R. 174. 28 A. B. E. 263. 22— Section 1 (9), Act of 1898. § 927] Pbefeeences 703 stood.^^ The mere fact that one has commenced a suit against the bankrupt does not make him a creditor.** A transfer by the bankrupt to himself as trustee *^ or ^. payment to a munici- pality** may constitute a preference. An attorney is in no better position than any other creditor. Payment to him in settlement of a runnitig account may be preferential if made within the four month period.*'^ , , , An indorser, an accommodation malcer, a guarantor, or a surety on the obligation of the bankrupt is a creditor and may be considered to have received a preference,*^ and it is, held that a surety of a co-malier of a note executed by the bankrupt is a person benefited by the bankrupt's taking up the note,*® but a second indorser of a note of the bankrupt is not a person bene- fited by the assignmeint of a mortgage to secure the first endorser of the same note.^" The sureties on a bond of the bankrupt the conditions of which have been broken is a creditor within, the meaning of the section though his claim is unliquidated.*^ ; ;. A bailor is not a creditor within thfe meaning of the act,?^ and the return of property prior to bankruptcy, by the bankrupt to his vendor under an unrecorded conditional sale contract can- not constitute a preference, since the vendor in such case takes back the property under the assertion of a paramount title, and not as a creditor,** on the same theory, taking possession, within four months under a valid contract made prior to four.m,oiiths 23— Clarke v. Rogers, 183 Fed. 518, 18 L. E. A. (N. S.) 660, 19 A. B. E. 379; 26 A. B. R. 413, aff'd 228 U. S. 534, Swarts v. Siegel, 117 Fed. 13, 's A. B. 57 L. ed. 953, 30 A. B. E. 39. , E. 689; In re Christopher Bailey & Son, 24— In re Graf ts-Eiordan Shoe Co., 185 166 Fed. 982, 21 A. B. E. 911 ; MoAtee Fed. 931, 26 A. B. E. 449. v. Shade, 185 Fed. 442, 26 A. B. R. 151; 25— Clarke v. Rogers, 228 U. S. 534, Crandall v. Coats, 133 Fed. 965, 13 A. 57 L. ed. 953, 30 A. B. E. 39, afE'g 183 B. R. 712. . ' - Fed. 518, 26 A. B. E. 413. 29 — Huntington v. BaskerviUe, 192 26— Painter v. Napoleon Tp., 156 Fed. Fed. 813, 27 A. B. E. 219. 289, 19 A. B. R. 412. 30— Page v. Moore, 179 Fed. 988, 24 27— In re Shiebler & Co., 163 Fed. A. B. E. 745. 545, 20 A. B. E. 777. See, post, § 983. 31— Wood v. United States,^ 143 Fed. 28— Lazarus v. Eagan, 206 Fed. 518, 424, 16 A. B. E. 21; United Surety Go. 30 A. B. R. 287. Kobuseh v. Hand, 156 v. Iowa Mfg. Co., 179 Fed. 55, 24 A. Fed. 660, 18 L.E. A. (N. S.) 660, 19 A. B. R. 726. B. E. 379; Stern v. Paper, 198 Fed. 64, 32 — ^Walther v. Williams Mercantile 28 A. B. E. 592, afC'g 183 Fed. 228, 25 Co., 169 Fed. 270, 22 A. B. E. 328. A. B. E. 451; Bank of Wayne v. Gold, 33 — Hart v. Emerson-Brantinghiam 146 App. DiV. (N. Y.) 2896, 26 A. B. Co., 203 Fed. 60, 30 A. B. E. 218. E. 722; Kobuseh v. Hand, 156 Fed. 660, 704 Beandekbxjeg on Bankeuptc"? [§ 927 is not a preference ^* and a delivery within four months of bank- ruptcy by the bankrupt of property to one who has an equitable lien thereon by reason of advances made prior to the four months' period is not a preference.®^ The relation of a broker and his customer is not that of debtor and creditor, and the turning over of stock held by a broker upon demand of the customer cannot create a pref erence.^® The fact that an indebtedness arose through a conversion of property left in the hands of the bankrupt does not constitute the transfer of other property to the owner of that converted any less a preference,®'^ and, one taking a mortgage upon the bank- rupt's property to secure the repayment of funds misappro- priated by the latter as agent cannot thereafter assert that he was not a creditor.®* However, a warehouseman from whom property belonging to his bailors is stolen by employees of the bankrupt has been held not a creditor of the bankrupt so as to constitute a payment to him by the bankrupt to cover the loss, a voidable preference.®® § 928. Immaterial whether voluntary or involuntary. Whether the preference given is voluntary or involuntary is immaterial, or whether done by reason of threats or coercion.*" So, an assignment to one creditor, though made under pressure, is a preference,*^ and a creditor may obtain a preference by legal proceedings without any affirmative action on the debtor's part.*2 34— In re East End Mantel & Tile Co., 40 — Stern v. Paper, 198 Fed. 642, 28 202 Ped. 275, 29 A. B. R. 793; Mills v. A. B. R. 592, aff'g 183 Fed. 228, 25 A. B. Virginia-Carolina Lumber Co., 164 Fed. E. 451; Strain v. Gourdin, 11 N. B. E. 168, 21 L. E. A. (N. S.) 901, 20 A. B. 156, 2 Woods 380, Fed. Cas. No. 13521. E. 750. 41— In re Batchelder, 3 N. B. E. 37, 35 — Gage Lumber Co. v. McEldowney, 1 Lowell 313, Fed. Cas. No. 1098; Grow 207 Fed. 255, 80 A. B. E. 251. v. Ballard, 2 N. B. R. 69, Fed. Cas. No. 36— Richardson v. Shaw, 209 V. S. 5848. .365, 52 L. ed. 835, 19 A. B. R. 717, afe'g 42— In re Crafts-Riordan Shoe Co., 147 Fed. 659, 16 A. B. R. 842. 185 Fed. 931, 26 A. B. E. 449; Rutland 37 — ^Atherton v. Green, 179 Fed. 806, Co. Nat. Bank v. Graves, 156 Fed. 168, 30 L. E. A. (N. S.) 1053, 24 A. B. E. 19 A. B. E. 446; contra, Eodolf v. 650. First Nat. Bank of Tulsa, 30 Okla. 631, 38— Burgoyne v. McKillip, 182 Fed. 28 A. B. R. 897. See also, §949. 452, 25 A. B. E. 387. 39 — Keystone Warehouse Co. v. Bissell, 203 Fed. 652, 30 A. B. E. 213. §929] Pbefeeenoes 705 §929. Intent to prefer. Prior to the amendment of 1910 there was much diversity of opinion as to whether an intent to prefer on the part of the bank- rupt was essential to a voidable preference. Section 60b of the act then required that the creditor have "reasonable cause to believe that it was intended thereby to give a preference. ' ' The rule most generally adopted was that the intent was essential,^* subject, however, to the qualification, that the intention to give a preference might be shown not merely by proof of actual intent, but by proof that the necessary result of the transaction was to create a preference.** This presumption was held not to arise from the fact alone that the debtor knew he was insolvent.*^ The act as it now stands merely requires that the creditor had "reasonable cause to believe that the enforcement of such judgment or transfer would effect a preference," and seems to obviate entirely the necessity of proving ^n intent to prefer.*® 43— DebuB v. Yates, 193 Fed. 427, 30 A. B. B. S23; Eodolf v. First Nat. Bank of Tulsa, 30 Okla. 631, 28 A. B. E. 897; Kimmerle v. Parr, 189 Fed. 295 ; 26 A. B. R. 818; In re Sayed, 185 Fed. 962, 26 A. B. B. 444; Beber v. Louis Shulman & Bro., 183 Fed. 564, 25 A. B. B. 475, afE'g 179 Fed. 574, 24 A. B. E. 782; Eutland Co. Nat. Bank v. Graves, 156 F«d. 168, 19 A. B. E. 446; In re First Nat. Bank of Louisville, 155 Fed. 100, 18 A. B. E. 766; In re Andrews, 144 Fed. 922, 16 A. B. B. 387, aff'g 135 Fed. 599, 14 A. B. B. 247; In re flail, 2 N. B. N. E. 1126; contra, Schmidt v. Bank of Com- merce, 15 N. M. 470, 25 A. B. B. 904. 44 — Wilson v. Mitchell- Woodbury Co., 31 A. B. B. 837; In re Hirshowitz, 199 Fed. 202, 28 A. B. E. 571; In re Dorr, 196 Fed. 292, 28 A. B. B. 505; Kim- merle V. Farr, 189 Fed. 295, 26 A. B. E. 818; In re Crafts-Eiordan Shoe Co., 185 Fed. 931, 26 A. B. E. 455; In re Mc- Donald & Sons, 178 Fed. 487, 24 A. B. E. 446; Harder v. Clark, 66 Misc. (N. T.) 584, 23 A. B. B. 756; Brewster v. Goff Lumbeu Co., 164 Fed. 124, 21 A. B. B. 106; Pittsburgh Plate Glass Co. v. Ed- wards, 148 Fed. 377, 17 A. B. E. 447; Parker v. Black, 143 Fed. 560, 16 A. B. B- 202; Upson v. Mount Morris Bank, Brandenburg — 15 103 App. Div. (N. T.) 367, 14 A. B. E. 6; Crandall v. Coats, 133 Fed. 965, 13 A. B. E. 712 ; Western Tie & Timber Co. V. Brown, 196 U. S. 502, 49 L. ed. 571, 13 A. B. E. 447, rev'g 129 Fed. 728, 12 A. B. E. Ill; Hackney v. Hargreave^ Bros., 68 Neb. 633, 13 A. B. B. 164; Benedict v..Deshel, 177 N. Y.l, 11 A. B. E. 20, rev'g 77 App. Div. (N. Y.) 276. See also Dougherty v. First Nat. Bank of Canton, 197 Fed. 241, 28 A. B. E. 263; Wickwire v. Webster City Savings" Bank, 153 Iowa 225, 27 A. B. B. 157; In re Martin, 27 A. B. E. 151; In re Hines, 144 Fed. 543, 16 A. B. E. 495; In re Bloch, 17 Fed. 674, 15 A. B. E. 748; In re Griffin Pants Factory v. Nelms Backet Store Co., 2 N. B. N. E. 630; In re Piper, 2 N. B. N. E. 7, 8; In re Conhaim, 2 N. B. N. E. 148, 97 Fed. 923, 3 A. B. E. 249; In re Bash- line, 109 Fed. 965, 6 A. B. B. 194. 45 — Kimmerle v. Farr, 189 Fed. 295, 26 A. B. B. 878; Irish v. Citizens' Trust Co. of Utica, 163 Fed. 880, 21 A. B. E. 39; In re Mayo Contracting Co., 157 Fed. 469, 19 A. B. E. 551. But see, In re Thomas Deutschle & Co., 182 Fed. 435, 25 A. B. E. 348. 46 — Eogers v. American Halibut Co., 31 A. B. E. 576;' Herron Co. v. Moore, 706 BeahtdenBubg on Bankruptcy [ § 930 §930. Creditor's intent. The creditor's intent to receive a preference may be inferred from circumstances.'*'' §931, Insolvency. § 932. — As of what time determined. Insolvency at the time the transfer was made,*^ or recorded, if recording is required,*^ or the judgment entered, is essential under the act as amended in 1910.®" Insolvency at the time of making a transfer is not established by proof of insolvency on the day of the transfer but after the making thereof. In such case the time of the transaction must be considered though it involves consideration of fractions of a day.®^ § 933. —How determined. Insolvency exists "whenever the aggregate of one's property, exclusive of any property conveyed, transferred, concealed or removed, or permitted to be concealed or removed, with intent to defraud, hinder or delay creditors, is not at a fair valuation sufficient to pay his debts. ' ' ®^ ■ This statutory definition of "insolvency" differs so widely from the judicial definition heretofore given to it, viz.: "inability to pay one 's debts in the ordinary course of business, ' ' that it will be readily seen that one may be insolvent under the judicial definition who would not be so under the statutory definition and vice versa.®^ Fair valuation, as used in the statutory definition, 208 I'ed. 134, 31 A. B. R. 221; In re vain v. Hardesty, 169 Fed. 31, 22 A. B. Harrison Bros. 28 A. B. R. 684. E. 320. 47— trtah Ass'u of Creditmen V. Boyle 50— Act of 1898, § 60b as amended Furniture Co., 43 "Utah 523, 31 A. B. R. June 25, 1910. ^88- 51 — Upson V. Movint Morris Bank, 103 48— In re Chicago Car Equipment Co., App. Div. (N. Y.) 367, 14 A. B. E. 6. 211 Fed. 638, 31 A. B. R. 617; In re 52— Section 1 (15), Act of 1898. Stem Sayed, 185 Fed. 962, 26 A. B. E. 444; y. Paper, 198 Fed. 642, 28 A. B. E. 592, In re Wittenberg Veneer & Panel Co., afC'g 183 Fed. 228, 25 A. B. E. 451. 108 Fed. 593, 6 A. B. E. 71. 53— Harder v. Clark, 66 Misc. (N. T.) 49— In re Watson, 201 Fed. 962, 30 584, 23 A. B. E. 756; Hussey v. Eichard- A. B. E. 871 ; Ogdeu v. Eeddiah, 200 son-Eoberts Dry Goods Co., 148 Fed. 598, Fed. 977, 29 A. B. E. 531. A different 17 A. B. E. 511; Upson v. Mount Morris rule prevailed prior to 1910. See Dough- Bank, 103 App. Div. (N. Y.) 367, 14 A. erty v. First Nat. Bank of Canton, 197 B. R. 6; Martin v. Bigelow, 36 Misc. (N. Fed. 241, 28 A. B. E. 263; In re Sayed, T.) 298, 7 A. B. R. 218. 185 Fed. 962, 26 A. B. E. 444; McEl- § 935] Pbefeeences 707 means such a price as a capable and diligent business man could presently obtain for his property after conferring with those accustomed to buy such property,^* and must relate to the con- ditions when the transfer was made and not to conditions after bankruptcy intervened.^* The actual value of book accounts as they stand is to be taken, not their face value.^* Exempt property may be included,*^ but property that was transferred in fraud of creditors, and which can only be reached through litigation, cannot be considered as property of the bank- rupt.'* A liability upon a guaranty is to be considered in deter- mining the bankrupt's financial status.*® § 934. — Insalvency of partnership. The insolvency of a partnership and the members thereof are essential elements of a voidable preference by a pa;rtnership.®** To constitute insolvency on the part of a partnership the prop- erty of the firm together with that of all partners applicable to partnership debts, must be insufficient to pay such debts."^ § 935. — Question of f a«t. Insolvency at the time of the judgment or transfer is a ques- tion of fact,*^ and in the event that it is denied by the creditor, the trustee must prove it.*^ 54— Stem v. Paper, 183 Fed. 228, 25 Furniture Co., 39 Utah 518, 26 A. B. R. A. B. B. 451. 867. 55 — ^Dougherty v. First Nat. Bank of 59 — Huntington Mfg. Co. v. Edwards, Canton, 197 Fed. 241, 28 A. B. E. 263. 160 Fed. 619, 20 A. B. E. 349. Value should not be computed on the 60 — Cranoer & Co. v. Wade, 26 Okla. haais of the proceeds of the bankrupt 757, 25 A. B. E. 880; Tumlin v. Bryan, auction sale. Eutland Co. Nat. Bank v. 165 Fed. 166, 21 L. R. A. (N. 8.) 960, Graves, 156 Fed. 168, 19 A. B. E. 446. 21 A. B. E. 319. In determining the solvency of a manu- 61 — Worrell v. Whitney, 179 Fed. 1014, facturing plant, the valuation must relate 24 A. B. E. 749. to conditions, as a going concern, at the 62 — Utah Ass 'n of Credit Men v. Boyle time of the transfer. Butler Paper Co. Furniture Co., 39 Utah 518, 26 A. B. K. V. Qoembel, 143 Fed. 295, 16 A. B. B. 867; Butler Paper Co. v. Goembel, 143 26. ^ Fed. 295, 16A.B. E. 26;DesMoine3S^v- 56 — ^Benjamin v. Chandler, 142 Fed. ings Bank v. Morgan Jewelry Co., 123 217, 15 A. B. E. 439. Iowa 432, 12 A. B. E. 781. 57— Utah Ass 'n of Credit men V. Boyle 63 — In re Chappel, 113 Fed. 545, 7 Furniture Co., 43 Utah 523, 31 A. B, K. A. B. K. 608. 488. 5?— Utah Ags'n qf Credit Men v. Boyl? 708 Bkandenbubg ON Bankeuptcy [§936 §936. —Evidence. In an action in a court other than that of bankruptcy, the court will not take judicial notice of the existence and contents of all papers filed in the bankruptcy proceeding,^^ and it is held that the bankrupt's petition for a discharge, his schedules and testimony as to his financial condition given in the bankruptcy proceedings are inadmissible to prove his insolvency at the time of the alleged preference.®^ The uncorroborated testimony of bankrupt as to assets and liabilities may be considered in determining insolvency.®® Con- siderable latitude should be allowed in examining the bankrupt so far at least as the inquiry relates to his property and the extent of his liabilities, and a question asked the bankrupt as to how much he was indebted to a particular creditor at a particular time, or whether he had paid him all he owed him, is not objec- tionable.®'' § 937. — Conclusiveness of adjudication. An adjudication is conclusive as to insolvency in an action by the trustee against a creditor who appeared in the bankruptcy proceedings and contested the adjudication,®^ but' not in an action against one who was not a party to the bankruptcy pro- ceedings.®® § 938. Depletion of bankrupt's estate. § 939. — In general. To constitute a preferential transfer there must be a parting with the bankrupt's property for the benefit of creditors, and a consequent diminution of the bankrupt's estate. The fact that 64 — ^McDonald v. Clearwater Shortline 68 — ^Des Moines Savings Bank v. Mor- Ey. Co., 164 Ted. 1007, 21 A. B. R. 182. gan Jewelry Co., 123 Iowa 432, 12 A. B. 65— Taylor v. Nichols, 134 App. Div. E. 781. (N. Y.) 787, 23 A. B. E. 310; contra, 69— CuUiaane v. State Bank of Wav- TJtali Ass'n of Credit Men v. Boyle erly, 123 Iowa 340, 12 A. B. B. 776; Furn. Co., 39 Utah 518, 26 A. B. E. 867; Contra: an adjudication in involuntary Hackney v. Hargreaves Bros., 68 Neb. proceedings establishes insolvency at the 633, 13 A. B. E. 164. date of the act of bankruptcy relied on, 66 — CoUett V. Bronx Nat. Bank, 200 even as against a creditor or lienor hav- Fed. Ill, 29 A. B. R. 454. ing no actual notice of the bankruptcy 67 — Utah Ass 'n of Credit Men v. Boyle proceedings. Lazarus v. Eagan, 206 Fed. Turn. Co., 39 Utah 518, 26 A. B. E, 867. 518, 30 A. B. E. 287. § 942] Peefekences 709 what was done worked for the benefit of the creditor, and in a sense gave him a preference, is not enough, unless the estate of the bankrupt was thereby diminished^" § 940. — Where right of set-off exists. A surrender of a note by the bankrupt to the maker thereof does not constitute an unlawful preference where the maker holds a legal or equitable off-set against the bankrupt's claim on the note.''^ A deposit of money with a bank within four months of bankruptcy is not a preference though the bank at the time holds obligations of the depositor which may be set-off against the depositJ^ § 941. Advantage over other creditors. § 942. — Creditors of the same class. Whether or not a transaction is a preference depends upon the result merely. If it will result in the benefit or advantage of one creditor over any other of a like class it constitutes a prefer- ence.''* It is the benefit or advantage which one creditor obtains over another and not the purpose or intent of the parties which determines the effect and constitutes the transaction a preference and means the same whether given or received. '^^ It is therefore essential that a creditor have knowledge, actual or constructive, 70— Continental & Commercial Trust & Fed. 880, 21 A. B. E. 39; In re George Savings Bank v. Chicago Title & Trust M. Hill Co., 130 Fed. 315, 66 L. E. A. Co., 229 TJ. 8. 435, 57 L. ed. 1268, 30 A. 68, 12 A. B. E. 221; N. Y. County Nat. B. B. 624; Nat. Bank of Newport v. Bank v. Massey, 192 U. S. 138, 48 L. ed. Nat. Herkimer County Bank, 225 TJ. S. 880, 11 A. B. E. 42; Tomlinsou v. Bank 178, 56 L. ed. 1042, 28 A. B. E. 218. of Lexington, 145 Fed. 824, 16 A. B. E. Where an indorser of a note of the 632; Booth v. Prete, 81 Conn. 636, 22 A. bankrupt discounted same at a bank B. E. 579; Studley v. BoylSton Nat. depositing its own collateral and within Bank, 200 Fed. 249, 29 A. B. E, 649; the four month period took up the note Walsh v. First Nat. Bank, 201 Fed. 522, and received back its collateral, its pay- 29 A. B. E. 118. ment to the bank held not to constitute 73 — Hewit v. Boston Straw Board Co., a preference since the estate of the bank- 214 Mass. 260, 31 A. B. E. 652 ; In re rupt was not thereby depleted. National Conhaim, 2 N., B. N. E. 148, 97 Fed. Bank of Newport v. National Herki- 923, 3 A. B. E. 249; In re Fixen, 2 N. mer County, Bank, 225 XT. 8. 178, 56 L. B. N. E. 885, 102 Fed. 295, 50 L. E. ed. 1042, 28 A. B. E. 218. A. 605, 4 A. B. E. 10; In re Bead & 71— Taylor v. Nichols, 134 App. Div. Knight, 7 A. B. E. 111. (N. T.) 783, 23 A. B. E. 306. 74— In re Conhaim, 2 N. B. N. E. 72— Irish v. Citizens' Trust Co., 163 148, 97 Fed. 923. 3 A. B. E. 249; Swarts 710 Beandenbueg on Bankeuptcy . [§ 942 that he is receiving a greater percentage of his debt than other creditors of the same class,'^^ and if there is any other creditor of the same class who, by the enforcement of the transfer in question, will obtain a less percentage of his debts than the transferee, the transfer is voidable, even though there are some creditors who received larger percentages through other pay- ments made to them within the four-month period. '^^ Conversely, a pro rata payment among all creditors even though the debtor is insolvent, cannot be held to create a preference,''^ and a mort- gage is not a preference if the property covered thereby is not a greater percentage of bankrupt's property than 'other cred- itors of the same class will receive on distribution.'^® Several notes maturing at different times are not necessarily to be con- sidered as a single debt in determining whether in receiving payment of one of the notes in full the holder received a greater percentage of his debt than other creditors.''^ The test of the classification of creditors is the percentage of their claims they are entitled to draw out of the bankrupt's estate, and not the relation of the creditors to parties other than the bankrupt. If entitled to the same percentage they are in the same class, even though certam of them are secured by indorsement or guaranty and others are not.®" A security given for a present loan is not a preference, no matter how insolvent the debtor may be, since one who receives security in exchange for a present consideration is not of the same class as an existing creditor.*^ Workmen, clerks and servants constitute a distinct class, and if the assets are sufficient to pay them in full, payments on account before bankruptcy but during insolvency, are not preferential.® ^ If the debt preferred is the individual debt of a partner, it is not a preference of which a partnership creditor can complain, for the debt paid is entitled to preference over every partner- V. Fourth Nat. Bank of St. Louis, 117 78— Ogden v. Eeddish, 200 Fed. 977, Fed. 1, 8 A. B. R. 673. See also, ante 29 A. B. E. 531. § 929. 79 — Wilson v. Mitchell- Woodbury Co., 75— In re Alden, 15 Ohio Fed. Dee. ^^ ^- ^- ^- 8^7. 120 16 A B E 362 ^'^ — Swarts v. Fourth Nat. Bank of St. „'■■„■ ■ , ^. „ ,„ Louis, 117 Fed. 1, 8 A. B. E. 673. 76-In re Mayo Contracting Co., 157 gl-In re Sayed, 185 Fed. 962, 26 A. Fed. 469, 19 A. B. E. 551. B_ jj 444_ •' ' ' 77— In re Varley & Bauman Clothing 82— In re Eead & Knight, 7 A. B. R. Co., 191 Fed. 459, 26 A. B. E. 840. 111. § 943] PEEFEKteUfCES 7ll sMp debt.*^ A dation en paiement, made by husband to wife in Louisiana, and delivered within fonr months of bankruptcy can- not be set aside as a preference, since there are no other creditors of the * ' same class. ' ' ®* § 943. — Exchange of property or securities. The bankruptcy law does not intend to interfere with or disturb the orderly business of the country.®^ Hence the sub- stitution of one piece of property for another, the exchange of properties or securities of equal value, the sale for a present consideration, the giving of security for a present advance or loan, the transfer of property in carrying out a prior valid con- tract, and generally transfers which do not give one creditor an advantage over others or diminish the estate, are not prefer- ences.®* An exchange of securities within the four months is not a fraudulent preference, even when the debtor and creditor know that the former is insolvent, if the security given up is a valid one when the exchange is made and is of equal value with the substituted security.*'^ Giving a mortgage or deed of trust to secure a debt previously secured by a statutory lien is merely a change of security and not a preference ; ** and so is the exchang- ing within four months of bankruptcy of new secured notes for old secured notes;*® or the giving of a new mortgage, the old 83 — ^Miller v. New Orleans Acid & Far- held not a preference under the New taizer Co., 211 TJ. S. 496, 53 L. ed. 300, York law. Perry v. Van Norden Trust 21 A. B. E. 416, aff'g 117 La. 821; Co., 192 N. Y. 189, 20 A. B. E. 190, rev 'g MilU V. Fisher & Co., 159 Fed. 897, 118 App. Div. (N. Y.) 288, 18 A. B. E. 16 L. E. A. (N. S.) 656, 20 A. B. E. 370. 237. Conveyance within four months to a 84 — Gomila v. Wilcombe, 151 Fed. 470, surety company which had contemporazie- 18 A. B. E., 143. ously given a bond for the discharge of 85 — Crook v. Bk., 1 N. B. N. 530, 3 A. an attachment against the bankrupt held B. E. 238. based on present consideration. In re 86— Ernst v. Mechanic's and Metals Federal Biscuit Co., 203 Fed. 37, 29 A. Nat. Bank, 201 Fed. 664, 29 A. B. E. B. E. 393. 289; McDonald v. Clearwater Shortline 87 — In re Eeese-Hammond Fire Brick Ey Co., 164 Fed. 1007, 21 A. B. E. 182; Co., 181 Fed. 641, 25 A. B. E. 323. In re Noel, 137 Fed. 694, 14 A. B. E. 88 — In re Lynn Camp Coal Company, 715; Darby v. Boatman's Sav. Inst., 4 168 Fed. 998, 22 A. B. E. 60; In re N. B. E. 195, Fed. Cas. No. 3571; In re Weaver, 9 N. B. E. 132, Fed. Cas. No. Davidson, 109 Fed. 882, 5 A. B. E. 528. 17307. Transfer of property in consideration 89 — ^Bernhisel v. Firman, 11 N. B. R. of the cancellation of notes of the bank- 505, 22 Wall. 170, 22 L. ed. 766. rupt indorsed by a responsible indorser 712 Beandenbueg on Bankeuptcy [§ 943 mortgage having been given more than four months before the bankruptcy, if no greater value is inserted; *" or the transfer to a lessor, who held as security for the rent, chattel mortgages good between the parties but void as to creditors, of real estate in payment of the rent, such chattel mortgages being thereupon released; ®^ or the substitution of a note and mortgage for bonds held as a special deposit for a customer; ®^ but if new securities of greater value are given,^^ or if new securities are exchanged for void ones,®* the rule that an exchange of securities is not a preference does not apply. § 944. — Transfers for present consideration. Section 60a does not apply to transactions whereby the bank- rupt receives a present consideration for the transfer.®^ If the transfer is made in consideration of both an antecedent and a new consideration, it will be upheld to the extent of the value of the new consideration given by the creditor at the time.®^ Though the knowledge of insolvency will not avoid a mort- gage given for a present loan,®'^ yet a mortgage executed in favor 90— Deland v. Miller & Cheney Bank, 119 Iowa, 368, 11 A. B. E. 744; In re Shepherd, 6 A. B. E. 725; Brett V. Carter, 14 N. B. E. 301, 2 Lowell 458, Fed. Cas. No. 1844; Sawyer v. Turpin, 5 N. B. E. 339, 2 Lowell 29, Fed. Cas. No. 12410. Contra, In re Jordan, 9 N. B. E. 16, Fed. Cas. No. 7529; Hardy v. Chan- dler, 175 Fed. 138, 23 A. B. E. 717. 91— Stewart v. Piatt, 19 N. B. E. 347, 101 U. S. (11 Otto)- 731, 25 L. ed. 816. 92— Cook V. Tullis, 9 N. B, E. 433, 18 Wall. 332, 21 L. ed. 933. 93— Waring v. Buchanan, 19 N. B. E. 502, Fed. Cas. No. 17176. 94 — First Nat. Bank v. Lanz, 202 Fed. 117, 29 A. B. E. 247. 95— Debus v. Tates, 193 Fed. 427, 30 A. B. E. 823; In re Clifford, 136 Fed. 475; 14 A. B. E. 281; Young v. Upson, 115 Fed. 192, 8 A- B. E. 377. Giving of security for present loan not a preference. In re Sayed, 185 Fed. 962, 26 A. B. E. 444; In re Noel, 137 Fed. 694, 14 A. B. E. 715; Mills v. Virginia- Carolina Lumber Co., 164 Fed. 168, 21 L. E. A. (N. S.) 901, 20 A. B. E. 750, modf 'g 151 Fed. 642, 18 A. B. E. 218. A lien given to secure a present loan not a preference. Crim v. Woodford, 136 Fed. 34, 14 A. B. E. 302. Deed of trust given- to secure a pres- ent loan, 3nd not for an antecedent in- debtedness not a voidable preference, even though the instrument is not re- corded immediately upon its execution. In re Jackson Brick & Tile Co., 189 Fed. 636, 26 A. B. E. 915. Mortgages given for bona fide cash ad- vances do not constitute preferences though debtor is insolvent and mort- gagees know it. Lindley v. Boss, 200 Fed. 733, 29 A. B. E. 610. 96 — Farmers' Bank of Edgefield v. Carr & Co., 127 Fed. 690, 11 A. B. E. 733; Crim v. Woodford, 136 Fed. 34, 14 A. B. E. 302; In re Dismal Swamp Contracting Co., 135 Fed. 415, 14 A. B. E. 175; In re Porterfield, 138 Fed. 192, 15 A. B. E. 11. 97— Lindley v. Boss, 200 Fed. 733, 29 A. B. E. 610. § 946] Pkefebences 713 of the president of a bank to which the bankrupt was heavily- indebted the proceeds thereof being immediately applied to the indebtedness to the bank, has been held voidable.®* Security given for a present loan, the lender knowing that the loan is to be used for giving a preference to a creditor will not be set aside as a preference to the lender; nor will it be set aside as fraudu- lent in the absence of proof of an actual knowledge on the part of the lender of an intent to defraud on the part of the bank- rupt.'® ~ However, a mortgage or trust deed covering the entire property of the bankrupt given by him to secure a present loan with which to prefer certain creditors is voidable both as a preference and as a fraudulent conveyance under 67e, where the lender knows of the bankrupt's insolvency and seeks merely to extricate the debtor from embarrassment by paying a pressing debt. The security given in such case will be regarded as a mere substitution for the old debt, and not to constitute a novation..^ A mortgage given several days after a loan made to the bank- rupt in pursuance of an agreement made on the date of the loan has also been held a preference.^ The surrender of dower is a sufficient consideration for a transfer.^ A creditor of a firm, who receives the jtransfer of the individual property of a partner who is insolvent, cannot, by releasing the other partner from liability, create a consideration that will save the transaction from being a preference.* § 945. Within four months. § 946. — In general. A preference is only created if the act complained of was within four months before the filing of a petition, or after the filing of the petition and before the adjudication.^ 98— Walters v. Zimmerman, 208 Fed 3— In re Porterfield, 138 Fed. 192, 15 62, 30 A. B. E. 776. A. B. R. 11. 99 — ^Van Iderstine v. National Dis- 4 — ^Burgoyne v. MeKillip, 182 Fed. count Co., 227 U. S. 575, 57 L. ed. 652, 452, 25 A. B. E. 387. 29 A. B. E. 478, afC'g, 174 Fed. 518, 23 5— Section 60a Act of 1898; In re Sie- A. B. E. 345. gel-Hillman Dry Goods Co., 2 N. B. N. E. 1— Dean v. Davis, 212 Fed. 88, 31 A. 933 ; In re Kindt, 101 Fed. 107, 4 A. B. B. E. 808. E. 148, rev'g 2 N. B. N. E. 369. 2— In re Thomas, 199 Fed. 214, 29 A. B. E. 945. 714 Bbandenbxjeg ON Bankruptcy [§946 In 1903, the clause respecting the four months' limitation was transferred to section 60a from section 60b. The effect of this transfer was to make the four months' period an element of the preference referred to in both of the sections. Section 60b there- fore does not authorize a recovery by the trustee where the preference was made more than four months before the filing of the petition,^ whether the creditor had reasonable cause to believe a preference was intended or not.'^ A transfer may, however, be set aside as preferential though made more than four months prior to bankruptcy if it is void under a state law, prohibiting a transfer of the property of a corporation when insolvent with intent to give a preference.* § 947. — Computation of time. In computing the time the first day is excluded and the last included, unless it fall on a Sunday or a holiday, in which case it also is excluded ; ® and the same rule is applied in counting months or years. ^° In such computation fractions of a day are not considered,^^ though they have been considered in a case where a bankrupt's goods had been seized on execution or attach- ment and the question was whether more or less than a certain number of months had elapsed between the seizure and the time when he went into bankruptcy,^^ but such decision is contrary to the weight of authority.^^ Where the petition is defective on its face because of failure to show the requisite number of petitioning creditors, the time does not commence to run until 6— Manning v. Evans, 156 Fed. 106, 94 Fed. 110, 2 A. B. E. 66; In re Du- 19 A. B. E. 217. pree, 1 N. B. N. 513, 97 Fed. 28; In 7 — See also In re Kindt, 101 Fed. re Lang, 2 N. B. E. 151, Fed. Gas. No. 107, 4 A. B. E. 148; rev'g 2 N. B. N. E. 8056. 369; In re Woodward, 1 N. B. N. 352, 11— Whitley Grocery Co. v. Eoaeh, 115 2 A. B. E. 233; In re Dow, ,6 N. B. E. Ga. 918, 8 A. B. E. 505; Butcher v. 10, Fed. Cas. No. 4036; Potter v. Cogge- Wright, 94 U. S. (4 Otto) 553, 24 L. ed. shall, 4 N. B. E. 19, Fed. Cas. No. 130; see also Eiehards v. Clark, 124 11322; In re Ferguson, 95 Fed. 429, Mass. 491; Cooley v. Cook, 125 Mass. 2 A. B. E. 586; In re Folb, 1 N. B. N. 406. 134, 91 Fed. 107, 1 A. B. E. 22. 12— Godsin v. Sanctuary, 4 B & Ad. 8— In re Salvator Brewing Co., 183 255; Westbrook Mfg. Co. v. Grant, 60 Fed. 910, 25 A. B. E. 536. Me. 88. 9— Section 31, Act of 1898; "Whitley 13T-Jones v. Stevens, 48 Atl. 170,. 5 Grocery Co. v. Eoach, 115 Ga. 918, 8 A. B. E. 570; In re Tonawanda Street A. B. E. 505. "Planing Mill Co., 6 A. B. E. 38. 10— In re Stevenson, 1 N. B. N. 313, § 948] Prepbeenoes 715 the petition is made sufficient by the appearance and joinder of a sufficient number of creditors." The term "holiday" is meant to cover January first, February twenty-second, May thirtieth, July fourth. Labor day (being the first Monday in September), Thanksgiving day, Christmas and any other day appointed by the President or congress as a holi- day or as a day of public fasting.^^ § 948. —Date of transfer. The four months begin to run from the time the preference took effect; which depends on the state law as to what is required to render the judgment or transfer effective, as docketing, delivery, filing, acknowledging or recording as the case may be; ^^ but it is the actual, not conditional or partial, taking effect. Under the act as originally enacted, a transfer dated as of the time it was actually made, without regard to the date of filing or recording. Cases consequently arose in which preferential transfers, though fraudulent and constituting acts of bank- ruptcy, could not be successfully attacked, even though the instruments evidencing them were filed or recorded within four months of the filing of the petition. To correct this defect in the law, the amendment of 1903 was made, whereby the words "within four months before the filing of the petition, or, after the filing of the petition and before adjudication," were elimi- nated from section 60b and inserted in section 60a, and also the words "Where the preference consists of a transfer, such period of four months shall not expire until four months after the date ' 14— Manning v. Evans, 156 Fed. 106, 211 U. S. 575, 53 L. ed. 332, 21 A. B. 19 A. B. B. 217. E. 496, rev'g 140 Fed. 596, 15 A. B. 15— Section 1 (14), Act of 1898; Act E. 502; First Nat. Bank" v. Connett, June 28, 1894, 2 Supp. E. S. 193. 142 Fed. 33, 5 L. E. A. (N. S.) 148, 15 16— Humphrey v. Tatinan, 198 U. S. A. B. E. 662; In re Eeynolds, 153 Fed. 91, 49 L. ed. 956, 14 A. B. E. 74, rev'g 295, 18 A. B. E. 666; In re Dundore, 184 Mass. 361, 12 A. B. E. 62; In re 26 A. B. E. 100. See Sawyer v. Tur- James White, 22 A. B. E. 200; In re pin, 13 N. B. E. 371, 91 U. S. (1 Otto) MoKane, 155 Fed. 674, 19 A. B. E. 103; 114, 23 L. ed. 235; Clark v. Iselin, 9 In re Jackson Brick and Tile Co., 189 N. B. E. 19, 10 Blatch. 204, 11 N. B. Fed. 636, 26 A. B. E. 915; Morgan v. E. 337, 21 Wall. 360, 22 L. ed. 568; First Nat. Bank of Mannington, 145 Fed. Wood v. Owings, 1 Craneh 239; In re 466, 16 A. B. E. 639 ; Eagan v. Donovan, Wynne, 4 N. B. E. 5, Fed. Cas. No. 189 Fed. 138, 26 A. B. E. 311; In re 18117; Matthews v. Westphall, 1 Mo- Mission Fixture & Mantel Co., 180 Fed. Crary 446; Seaver v. Spink, 8 N. B. E. 263, 24 A. B. E. 873; Page v. Eogers, 218; under the Act of 1867 as illustrative. 716 Bbandbnbubg on Bankbtjptcy [§ 948 of recording or registering the transfer, if by law such recording or registering is required, ' ' were added at the end of section 60a, As the amendment passed the House of Eepresentatives the words "or permitted, or if not, from the date when the bene- ficiary takes notorious, exclusive or continuous possession of the property transferred" followed the word "required" and ended the sentence, but such clause was stricken out by the Senate." Though such action on the part of the Senate may be regarded as showing that it did not regard the omitted clause as sur- plusage,^^ the better rule seems to be that if registering or recording is "required" or "permitted" by the state law for any purpose, or to give an instrument validity as against certain classes of persons, though not as to other classes, it is an instru- ment "required" to be registered or recorded within the mean- ing of section 60a. A failure to record or register when required may entail a consequence which does not result from the state law alone. A transfer good as to the bankrupt and his general creditors while not of record may nevertheless be voidable as to the trustee representing them if the instrument be of the class required to be recorded or registered. The amendment was directed against secret liens and was intended to change the rule of prior decisions upon that subject.^" However, "recording or registering" is not deemed to be "required" within the meaning of section 60a unless failure to record or register invalidates the transfer as to some one, and a statute which merely provides that an unrecorded assignment or transfer shall be presumptively 17 — First Nat. Bank ,of Buchanan Co. contra. Laurel Oil & rertilizer Co. v. V. Connett, 142 Fed. 33, 5 L. E. A. (N. Home, 101 Miss. 629, 28 A. B. B. 932; S.) 148, 15 A. B. E. 662. Meyer Bros. Drug Co. v. Pipkin Drug 18— In re Hunt, 139 Fed. 283, 14 A. Co., 136 Fed. 396, 14 A. B. E. 477; In E- ^- 416- re Hunt, 139 Fed. 283, 14 A. B. E. 416. 19— Mattley v. Giesler, 187 Fed. 970, And see In ra Mcintosh, 150 Fed. 546, 26 A. B. E. 116; Eagan v. Donovan, 189 18 A B E 169 Fed. 138, 26 A. B. E. 311; In re Beck- -p^'^J- " ^A • - j.^ ^ ■,:, 1,4 XI J -lA-i n, A 13 T. con Eecording within four months held a haus, 177 Fed. 141, 24 A. B. E. 380; . , ^ ^ ^ ' „■ -TV ■i.-Dioml preference where statute made unrecord- Loeser v. Savings Deposit Bank & Trust , . , Co., 148 Fed. 975, 18 L. E. A. (N. S.) ^^ *'^"'*^^ ""'^ ^« *" P'^e^asers and 1233, 17 A. B. E. 628, rev'g 140 Fed. "editors without notice. Dulany v. Morse, 674, 15 Ohio Fed. Dec. 202, 15 A. B. E. ^9 App. Cas. D. C. 523, .29 A. B. E. 275. 528; English v. Eoss, 140 Fed. 630, 15 ^he word "required" is sufficiently A. B. E. 370 ; First Nat. Bank of Bueh- comprehensive to include an unregistered anan Co. v. Connett, 142 Fed. 33, 5 deed which under the laws of Ohio is L. E. A. (N. 8.) 148, 15 A. B. E. 662; effective from delivery against all but § 948] Pbeferences 717 fraudulent prescribes a mere rule of evidence and does not require a "recording or registering." ^° A chattel mortgage executed in good faith before the four- month period, though recorded within that period, will be upheld where under the local law such recording is not essential to the validity of the mortgage as against third persons.^^ The provision that the period of four months shall not expire until four months after recording or registering does not apply to transfers made prior to the four-month period in good faith and not with the purpose of creating a preference,^^ and if there has been an equitable mortgage given prior to the four-month period the date of recording is not material; ^^ but the mere fact that a mortgage or deed is executed or delivered within the four months in pursuance of a prior oral agreement will not save it.^* So, a deed delivered with the understanding that it should not take effect until the grantee should so elect and he did not make such election until within the four months, is voidable ; ^® as is a preferential deed withheld from record until within four months.^* The filing of a conditional sale contract within the four-month period,^'' or the enforcement of a valid lien acquired more than four months before the filing of the petition by execution within the four-month period,^* or a sale within the four months pur- suant to a pledge executed prior thereto,^^ does not constitute an illegal preference. The provision in section 3b that where recording is not required the four-month period in which the petition must be bona fide purchasers. Carey v. Dono- 25 — ^Bank v. Conway, 14 N. B. B. 175, hue, 209 Fed. 328, 31 A. B. E. 210. 1 Hughes 37, Fed. Cas. No. 1037. 20— Telford v. Henriekson, 122 Minn. 26 — Bank v. Harris, 14 N. B. E. 510, 531, 31 A. B. E. 866. Fed. Cas. No. 4595. 21— In re Sturtevant, 188 Fed. 196, 27 — Big Four. Implement Co. v. 26 A. B. R. 574. Wright, 207 Fed. 535, 47 L. E. A. (N. 22— Bradley Clark & Co. v. Benson, S.) 1223, 31 A. B. E. 125; In re Farmers 93 Minn. 91, 13 A. B. E. 170. Co-operative Co. of Barlow, 202 Fed. 23— In re United States Food Co., 15 1005, 30 A. B. E. 187; Bradley Clark A. B. E. 329. & Co. v. Benson, 93 Minn. 91, 13 A. B. 24— In re Herman, 207 Fed. 594, 31 E. 170. A. B. E. 243; Lathrop Bank v. Holland, 28— Woods v. Klein, 223 Pa. St. 256, 205 Fed. 143, 30 A. B. E. 62; In, re 22 A. B. E. 722. Smith, 176 Fed. 426, 23 A. B. E. 864; 29— First Nat. Bank v. Lanz, 202 Fed. In re Dismal Swamp Contracting Co., 117, 29 A. B. E. 247. 135 Fed. 415, 14 A. B. E. 175. 718 Bbandbnbtteg ON Bankeuptcy [§948 filed, shall begin to run from the time the beneficiaiy of a pref- erential transfer takes notorious, exclusive or continuous possession of the premises, has no application to the avoidance of preferences under section 60.*" Accordingly, it is held, that the taking of possession in the exercise of a pre-existing right well founded in equity, although occurring within the prescribed period,*^ or the delivery of property within the four-month period in pursuance to a sale, pledge or equitable assignment thereof made for a present consideration more than four months before bankruptcy,^^ or the taking of possession within the pro- hibited period under a mortgage upon after acquired property executed more than four months prior to the filing of the peti- tion,** or a payment to a surety upon a bond the conditions of which had been broken, made in pursuance to an indemnity agreement executed more than four months prior to the filing of the petition** does not constitute a voidable preference. Where, however, the circumstances are such as to create a pre- sumption of fraud, a transfer or delivery of possession within thef prohibited period may be set aside though made in pursuance of an agreement ante-dating such period.*^ A second pledge to one creditor of property already pledged to another creditor made more than four months prior to the bankruptcy cannot be avoided as a preference though the second pledgee never had actual possession of the property.*® 30 — Little V. HoUey Brooks Hdwe. Co., 33 — Thompson v. Fairbanks, 196 IT. S. 133 Fed. 874, 13 A. B. E. 422. 516, 49 L. ed. 577, 13 A. B. E. 437, aff'g 31— Sexton v. Kessler & Co., Ltd., 172 70 Vt. 558, 13 A. B. E. 75n; In re Eogers Fed. 535, 40 L. E. A. (N. S.) 639, 21 & Woodward, 132 Fed. 560, 18 A. B. E. A. B. E. 807. 75; Fisher v. Zollinger, 149 Fed. 54, 17 32— Sexton v. Kessler & Co., Ltd., 225 A. B. E. 618, aff 'g 140 Fed. 679, 15 A. tr. S. 90, 56 L. ed. 995, 28 A. B. E. 85; B. E. 524. In re Automobile Livery Service Co., 176 34 — Wood v. United States, 143 Fed. Fed. 792, 23 A. B. E. 799; Godwin v. 424, 16 A. B. E. 21. Murohison Nat. Bank, 145 N. C. 320, 35— Eoy v. Salisbury, 134 N. Y. S. 22 A. B. E. 703; Christ v. Zehner, 212 733, 27 A. B. E. 892; Tilt v. Citizens' Pa. St. 188, 16 A. B. E. 788. Trust Co., 191 Fed. 441, 27 A. B. E. Payment within the prohibited period 320; Vitzthum v. Large, 162 Fed. 685, of money covered by an assignment made 20 A. B. E. 666 ; In re Great Western prior to that period cannot be recovered Mfg. Co., 152 Fed. 123, 18 A. B. E. 259; as a preference. Smedley v. Speekman, Torrance v. Winfleld Nat. Bank, 66 Kan. 157 Fed. 815, 19 A. B. E. 694, aff'g 153 177, 11 A. B. E. 185; In re Sheridan, Fed. 771, 18 A. B. E. 717; Lowell v. 98 Fed. 406, 3 A. B. E. 554. International Trust Co., 158 Fed. 781, 36— In re Bird, 180 Fed. 229, 25 A. 19 A. B. E. 853. B. E. 23. 1 949] Pbefebenoes 719 Where the bankrupt more than four months prior to bank- ruptcy transferred to a creditor its interests under certain unre- corded trust deeds upon the property of a third person, the four- month period was held to begin to run from the transfer of the bankrupt's interests therein and not from the date of the record- ing of the trust deed.*'' An assignment of a debt owing to the bankrupt is complete in relation to the question of preference when made, and is not affected by want of notice to the debtor.** Where a contract of sale of the bankrupt's stock calls for payment to third persons, the date of the contract and not of the payments has been held to govern in determining whether there had been a preference within four months.*® A deed executed without authority by an officer of a corpora- tion more than four months before the bankruptcy but ratified within that period must be considered in t]^e light of the situa- tion when ratified.*" If insurance policies be assigned as collateral security, the lien dates from the assignment, and not from the actual delivery.*^ The payment by the bankrupt within the four-month period of the amount collected under a fire insurance policy in pursuance of an agreement to keep his property insured and pay over the proceeds of the policy in case of loss is a voidable pref- erence though the agreement was entered into more than four months prior to the filing of the petition.*^ An inchoate lien by garnishment cannot be tacked on to the lien of an execution on the judgment against the defendant, and levied upon the indebtedness owing by the garnishee, so as to make up the period of four months.** § 949. Preference from procuring or suffering a judgment. To constitute a preference from procuring or suffering a judg- ment to be entered in favor of a creditor, intent and active agency 37 — Sturdivant Bank v. Sehade, 195 41 — McDonald v. Daskam, 116 Ped. Fed. 188, ,27 A. B. E. 673, rev 'g 189 276, 8 A. B. E. 543. Fed. 636, 26 A. B. E. 915. 42— Long v. Farmers' State Bank, 147 38— In. re Wilson, 23 A. B.E. 814. Ped. 360, 9 L. E. A. (N. S.) 585, 17 39— Fitch y. Bank of Grajid Eapids, A. B. E. 103. 146 Wis. 439, 26 A. B. E. 879. 43^Marsh v. Wilson Bros., 124 Minn. 40— In re Kansas City S. & Mfg. Co., 254, 31 A. B. E. 874. 9 N. B. E. 76, Fed. Cas. No. 7610. 720 BbANDENBXJBG (WSr BAiTKRUPTCY [§949 on the part of the debtor are not necessary, but only a state of insolvency coupled with an act on the part of one creditor the effect of which will be a preference, even though the proceedings are regular judicial proceedings upon a debt which is due and to which there is no just defense.** The failure of the debtor to prevent the securing of such a preference as by filing a petition in voluntary bankruptcy is sufficient.*^ The several courts which have made an apparently contrary decision*® merely hold that failure to prevent the entry of judgment on a warrant of attor, ney is not sufficient, but they do not go so far as to say that per- mitting such judgment to be enforced is not, which latter is held sufficient to create a preference.*'^ A preference is not created, however, by a levy or sale under a judgment unless the judgment debtor at the time of the levy was insolvent, regardless of the fact that the sale rendered 44— In re Koslowski, 153 Fed. 823, 18 A. B. R. 723; In re Meyer, 1 N. B. N. 207, 1 A. B. E. 1; Mather v. Coe, 1 N. B. N. 554, 92 Fed. 333, 1 A. B. E. 504. 45— In re Eeichman, 1 N. B. N. 556, 1 A. B. E. 17, 91 Fed. 624; In re tliollins, 1 N. B. N. 290, 2 A. B. E. 1; In re Spacht, 2 N. B. N. E. 238; In re Eich- ards, 2 A. B. E. 518, 95 Fed. 258; In re Huffman, 1 A. B. E. 587; In re Whalen, 1 N. B. N.< 228; In re Eome Planing Mills, 3 A. B. E. 123, 96 Fed. 812; In re Moyer, 1 N. B. N. 260, 1 A. B. E. 577, 93 Fed. 188; In re Cliffe, 1 N. B. N. 510, 2 A. B. K. 317, 94 Fed. 354; In re Burrus, 97 Fed. 926, 3 A. B. E. 296; In re Arnold, 1 N. B. N. 334, 2 A. B. E. 180, 94 Fed. 1001; but see In re Ogles, 1 A. B. E. 671, 93 Fed. 426; see also In re Forsyth, 7 N. B. E. 174, Fed. Cas. No. 4948; In re GaUinger, 4 B. E. 729, 1 Sawy. 224, Fed. Cas. No. 5192; In re Craft, 1 N. B. E. 89, 2 Ben. 214, Fed. Cas. No. 3316; In re Black, 1 N. B. E. 81, 2 Ben. 196, Fed. Cas. No. 1457; In re Dibblee, 2 N. B. E. 617, 3 Ben. 283, Fed. Cas. No. 3884; Buchanan V. Smith, 4 B. E. 397, 8 Blatch. 153; In re Sutherland, 1 B. E. 531, 1 Deady 344, Fed. Cas. No. 13638; In re Houghton, 1 B. E. 460; Warren v. D. L. & W. Ey. Co., 7 N. B. E. 451, Fed. Cas. No. 17194; In re Lord, 5 N. B. R. 318, Fed. Cas. No. 8503; Vogle v. La- throp, 4 N. B. E. 146, Fed. Cas. No. 16985; Hyde v. Corrigan, 9 N. B. E. 466, Fed. Cas. No. 6968; Beattie v. Gard- ner, 4 N. B. E. 106, Fed. Cas. No. 1195; Christman v. Haynes, 8 N. B. E. 528, Fed. Cas. No. 2703; Haskell v. IngaUs, 5 N. B. E. 200, 1 Hask. 341, I'ed. Cas. JSTo. 6193; In re Baker, 14 N. B. E. 433; In re Schick, 2 Ben. 5 Fed. Cas. No. 12455, 1 N. B. E. 177; In re Dibblee, 3 Ben. 283; Fitch v. MeGill, 2 Biss. 163; In re Dunkle, 7 N. B. E. 72, Fed. Cas. No. 4160; In re Heller, 3 Bias. 153; In re WeUs, 3 N. B. R. 95, Fed. Cas. No. 17388; Wilson v. Brinkman, 2 N. B. E. 149, Fed. Cas. No. 17794; Smith v. Buchanan, 4 N. B. R. 397, 8 Blateh. 153; Vanderhoof v. Bk., 1 Dill. 476; Anderson V. Strassberger, 6 Ben. 672; Warren v. Bank, 7 N. B. E. 481, 10 Blateh. 493, Fed. Cas. No. 17202. 46 — Johnson v. Anderson, 70 Neb. 233, 11 A. B. R. 294; In re Nelsdn, 1 N. B. N. 567, 98 Fed. 76, 1 A. B. E. 63. 47— In re Spacht, 2 N. B. N. R. 238; In re Richards, 2 A. B. E. 518, 95 Fed. 258; In re Huffman, 1 A. B. E. 587; see Wilson V. Baiik, 17 Wall. 473, 21 L. ed. 723. '§ 949] Pbefbbbnoes 721 him so.*^ A preference is created where notes are given with a cognovit to confess judgment thereon by an insolvent debtor to a creditor who a few days lat^r entered up judgment and issued execution;*® and it is immaterial whether such action was expected 6r not by the debtor; ^" or a judgment entered, upon a warrant of attorney attached to a note which the creditor had been renewing, and execution issued thereon just prior to the bankruptcy; °^ or the confession of judgment, the issuing of an execution and the seizure and sale of property under it,^^ or entering judgments on warrants held by near relatives of the bankrupt and issuing execution thereon immediately on learning that the creditors were pressing; ^^ or giving a note by an insolvent and causing it to be sued upon to prevent an attach- ment; ** or giving individual notes in exchange for notes secured by the signature and indorsement of others, resulting in an execution on the judgment of such notes; ^^ or where a state ordinance gave new debts a preference over old, and a father gave his son a new note to take the place of the old one, judg- ment being entered thereon.^® A preference is created if judg- ment be recovered and execution issue thereon, though the creditor had no knowledge of the debtor's insolvency.^'^ The taking of property by a receiver appointed by a state court is a taking under legal process.^* 48-rChieago Title & Trust Co. v. Eoeb- Sawy. 158, Ted. Gas. No. 17325; Bk. v. Ung's Sons Co., 107 Ted. 71, 5 A. B. B. CampbeU, 6 N. B. E. 352, 14 WaU. 87, 20 368. L. ed. 832. 49— Haughey v. Albin, 2 N. B. E. 129, 53 — Shimer v. Huber, 19 N. B. E. 414, 2 Bond, 244, Fed. Cas. No. 6222; Kteh Fed. Gas. No. 12787; Eogers v. Palmer,. V. MeGie, 2 N. B. E. 164, Fed. Cas. No. 19 N. B. E. 471, 102 U. S. 263, 26 L. ed. 4835; In re Terry & Cleaver, 4 N. B. E. 164; Zahm v. Fry, 9 N. B. E. 546, Fed. 33, Fed. Cas. No. 13835; Vogel v. Lath- Gas. No. 18198; In re Dibble, 2 N. B. E. rop, 4 N, B. E. 146, Fed. Cas. No. 16985. 185, 3 Ben. 203, Fed. Cas. No. 3884; In 50— Bank v. Jp»es, 11 N. B. E. 38, 21 re Baker, 14 N. B. E. 433, Fed. Cas. No. WaU. 325, 22 L. ed. 542. 763; Shaffer v. Fritehery, 4 N. B. E. 179, 51— Golson V. NeihofE, 5 N. B. E. 56, 2 Fed. Gas. No. 12697. Bias. 434, Fed. Cas. No. 5524; In re Her- 54— In re Williams, 3 N. B. E. 74, pieh, 15 N. B. E. 426, 7 Biss. 387, Fed. 1 Lowell 406, Fed. Cas. No. 17703. Cas. jSTo. 6418. 55 — Sage, Jr., v. Wynooop, 68 N. B. 52— Grant v. National Bank of Auburn, E. 63, Fed. Cas. No. 12215. 197 Fed. 581, 28 A. B. E. 712; Benjamin 56— Little v. Alexander, 12 N. B. E. V. Chandler, 142 Fed. 217-, 15 A. B. E. 134, 21 Wall. 500, 22 L. ed. 625. 439; Zahm v. Fry, 9 N. B. E. 546, Fed. 57— In re Metzger Toy & Noveltyv Co., Cas. No. 18198; Gatlin v. Hoffman, 9 N. 114 Fed. 957, 8- A. B. E. 307. B. E. 342, 3 Sawy. 486, Fed. Cas. No. 58— Hardy v. Clark, 3 N. B. E. 99, 7 2521; Webb v. Sachs, 15 N. B. E. 168, 4 Blatch. 262, Fed. Cas. No. 6058. Brandenburg— 46 722 Bbandenbubg on Bankkuptcy [§ 950 §950. Foreign attachment. An attachment within four months of bankruptcy under the law of a foreign country not recognizing the Bankruptcy Act does not constitute a voidable preference, which should be sur- rendered before proof of claim.^* § 951. Transfer of property. § 952. — In general. The transfer of any kind of property may constitute a pref- erence.®" By the express provisions of the act a transfer includes ^^ "the sale ®^ and every other and different mode of dis- posing of or parting with property,®* or the possession of prop- erty, absolutely or conditionally, as payment, pledge, mortgage,®* gift or securty." Any transfer of property by an insolvent, direct or indirect, by which one creditor obtains an advantage over others is a preference and it does not matter that the motive is com- mendable, as to save the property from attachment, or the like; as also any transfer by which the insolvent's estate is diminished, which includes those the consideration for which is a pre-existing debt.®^ The transfer of securities to a bank by a bankrupt 59 — In re Boden & Haao v. Lovell, 203 65 — See Section 67, Act of 1898; In re Fed. 234, 30 A. B. E. 353. Taylor, 1 N. B. N. 412; In re Woodward, 60— In re Schacht Motor Car Co., 31 2 A. B. E. 233; Toof v. Martin, 6 N. B. A. B. E. 624. E. 49, 13 WaU. 40, 20 L. ed. 481; s. c. 4 61 — Section 1 (25), Act of 1898. N. B. E. 158, Fed. Gas. No. 9164; Poster ' 62— Stern v. Louisville Trust Co., 112 v. Hackley, 2 N. B. E. 131, Fed. Cas. No. Fed. 501, 7 A. B. E. 305. 497; In re Eogers, 2 N. B. E. 129, Fed. 63— Stem v. Louisville Trust Co., Cas. No. 12002; In re Pierson, 10 N. B. supra; Frank v. Musliner, 78 N. T. S. E. 107, Fed. Cas. No. 11153; Barker v. 369, 9 A. B. E. 229. Smith, 12 N. B. R. 474, 2 Woods 87, 64— Brooks v. Bank of Beaver City, 82 Fed. Cas. No. 986 ; Brock v. Terrell, 2 Kan. 597, 25 A. B. E. 890; Coder v. Arts, N. B. R. 190, Fed. Cas. No. 1914; In re 152 Fed. 943, 15 L. R. A. (N. S.) 372, Batehelder, 3 N. B. E. 37, 1 Lowell 373, 18 A. B. E. 513, mod'f 'g 145 Fed. 202, ^^^- *^^^- '^°- ^O^^; In re Lewis, 2 N. B. 16 A. B. R. 583, afE'd 213 U. S. 223, 53 ^- ^'^^' ^^*^ ^- Hoffman, 9 N. B. R. L. ed. 772, 22 A. B. R. 1; In re Ed. W. l^^! ^ ^^^- ^^^' ^^^- ^as. No. 2521; Wright Lumber Co., 114 Fed. 1011, 8 A. f^'\^: ^'^\^ ^- ^- »■ H' ^ Ben. B. R. 345; Sebring v. Wellington, 63 Za',\ '^TJ'VJ"'' ''^^ " "^^ 6 1 cago Title & Trust Co 182 TT S -4A4. m. Div. (N. T.) 498, 6 A. B. R. 671; ^s'l. ed. 1176, 5 1. R R 8H; wS^n In re Beerman, 112 Fed. 663, 7 A. B. R. Bros. v. Nelson, 183 V. 8. 191 « L ed 434; In re Jones, 118 Fed. 673, 9 A. B. 147, 7 A. B. R. 142; West v! Bank of K- 262. Lahoma, 16 Okla. 328, 16 A. B. E. 733, §954] PEiSFEEENCES 723 depositor as collateral ®® or the seizure of property by writ of replevin *^ constitutes a transfer, but a conditional sale does not.** § 953. — Creditor must receive property. It is absolutely essential that the bankrupt or his agent traasfer some portion of his property to the creditor. If the creditor receives none of the bankrupt's property, there is no preference.* '' Accordingly, payment of the bankrupt's note by the indorser who upon such payment credits the amount against an indebtedness due by such indorser to the bankrupt, does not constitute a preference.''** § 954. — Indirect transfer to creditor. The transaction assailed as a preference must be determined by its effect, not its form.''^ It is immaterial to whom the trans- fer is made, if it be made for the purpose of paying the claims of one creditor in preference to those of others, and such creditor be benefited thereby. ^^^ Nor is it material that the payment is 66— National City Bank of New York V. Hotehkiss, 231 U. S. 50, 58 L. ed. 115, 31 A. B. E. 291, afE'g 201 Fed. 664, 29 A. B. E. 289. ^ 67 — ^Bank of North America v. Penn Motor Car Co., 235 Pa. 194, 31 A. B. E. 395. 68 — Big Pour Implement Co. v. Wright, 207 Fed. 535, 47 L. E. A. (N. S.) 1223, 31 A. B. E. 125; In re Farmers Co-op- erative Co. of Barlow, 202 Fed. 1005, 30 A. B. E. 187. 69— Aiello v. Crampton, 201 Fed. 891, 29 A. B. E. 1; Catehings v. Chatham Nat. Bank, 180 Fed. ,103, 24 A. B. E. 843; Mason v. Nat. Herkimer County Bank, 172 Fed. 529, 22 A. B. E. 733, rev'g 163 Fed. 920, 21 A. B. E. 98. Transfer by bankrupt to corporation held not a preference to its president and principal stockholder. Aiello v. Cramp- ton, 201 Fed. 891, 29 A. B. E. 1. Where bankrupt had a revocable priv- ilege entitling him to sell newspapers and same was revoked by publishers against his will and transferred to a creditor of the bankrupt who resold the privilege, held that the amount received by the creditor in excess of the advances made to the bankrupt did not constitute a pref- erence, since bankrupt did not transfer anything to defendants, and could not therefore have an intent to prefer, and defendant could not be charged with knowledge of non-existing intent. In re Martin, 200 Fed. 940, 29 A. B. E. 623. 70 — Catehings v. Chatham Nat. Bank, 180 Fed. 103, 24 A. B. E. 843; Mason v. Nat. Herkimer County Bank, 172 Fed. 529, 22 A. B. E. 733, rev'g 163 Fed. 920, 21 A. B. R. 98. 71 — Eoberts v. Johnson, 151 Fed. 567, 18 A. B. E. 132; Eogers v. Fidelity Sav- ings Bank & Loan Co., 172 Fed. 735, 23 A. B. E. 1 ; In re McDonald & Sons, 178 Fed. 487, 24 A. B. E. 446. 72 — In re Harrison Bros., 28 A, B. E. 684; National Bank of Newport v. Na- tional Herkimer County Bank, 225 V. S. 178, 56 L. ed. 1042, 28 A. B. E. 218; In re Lynden Mercantile Co., 156 Fed. 713, 19 A.-B. E. 444; Bank of Wayne v. Gold, 724 Bkandenbukg on Bankeuptcy [§954 not made directly by the bankrupt. If he assigns an account due him, and his debtor makes a payment of the account to the assignee/* or if payment is made by a third person having funds belonging to him at his direction/* or if a debt is paid by the purchaser of the bankrupt's property/^ the transaction will be held to constitute a preference. It has been held, how- ever, that a payment to a creditor of the bankrupt by a firm of which he has ceased to be a member does not constitute a void- able preference.'^® §955. — Assignments. A general assignment may constitute an unlawful preference/'' An order which operates as an assignment of the fund upon which it is drawn is a transfer,'^® as is the assignment of a land 146 App. Div. (N. Y.) 296, 26 A. B. R. 722 ; In re Jacob L. Bartheleme, 11 A. B. E. 67 ; Hackney v. Raymond Bros. Clarke Co., 68 Neb. 624, 10 A. B. R. 213. Fact that mortgage was given to third party and by him transferred to the creditor is immaterial. In re McDonald & Sons, 178 Fed. 487, 24 A. B. R. 446. A sale of the bankrupt's property under an agreement whereby the pur- chaser was to deduct the amount of a creditor's claim from the purchase price and pay the same to the latter is a pref- erence. Hackney v. Hargreaves Bros., 68 Neb. 633, 13 A. B. R. 164. Mortgage on bankrupt 's entire property given to brother of creditor, proceeds turned over to creditor in payment of his claim, held a preference. Roberts v. Johnson, 151 Fed. 567, 18 A. B. R. 132. The conveyance of the property of a corporation in which the bankrupt is a large stockholder in consideration of the cancellation of the vendee's indebtedness to the bankrupt may be set aside as pref- erential. Greenhall v. Carnegie Trust Co., 180 Fed. 812, 25 A. B. E. 300. A payment by the bankrupt of notes given by him to third parties discounted by a bank constitutes a preference to the bank. In re Hill Co., 130 Fed. 315, 66 L. E. A. 68, 12 A. B. R. 221. Mortgage executed in favor of presi- dent of bank the proceeds thereof being immediately applied to the indebtedness to the bank held voidable. Walters v. Zimmerman, 208 Fed. 62, 30 A. B. E. 776. Where the payee of a note, within four months of the bankruptcy of the maker tlereof, indorses it to a bank which has discounted it, a payment of the note by the maker to the bank will be held to inure to the benefit of the payee and to constitute a preference. In re Matthews & Eosenkranz, 15 A. B. R. 721. 73— Collett V. Bronx Nat Bank, 200 Fed. Ill, 29 A. B. R. 454; Nat. Bank of Newport v. Nat. Herkimer County Bank, 225 V. S. 178, 56 L. ed. 1042, 28 A. B. E. 218. 74 — Johnson v. Hauley, Hoye Co., 188 Fed. 752, 26 A. B. E. 748. 75-7-Eogers v. Fidelity Savings Bank & Loan Co., 172 Fed. 735, 23 A. B. R. 1; Wickwire v. Webster City Savings Bank, 153 Iowa 225, 27 A. E. R. 157. 76 — In re Hines, 144 Fed. 543, 16 A. B. R. 495. 77— Eichholz v. Polaok, 140 App. Div. (N. Y.) 551, 25 A. B. R. 243. But see Gill V. Bell's Knitting Mills, 128 App. Div. (N;. Y.) 691, 21 A, B. R. 282. 78 — In re Hines, 144 Fed. 543, 16 A. B. R. 495. § 957] Peefeeences 725 contract/® or the assignment of a claim under an insurance policy.*" So, the assignment of book accounts is considered a transfer,*^ and a payment to a creditor of the bankrupt of an account owing to the bankrupt will be held a preference.®^ § 956. — Deposit of money. A deposit of money with a bank within four mfonths of bank- ruptcy is not a preference within the meaning of the act, though the bank at the time holds obligations of the depositor which may be set off against the deposit upon the latter's bankruptcy,®* unless it was the intention of the parties to accumulate deposits for the purpose of preferring the bank.®* Nor is the application by a bank of deposits made by the bankrupt to his indebtedness to it a voidable preference unless it had reasonable cause to believe a preference would be thereby effected.®^ So, a deposit made within four months of bankruptcy by a lessee to be held by his landlord as security for the faithful performance of the cove- nants of the lease will not be regarded as a preference.®^ § 957. — Traaisf er of exempt property. The transfer of the homestead or other exempt property can- not be treated as a preference, since in no event would the 79— In re Sayed, 185 Ted. 962, 26 A. Eidge Avenue Bank v. Sundheim, 145 B. E. 444. Fed. 798, 16 A. B. E. 863. 80 — Hanson v. Blake & Co., 155 Fed. 84 — Germania Savings Bank & Trust 342, 19 A. B. B. 325. Co. v. Loeb, 188 Fed. 285, 26 A. B. E. 81 — In re Eiehards, Inc., 28 A. B. B. 238; Schmidt v. Bank of Commeree, 15 636; In re Gibson, 191 Fed. 665, 27 A. B. N. M. 470, 25 A. B. E. 904. And see E. 401. Ernst v. Mechanic's and Metals Nat. 82— National Bank of Newport v. Na- Bank, 201 Fed. 664, 29 A. B. E. 289. tional Herkimer County Bank, 225 IT. S. Payment to a bank by a check which it 178, 56 L. ed. 1042, 28 A. B. E. 218. required the bankrupt to give in payment 83 — Studley v. Boylston Nat. Bank, of notes not due held to constitute a 200 Fed. 249, 29 A. B. E. 649; Walsh v. preference. Shale v. Farmers' Bank of First Nat. Bank, 201 Fed. 522, 29 A. B. Morrill, 82 Kan. 649, 25 A. B. E. 888. E. 118; Tomlinson v. Bank of Lexington, 85 — Studley v. Boylston Bank, 229 IT. 145 Fed. 824, 16 A. B. E. 632; Irish v. S. 523, 57 L. ed. 313, SO A. B. E. 161, Citizens' Trust Co. of Utica, 163 Fed. 880, aff 'g 200 Fed. 249, 29 A. B. E. 649; In 21 A. B. E. 39; In re Hill Co., 130 Fed. re Percy Ford Co., 199 Fed. 334, 28 A. 315, 66 L. E. A. 68, 12 A. B. E. 221; New B. E. 919; West v. Bank of Lahdma, 16 York County Nat. Bank v. Massey, 192 Okla. 328, 16 A. B. E. 733; Lowell v. In- U. S. 138, 48 L. ed. 380, 11 A. B. E. 42; ternational Trust Co., 158 Fed. 781, 19 A. Tomlinson v. Bank of Lexington, 145 B. E. 853. Fed. 824, 16 A. B. E. 632. But see In re 86— In re Sherwood 's, Inc., 210 Fed. Stege, llg Fed. 342, 8 A. B. B. 515; 754, 31 A. B. E. 769. 726 Bbandenbtjkg ON Bankbuptcy [§957 trustee in bankruptcy be entitled thereto.^^ A preferential mort- gage covering both exempt and non-exempt property is only voidable as to the non-exempt property.^* § 958. — Transfer by partnership or members. A transfer by a partnership to secure the individual debt of partner is voidable.®® A payment to a creditor of the bankrupt by a firm of which he has ceased to be a member has been held not to constitute a preference.®" A transfer by a partner, while the partnership is insolvent, of his individual property in payment of a firm debt, is a preference not by the firm but by the individual partner.®^ § 959. — Payment of money. The word "transfer" in section 60 is used in its most compre- hensive sense and includes the transfer of money as well as property.®^ So, the payment of wages may be a preference, not- withstanding that part of them were entitled to priority, for that can only be settled in the bankruptcy proceedings; ®* or payment for goods delivered without the collection of the price, though the terms be cash, since the title passed on delivery, the payments not being for a present consideration.®* The payment of the rent of the premises in which the business is carried on is not necessarily a preference,®® but if made with the purpose of carrying on the business in fraud of creditors, it 87 — Huntington v. Baskerville, 192 Pirie, Scott & Co. v. Trust Co., 182 IT. S. Ted. 813, 27 A. B. E. 219; Vitzthum v. 438, 45 L. ed. 1171, 5 A. B. E. 814; Sher- Large, 162 Fed. 685, 20 A. B. E. 666. man v. Luckhardt, 9 A. B. E. 307; Laun- 88— First Nat. Bank v. Lanz, 202 Fed. dry v. Andrews, 22 E. I. 597, 6 A. B. E. 117, 29 A. B. E. 247; In re Bailey, 176 281. Fed. 990, 24 A. B. E. 201. 93— In re Kohn, 2 N. B. N. E. 367, 7 89— In re Floyd & Co., 156 Fed. 206, A. B. R. llln; In re Jones, 2 N. B. N. 19 A. B. E. 438. E. 961, 110 Fed. 736, 4 A. B. E. 563 ; In 90 — In re Hines, 144 Fed. 543, 16 A. re Proetor, 6 A. B. E. 660 ; In j-e Henry B. E. 495. C. King Co., 116 Fed. 110, 7 A. B. E. 91— Mayes v. Palmer, 208 Fed. 97, 31 619; In re Kenyon, 6 N. B. E. 238; con- A. B. E. 225. tra, In re Feuerlieht, 8 A. B. E. 550; In , 92 — In re Starkweather & Albert, 206 re Bead, 7 A. B. E. 111. Fed. 797, 30 A. B. E. 743 ; In re Pf a£- 94— In re Durham, 2 N. B. N. E. 1101 : flngej, 154 Fed. 523, 18 A. B. E. 807; In re Arndt, 3 N. B. N. R. 101, 104 Fed. West V. Bank of Lahoma, 16 Okla. 328, 234, 4 A. B. E. 773 ; and see In re Mor- 16 A. B. E. 733 ; Parker v. Black, 143 row & Co., 134 Fed. 686, 13 A. B. E. 392. Fed. 560, 16 A. B. E. 202; In re Eouk, 95— Eeed v. Phinney, 2 N. B. N. E. Ill Fed. 154, 7 A. B. E. 31; Carson, 1007; In re Barrett, 6 A. B. E. 199. § 959] Peepeeenoes 727 should be so regarded.®® Where an insolvent leaseholder with the proceeds of a sale of such lease pays debts charged thereon or necessarily payable to secure a fair price, such payments are not a preference; so payment of back rent on a lease non-assign- able without the landlord's consent is proper because necessary to secure its value for creditors.®^ The payment of one of several notes held by a bank against an insolvent debtor out of the collateral security given to secure the note is not a preference ; nor the payment of interest for the renewal of a note.®® If a debtor entering into a composition with his creditors, secretly pays one of them more than the amount stated in the composition, the preference is fraudulent and voidable.®^ The payment within the prohibited period of an amount of money equivalent to that borrowed by the bankrupt for a special purpose, and not so used, may be avoided as a preference, where the identical money is not returned.^ A payment made by a clearing house association of which the bankrupt is a member, out of the credits of the bankrupt in its possession is a transfer of property of the bankrupt,^ but a pay- ment by the check of the bankrupt's attorney on his individual account is not a preference if he does not hold sufficient of the bankrupt's funds to pay the debt.^ The collection by a stock exchange, under its rules, of the balance due from an insolvent member within four months of the filing of a petition in bank- ruptcy constitutes a preference, and the creditors receiving the benefit thereof are liable to the trustee in bankruptcy for the amount of payments made to them.* Prior to the decision of the supreme court ® a payment of money was generally held to constitute a preference, if made by 96— In re Lange, 2 N. B. N. E. 85, 97 2— Sector v. City Deposit Bank Co., Fed. 197, 3 A. B. E. 231. 200 U. S. 405, 50 L,. ed. 527, 15 A. B. R, 97— In re Pearson, 1 N. B. N. 402, 95 336; Sector v. Commercial Nat. Bank, Fed. 425, 2 A. B. E. 482; but see In re 200 U. S. ,420, .50 .L. ed.' 533, 15 A. B. E. Merchants' Ins. Co., 6 N. B. E. 43, 3 347. Biss. 162, Fed. Cas. No. 9441. 3— Upson v. Mount Morris Bank, 103 98— Beed v. PMnney, 2 N. B. N. E, App. Div.,(N. Y.) 367, 14 A. B. E. 6. 1007. 4— Cohen v. Budd, 17 A. B. E. 329. 99— In re Chaplin, 115 Ped. 162, 8 A. 5 — Jacquith v. Alden, 189 U. S. 78, B..E. 121. 47 L. ed. 717, 9 A. B. E. 773. 1— In re Kearney, 167 Fed. 995, 21 A. , . ' B.E.721. 728 Bbandenbubg on Bankbitptcy [§959 an insolvent debtor, with the effect of enabling the creditor to obtain a greater percentage of his debt than other creditors of like class, without regard to whether it was made innocently in the usual course of business or not;^ whether on a running account with the creditor, so that the balance was to be con- sidered one debt; '' or if the different transactions constituted debts which should be stated as distinct causes of action in a complaint, as notes, and the payment was of one or more in full.® The rule is now settled, however, that the receipt by a creditor of payments upon an account current in the usual course of business, whether followed by new credits or not, does not con- stitute a preference, if the net result is to increase the indebted- ness of the bankrupt.^ 6— In re Arndt, 3 N. B. N. E. 101, 104 Fed. 234, 4 A. B. E. 773; In re Christen- sen, 2 N. B. N. E. 695, 101 Fed. 802, 4 A. B. E. 202; In re Fixen, 2 N. B. N. E. 885, 102 Fed. 295, 4 A. B. E. 10; In re Sloan, 102 Fed. 116, 4 A. B. E. 356; Strobel v. Knost, 99 Fed. 409, 1 N. B. N. 403, 2 A. B. E. 471; In re Kamsler, 2 N. B. N. E. 97, 97 Fed. 194; In re Jourdan, 2 N. B. N. E. 581; In re Con- haim, 2 N. B. N. E. 148, 3 A. B. E. 249, 97 Fed. 923; In re Cain, 1 N. B. N. 389, 2 A. B. E. 378; In re Tirre, 2 A. B. E. 493, 1 N. B. N. 402, 95 Fed. 425; In re Wise, 2 N. B. N. E. 151; Shutts v. Blf., 2 N. B. N. E. 320, 3 A. B. E. 492, 98 Fed. 705; Blakey v. Bk., 1 N. B. N. 411, 2 A. B. E. 460, 95 Fed. 267; In re HofC- man, 2 N. B. N. E. 554; In re Thomp- son, 2 N. B. N. E. 1016; In re Fort Wayne Eleo. Corp., 2 N. B. N. E. 434, 99 Fed. 400, s. c. 3 A. B. E. 186, 96 Fed. 803, citing and overruling In re Piper, 2 N. B. N. E. 7, but see In re Eyan, 2 N. B. N. E. 693; contra, In ire Smoke, 2 N. B. N. E. 996, 4 A. B. E. 434, 104 Fed. 289, afE'g 2 N. B. N. E. 831; In re Alexander, 2 N. B. N. E. 997, 4 A. B. E. 376, 102 Fed. 464; In re Piper, 2 N. B. N. E. 7, 8; see also In re Baker, 2 N. B. N. E. 195; In re Nathan, 2 N. B. N. E. 613; In re Jones, 2 N. B. N. E. 961, 110 Fed. 736, 4 A. B. E. 563 ; In re Warner, 5 N. B. B. 414, Fed Caa. No. 17177; Far- rin V. Crawford, 2 N. B. E. 181, Fed. Cas. No. 4686; In re Dibble, 2 N. B. E. 185, 3 Ben. 283, Fed. Cas. No. 3884; Ph'elan v. Bk., 16 N. B. E. 308, 4 Dill. 88, Fed. Cas. No. 11069; Eison v. Knapp, 4 N. B. E. 114, 1 Dill. 186, Fed. Cas. No. 11861; In re Forsyth, 7 N. B. E. 174, Fed. Cas. No. 4948; Maurer v. Frantz, 4 N. B. E. 142; In re Ore. Bull. Pr. & Pub. Co., 13 N. B. E. 503; In re Doyle, 3 N. B. E. 158, Fed. Cas. No. 4051; In re Gay, 2 N. B. E. 114, 1 Hask. 108, Fed. Cas. No. 5279; In re Foster, 2 N. B. E. 81, Fed. Cas. No. 4961; In re Finn, 8 N. B. E. 525, Fed. Cas. No. 4795; In re Jones, 12 N. B. E. 48, Fed. Cas. No. 7452 ; In re Burgess, 3 N. B. E. 47, Fed. Cas. No. 2153; In re Clark, 19 N. B. B. 301, Fed. Cas. No. 2812; In re Edelstein, 1 N. B. N. 168. 7— In re Wise, 2 N. B. N. E. 151; lu re Teslow, 2 N. B. N. E. 1024. 8— In re Wise, 2 N. B. N. E. 151; Eeed V. Phinney, 2 N. B. N. E. 1007; In re Castle, 2 N. B. N. E. 985, 4 A. B. E. 357n; In re Siegel-Hillman Dry Goods Co., 2 N. B. N. E. 933; In re Berswiok, 2 N. B. N. E. 808; In re Eogers MiUing Co., 2 N. B. N. E. 973, 102 Fed. 687, 4 A. B. E. 540; In re Myers v. Chami, 2 N. B. N, B. 765; contra, In re Jourdan, 2 N. B. N. B. 581; In re HOffmaai, 2 N. B.N. E. 554. *-^a'cqnith v. Alden^ 189 IT. S.' 78, § 963] Pkepeeences 729 § 960. — Payment by bankrupt or affent to himself. A payment by the bankrupt as an individual to himself as trustee for an estate may constitute a voidable preference," as may a payment of an agent of the bankrupt to himself with knowledge of the insolvency of the principal.^ ^ § 961. — Performance of labor. The performance of labor by an insolvent debtor for his cred- itor,^^ is not a. transfer within the meaning of the act. § 962. — Reclamation by vendor. The return of property to the vendor thereof under a condi- tional sale contract is not a preference.^^ Where the bankrupt uses lumber obtained through fraudulent representations as to his solvency in constructing a barge, a transfer by him to his vendor upon the rescission by the latter of his sale of the lumber will constitute a preference, it appearing that other lumber was also used ia the construction of the barge.^* § 963. — Restoration of stolen money. A corporation which has restored to it money which has been stolen from it and applied to the use of the bankrupt corpora^ tion by an agent of both corporations, cannot be said to have received a preference.^^ So, a warehouseman from whoni prop- erty belonging to his bailors has been stolen by employees of the bankrupt has been held not a creditor, so as to constitute a payment to him by the bankrupt to cover the loss, a voidable preference.^® 47 L. ed. 717, 9 A. E. E. 733; Wild & Co. 11— In re Plaut, . 148 Fed. 37, 17 A. V. Provident Life & Trust Co., 214 U. S. B. E. 272. 292, 53 L. ed. 1003, 22 A. B. E. 109, rev 'g 12 — ^In re Abraham Steers Lumber Co., 153 Fed. 562, 18 A. B. E. 506; In re HiU 110 Fed. 738, 6 A. B. E. 315. Co., 130 Fed. 315, 66 L. E. A. 68, 12 A. 13 — Hart v. Emerson-Brantingham Co., B. E. 221; Yaple v. Dahl-MiUikan Groe. 203 Fed. 60, 30 A. B. E. 218. Co., 193 IT. 8. 526, 48 L. ed. 776, 11 A. 14— American Lumber & Mfg. Co. v. B. E. 596; see also In re Morrow & Co., Taylor, 137 Fed. 321, 14 A. B. E. 231; 134 Fed. 686, 13 A. B. E. 392; In re Wat- 15— MeNaboe v. Columbian Mfg. Co., kinson, 142 Fed. 782, 16 A. B. E. 38; 153 Fed. 967, 18 A. B. E. 684. Merklein v. Hurley, 197 Fed. 183, 28 A. 16 — Keystone Warehouse Co. v. Bissell, B. E. 841. 203 Fed. 652, 30 A. B. E. 213. 10— Clarke v. Eogers, 183 Fed. 518, 26 A. B. E. 413, aff'd 228 U. S. 534, 57 t. ed. 953, 30 A. B. E. 39. 730 Bbandenbubg on Bankeuptcy [§ 964 § 964. — Retention of funds held in trust. The retention by a creditor of funds held in trust for the bank- rupt does not constitute a preference.^'^ § 965. — Stoppage in transitu. The right of stoppage in transitu is a legal right and exists in the vendor until delivery of the goods to the vendee, who though insolvent may consent to the vendor retaking the goods without giving him a preference.^^ § 966. — Taking possession under a contract of purchase. The taking of specific property by a creditor under a claim that he is entitled to that property by virtue of a contract of purchase cannot be construed into a payment upon an existing debt." § 967. Reasonable cause to believe a preference would be effected. §968. —In general. Prior to the amendment of 1910 a preference, given within four months before the filing of a petition, or after the filing of the petition and before the adjudication, was voidable if the person receiving it, or to be benefited thereby, or his agent acting therein, had reasonable cause to believe a preference was intended.^" 17— Deductions made by a creditor 202 Fed. 275, 29 A. B. E. 793; Mills v. from its payrolls of the amount due by Virginia-Carolina Lumber Co., 164 Fed. its employees to the bankrupt, in pur- 168, 21 L. E. A. (N. S.) 901, 20 A. B. suance of an agreement-between the bank- E. 750. rupt and the creditor, held not a pref- 20 — ^Levor v. Seiter, 69 App. Div. (N. erence it appearing that the creditor had Y.) 33, 8 A. B. E. 459; In re IJatliff, 107 agreed to remit to the bankrupt the Fed. 80, 5 A. B. E. 713; Coleman v. De- amount so deducted. But the court held catur Egg Case Co., 186 Fed. 136, 26 A. that the amounts deducted constituted a B. E. 248; In re Houghton Web Co., 185 trust fund which could be recovered from Fed. 213, 26 A. B. E. 202 ; Eeber v. Louis the creditor, without giving to it the Shulman & Bro., 183 Fed. 564, 25 A. B. right to set off any indebtedness due it E. 475, aff'g 179 Fed. 574, 24 A. B. E. from the bankrupt. Western Tie & Tim- 782; Powell v. Gate City Bank, 178 Fed. ber Co. v. Brown, 196 U. S. 502, 49 L. 609, 24 A. B. E. 316; Harder v. Clark, 66 ed. 571, 13 A. B. E. 447, rev'g 129 Fed. Misc. (N. Y.) 584, 23 A. B. E. 756; V28, 12 A. B. E. 111. Sharpe v. Alleuder, 170 Fed. 589, 22 A. 18 — See Stoppage in Transitu, under B. E. 431, aff'g 164 Fed. 448, 21 A. B. ante §924. E. 73; Coder v. Arts, 213 U. S. 223, 53 19 — ^In re East End Mantel & Tile Co., L. ed. 772, 22 A. B. E. 1, aff 'g 152 Fed. § 969] PfiEPEEENCES 731 The amendment obviates the necessity of proving (1) the debtors intent to prefer, (2) the cause for belief on the part of the creditor that a preference was intended, and (3) that the debtor knew of his insolvency. The test now is, whether the person receiving the payment, or to be benefited thereby, or his agent acting therein, at the time of the payment, had reasonable cause to believe that a preference would be effected, or, in other words, that the debtor was then insolvent and that in accepting and retaining such payment, he would receive a larger per- centage of his debts than other creditors of the same class. ^^ Eeasonable cause to believe that a transfer will effect a pref- erence within the meaning of the amendment, is reasonable cause to believe that it will operate as a preference, and necessarily involves reasonable cause for belief in insolvency. ^^ The question is not one of knowledge or belief, but of reason- able cause for belief,^* and where there is reasonable cause to believe, that at the date of the transfer the debtor is insolvent, and payment is accepted on a debt overdue, it is immaterial whether the creditor actually believes what may have been dis- closed as to the true state of affairs.^* § 969, — As of whait date determined. Under the law as it existed prior to the amendment of 1910, the reasonable cause to believe a preference was intended must 943, 18 A. B. B. 513, mod'f g 145 Fed. Preferential transfers made in good 206, 16 A. B. E. 583 ; Stuart v. Farmers * faith though for a past consideration not Bank of Cuba City, 137 Wis. 66, 21 A. voidable if transferee had no reason to B. B. 403; Hussey v. Biehardson Boberts believe a preference would be effected. Dry Goods Co., 148 Fed. 598, 17 A. B. B. In re Chicago Car Equipment Co., 211 511; Pittsburgh Plate Glass Co. v. Ed- Fed. 638, 31 A. B. E. 617. wards, 148 Fed. 377, 17 A. B. E. 447; In 22— Ogden v. Eeddish, 200 Fed. 977, re Armstrong, 145 Fed. 202, 16 A. B. R. 29 A. B. E. 531; see post § 971. 583; In re Bailey, 144 Fed. 214, 16 A. B. 23— Shale v. Farmers' Bank of Morrill, E. 289; Gullinane v. State Bank of 82 Kan. 649, 25 A. B. E. 888; In re The Waverly, 123 Iowa 340, 12 A. B. B. 776. Leader, 190 Fed. 624, 26 A. B. B. 668; 21 — Section 11, amended June 25, In re Martin, 27 A. B. E. 151; In re 1910; Ogden v. Eeddish, 200 Fed. 977, 29 PfafSnger, 154 Fed. 523, 18 A. B. E. A. B. E. 531; In re Herman, 207 Fed. 807; Dulany v. Waggaman, 37 Wash. L. 594, 31 A. B. B. 243; In re Harrison Eep. 370, 22 A. B. E. 36; Pratt v. Colum- Bros., 28 A. B. B. 684; In re Sam Z. bia Bank, 157 Fed. 137, 18 A. B. B. 406. Lorch & Co., 199 Fed. 944, 28 A. B. B. 24— Hewitt v. Boston Straw Board Co., 784; Dougherty v. First Nat. Bank of 214 Mass. 260, 31 A. B. E. 652. Canton, 197 Fed. 241, 28 A. B. E. 263; In re Martin, 27 A, B. E. 151. 732 Brandenbubg on Bankeuptcy [§ 969 have been existing at the time of the making of the transfer, not merely at the time when it was recorded or registered/^ but under the amendment it is sufficient if j.t exists at the latter date.''« In determining whether a payment by certified note operated as a preference, the date of certification is controlling. ^''^ The delivery by a stockholder to a bank of securities at the end of the banking day in payment of a day or clearance loan made at the beginning of the day has been held to constitute a preference where the bank during the day obtained knowledge of insolvency of the stockholder.^* § 970. —What constitutes. The creditor is not charged with knowledge of his debtor's financial condition from the mere non-payment of his debt, or from circumstances which give rise to mere suspicion in his mind of possible insolvency; nor is it essential that the creditor should have actual knowledge of, or belief in, his debtor's insolvency, but that he should have reasonable cause to believe his debtor to be insolvent. He has reasonable cause so to believe if facts and circumstances with respect to the debtor's financial con- dition are brought home to him, such as would put an ordinarily prudent man upon inquiry, for he is charged with knowledge of the facts wMch such inquiry should reasonably be expected to disclose ; or if he has knowledge of facts and circumstances which would cause a reasonably prudent man so to believe.^^ Notice of 25— Debus v. Yates, 193 Fed. 427, 30 Nekemoto, 24 A. B. E. 517; In re Me- A. B. E. 823, 193 Fed. 427; In re Watson, Donald & Sons, 178 Fed. 487, 24 A. B. 201 Fed. 962, 30 A. B. E. 871; Dough- E. 446; Eogera v. Fidelity Savings Bank erty v. First Nat. Bank of Canton, 197 & Loan Co., 172 Fed. 735, 23 A. B. E. 1; Fed. 241, 28 A. B. E. 263. Brewster v. Goff Lumber Co., 164 Fed. 26— In re Watson, 201 Fed. 962, 30 A. 124, 21 A. B. E. 106; In re Mills Co., B. E. 871; Ogden v. Eeddish, 200 Fed. 162 Fed. 42, 20 A.^ B. B. 501; Wright v. 977, 29 A. B. E. 531. William Skinner Mfg. Co., 161 Fed. 644, 27 — ^In re Frazin & Oppenheim, 201 20 A. B. E. 527; Stevens v. Oscar Hoi- Fed. 86, 29 A. B. E. 214. way Co., 156 Fed. 90, 19 A. B. E. 399; 28 — Ernst v. Mechanic's and Metals Crandall v. Coats, 133 Fed. 965, 13 A. B. Nat. Bank, 201 Fed. 664, 29 A. B. E. 289. E. 712 ; Dougherty v. First Nat. Bank 29— In re Schacht Motor Car Co., of Canton, 197 Fed. 241, 28 A. B. E. 263; 31 A. B. E. 624; Eogers v. Ameri- Bardes v. First Nat. Bank of Hawarden, can Halibut Co., 31 A. B. E. 576; 122 Iowa 443, 12 A. B. E. 771; Steven- In re PfafSnger, 154 Fed. 523, 18 A. son v. Milliken-Tomlinsonj 99 Me. 320, B. E. 807; Stern v. Paper, 183 Fed. 13 A. B. E. 201; In re Hines, 144 Fed. 228, 25 A. B. E. 451; Spencer v. 543, 16 A. B. E. 495; Sundheim v. Eidge ,970] Pbefeeenobs 733 facts which would incite a man of ordinary prudence to an inquiry under ordiaajy circumstances is notice . of all the factS' which a reasonably diligent inquiry would disclose.^" An inquiry of the debtor alone has been held insufficient.^^ The diligence required in the inquiry is proportioned to the suspiciousness of the transaction.^^ While constructive notice is sufficient ground for such belief, yet the circumstances upon which such notice is predicated must be of a chariacter to induce belief as distinguished from mere Ave. Bank, 138 B'ed. 951, 15 A. B. E. 132; In re Yirginia Hardwood Mfg. Co., 139 Fed. 209, 15 A. B. E. 135; Butler Paper Co. v. Goembel, 143 Fed. 295, 16 A. B. R 26; SufEel v. McCartney Nat. Bank, 127 Wis. 208, 16 A. B. E. 259; Coder v. MePherson, 152 Fed. 951, 18 A. B. E. j523; In re McMurtrey & Smith, 142 Fed. 853, 15 A. B. E. 427; In re Eggert, 2 N. B. N. K. 185; s. c. 2 N. B. N. E. 390, 98 Fed. 843, 3 A. B. E. 541, aff'd 102 Fed. 735, 4 A. B. R. 449; In le Jacobs, 1 N. B. N. 183, 1 A. B. E., 518; Crittenden v. Barton, 59 App. Div. (N. y.j 555, 5 A. B. E. 775; Grant v. Bank, 97 U. S. (7 Otto) 80, 81, 24 L. ed. 971; Barbour, v. Priest, 103 IT. S. (13 Otto) 293, 296, 26 L. ed. 478; Stucky v. Bk., 108 U. S.,74, 27 L. ed. 640; Toof v. Martin, 13 WaU. 40, 20 L. ed. 481, 6 N. B. E. 49; Buchanan v. Smith, 16 Wall. 277, 21 L. ed. 280, 7 N. B. E. 513; Wager V. HalJ, 16 WaU. 584, 600, 21 L. ed. 504, B. 0. 5 N. B. E. 131, 3 Biss. 28, Fed. Cas. No. 5951; Butcher y. Wright, 94, U.; S. (4 Otto) 553, 557, 24 L. ed. 130, 16 N. B, E. 331; JBank v. Cook, 95 U. S. (5 Otto) 343, 346, 24 L. ed. 412, 16 N. B. E. 391; In re Ft. Wayne Elee. Corp., 2 N. B. N,E. 434, 99 Fed. 400, 3,A. B, E. 634; Nat. Exch. Bk. v. Pepperdine, 2 N. B. N, E. 675; In re Eudnick, 2 N. B. N. E. 769; In re Blair, 2 N. B. N. E. 890, 102 I'pd., 987, 4 A. B. E, 220; Taft v. 4th Nat. Bk., 2 N. B. N. E. 1145; Bk. v. Hunt, 4 N. B. E. 198; Lloyd v. Stro- bridge, 16 N. B. E. 197, Fed,. Cas. No. 8435; Jn re Paiiek, 17 N. B. E. l58, Fed. Cas. ]Sro,:6219; In re McDonpu^, 3, N, B. E. 53, Fed. Cas. No. 8775; Burfee v. Bk., 9 N. B. E. 314; Armstrong v. Eickey Bros., 2 N. B. E, 15Q, Fed. Cas. No. 546; Boothe V. Brooks, 12 N. B. E. 398, Fed. Cas. No. 1650; Singer v. Sloan, 12 N. B. E. 208, 3 Dill. 110, Fed. Cas. No. 12898; Loudon V. Bk., 15 N. B. E. 476, 2 Hughes 420, Fed. Cas. No. 8525; Scammon v. Cole, 5 N. B. E. 257, 3 Clife. 472, Fed. CsiS. No. 12432; Webb v. Sachs, 15 N. B. E. 168, Fed. Cas. No. 17325; Eice v. Me- lendy, 41 Iowa 399 ; 'Graham y.. Stark, 3 B. E. 357, 3 Ben. 250; Otis v. Hadley, 112 Mass. 100; Alderdice y. Bk.,.ll N. B. E. 398, 1 Hughes 47, Fed. Cas. No. 154; In re Wright, 2 B. E. 490; Hill v. Simp- son, 7 Vea. 170; Brooke v. McCraken, 10 N. B. E. 461, Fed. Cas. No. 1932; Grow V. Ballard, 2 N. B. E. 69, Fed. Cas. No. 5848; Bupiaiam v. Goss, 13 N. B. E. 337, 1 Hask. 630, Fed. Cas. No. 2097; Strana- han V. Gregory, 4 N. B. E. 142, Fed. Cas. No. 13522; In re Eatlife, 107 Fed. 80, 5 A. B. E. 713; In re Dundas, 111 Fed. 500, 7 A. B. E. 129; Brown v. Guiehard, 37 Mise. (N. Y.) 78, 7 A. B. E. 515; McNair V. Mclntyre, 113 Fed. 113, 7 A. B. E. 638; Pirie y. Trust Co., 182 U. 8. 446, 45 L. ed. 1177, 5 A. B. E. 814; In re Harrison Bros., 28 A. B. E. 684. 30— Tilt y. Citizens' Trust Co., 191 I'ed. 441, 27 A. B, E. 320; Coder y. Me- Pherson, 152 Eed. 951, 18 A. B. E. 523, 31 — MeGirri v. Humpreys Groqery Co., 192 Fed. 55, 26 A. B. B, 518. 32 — Sehulenberg y. Kabureck, 2 Dill. 132, Fed. Cas* No. 12487; Wilson y. Stod- dart, 4 N, B. R. 76, Fed. Gas. No. 17838. 734 . Beandenbueg on Bankkttptoy [§ 970 suspicion.*^ Circumstances may seem suspicious after the bank- ruptcy occurs, that would not appear unusual at the time of their occurrence, and would then have presented no reasonable cause on which to found a belief of intended preference. Merchants and other business men constantly continue to make payments up to the very eve of failure, and it would be disastrous to have them set aside upon slight proof or mere suspicion.^* "While mere suspicion is not sufficient, yet if the degree of knowledge is such as to create fear as to insolvency and as to the creation of a preference by the transfer, so strong that the creditor refrains from investigating the true state of affairs, in order to keep himself in the dark in regard thereto, and to be in a posi- tion to claim that he had no reasonable cause to believe in insolvency or that a preference would be effected, the case is within the statute.^* Decisions under the act of 1867 construing the phrase "reason- able cause to believe ' ' are equally applicable in determining the meaning of such phrase under the act of 1898.*^ § 971. — Knowledge of or belief in insolvency. While knowledge or reasonable cause to believe that the debtor was insolvent is necessary ^'^ such knowledge or belief or cause for, belief, alone has been held insufficient to charge the creditor with knowledge that a preference was intended.^* Nor 33 — Taft V. Bank, 2 N. B. N. E. 1145. 36 — Stevenson v. Milliken-Tomlinson, 34— Carey v. Donohue, 209 Fed. 328, 99 Me. 320, 13 A. B. E. 201. 31 A. B. E. 210; In re Carlile, 199 Fed. 37— Ogden v. Eeddish, 200 Fed. 977, 612, 29 A. B. E. 373 ; Tumlin v. Bryan, 29 A. B. E. 531 ; and see Shelton v. First 165 Fed. 166, 21 L. E. A. (N. S.) 960, Nat. Bank of Mannsville, 31 Okla. 217, 21 A. B. E. 319; Stern v. Paper, 198 Fed. 27 A. B. R. 587; In re PfaflSnger, 154 642, 28 A. B. E. 592, aff'g 183 Fed. 228, Fed. 523, 18 A. B. R. 807; In re Alden, 25 A. B. E. 451; In re The Leader, 190 15 Ohio Fed. Dee. 120, 16 A. B. E. 362; Fed. 624, 26 A. B. E. 668; Sparks v. ' Des Moines Sav. Bank v. Morgan Jewelry Marsh, 177 Fed. 739, 24 A. B. R. 280; Co., 123 Iowa 432, 12 A. B. E. 781. Powell V. Gate City Bank, 178 Fed. 609, 38 — Kimmerle v. Farr, 189 Fed. 295 24A. B. E. 316; First Nat. Bank of Phil- 26 A. B. R. 818; Rodolf v. First Nat! adelphia v. Abbott, 165 Fed. 852, 21 Bank of Tulsa, 30 Okla. 631, 28 A. B. R. A. B. E. 436; Newman v. Tootle-Camp- 897; In re First Nat. Bank of Louisville, bell Co., 31 A. B. E. 399; In re Pfaf- 155 Fed. 100, 18 A. B. R. 766; contra! finger, 154 Fed. 523, 18 A. B. R. 807; In re Andrews, 135 Fed. 599, 14 A. B. In re Nassau, 15 A. B. E. 793; Hutting E. 247. Mfg. Co. V. Edwards, 160 Fed. 619, 20 A. The creditor must have notice not only B. E. 349. of the insolvency of the bankrupt, but 35— Ogden v. Eeddish, 200 Fed. 977, 29 of his intent to prefer but in the absence A, B, R, 531. of qualifying eireumstaneeg, notice of the § 972] Prefeeences 735 is mere knowledge that a debtor is unable to meet his obligations as they become due ^® or that most of his indebtedness is past due *" or that his notes have gone to protest frequently,*^ suffi- cient to put the creditor upon inquiry. The knowledge that bankrupt was a little short of money and desired the creditor to substitute one security for another, is not sufficient to show the creditor had reasonable cause to believe the debtor insolvent; *^ nor is the giving of a mortgage, as it is only prima facie fraudu- lent and may be explained.*^ Knowledge that the bankrupt had borrowed money on a forged certificate of stock has been held to constitute reason- able cause to believe that he was insolvent.** § 972. — Knowledge of agent or attorney. The act expressly provides that it is sufficient if the agent, which would include the attorney, acting in the transaction, has reasonable cause to believe. This is merely an affirmance of the general rule that the principal is charged with the knowledge • acquired, or possessed, by his agent within the scope of his employment;*® but, if the knowledge of the agent has been acquired in such a way as to make it improper for him to com- municate it to his principal, as if acquired in confidence as the attorney of another,*^ or if acquired while the agent is acting insolvency, at the time of payment, will Ted. 370, 30 A. B. E. 598, aff 'g 200 Fed. carry with it notice of the intent to pre- 111, 29 A. B. R. 454. fer. In re Varley & Baimian Clothing 45 — ^In re Dunavant, 1 N. B. N. 542, Co., 191 Fed. 459, 26 A. B. R. 840. 96 Fed. 542, 3 A. B. R. 41; Babbitt v. 39— Upson V. Mount Morris Bank, 103 Kelly, 9 A. B. R. 335; Rogers v. Palmer, App. Div. (N. T.) 367, 14 A. B. R. 6; 19 N". B. R. 471, 102 U. S. (12 Otto) 263, First Nat. Bank of Philadelphia v. Ab- 26 L. ed. 164; Sage v. Wynkoop, 16 N. bott, 165 Fed. 852, 21 A. B. R. 436; but B. R. 363, Fed. Cas. No. 12215; Vogle see In re Varley & Bauman Clothing Co., "■ Lathrop, 4 N. B. R. 146, Fed. Cas. No. 191 Fed 459 26 A B R 840 16985; Mayer v. Hermann, 10 Blatoh. 40-In re Goodhile' 130 Fed. 471, 12 ^56, Fed. Cas. No. 9344; Graham v. Stark, A B B 380 3 N. B. R. 93, 3 Ben. 520, Fed. Cas. No. 41— In re Thomas Deutschle & Co., 182 5676; Wight v. Muxlow, 8 Ben. 52, Fed. T, J .„^ „^ . ^ ^ Gas. No. 17629; In re Graham, 110 Fed. Fed. 435, 25 A. B. B. 348. ,33^ g ^ ^ 5' ^g^. pi^^^^,'^^ Myers, 42-Comns V. Bell, 3 N. B. B. 146, ^37 p^^ ggg^ ^^ j^ B E 805; Off v. Ved. Cas. No. 3010. Hakes, 142 Fed. 364, 15 A. B. E. 696; In 43— Steadman v. Bank of Monroe, 117 re Nassau, 15 A. B. E. 793. Fed. 237, 9 A. B. E. 4; Moore v. Young, 46— In re Egbert, 1 A. B. R. 340; see 4 Biss. 128, Fed. Cas. No. 9782. Crooks v. Bank, 34 Misc. (N. Y.) 450, 5 44— Collett V. Bronx Nat. Bank, 205 A. B. B. 754. 736 Beandenbueg on Bankextptcy [§ 972 for Mmself and not for his principal, or fraudulently,*'' the reason of the rule ceases and it does not apply, though, it is held, that the fact that the insolvent and the agent have confidential relations or that the agent has self-interests antagonistic to a disclosure to his principal, does not make his knowledge any less that of his principal. *« Notice to an agent will be imputed to his principal, though at the time of the alleged preference, the agency through which the notice was derived, has terminated and the agent is acting in another capacity.*^ ' ■. The same rules apply to a corporation, and where it is gov- erned by a board of managers or directors, the knowledge of the officer will be imputed to the corporation,^" even though such officer be the bankrupt himself.^ ^ So, where the bankrupt is the agent of the creditor receiving the transfer, the latter wiU be held to have had reasonable cause to believe.^^ Knowledge of a cashier is knowledge of the bank.^^ ^ bank which undertakes to collect a note for another bank is the agent of the latter bank and not of its customer who turned the note over for collection, and knowledge of the collecting bank is not . knowledge of the creditor.^* The fact that the bankrupt prior to the recording of a mort- gage spoke to the iriortgagee 's attorney about the possibility of making an assignment has been held sufficient,^^ and where a creditor placed his claim in the hands of a collection agent who forwarded it to a firm who, knowing of the debtor's insolvency, induced him to confess judgment for the debt, and collected and forwarded it to the collection agent, the amount was held recoverable on suit of the trustee.^® 4r7 — Sogers v. American Halibut Co., tion. Rogers v. American Halibut Co., 31 A. B. R. 576; Benner v. Blumauer- 31 A. B. R. 576. Frank Drug Co., 198 Fed. 362, 28 A. B. 52— Allen v. Gray, 63 Misc. (N. T.) R. 798. 219, 21 A. B. R. 828. 48— Campbell v. Balcomb, 183 Fed. 53 — Collett v. Bronx Nat. Bank, 205 766, 25 A. B. R. 538. Fed. 370, 30 A. B. R. 598, aff'g 200 Fed. 49— Constam v. Haley, 206 Fed. 260, 111, 29 A. B. R. 454. 30 A. B. R. 650. 54— Balcomb v. Old Nat. Bank, 201 50— Crooks v. Bank, 34 Misc. (N. Y.) Fed. 679, 29 A. B. R. 329. 450, 5 A. B. R. 754; In re Gillette, 104 55— Ogden v. Reddish, 200 Fed. 977, Fed. 769, 5 A. B. E. 119. 29 A. B. R. 531. 51 — Knowledge of bankrupt who was 56 — Hoover v. Wise, 14 N. B. R. 264, manager of a corporation to which he 91 TJ. S. (1 Otto) 308, 23 L. ed. 392; see was indebted held knowledge of corpora- In re Flick, 3 N. B. N. E. 71. § 973] Pbefeeences 737 Knowledge of the trustee of a township of the insolvency of the debtor is imputable to the township, but the trustee's par- ticipation in a fraudulent transfer to another creditor by means of which the bankrupt pays his indebtedness to the township will not be imputed to the township, without formal direction of the board of trustees.^''^ § 973. — Transactions out of the usual course. Transactions not in the usual course of trade or of the accus- tomed dealings between the parties is notice of probable wrong, and the creditor is thereby put on inquiry and is chargeable with all such inquiry would have produced. Such a transaction is prima facie evidence of fraud,^* and the presumption must be overcome by proof of proper inquiry into the seller's pecuniary condition.^^ In determining if it was unusual, regard must be had to the character of the business.®" Thus it is unusual for a chair manufacturer to sell legs used in his business; ^^ so is a sale of the entire stock in trade; "^ or a sale at night, without invoice, for cash;®* or a mortgage of the entire stock in trade for a pre-existing debt; ®* or a confession of judgment enabling the creditor to seize the stock and close out the business,®^ or a conveyance of the debtor's entire estate ®® or a conveyance of his residence.®'^ 57— Painter v. Township of Napoleon, E. 365, Fed. Cas. No. 10310; In re Kah- 190 Ted. 637, 26 A. B. E. 324. ley, 4 N. B. E. 124, Fed. Cas. No. 7593, 58— In re Hunt, 2 N. B. E. 166, Fed. 2 Biss. 383. Cas. No. 6881; In re Krum, 7 Ben. 5, 63— Davis v. Armstrong, 3 N. B. E. 7, Fed. Cas. No. 7943. Fed. Cas. No. 8624. 59 — ^Walbrun v. Babbitt, 9 N. B. E. 64 — ^Dea Moines Savings Bank v. Mor- 1, 16 Wall. 577, 21 L. ed. 489; Brooks gan Jewelry Co., 123 Iowa 432, 12 A. B. T. Davis, Fed. Cas. No. 1950. B. 781 ; Eisou v. Knapp, 4 N. B. E. Il4, 60— Judson V. Kelty, 6 N. B. E. 165, 1 DiU- 187, Fed. Cas. No. 11861; Graham 5 Ben. 348, Fed. Cas. No. 7567. v. Stark, 3 N. B. E. 93, 3 Ben. 520, Fed. 61— Sehrenkeisen v. Miller, 9 Ben. 55, Cas. No. 5676; Hurley v. Smith, 1 Hask. Fed. Cas. No. 12480. 308, Fed. Cas. No. 6920. 62— In re The Leader, 190 Fed. 624, 65— Webb v. Sachs, 15 N. B. E. 168, 26 A. B. E. 668; Thomas v. Adelman, 136 4 Sawy. 158, Fed. Cas. No. 17325. Fed. 973, 14 A. B. E. 510; AUen v. Me- 66— In re McDonald & Sons, 178 Fed. Mannes, 156 Fed. 615, 19 A. B. E. 276; 487, 24 A. B. E. 446. McElvain v. Hardesty, 169 Fed. 31, 22 A, .67— Brewster v. GofE, 164 Fed. 127, 21 B. B. 320; Main v. Glen, 7 Biss. 86, Fed. A. B. E. 239. Oas. No. 8973; North v. House, 6 N. B. Brandenburg — 47 738 Beandenbubg on Banketjptcy [§974 § 974. — Abscondiuif of debtor. The mere fact that the debtor has absconded, and was absent from the state when attachment proceedings were begun is not sufficient to establish reasonable cause to believe that he intended to give the creditor a preference.^® § 975. — ' Payment under compromise. A creditor who accepts a payment made in accordance with an offer of compromise is justified in believing that the offer is made in good faith to all creditors, unless something occurs to put him on inquiry, and need not ascertain if the debtor can pay the amount offered and intends to pay it to all creditors alike.®' § 976. — Questions of fact. What constitutes "reasonable cause to believe" is a ques- tion of fact, and each case depends upon its own peculiar circum- stances, and no rigid rule can be established applicable to every case.™ Positive proof of collusion between debtor and creditor, by which one may be preferred, is not generally to be expected, and for that reason, among others, the law allows a resort to cir- cumstances as a means of ascertaining the truth, and the rule is well settled that circumstances inconclusive if separately con- sidered may by their joint operation, especially when corroborated by moral circumstances, be sufficient.''^ The test of sufficiency of the evidence to warrant a submission of the question to the jury does not rest upon the assertions made by either party of his intent or belief in the transaction, but on the inferences thereof which may fairly arise from the facts in evidence.''^ Where there is evidence justifying submis- sion, the finding of the jury will not be disturbed upon appeal or writ of error.''' 68 — Johnson v. Anderson, 70 Neb. 233, Utah 518, 26 A. B. E. 867; Suffel v. Mo- ll A. B. R. 294. Cartney Nat. Bank, 127 Wis. 208, 16 A. 69 — Smith v. Hewlett Robin Co., 178 B. R. 259; Butler Paper Co. v. Goembel, Fed. 271, 24 A. B. R. 153. 143 Fed. 295, 16 A. B. R. 26; Turner v. 70— Crittenden v. Barton, 59 App. Div. Fisher, 133 Fed. 82, 13 A. B. E. 243. (N. Y.) 555, 5 A. B. E. 775; Gering v. 71— In re McDonald & Sons, 178 Fed. Leyda, 186 Fed. 110, 26 A. B. E. 137; 487, 24 A. B. E. 446. Whitwell V. Wright, 136 App. Div. (N. 72— Hamilton Nat. Bank of Chicago v. Y.) 246, 23 A. B. R. 747; Stern v. Paper, Balcomb, 177 Fed. 155, 24 A. B. E. 338. 183 Fed. "228, 25 A. B. E. 451, afl 'd 198 73— Eidge Avenue Bank v. Sundheim, Fed. 642, 28 A. B. E. 592; Utah Ass'n 145 Fed. 798, 16 A. B. E. 863. of Credit Men v. Boyle Furn. Co., 39 § 979] Peefbeenoes 739 § 977. — Evidence. The court will take judicial notice of business customs and methods as criteria for valuing facts as imposing the duty of inquiry as to a debtor's solvency,'^* but the degree of intelligence or the business experience of the preferred party is not to be- considered.'^^ Overdrafts are in themselves no evidence of insolvency.'^* The adjudication is no evidence that a creditor receiving a preference had reasonable cause to believe a preference was iatended."' The taking of a chattel mortgage by a creditor to secure an overdue debt shortly before the institution of the bankruptcy proceedings is a fact to be considered. But peculiar facts may attend the giving thereof, and these should always be carefully considered, with a view of ascertaining what actually inspired the giving of the mortgage.'^^ The fact that the creditor' trusted the bankrupt by accepting him as surety for a substantial sum is entitled to considerable weight.''^ § 978. Effect of preference. §979. —In general. A preference voidable under subdivision "b" disqualifiies the creditor receiving it from having his claim allowed unless and until he surrenders what he has received as a preference ; *" or from taking part in the management and administration of the estate.*^ Where a trust mortgage is set aside as preferential, all liens founded upon it fall as well,^^ and a wife's release of her dower contained in a preferential mortgage executed by her and the bankrupt for his benefit, is rendered ineffective upon the setting aside of the mortgage as preferential.^^ 74— McGirr v. Humphreys Groo. Co., 78 — ^Hussey v. Biehardson Roberts Dry 192 Ped. 55, 26 A. B. R. 518. Goods Co., 148 Fed. 598, 17 A. B. E. 511. 75-Wright V. Sampter, 152 Fed, 196, 79— Getts v. JanesviUe Wholesale Gro- 18 A. B. K 355 "^^^ °°-' ^^^ ^^^- ^^^' ^'^ ^- ^- ^- ^• 7&-^im V. Woodford, 136 Fed. 34, 14 l^f^'^^ ^'^^^^^ 1 jj, ^ j,, 5^0^ gg A. B. R. 302. j,g3 550^ 3 ^ ^ jj gg^ 77— Hussey v. Richardson Roberts Dry 82— Rouse v. Ottenwess & Huxoll, 31 Goods Co., 148 Fed. 598, 17 A. B. R. 511; A. B. R. 115. Laundy v. First- Nat. Bank of Junetion 83— In re Lingafelter, 181 Fed. 24, 32 City, 66 Kan. 759, 11 A. B. R. 223, L. R. A. (N. 8.) 103, 24 A. B. R. 656. 740 Beandenbubg on Banketjptoy [§ 980 § 980. — Fraudulent preferences voidable, not void. Fraudulent preferences, that is, any transaqtion which, consti- tutes a preference as hereinbefore described, given or received ** within four months before the filing of a petition, or after the filing of the petition and before the adjudication, if the creditor had reasonable cause to believe a preference was intended, are voidable, not void.*^ This makes the English doctrine that a suit in the nature of trover cannot be brought by the trustee unless he alleges and proves a demand for restoration and a refusal to restore the property transferred applicable here.^* While such a transfer is fraudulent and voidable, it is not so because morally wrong, but because the act says it is.*^ A voidable preference is not a mere preference in fact, but the creditor must have reasonable cause to believe that he was obtaining the statutory preference, that is, a preference in law, the gist' of which is the debtor's insolvency. If the creditor had reason to believe when property was transferred to him withia four months of the filing of the petition that a preference was intended, it is immaterial whether it was taken as payment or as security, in either case it is voidable ; but, in the absence of such knowledge it is not,^® and the same is true of a payment ia money.*® § 981. — Bona fide purchasers. One to whom a preferential mortgage is assigned after bank- ruptcy for less than its face value is not a bona fide purchaser.*" § 981^. Injunction against transferee. Creditors who have received preference with reasonable cause to believe a preference was intended should be enjoined from 84— In re Conhaim, 2 N. B. N. E. 148, 88— In re Eggert, 2 N. B. N. E. 185, 97 Fed. 923, 3 A. B. E. 249. 390, 98 Fed. 834, 3 A. B. E. 541, 102 Fed. 85— In re Ft. Wayne Elee. Corp., 2 735, 4 A. B. E. 449; In re Baker, 2 N. B. N. B. N. E. 434, 99 Fed. 400, 3 A. B. E. N. E. 195. 634; In re MeLam, 1 N. B. N. 402, 97 89— In re Wise, 2 N. B. N. E. 151; Fed. 922, 3 A. B. E. 245; Stern v. Louis- Blakey v. Bk., 1 N. B. N. 411, 95 Fed, ville Trust Co., Newborg v. Same, 112 267, 2 A. B. E. 460. Fed. 501, 7 A. B. E. 305. 90— Butcher v. Werksman, 204 Fed. 86^Iu re Phelps, 2 N. B. N. E. 484, 330, 30 A. B. E. 332. 3 A. B. E. 396. 87— In re Cobb, 1 N. B. N. 557, 96 Fed, §21, 3 A. B. I{. 1?9. § 982] Pbefbbencbs 741 disposing of the property transferred pending the adjudication in bankruptcy and the appointment of a trustee ; "* and it is immaterial that the debt whiph is preferred was contracted in good faith before the passage of the bankrupt law, or that the preferred creditor claims to have disposed of the property when it is found such disposition was merely simulated ; ®" or iii any way proceeding to carry such preference into effect, as by col- lecting accounts transferred by bankrupt.^^" i § 982. Set-offs against preferential transfers. Section 60c of the act provides that: "If a creditor has been preferred, and afterwards in good faith gives the debtor further credit without security of any kind for property which becomes a part of the debtor's 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." It is not necessary to entitle a creditor to the set-off provided for in this section that the property or money transferred to the bankrupt was transferred to the trustee. All that is required is that the creditor parted with his money or property in good faith, and without security, and that the same passed into the bankrupt's possession. Further credits extended to a person who thereafter becomes a bankrupt, may be set off as against antecedent preferential payments, and not against such as may have been made after the extension of the new credits.®* Where a bank induces the bankrupt to pay it the amount sought to be recovered for the express purpose and with the intent to apply the same upon the bankrupt's indebtedness to it, it has no right of set-off on the theory that the money was deposited' in the ordinary course of business.®^ The recovery, of what has been given as a preference is not for 91— In re Eoekwood, 1 N. B. N. 134, 94— Kaufman v. Tredway, 195 U. S. 91 Fed. 363, 1 A. B. R. 272; Sedgwick 271, 49 L. ed. 190, 12 A. B. R. 682; but V, Menck, 1 N. B. E. 108, Fed. Cas. No. see Bank of Wayne v. Gold, 146 App. 12167; see In re Brown, 91 Fed, 358, 1 Div. (N. T.) 296, 26 A. B. R. 722; Price A. B. R. 107. V. Derbyshire Coffee Co., 128 App. Div. 91ar-In re Nathan, 1 N. B. N. 326, (N. Y.) 472, 21 A. B. R. 280. 563, 92 Fed. 590. 95— Schmidt v. Bank of Commerce, 15 91b— In re kerski, 1 N. B. N. 328, 2 N. M. 470, 25 A. B. R. 904. A. B. R. 79. 742 Beandenbukg on BANKEtrPTCY [§982 the bankrupt's benefit but for that of his creditors, and this pro- vision treats it as a debt due as opposed to the debt owing on account of the new credit and the rule as to mutual debts is applied. The receipt by a creditor of payments upon an account current in the usual course of business, followed by new credits, does not constitute a preference under the law.^® This subdivision does not restrict the creditors to whom it applies to such as received preferences with reasonable cause to believe a preference was intended and the use of the term "good faith" seems to imply that an innocent preference was in the legislators' minds as much as the opposite.®'^ In spite of the use of the word "recoverable," this subdivision is not limited in its application to cases where the trustee sues to recover the preferences.®* Under the act the surrender cannot be said to be voluntary since it is required if the creditor would participate in the dividends; ®® though the contrary is held by the greater number of cases.^ A creditor may under this provision set off his new credits although he did not have reasonable cause to believe a preference intended and though the property is not recoverable by the trustee,^ but any excess of payments over the new credits must be surrendered before proof of the claim can be allowed.^ A creditor seeking to obtain the set-off of a credit must plead the essential facts entitling him thereto in the same manner as if he sought to maintain a separate action on such claim.* If a 96— See ante, § 959. 99— In re Beswiek, 2 N. B. N. R. 808; 97— In re Thompson, 112 Ted. 651, 7 In re Hoffman, 2 N. B. N. R. 554; MeKee A. B. R. 214. V. Lee, 3 N; B. N. R. 262, 105 Fed. 923, 98— Section 60b, Act of 1898; In re 5 A. B. R. 267. Ryan, 105 Fed. 760, 5 A. B. R. 396, 2 1— In re Christensen, 101 Fed. 802, 4 N. B. N. R. 693; Peterson v. Nash Bros., A. B. R. 202, aff'g 2 N. B. N. R. 695; 112 Fed. 311, 7 A. B. R. 181; McKey In re Thompson, 2 N. B. N. B. 1016; and V. Lee, 105 Fed. 923, 5 A. B. R. 267; see In re Ryan, 107 Fed. 760, 5 A. B. R. In re Bothwell, 8 A. B. R. 213, and eases 396, 2 N. B. N. R. 693. cited; Kahn v. Cone Export & Commis- 2 — Morey Mercantile Co. v. Scheffer, sion Co., 115 Fed. 290, 8 A. B. R. 157; 114 Fed. 447, 7 A. B. R. 670. In re Seckler, 106 Fed. 484, 5 A. B. R. 3 — Gans v. Ellison, 114 Fed. 734, 8 A. 579; In re Southern Overalls Mfg. Co., B. R. 153; In re Thompson's Sons, 7 A. Ill Fed. 518, 6 A. E. R. 633; In re Sol- B. R. 214. dosky. 111 Fed. 511, 7 A. B. R. 123 ; eon- 4— In re Oliver, 109 Fed. 784, 6 A. tra, In re Keller, 109 Fed. 118, 6 A. B. B. R. 626. R. 334; In re Abraham Steers Lumber Co., 110 Fed. 738, 6 A. B. R. 315, 112 Fed. 406, 7 A. B. R. 332. § 983] Preferences 743 debtor give in payment a check whicla becomes protested, and afterwards taore goods are ordered and a payment made on account, such payment cannot be applied to the check so as to make the date of the check the date of the preference and entitle the creditor to set off the new credit." When an account is paid in full more than four months prior to bankruptcy, although the debtor is insolvent, and later another debt is contracted, the pay- ment cannot \)e treated as a set-off against the debt sought to be proved.® § 983. Payments to attorney in contemplation of bankruptcy. By section 60d of the act, it is provided, that "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-examiaed 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 determined by the court, and the excess may be recovered by the trustee for the benefit of the estate." The services of an attorney are necessary in case of involun- tary bankruptcy to enable a debtor to prepare the necessary papers, procure the adjudication and reference, bring the debtor before the referee, conduct examinations and otherwise perform the duties imposed upon the bankrupt in involuntary proceed- ings as well as to oppose the latter when improperly brought. This provision recognizes this fact and approves the payment by bankrupt to such attorney of reasonable compensation. The reasonableness of it may be inquired into by the court upon the petition of the trustee or any creditor. This proceeding is admin- istrative in character, in which the jurisdiction of the court is not dependent on the service of process but is expressly given by statute and a notice of hearing therein may be given by mail or otherwise as the court may direct.^ The bankruptcy court alone in the first instance has jurisdic- 5— In re Bartey, 110 Fed. 928, 7 A. B. 246, 52 L. ed. 1046, 20 A. B. B. 1; In re B. 26. Lewin, 103 Fed. 850, 4 A. B. E. 632; see 6 — ^In re Abraham Steers Lumber Co., HafEenberg v. Chicago Title & Trust Co., 112 Fed. 406, 7 A. B. E. 332. 192 Fed. 874, 27 A. B. E. 708. 7— In re Wood & Henderson, 210 TJ. S. Ha Beandenbueg on Bankbtjptcy [§983 tion to determine the reasonableness of tlie attorney's fee * and it can proceed only when the matter is presented in such a man- ner as to fully advise the attorney of the investigation^® In a proceeding by the trustee against an attorney for a recovery of the latter 's fee, prosecuted under section 60d of the act, the question in limine is whether the debtor in making the transfer to the attorney was acting in contemplation of the filing of a bankruptcy petition by or against him.^" If the" contract with the attorney was not made by the bankrupt in contemplation of bankruptcy the case is not within the subdivision and there is no jurisdiction to proceed summiarily.^^ If made in contempla- tion of bankrupitcy, the court is authorized to proceed sum- marily, but upon due notice, to determine the extent the fee is excessive or indeed allowable at all.^^ The words "in contemplation of the filing of a petition by or "against him" do not mean simply the consciousness of the debtor of a financial condition enabling him to file, or subjecting him to, such a petition, but such must have been of influence in the tranpfer to the attorney. There must be some relation of cause and effect, between the knowledge of insolvency and the trans- action with the attorney.^* Whether in making the transfer to the attorney, a purpose germane to the question of bankruptcy proceedings existed is to be ascertainied either by direct testimony as to what the bank- rupt said in making the transfer, or by circimastauces surround- ing the transfer.^* If the case turns on the character of the Services contracte'd 8 — ^In. re Wood & Henderson, 210 U. S. Where the referee finds that the pay- 246, 52 L. ed. 1046, 20 A, B. E. 1; Haf- ment was for services rendered prior to f enberg v. Chicago Title & Trust Co., 192 bankruptcy but not in contemplation of Fed. 874, 27 A. B. R. 708. bankruptcy the referee cannot proceed The reasonableness of a fee paid to an further and determine the validity of the attorney for services to be rendered in payment as a preference or fraudulent bankruptcy proceedings cannot be deter- transfer but must dismiss the trustee's mined in a plenary suit. Haffenberg v. . petition. In re Stolp, 199 Fed. 488, :29 Chicago Title & Trust Co., 192 Fed. 874, A. B. R. 32. 27 A. B. R. 708. 12— Tripp v. Mitschrich, 211 Fed. 424, 9— Haffenberg v. Chicago Title & Trust 31 A. B. R. 662. Co., 192 Fed: 874, 27 A. B. R. 708. 13— Tripp v. Mitschrich, 211 Fed. 424, 10— Tripp V. Mitschrich, 211 Fed. 424, 31 A. B. R. 662. 31 A. B. R. 662. 14^Tripp v. Mitschrich, 211 Fed. 424, 11— Tripp V. Mitschrich, 211 Fed. 424, 31 A. B. R. 662. 31 A. B. R. 662. §983] Pbefebences 745 for, the services must have been of a kind relevant to the matter of hankruptcy, not one which would be necessary and proper in the ordinary course of business, whether bankruptcy was to intervene or not.^^ The word ''counselor" as here used is practically synonymous with the word "attorney," but is used doubtless to indicate that the services intended to be provided for are not limited to those of an attorney as such. The allowances for counsel's services should be confined to such as are rendered in aid of the purpose sought to be accomplished by the Bankruptcy Act, excluding previous consultations or advice, as also all unnecessary attend- ance as counsel in the course of the proceedings and excluding especially all claims for services in aiding the bankrupt to con- ceal, justify or extenuate questionable acts or transactions;^* services in resisting the distribution of his property under the law," or services in negotiating for a settlement with creditors without resort to the bankruptcy court,^^ or services performed on behalf of the bankrupt in defending him from crirainal prose- ci^tions." While services referred to in section 60d are such as are expected to be performed by the attorney in the future, subse- quent to the time of payment, and not past services though in contemplation of bankruptcy,^" yet a transfer, in contemplation, of bankruptcy, in payment of future legal services to be per- foRped, not beneficial to the estate and which does not inure to the benefit of creditors is voidable.^^ ft is immaterial whether the payment or transfer to the attorney is made at the time the professional engageinent is entered into or therieafter.^^ ■"'^' It has been lield that section 60d applies to services rendered before bankruptcy and that the payment or transfer referred to in 60d cannot ajpply to services rendered a;s specified in 64b, 15— Tripp V. Mitsehrich, 211 Fed. 424, 18— In re Habegger, 13.9 Fed. 623, 15. 31 A. B. E. 662. ' A. B. E. 198. Section 60d applies only to services to 19 — In re Habegger, 139 Fed. 623, 15i be rendered -which are germane to the A. B. E. 198. pni-poaes of the act. In re Stolp, 199 20— In re Stolp, 199 Fed. 488, 29 A. B. Fed. 488, 29 A. B. E. 32. E. 32. 16— ft re KroBs, IN. B. N. 566, 96 21— In re Habegger, 139 Fed. 623, 15 Fed. 816, 3 A. B. E. 187. A. B. E. 198. 1^— Goodrich v., Wilson, 14 N. B. R. 22— In re Cummins, 196 Fed. 224, 28 555, A. B. E. 385. 746 Bbandenbueg on Bankbttptcy [§ 983 relating to priority of paynient,^^ but this seems doubtful. Among the debts given priority under section 64b, is one reasonable attorney's fee, for the professional services actually rendered, irrespective of the number of attorneys employed, to the peti- tioning creditors in involuntary cases, to the bankrupt in invol- untary cases while performing the duties prescribed, and to the bankrupt in voluntary cases, as the court may allow.^ This limits the fee to services actually rendered, but not as to time of payment. The two provisions are to be construed together and their purpose is the same, that the attorney who serves a bankrupt client shall, even after the latter 's estate has passed from his hands, be paid. Though contemplating bankruptcy, in fact, as a preparation therefor, a debtor may pay his attorney a reasonable fee for the work involved, but it must be confined to necessary work connected therewith.*'' If such fee is not paid in advance the attorney can ask for it out of- the estate, or the bankrupt may himself pay it, as by an order for money due as wages though not yet payable;*® or by the transfer of property, but any excess over what the court deems reasonable must be returned to the trustee.*^ An agreement by an insolvent, made after the filing of a petition in involuntary bankruptcy against him and in con- templation of the filing of a voluntary petition, that his attorney should take certain goods in payment for his services, where there was no actual delivery or change of possession until after the adjudication upon the voluntary petition, does not consti- tute a transfer of the property, within the meaning of this section, and the goods, having been removed after such adjudica- tion and while they were in custodia legis, must be restored to the trustee.^* The payment of attorney's fees for services pre- viously rendered and to be rendered does not constitute a preference, even as to the services to be rendered, if the amount is reasonable ; *® but a mortgage given after the commencement of proceedings, to secure payment for the services of the mort- 23— In re Stolp, 199 Fed. 488, 29 A. 27— In re ToUett, 2 N. B. N. B. 1096, B. B. 32. 1099. 24— Section 64b (3), Act of 1898. 28— In re Corbett, 104 Fed. 872, 5 A. 25— In re Goodwin, 2 N. B. N. B. 445. B. E. 224. 26— In re Lewin, 103 Fed. 852, 4 A. B. 29— In re Sidle, 2 N. B. B. Z7, Fed. B. 632. Cas. No. 12844. § 984] Pbefebenoes 747 gagee in resisting the petition may be summarily set aside and a bill in equity is not necessary.*" An attorney to whom a transfer was made in payment for services to be rendered in bankruptcy proceedings, will not be ordered to pay the expenses of proceedings by the trustee to determine the validity of the transfer.*^ § 984. Actions affecting preferences. See post, chapter XXVI. 30— In re Sims, 16 N. B. R. 251, Fed. 31r-In re Cummins, 196 Fed. 224, 28 Cas. No. 12888. A. B. R. 385. CHAPTER XXIV Exemptions § 985. Jurisdiction over exempt property/ § 986. Title to exempt property. § 987. Eight determined as of date of petition. § 988. State law governs. § 989. Statutes liberally construed. § 990. Constitutionality and effect of exemption laws. § 991. Bankrupt should claim exemptions. § 992. — In general. § 993. — Amendment of schedules. § 994. Setting apart and appraisement. § 995. Property exempt in general. § 996. Exemptions granted by federal laws. § 997. Exemptions as head of family. § 998. Burial lots. § 999. Growing crops. § 1000. Homestead exemptions. § 1001. — Nature and extent of right. § 1002. — Abandonment. § 1003. — In property mortgaged or transferred. §1004. —Wife's right. §1005. —Re-allotment. § 1006. Indian allotments. § 1007. Insurance policies. § 1008. Exemptions in partnership property. § 1009. — Firm exemptions. § 1010. — Individual exemptions out of firm property. § 1011. Pension money. § 1012. Personal property. § 1013. Waiver of exemptions. § 1014. Successive exemptions. § 1015. Denial of right of exemption. § 1016. • — Assignment for creditors. § 1017. — Concealment and fraudulent transfer of property. § 1018. — Engaging in illegal business. § 1019. — Failure to give security. § 1020. — Fraud. § 1021. — Purchase of property with non-exempt funds. § 1022. — Purchase money borrowed from wife. § 1023. — Purchase of property with embezzled funds. § 1024. — Purchase price not paid. § 1025. — As against claims for wages. § 1026. Deductions. 748 § 985] Exemptions 749 § 1027. — In general. § 1028. — Costs and expenses of proceedings. § 1029. Liens on exempt property. § 1030. — How created. § 1031. — Acquisition within four months. ) § 1032. — Acquisition after bankruptcy. § 1033. — On exempt and non-exempt property. 1 1034. — Lien not waived by proof of claim. § 1035. — Bemedies of lien-holders. § 1036. Sales of exempt property. § 1037. Fraudulent transfers of exempt property. § 1038. Taxes on exempt property. § 985. Jurisdiction over exempt property. Subdivision 11 of section 2 of the act expressly confers upon courts of bankruptcy jurisdiction to "determine all claims of bankrupts to their exemptions," and this jurisdiction is exclu- sive, as to questions concerning the right of the bankrupt to his exemptions.^ Until the exemptions are claimed and specific property set off, the court has full power to consider and dispose of whatever is involved. It may deny the bankrupt his exemp- tions where he has waived or forfeited them, or for any reason they cannot be rightfully claimed.^ Jurisdiction is, however, limited to setting aside the property claimed as exempt, and after hearing any question raised as to the right of exemption to either refuse or affirm the exemption, and have it turned over to the bankrupt, leaving it to the state courts to work out and enforce conflicting claims with regard to it. The distinction would seem to be that while the bankruptcy court has no juris- diction over the property claimed as exempt once the right to it has been established, it may,, preliminary to that, deter- mine whether for any reason the right cannot be asserted.* - 1— In re MeCrary Bros., 169 Fed. 485, 2 — ^In re Baughman, 183 Fed. 668, 25 22 A. B. E. 161; Lucius v. Cawthon-Cole- A. B. K. 167. man Co., 196 U. S. 149, 49 L. ed. 425, 13 3— Lockwood v. Exchange Bank, 190 A. B. B. 696; McGahan v. Anderson, 113 U. S. 294, 47 L. ed. 1061, 10 A. B. E. Fed. 115, 7 A. B. E. 641; In re Mayer, 107; In re Eising, 27 A. B. B. 519; In re 108 Fed. 599, 6 A. B. E. 117; In re Over- Castleberry, 143 Fed. 1018, 16 A. B. E. street, 1 N. B. N. 408, 2 A. B. E. 486; 159; Ingram v. Wilson, 125 Fed. 913, 11 In re Bragg, 2 N. B. N. E. 82; but see A. B. E. 192; In re MacKissic, 171 Fed. In re Ehodes, 109 Fed. 117, 6 A. B. E. 259, 22 A. B. E. 817; In re Highfleld, 163 173; In re Bash, 157 Fed. 996, 19 A. B. Fed. 924, 21 A. B. E. 92; Newberry Shoe E. 738, holding that the bankruptcy court Co. v. Collier, 111 Va. 288, 25 A. B. E. has no jurisdiction to review an order of 130. the state court allowing or denying his claim to exemptions. 750 Beandenbueg on Bankeuptcy [§ 985 So the action of the trustee in allotting property as exempt may be excepted to, and the propriety of his action is open to final determination by the bankruptcy courts; bnt after the property is set apart as exempt neither the trustee nor the bankruptcy court has any jurisdiction over it.* If creditors claim a right to exempt property under a waiver, or if, as to them, it is not exempt for other reasons from their debts, they must resort to a state court to enforce payment of their debts from such property.^ The extent of the jurisdiction of the bankruptcy courts, in determining claims of creditors agaiiist the exempt property, where there is a waiver, is discussed elsewhere.^ ' The bankruptcy court will not undertake to enforce debts or liens which are claimed to be good against the homestead or exemption,'' though its jurisdiction has been held to extend to a case where it is sought to correct an error in the description of bankrupt's homestead, as a result of which it was sold in bankruptcy proceedings.* Where the exemption claimed is in money in the hands of the trustee, the bankruptcy court will hold and protect the fund until proper proceedings can be instituted and the money sequestered by a court of competent jurisdiction, for the benefit of the parties in interest.® . The bankruptcy court is without jurisdiction to set apart a homestead exemption in lands situated in another state,^" or to order a personal property exemption to any one but bankrupt." The informality of objecting to the claim of exemption prior to the appointment of a trustee, will not prevent the adjudication 4— la re Cheatham, 210 Fed. 370, 31 Newberry Shoe Co. v. Collier, 111 Va. A. B. E. 520. 288, 25 A. B. E. 130; see also post 5— In re Eemmerde, 206 Ted. 822, 30 § 1013. A. B. E. 701. 8— Steele v. Moody, 16 N. B. E. 558. 6— See post § 1013. 9— In re Castleberry, 143 Fed. 1018, 7— In re Cheatham, 210 Fed. 370, 31 16 A. B. E. 159. A. B. E. 520; In re Castleberry, 143 Fed. 10 — In re Owings, 140 Fed. 739, 15 A 1018, 16 A. B. E. 159; In re Everett, 9 B. E. 472. N. B. E. 90, Fed. Cas. No. 4579; In re 11— In re Blanehard & Howard, 161 Preston, 6 N. B. E. 545 ; Darling v. Fed. 797, 20 A. B. E. 422 ; but see Lump- Berry, 13 Fed. 659; In re Betts, 15 N. kin v. Eason, 10 N. B. E. 549. B. E. 536, 4 Dill. 93, Fed. Cas. No. 1371; § 986] Exemptions 751 of the question where it appears that there are no assets and hence no reason for the appointment of the trustee. ^^ Property which is only partially exempt may be adminis- tered." § 986. Title to exempt property. The title to property of the bankrupt exempt by the law of his domicile at the date of the filing of the petition/* does not pass to the trustee,^^ regardless of whether the property is sep- arable and segregated from other property, or is commingled and undivided or indivisible from such other property," but remains in the bankrupt, who has the same rights as others before a state tribunal, where his exempt property has been wrongfully seized on execution.^''^ While the title to exempt property does not vest in the trustee and such property cannot be administered by him for the bene- fit of creditors, yet it can pass to the trustee as a part of the estate, to be segregated, identified, appraised and set apart to the bankrupt. The property is not automatically exempted, but must first be set aside to the bankrupt after a hearing.^^ The trustee is entitled to possession until he has ascertained that the property is exempt,^ ^ but beyond setting it aside, he has no con- nection with it.*° The bankrupt may convey, mortgage, or make 12— In re Allen & Co., 134 Fed. 620, 13 13 A. B. E. 142; Lockwood v. Exchange A. B. E. 518. Bank, 190 IT. 8. 294, 47 L. ed. 1061, 10 13— First Nat. Bank v, Lanz, 202 Fed. A. B. E. 107; In re Eising, 27 A. B. E. 117, 29 A. B. E. 247. 519. 14— See post §988. 16— Bank of Nez Perce v. Piadel, 193 15— In re Orear, 189 Fed. 888, 26 A. B. Fed. 917, 28 A. B; E. 69. E. 521 ; Bection 70a, Act of 1898 ; In re 17 — In re Everett; 9 N. B. E. 90, Fed. Seabolt, 113 Fed. 766, 8 A. B. E. 57; In Cas. No. 4579. re Wells, 105 Fed. 762, 5 A. B. E. 308; 18 — Chicago, B. & Q. E. E. Co. v. Hall, In re Orear, 189 Fed. 888, 26 A. B. E. 229 U. 8. 511, 57 L. ed. 1306, 30 A. B. E. 521; The Gregory Co. v. Bristol, 191 Fed. 619, afC'g 88 Neb. 20, 25 A. B. E. 53. 31, 26 A. B. E. 938; In re Wishnefsky, 19— In re Soper, 173 Fed. 116, 22 A. B. 181 Fed. 896, 24 A. B. E. 798; First Nat. E. 868; In re MoClintock, 15 Ohio Fed. Bank of Sayre v. Bartlett, 35 Pa. 8uper. Dec. 58, 13 A. B. E. 606. Ot. 593, 21 A. B. E. 88; In re Edwards, 20— In re Cheatham, 210 Fed. 370, 31 156 Fed. 794, 19 A. B. E. 632; In re A. B. E. 520; In re Soper, 173 Fed. 116, Hastings, 181 Fed. 33, 30 L. E. A. (N. 22 A. B. E. 868; In re Hill, 2 A. B. E. 8.). 982, 24 A. B. E. 360; Snyder v. Guth- 798, 96 Fed. 185; In re Bass, 15 N. B. E. rie (Pa. Ct. Com. PI.), 24 A. B. E. 58; 453, 3 Woods, 382, Fed. Oas. No. 1091; Bowen & Thomas v. Keller, 130 Ga. 31, Durant v. Ins. Co., 16 N. B. E. 324, Fed. 22 A. B. E. 727; In re Nye, 133 Fed. 33, Cas. No. 4188; In re Baker, 1 N, B. N. 752 Beandenbueg on Bankeuptcy [§986 such disposition of it as lie sees fit; he may maintain and defend suits with reference thereto,^ "^ dispose of or rent it,^^ and upon his death, it descends to his heirs.^* After it has been desig- nated and set apart by the trustee, it has passed out of the possession and control of the bankruptcy court, and neither it nor the trustee has any further interest in it,^* and the court of bankruptcy will not, on the petition of a chattel mortgagee of such property, order the bankrupt to restore such property to the trustee to be sold by him for such mortgagee's benefit. ^^ As' the trustee has title to the assets of the bankrupt estate only in a representative capacity, he cannot transfer title to the bankrupt by setting aside to him property which the statute 'does not make exempt, as such an act would be void and he would be held accountable; ^® nor make an allowance from the general fund for articles sold under distress for rent, which would have been exempt.^'^ There is, however, a class of property which is closely akin to exempt property to which the trustee takes title for the bene- fit of creditors. Such is the reversionary interest in land alloted to bankrupt as a homestead after the termination of the exempt estate or interest.^® So the trustee has a claim for the excess upon a piece of bankrupt's real estate which exceeds in value the exemption allowed by law, and to that extent the bankrupt's title to such real estate is qualified.^^ 212, 1 A. B. E. 526; In re Grimes, 96 26— In re Gainey, 2 N, B. E. 163, Fed. Fed. 529, 1 N. B. N. 516, 2 A. B. E. 730; Cas. No. 5181; In re Farisb, 2 N. B. E. In re Hester, 5 N. B. E. 285 ; In re Lam- 168, Fed. Gas. No. 4647 ; In re Jackson bert, 2 N. B. E. 426; In re Everett, 9 & Pearce, 2 N. B. E. 158, Fed. Gas. No. N. B. E. 90; In re Hunt, 5 N. B. E. 493; 7127; In re Perdue, 2 N. B. E. 67, Fed. Henly v. Lanier, 15 N. B. E. 280. Cas. No. 10975. 21 — Henly v. Lanier, 15 N. B. E. 280; 27 — In re LaTOon, 2 N. B. E. 19, Fed. In re Hunt, 5 N. B. E. 493, Fed. Cas. No. Cas. No. 8149. 6883. 28— In re Woodard, 1 N. B. N. 385, 22— In re Oleson, 110 Fed. 796, 7 A. B. 2 A. B. E. 339, 95 Fed. 260; In re Wat- E. 22. son, 2 N. B. E. 174, Fed. Cas. No. 17271; 23— In re Hester, 5 N. B. E. 285, Fed. Eix v. Bank, 2 DUl. 367; In re _SaJe,,143 Gas. No. 6437 ; Farmer v. Taylor, 15 N., Fed. .310, 16 A. B. E. 235. B. E. 515; In re Seabolt, 113 Fed. 766. 29— In re Parks, 9 N. B. E; 270, Fed.: 24^-ln re Grimes, 96 Fed. 528, 1 N. B; Cas. No. 10765; Johnson v. Mayi.16 N. B. N. 516, 2 A. B. E. 730. E. "425, Fed. Cas. No. 7397. 25— In re Hatch, 102 Fed. 280, 4 A. B. : E. 349. : .. §988] Exemptions 753 § 987. Right determined as of date of petition. The right to the exemption must exist at the date of the insti- tution pf proceedings in the bankruptcy court. ^^ Hence, no right to exemptions can be created by the marriage of the bankrupt subsequent to the filing of the petition, though prior to the qualification of the trustee.^^ Where a debtor receives his exemptions and shortly thereafter bankruptcy proceedings are instituted, he cannot claim further exemptions.^^ § 988. State law governs. Section 6 of the law ** establishes the rule governing exemp- tions which pervades the entire act and must be read into every 30— MuUinix v. Simon, 196 Fed. 775, 28 A. B. B. 1; In re Duerson, 13 N. B. 183, Fed. Gas. No. 4117; In re Fletcher, 15 Ohio Fed. Dec. 210, 16 A. B. E. 491; In re Neal, 15 Ohio Fed. Dec. 113, 14 A. B. B. 550 ; but see In re Donahey, 176 Fed. 458, 23 A. B. E. 796; In re O'Hara, 162 Fed. 325, 20 A. B. E. 714; see also In re Youngstrom, 153 Fed. 98, 18 A. B. E. 572. 31— In re Fletcher, 15 Ohio Fed. Dec. 210, 16 A. B. B. 491 ; and see In re Eain- water, 191 Fed. 738, 25 A. B. E. 419. 32— In re Miller, 1 N. B. N. 263, 1 A. B. E. 647; In re Buckingham, 2 N. B. N. B. 617. 33— "This Act shall not affect the al- lowance 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." Analogous provisions of Act of 1867. Section 14. . . . That there shall be excepted from the operation of the pro- visions of this section the necessary household and kitchen furniture, and such other articles and necessaries of such bankrupt as the said assignee shall desig- nate and set apart, having reference in the amount to the family, condition and circumstances of the bankrupt, but alto- gether not to exceed in value, in any case, the sum of five hundred dollars; and also the wearing .apparel of such bankrupt, Brandenburg — 48 and that of his wife and children, and the uniform, arms and equipments of any person who is or has been a soldier in the militia, or in the service of the United States; and such other property as now is, or hereafter shall be, ex- empted from attachment, or seizure, or levy on execution by the laws of the. United States, and such other property not included in the foregoing exceptions as is exempted from levy and sale upon execution or other process or order of any court by the laws of the state in which the bankrupt has his, domicile at the time of the commencement of the proceedings in bankruptcy, to an amount not exceeding that allowed by such state exemption laws in force in the year eighteen hundred and sixty-four: Pro- vided, That the foregoing exception shall operate as a limitation upon the convey- ance of the property of the bankrupt to his assignees; and in no case shall the property hereby excepted pass to the as- signees, or the title of the bankrupt thereto be impaired or affected by any of the provisions of this act; and the determination of the assignee in the mat- ter shall, on exception taken, be subject to the final decision of the said court. As this act does not affect the allowance to bankrupts of the exemptions Which are prescribed by the state laws, the exemption laws, of all the states and ter- ritories are set forth at length under Title IV. 754 Bbandenbueg on Bankbuptcy [§ 988 other section thereof when not clearly in conflict.'* The laws of the state. in which bankrupt has had his domicile for six months or the greater portion thereof immediately preceding the filing of his petition, fix the nature and extent of the exemptions as well as of the right to them '^ but tl^e time and manner of claiming, awarding, selecting and setting apart such exemptions is governed by the bankruptcy law.'* It has been held, that the question whether the bankrupt was a resident of a state and hence entitled to exemptions under its laws must be determined as of the date when the exemption is claimed-"^ ' The rule that the time within which exemptions are to be claimed and the manner of claiming the same are controlled by the bankruptcy act applies equally where the claim to exemp- tion is made by bankrupt's wife.'® The bankruptcy law adopts the exemptions allowed by the state statutes, and the federal court, in allowing exemptions thereunder, is governed by the interpretation of the highest court of the state,'* so far as such statutes have been construed, and 34 — Holden v. Stratton, 198 TJ. S. 202, 49 L. ed. 1018, 14 A. B. E. 94, rev'g 113 Fed. 141, 7 A. B. E. 615; Steele v. Buel, 104 Fed. 968, 5 A. B. E. 165. 35 — In re Andrews & Simonds, 193 Fed. 776, 27 A. B. E. 116; In re Nye, 133 Fed. 33, 13 A. B. E. 142; McCarty V. Coffin, 150 Fed. 307, 18 A. B. E. 148; Duncan v. Ferguson-MoKinney Dry- Goods Co., 150 Fed. 269, 18 A. B. E. 155; In re Kane, 127 Fed. 552, 11 A. B. E. 533; Bank of Nez Peree v. Pindel, 193 Fed. 917, 28 A. B. E. 69; In re Lynch, 101 Fed. 579, 4 A. B. E. 262; In re Friederich, 100 Fed. 284, 3 A. B. E. 801 ; In re Hammond, 198 Fed. 574, 28 A. B. E. 811. Claims for exemption are to be allowed and administered under the state laws and in accordance with the decisions of the state courts. In re Exum, 209 Fed. 716, 31 A. B. E. 691. 36 — Smalley v. Laugenour, 196 U. S. 93, 49 L. ed. 400, 13 A. B. E. 692; In re Andrews & Simonds, 193 Fed. 776, 27 A. B. E. 116; In re McClintock, 15 Ohio Fed. Dee. 58, 13 A. B. E. 606; In re Gerber, 186 Fed. 693, 26 A. B. E. 608; In re Sharp, 15 A. B. E. 491. But see In re Wunder, 133 Fed. 821, 13 A. B. B. 701. 37— In re Donahey, 176 Fed. 458, 23 A. B. E. 796; In re Ohara, 162 Fed. 325, 20 A. B. E. 714. 38 — ^In re Burnham, 202 Fed. 762, 30 A. B. E. 270. 39— In re Exum, 209 Fed. 716, 31 A. B. E. 691; In re Hastings, 181 Fed. 33, 30 L. E. A. (N. S.) 982, 24 A. B. E. 360; In re McCrary Bros., 169 Fed. 485, 22 A. B. E. 161; In re Cochran, 185 Fed. 913, 26 A. B. E. 459; In re Thedford, 28 A. B. E. 191 ; Southern Irrigation Co. V. Wharton Nat. Bank, 144 S. W. 701, 28 A. B. E. 941; In re SuUivan, 148 Fed, 815, 17 A. B. E. 578, aff 'g 142 Fed. 620, 16 A. B. E. 87; In re Downing, 148 Fed. 120, 15 A. B. E. 423; In re Jones, 2 N. B. N. E. 296, 97 Fed. 773, 3 A. B. E. 259; Eichardson v. Woodward, 104 Fed. 873, 5 A. B. E. 94; In re Eggert, 2 N. B. N. E. 44; In re Beauehamp, 101 § 990] Exemptions 755 beyond that will apply to them the general established rules of construction.*" The construction placed upon a statute by the highest court of the state becomes a part of the statute, and no court can add to exemptions by a mere change of its decisions, since the effect would be to impair the obligation of existing contracts.*^ Where the decisions of the state court are in conflict land point to no definite rule respecting the consjtructiou of the state statute, the federal court may place its own construction upon the statute, but if there is a rule which is reasonably clear the federal court must follow it rather than to undertake to determine upon its own interpretation whether the state court naay not change the rule in the future.*^ § 989. Statutes liberally construed. The state exemption laws as well as the provisions of the bankruptcy act should be liberally construed in favor of the bankrupt.*^ It should not be forgotten, however, that courts have not power to legislate, and can no more add an exemption not fairly within the statute than they can take from the statute.** § 990. Oonstitutiouality and effect of exemption laws. Upon the enactment of the federal bankruptcy law, all state statutes on the subject so far as they were in conflict, except exemption laws, were superseded, or suspended.*^ With the power to pass a uniform bankruptcy law is linked authority to define what and how much of a debtor's property shall be exempt,*® and in the exercise of this power congress may even pass exemption laws impairing the obligation of contracts.*'' Fed. 106, 4 A. B. B. 151; In re Moriis, 2 43— In re Jackson, 18 A. B. E. 216; N. B. N. E. 260; In re Lentz, 2 N, B. In re Evang & Co., 158 Fefl., 153, 19 A-B. N. E. 190, 97 Fed. 486; lit re Stevenson, E. 752; In re Andrews & Simonds, 193 1 N. B. N. 531, 93 Fed. 789, 2 A- B. Fed. 776, 27 A. B. E. 116; In re Thed- E. 230; In re Camp, 1 N. B. N. 142, 91 ford, 28 A. B. E. 191. Fed. 745, 1 A. B. E. 165; In re Stone, 44^In re Gerber, 186 Fed. 693, 26 A. 116 Fed. 35, 8 A. B. E. 416. • . B. E. 608. 40— Eiehardson v. Woodward, 104 45— Eichard, 1 N. B. N. 487, 94 Fed. Fed. 873, 5 A. B. E. 94. 633, 2 A. B. E. 506. 41— In re Seheirer, 188 Fed. 744, 26 46 — In re Eeiman, 13 N. B. E. 128, 12 A. B. E. 739. Blatehf. 562, Fed. Cas. No. 11675. 42— In re Baker, 182 Fed. 392, 24 A. B. 47— In re Owens,, 12 N. B. E. 518, 6 E- 411. ' Biss. 432. 756 Bbandenbueg on Bankeuptcy [§ 990 But laws exempting reasonable portions of the debtor's prop- erty relate to the remedy, and are, therefore, not liable to a constitutional objection.*^ So long, therefore, as the trustee takes in each state whatever would have been available to the creditors if the bankrupt law had not been passed, the system is uniform in the constitutional sense.*^ In enacting a uniform bankruptcy law, congress may properly provide that the exemptions given by the several state statutes shall be allowed to the bankrupt, and this is true without respect to the validity ot invalidity of the state law,^" that ques- tion being left for the highest court of the state to determine," though the bankruptcy court may look to the state constitution, and if the exemption statute is unconstitutional, it will refuse to allow the exemption.^^ When the state exemption laws are adopted as a part of a federal bankruptcy system, they must be taken as they are found upon the statute book's of the states, as interpreted by the highest courts of such states;®^ but the incorporation of these statutes into the, bankruptcy law will not make valid provisions in them which, under the state constitu- tions are invalid.^* The adoption of the different statutes of exemptions is not in contravention of the constitutional require- ment that the law must be "uniform," since that provision con- templates only uniformity of administration,^^ and upon this ground of supposed lack of uniformity the act of 1867 was fre- quently unsuccessfully attacked.^" This word ' ' uniform ' ' is only a limitation upon the power of congress in enacting bankruptcy 48 — Hanover Nat. Bank v. Moyses, 186 53 — ^In re Scheier, 188 Fed. 744, 26 A. V. S. 181, 46 L. ed. 1113, 8 A. B. E. 1; B. E. 739; In re Manning, 112 Fed. 948, In re Beckerford, 1 Dill. 45; In re 7 A. B. E. 571; In re Staunton, 117 Fed. Owens, 12 N. B. E. 518, 6 Biss. 432, Fed. 507; In re Duerson, 13 N. B. E. 183, Fed. Cas. No. 10632. Cas. No. 4117. See ante § 988. 49 — Hanover Nat. Bank v. Moyses, 54 — In re Deckert, 10 N. B. E. 1 ; In re supra; In re Deckert, 2 Hughes 183. i Dillard, 9 N. B. E. 8. 50— In re Smith, 14 N. B. E. 295, 2 55 — Hanover Nat. Bank v. Moyses, 186 Woods 458, Fed. Cas. No. 12996; In re U. S. 181, 46 L. ed. 1113, 8 A. B. E. 1; Smith, 8 N. B. E. 401, Fed. Cas. No. see also In re Eahrer, 140 V. S. 545, 560, 12986; In re Kean, 8 N. B. E. 367, Fed. 35 L. ed. 572; In re Jordan, 8 N. B. E. Caa. No. 7630. 180, Fed. Cas. No. 7514. 51— Bush V. Lester, 15 N. B. E. 36; 56— In re Beckerford, 1 DiU. 45, 4 N. but see In re Petrim, 1 N. B. E. 264. B. E. 203 ; In re Smith, 8 N. B. E. 401 ; 52— In re Buelow, 2 N. B. N. E. 26, Kean v. White, 8 N. B. E. 367; In re on appeal, id. 230, 98 Fed. 86, 3 A. B. E. Deckert, supra. 389. ^992] Exemptions 757 legislation,®'' and means uniformity among tlie states, and, so far as the distribution of the assets are concerned, the law is uniform.®* § 991. Bankrupt should claim exemptions. § 992. — In general. The bankrupt should file in triplicate, with the schedule of his property, a claim for such exemptions as he may be entitled to, one copy to be for the clerk, one for the referee, and one for the trustee;®® and if he does not, there appears no reason why the title thereto would not vest in the trustee.®" Though the only suggestion that the bankrupt must specify the articles he wishes to claim as exempt is found in the caption of the official form of schedule B (5), and though the law expressly makes it the duty of the trustee to select and set apart the exemptions,®^ it would nevertheless seem to follow that a claim to exemptions must be specific and not general, and that , the same must be itemized, especially where the state law so requires.®^ An objection to an order of sale does not amount to a claim for specific property.®^ The assent of the creditors cannot dispense with the necessity of designating exemptionsL®* It has been held that the bank- 57— In re Smith, 8 N. B. E. 401; citing 1010, 29 A. B. R. 666; In re Wunder, 133 Evans v. Eaton, Peters, C. C. B. 323; Fed. 821, 13 A. B. E. 701; In re Moran, Bloomer v. Statly, 5 McLean, 158; Sat- 105 Fed. 901, 5 A. B. E. 472, aff'd in terlee v. ' Matthewson, 2 Pet. 330; Hep- Moraw v. King, 111 Fed. 730, 7 A. B. E. burn V. Griswold, 8 Wall. 603, 19 L. ed. 176; In re Gerber, 186 Fed. 693, 26 A. 513; In re Everett, 9 N. B. E. 90; In re B. E. 608; In re Sharp, 15 A. B. E. 491. Smith, 14 N. B. E. 295; In re Vogler* 8 61— See 47a (11) Act of 1898. N. B. E. 132; In re Jordan, 8 N. B. E. 62— In re Exum, 209 Fed. 716, 31 A. 180; Legal Tender Cases, 12 Wall. 457, 20 B. E. 691; In re MeClintoc:^, 15 Ohio Fed. L. ed. 287. Dee. 58, 13 A. B. E. 606; In re Wunder, 58— In re Beckerford, 4 N. B. E. 59, 1 133 Fed. 821, 13 A. B. E. 701; In re Dill. 45; Hanover Nat. Bank v. Moyses, Groves, 6 A. B. R. 728; In re Baughman, sv.pra. 183 Fed. 668, 25 A. B. E. 167; In re . 59— Section 7 (8), Act of 1898; In re Mathews, 20 A. B. E. 369; contra. In re Jackson, 2 N. B. E. 158, Fed. Gas. No. Kelly, 199 Fed. 984, 28 A. B. E. 730; 7127; In re Friederich, 100 Fed. 284, 3 Burke v. Guarantee Title & Trust Co., 134 A. B. E. 801; In re Eodenhagen, 2 N. B. Fed. 235, 14 A. B. E. 31. -5 ■ N. B. 674; In re Duffy, 118 Fed. 926, 9 63— In re Wunder, 133 Fed. 821, l3 A. A. B. E. 358. B. E. 701. 60— In re Exum, 209 Fed. 716, 31 A. 64— In re Prince & Walter, 131 Fed. B. B. 691; In re Harrington, 200 Fed. 546, 12 A. B. E. 675. 758 Beandbnbueg on Bankruptcy [§992 rupt does not^ however, lose his right to an exemption by naaking a claim under the wrong section of the state statutes,®^ or by- making a claim in the alternative.®^ The claim of an exemption need not be made prior to the adjudication ®^ and several courts have even held that the bank- rupt may assert his exemption at any time before the sale of the property by the trustee."® An extension of time allowed to the bankrupt within which to file his schedules, operates as an extension of time within which to claim his exemptions.®* The bankrupt may select exempt property in conformance to the state statute,'^" and it is then the duty of the court to see that it is secured to him,''^ but a severance of exempted articles or property from the rest of his estate is not to be made by the debtor.''* The exemptions are personal to the debtor, not for the benefit of creditors, and can only be demanded and selected by him.''* § 993. — Amendment of schedules. The fact that bankrupt fails to make claim in his schedules will npt necessarily bar him from making a subsequent claim therefor in an amended schedule, provided that rights have not intervened or injury will not be worked by the allowance,''* 65— Bank of Nez Peree v. Pindel, 193 73 — In re Blanehard & Howard, 161 Fed. 917, 28 A. B. R. 69. Fed. 797, 20 A. B. E. 422; MiteheU v. 66— In re Kelly, 199 Fed. 984, 28 A. B. MitcheU, 147 Fed. 280, 17 A. B. E. 382; E. 730. but see, Lumpkin v. Eason, 10 N. B. B. 67— In re Fisher, 142 Fed. 205, 15 A. 549; contra, In re Hastings, 181 Fed. 33, B. E. 652. 3Q L. E. A. (N. S.) 982, 24 A. B. E. 360. 68— In re Exum, 209 Fed. 716, 31 A. B. 74— In re Burnham, 202 Fed. 762, 30 E. 691; In re Solomon, 10 N. B. E. 9, A. B. E. 270; In re Maxson, 170 Fed. 356, Fed. Cas. No. 13166. 22 A. B. E. 424; In re Qoodman, 174 Fed. 69— III re O'Hara, 162 Fed. 325, 20 A. 644, 23 A. B. E. 504; In re White, 128 E. E. 714. Fed. 513, 11 A. B. R. 556; In re Wil- 70— In re Grimes, 1 N. B. N. 516, 96 Hams, 2 N. B. N. E. 419; In re Har- Fed. 529, 2 A, B. E. 730; In re Solomon, rington, 1 N. B. N. 513; In re Osbom, 10 IM. B. E. 9, Fed. Cas. No. 13166; In 104 Fed. 780; Bartholomew v., West, 8 N. re Smith, 8 N. B. E. 401, Fed. Cas. No. B. E. 12, Fed Cas. No. 1071; In re Mo- 12986; In re Tobias, 103 Fed. 68, 3 N. ran, 105 Fed. 901, 5 A. B. E. 472; In re B. N. E. 23, 4 A. B. E. 555; In re Wilson, Kaufmann, 142 Fed. 898, 16 A. B. E. 108 Fed. 197, 6 A. B. E. 287; In re Gar- 118; In re Von Kerm, 135 Fed. 447, 14 ner, 115 Fed. 200. A. B. E. 403; In re Baughman, 183 Fed. 71— In re Stevens, 5 N. B. E. 298, 2 668, 25 A. B. E. 167; In re Fisher, 142 Biss. 373, Fed. Cas. No. 13392. Fed. 205, 15 A. B. E. 652; In re Berman, 72— In re Friederich, 100 Fed. 284, 3 15 Ohio Fed. Dee. 110, 15 A. B. E. 463. A. B. R. 801. § 994] Exemptions 759 and that the amendment is for his benefit and not solely for the benefit of creditors.''^ Where it appears that the claim for exemptions was fraudulently omitted from the schedules they cannot be amended for the purpose of claiming them.''* The application for amendment must be made within a reasonable time after discovering the facts which will justify the amend- ment,''^ and before the discharge,''* or before the property has been disposed of by sale or otherwise^* • § 994. Setting apart and appraisement. Goods claimed as exempt should be set aside by the receiver where property is directed to be sold before the appointment of a trustee.*" After the bankrupt in his schedule has selected his exemp- tions, the trustee, if appointed, must set them aside and in this he has no discretion, the law being mandatory.*^ It is solely his duty, and any agreement on his part or the creditor's that they shall be alloted in any other manner than that prescribed by the bankruptcy law, or through other agencies than that of the trustee of the bankrupt, is a nullity.*^ Where appraisers set apart or value the exemptions pursuant to an agreement to that effect, exceptions to such allotments may be filed by bankrupt or any creditor within 20 days after the same has been made and filed with the clerk or referee, when such allotment will be set aside. Where, however, the assets are in excess of- the exemptions, the property mjist be appraised by threei appraisers 75— In re Merry, 201 Fed. 369, 29 A. B. B. 487; In re Kean, 8 N. B. E. 367, B. B. 829. Fed. Gas. No. 7630. Trustee held to take title to exempt 79 — In re Von Kerm, 135 Fed. 447, 14 horse not claimed as exempt under origi' A.' B. B. 403; In re Wunder, 133 Fad. nal schedules where the only effect of 821, 13 A. B. B. 701; In re Donahey, 176 amending schedules and allowing the ex- Fed. 458, 23 A. B. B. 796. emptions would be to benefit a particular 80 — ^In re Joyce, 128 Fed. 985, 11 A. creditor who retained title thereto under B. B. 716; In re Shaffer & Son, 128 Fed. an unrecorded conditional sale. Id. 986, 11 A. B. B. 717. , 76— In re Nunn, 1 N. B. N. 427, 2 A. 81— In re Finklestein, 192 Fed. 738, 27 B. B. 664; In re Garden, 93 Fed. 423, 1 A. B. E. 229; In re Andrews & Simonds, N. B. N. 189, 1 A. B. E. 582; Steele v. 193 Fed. 776, 27 A. B. E. 116; but see In Moody, 16 N. B. B. 558. re Ansley Bros., 153 Fed. 983, 18 A. B. 77 — In re Burnham, 202 Fed. 762, 30 E. 457, holding that exemptions need not A. B. E. 270; In re Jennings & Co., 166 be alloted to bankrupt imtil he accounts Fed. 639, 22 A. B. E. 160, In re Irwin, for all of his property. 174 Fed. 642, 23 A. B. E. 487. 82— In re Prince & Walter, 331 Fed. 78— In re Irwin, 174 Fed. 642, 23 A. 546, 12 A. B. E. 675. 760 Bkandenbueg oh Bankeuptoy [§ 994 when their inventory may aid the trustee in making his allot- ment, b'ut he is in no wise concluded by it nor has he any right to adopt it as his own,®^ even where another method is pre- scribed by the state law.** The bankrupt law allows to debtors the exemptions provided by the state statutes, but the manner in which they are to^ be claimed, set apart and awarded is regulated by the bankruptcy law.*" Where exempt property is not readily divisible from the mass of the estate without the necfessary inquiry to determine the fact of segregation and the specific property which is really exempt, the court may regulate the time and manner in which the exemption shall be claimed and set apart to the ultimate use and benefit of the bankrupt.*^ The court cannot refuse to set aside the bankrupt's exemption because under the state law it cannot be claimed against a cer- tain class of creditors one of whom opposes the allowance in the bankruptcy court,*'' though it has recently been held that property held by the trustee in bankruptcy, which in case of an execution levy, could not be selected as exempt, is not subject to such selection in bankruptcy proceedings, and that any act of the trustee in allowing the selection of such property is void.** With the single exception of setting aside the exemptioils, the trustee bears no relation thereto, and he must promptly deliver possession thereof to the bankrupt.*® He cannot impose conditions upon his allowance nor demand indemnity from the bankrupt before surrendering the exemptions ;^<' nor divest him- self of any part of the estate except for full consideration when ' 83— In re Grimes, 1 N. B. N. 516, 96 85— In re Friederieh, 100 Fed. 284, 2 Fed. 529, 2 A. B. E. 730; In re Smith, A. B. E. 801; see ante §988. 1 N. B. N. 532, 93 Fed. 791, 2 A. B. E. 86— Bank of Nez Perce v. Pindel, 193 190; contra, In re MeCutohen, 2 N. B. N. Fed. 917, 28 A. B. E. 69. R. 636, 100 Fed. 779, 4 A. B. E. 81; see 87 — In re Brumbaugh, 128 Fed. 971, In re Wilson, 101 Fed. 571, 4 A. B. E. 12 A. B. E. 204. 260; In re Peabody, 16 N. B. E. 243, 88— In re Nunemaker, 208 Fed. 491, 30 Fed. 10866. A. B. E. 697, In re Stern, 208 Fed. 488, 84— In re Camp.l N. B. N. 142, 91 30 A. B. E. 694. Fed. 745, 1 A. B. E. 165; In re Bass, 15 89— In re Soper, 173 Fed. 116, 22 A. N. B. E. 453, 3 Woods, 382, Fed. Gas. No. B. E. 868; Aiken v. Edrington, 15 N. B. 1091 ; In re Stevens, 5 N. B. E. 298, 2 E. 271, Fed. Gas. No. 111. Biss. 373, Fed. Gas. No. 18392; In re 90— In re Brown, 100 Fed. 441, 1 N. Preston, 6 N. B. E. 545, Fed. Gas. No. B. N. 511, 4 A. B. E. 46; but see In re 11394; In re Eichard, 1 N. B. N. 487, Ansley, 153 Fed. 983, 18 A. B. B. 457. 2 A. B. R. 506, 94 Fed. 635. § 99^] Exemptions 761 the exemptions are not properly claimed, nor will the action of a state court adjudging property to be exempt, confer any authority on the trustee to transfer the title to such property.**^ As to what constitutes the setting aside Qf the exemption, it seems clear that some affirmative act to that end is required of the trustee. A mere report by him that the bankrupt has claimed his exemptions will not amount to a setting aside,®^ but there must be a specification of the items with an appraisal of the property set apart.®* "While it is the duty of the trustee to set apart the bank- rupt's exemption, his action is not final, but the court of bankruptcy is expressly empowered to determine all claims to exemptions.®* It has been held that where exemptions had been set apart or denied by a state court and bankruptcy proceedings were shortly thereafter instituted that the order of the state court cannot be reviewed or set aside by the bankruptcy court,®® but this seems questionable. Within 20 days after receiving notice of his appointment, the trustee must make report to the court of the articles set off to the bankrupt with the estimated value of each article, unless they do not come into his possession and his right to them is contested, in which case the time should be computed from the final decision thereon; ®® and exceptions to the determi- nations of the trustee may be taken within 20 days after the filing of the report by any creditor.®'^ Where the twentieth day falls on Sunday, the time is extended to include the following Monday.®* The bankrupt himself may petition the court in relation to his claim to exemptions at any time while the property is still unadministered.®® A creditor, desiring to object to the trustee's report setting apart the bankrupt's exemptions, should file all of his objec- tions within the time fixed by law, and cannot come in after the 91— In re Nnnn, 1 N. B. N. 427, 2 A. 96— G. O. XVII; In re MeClintock, 15 B. E. 664. Ohio Fed. Deo. 58, 13 A. B. E. 606; In 92-^In re Harber, 2 N. B. N. E. 449; re Shields, 1 N. B. B. 170, Fed. Cas. No. Darsey v. Mumford, 17 N. B. E. 181. 12785. 93— In re Manning, 112 Fed. 948, 7 A. 97— G. O., XVII. B. E. 571. 98— In re Amos, 19 A. B. E. 804. 94— Act of 1898, § 2, subd. 11. 99— In re White, 3 N. B. N. E. 27, 103 95— In re Ehodes, 109 Fed. 117, 6 A. Fed. 774, 4 A. B. B. 613. B. E. 173; In re Eash, 157 Fed. 996, 19 A B. E. 738. 762 Bbandenburg on Bankbuptcy |§ 994 expiration of that time and add new and additional grounds to his objections already on file. It is otherwise as to the enlarge- ments or amplifications of grounds originally taken. ^ The referee may require the exceptions to be argued before him and at the request of either party must certify them to the court for final determination,^ and an objection made at the first meeting will preserve the right to object at a subsequent stage of the proceedings.^ The bankrupt is not entitled to a trial by jury of the issues raised by exceptions to the report of the trustee set- ting apart exemptions.* §995. Property exempt in general. The word, "exemptions" as used in the bankruptcy act is not limited to real estate and chattels. It includes all classes of property and would cover a trust-income,® and property of any kind which is covered by the local statutes,^ though it would not cover allowances which are clearly a part of a state insolv- ency law, the operation of which is suspended by the bankruptcy act.'^ § 996. Exemptions granted by federal laws. The bankrupt is entitled to exemptions granted by federal as well as state laws.* A party cannot be a resident of one state within the meaning of the federal homestead law, and a resident of another state within the meaning of the exemption laws of that state.® Pensions and Indian Allotments as exempt property, see post, sections 1006, 1011. § 997. Exemptions as head of family. As bearing upon the right of a bankrupt to a homestead, or other exemption, it is of importance to determine whether under 1— In re Cotton & Preston, 183 Fed. In re Tiffany, 133 Fed. 799, 13 A. B. E. 190, 25 A. B. E. 532 ; Id. 23 A. B. B. 586 ; 310. In re Eeese, 115 Fed. 993, 8 A. B. R. 411. 6— In re Erben, 2 N. B. E. 66, Fed. 2— G. O. XVII; In re Smith, 1 N. B. Cas. No. 1315. N. 532, 93 Fed. 791, 2 A. B. R. 190. 7— In re Anderson, 110 Fed. 141, 6 A. 3— In re Harber, 2 N. B. N. R. 449. B. R. 555. 4— In IB Thedford, 27 A. B. R. 354. 8— In re Cohn, 171 Fed. 568, 22 A. B. 5— In re Baudouine, 1 N. B. N. 506, 96 E. 761. Fed. 536; 3 A. B. R. 55; In re McKay, 9— In re Bassett, 189 Fed. 410, 26 A. 143 Fed. 671, 16 A. B. R. 238; see also, B. R. 800. §997] Exemptions 763 the law he is the head of a family or is a person having care or support of a dependent female. This, however, is a question that is generally well settled by the state courts construing the various exemption statutes, and reference should be had to them." The head of the family is, ordinarily, one who controls, super- vises, and manages a house, and has living with him and is supporting, some person whom it is either his moral or legal duty to support, and is not necessarily the father,^^ but mere contribu- tion to the support of a sister who did not reside with him does not entitle the bankrupt to exemptions.^^ A husband living apart from his wife by mutual consent is not entitled to an exemp- tion as the head of a family.^^ A married woman living with her husband, who is a wage-earner, is not the head of a family and, under the laws of some states, is therefore not entitled to 10— In re Mussey, 179 Fed. 1007, 25 A. B. E. 91; Whitmer v. Field, 53 Vt. 556; Eice v. Eudd, 57 Id. 6; Woodbury v. Warren, 67 Id. 261; Thorp v. Thorp, 70 Id. 49; In re Dawley, 1 N. B. N. 528, Id. 528, 94 Fed. 795, 2 A. B. E. 496; In re McCutehen, 100 Fed. 779, 4 A. B. E. 81, 2 N. B. N. E. 636. 11— In re McGowan, 170 Fed. 493, 22 A. B. E 469 A man living with and caring for his mother held entitled to a homestead ex- emption, even though she may not have been dependent upon him in a financial sense. In re Glisson, 182 Fed. 287, 25 A. B. E. 911. An unmarried bankrupt whose domes- tic affairs are in charge of a sister, who receives no pay for her services and pays no board, but considers her brother's home her home, has been held to be the head of a family, and entitled as such to a homestead exemption. Bailey v. Com- ings, 16 N.B. E. 382, Fed. Cas. No. 733. So has an unmarried man who supports his widowed mother and minor brothers; In re Morrison, 110 Fed. 734, 6 A. B. E. 488. Owing to peculiar provisions of a state law, an unmarried man who had a household under Ms supervision, with . minor children awarded him as appren- tices by orphans' court, was held not to be the head of a family (In re Summers, 3 N. B. E. 21, Fed. Cas. No. 13604), and the same' was true of a husband, his minor children living with his divorced wife, and he contributed nothing to their support. (In re Tillman, 2 N. B. N. E. 611), while in another case an unmarried man residing in a house of which he was proprietor, and which had no other in- mates than hired servants or persons liv- ing on his bounty, was held to be the head of a family, and, as such, entitled to a homestead exemption, but not to ad- ditional allowances for inmates for whose maintenance he was legally bound; In re Taylor, 3 N. B. E. 38, Fed. Cas. No. 13775. In Virginia a married woman holding title to property, although living with her husband, is entitled to the ex- emption where she 'traded as a feme sole, and is held to be the head of a family, either alone or jointly with her husband for homestead purposes. Richardson v. Woodward, 104 Fed. 873, 5 A. B. E. 94. 12— In re Eainwater, 191 Fed. 738, 25 A. B. E. 419. 13— In re FinUea, 153 Fed. 492, 18 A. B. E. 738. 764 Bbandenbubg on BANKEypicx [§ 997 exemptions in the stock in trade of a business carried on in her own name.** In Ohio, a divorced woman who has the care of her own minor children, is entitled to an exemption in real estate in lieu of a homestead.*^ In Georgia, an unmarried female having the care and support of an aged and infirm female is entitled to a home- stead exemption though not the head of a family.*' §998. Buriallots. A statute exempting lots used for burial purposes does not authorize a debtor to hold any number of lots for speculative purposes, but under such statute only such lots will be held exempt which are intended for the personal use of the debtor.*^ § 999. Grrowing crops. An essential feature of the exemption of property is that it shall be permanently exempt in the hands of the debtor, and a statute which merely postpones a creditor's right to levy on a growing crop until after its maturity does not make such crop exempt or prevent its passing to the trustee.** In the absence of an express provision of law the general rule is that growing crops do not constitute a part of the homestead, but are a part of the assets of the estate; *^ this, however, is a matter governed entirely by the state law.^" In Minnesota, the proceeds derived from a sale of crops raised on the homestead are not exempt.^* § 1000. Homestead exemptions. § 1001. — Nature and extent of right. The right to a homestead exemption is not given by the bank- ,rupt act, but exists by virtue of some state laws, if at all, and 14— In re Herbold, 14 A. B. E. 116. 87; In re Coffman, 1 N. B. N. 402, 93 15— In re Giles, 158 Fed. 596, 19 A. Fed. 422, 1 A. B. R. 530; In re Daubner, B. R. 306. 1 N. B. N. 520, 96 Fed. 805, 3 A. B. K. 16— In re Jackson, 18 A. B. B. 216. 368; In re Hoag, 97 Fed. 543, 3 A. B. E. 17— Burdette v. Jackson, 179 Fed. 229, 290; contra, In re Eastman, 2 N. B. N. 24 A. B. R. 127. R. 86. 18— Spencer v. Lowe, 198 Fed. 961, 29 20— In re Hoag, 97 Fed. 543, 3 A. B. A. B. R. 877. R. 290. 19— In re Sullivan, 148 Fed. 815, 17 A. 21— In re Friedrieh, 199 Fed. 193, 28 B. R. 578, aff 'g 142 Fed. 620, 16 A. B. B. A. B. B. 656. § 1001] Exemptions 765 therefore if the latter makes provision for an exempt homestead, it will be allowed by the bankruptcy courts, otherwise not,^^ but in order to obtain the same the debtor must comply with the pro- visions of the state law under which he makes claim. ^* The age, infirmities and necessities of the bankrupt should not be considered in determining his right of a homestead exemp- tion.^* The chief essential to the debtor's right to a homestead is, as a rule, actual selection of the property and its occupancy as such,^® at the time he makes claim,^* a mere present intention to make it his homestead being usually held insufficient,^^ as will any selection or occupancy that is not bona fide.^* The right to a homestead cannot exist in property in which the debtor has not a present legal right of possession or occu- pancy. So where his interest is only that of a remainderman or reversioner, no right of homestead cannot exist in his favor,^* though the premises are occupied jointly by himself and wife who is the tenant for life.*" It has been held, however, that, in a state where a husband entitled to curtesy becomes vested with a life estate in his wife's property, he is entitled to a homestead exemption out of the estate he holds in the property occupied by him and his family as a homestead, without regard to the value of the fee where his interest is less.*^ It has been held further that after the death of the father and mother, the homestead character of property continues with the children. ^^ Personal property may be set aside as homestead,®* but in the 22— In re Kerr, 9 N. B. E. 566, Fed. 28— In re Wright, 8 N. B. E. 430, Fed. Cas. No. 7729. Cas. No. 1806. 23— In re Parish, 2 N. B. E. 168, Fed. 29— In re Fitzsimmons, 2 N. B. N. E. Cas. No. 4647. 453 ; In re Woodard, 1 N. B. N. 385, 95 24^In re O'Brien, 203 Fed. 1012, 30 Fed. 260, 2 A. B. E. 339; In re Watson, A. B. E. 151. 2 N. B. E. 570 [174], Fed. Cas. No. 35— In re Carlon, 189 Fed. 815, 27 A. 17271; Eix v. Bank, 2 Dill. 367. B. E. 18; In re Dawley, 1 N. B. N. 528, 30— In re Sale, 143 Fed. 310, 16 A. B. and cases cited; In re Gibbs, 103 Fed. E. 235. 782, 4 A. B. E. 619 ; Cowan v. Burchfield, 31— In re Marquette, 103 Fed. 777, 4 180 Fed. 614, 25 A. B. E. 293; but see In A. B. E. 623; In re Kaufmann, 142 Fed. re Malloy, 188 Fed. 788, 26 A. B. E. 31. 898, 16 A. B. E. 118. 26— In re Buelow, 2 N. B. N. E. 26, on 32— In re Eafferty, 112 Fed. 512, 7 A. appeal 230, 98 Fed. 86, 3 A. B. E. 389. B. E. 415. 27— In re Hatch, 1 N. B. N. 293, 2 33— In re Eeinhart, 129 Fed. 510, 12 A. B. E. 36. But see Cowan v. Burch- A. B, B. 78, fleld, 180 Fed. 614, 35 A. B- B, 293, 766 Beandbnbtjeg on Bankbuptcy [§ 1001 absence of a statutory provision to that effect, there can be no homestead exemption in unimproved property; ^* nor where oi^e reserves a room in a building in which he stored some articles, while he boarded at a restaurant and lodged elsewhere; *° nor where the premises are permanently rented and not occupied by the owner. ^^ Where it appears that the bankrupt used the property as much for homestead as for business purposes, and not incidentally only as a homestead, it should be considered as his homestead.^'^ The homestead right attaches to property, when occupied as a home, held under a contract for the purchase or lease thereof.^^ The purchase of a homestead with non-exempt funds on the eve of bankruptcy is not a fraud upon creditors and will not work a forfeiture of the right to the homestead exemption.** Nor is the homestead right affected by the fact that an incum- brance thereon was paid off within four months prior to bank- ruptcy with non-exempt funds,*" nor by the fact that it was purchased with the proceeds of another homestead shortly before bankruptcy, where such transaction was in good faith.*^ It is held, that the bankrupt may perfect his homestead exemption even after the trustee in bankruptcy qualifies, provided in his schedules he claims a designated piece of realty as a homestead, and proceeds, under the state law, without delay. ^^ In some states the extent of the homestead is determined by the fact whether the property claimed as such is situated in a city, town or village. This question does not necessarily depend on the fact of incorporation. The land may be within the cor- porate limits of a town without losing its character as a rural 34 — In re Duerson, 13 N. B. E. 183, 40 — Southern Irrigation Co. v. Whar- Fed. Cas. No. 4117; In re Baker, 182 ton Nat. Bank, 28 A. B. E. 941. Contra, Fed. 392, 24 A. B. E. 411. In re Boston, 2 N. B. N. E. 19, 98 Fei. 35— In re Dawley, 1 N. B. N. 528, 94 587, 3 A. B. E. 388. Fed. 795, 2 A. B. E. 496. 41— In re Baker, 182 Fed. 392, 24 A. B. 36— In re Vincent, 115 Fed. 236. E. 411; Hunergardt v. Dry Goods Co., 37— In re McCrary Bros., 169 Fed. 485, 116 Fed. 31, 8 A. B. E. 341; In re Stone, 22 A. B. E. 161 ; Cowan v. Burchfield, 180 116 Fed. 35, 8 A. B. E. 416. Contra, In Fed. 614, 25 A. B. E. 293. re Wright, 8 N. B. E. 430, Fed. Cas. No. 38— In re Maxson, 170 Fed. 356, 22 A. 18067; In re Lammer, 14 N. B. E. 460, B- ^- 424. 7 Biss. 289, Fed. Cas. No. 8031. 39— In re Wood, 147 Fed. 877, 17 A. B. 42— In re Colwell, 165 Fed. 828, 21 E. 93 ; In re Letson, 157 Fed. 78, 19 A. A. B. E. 614. But see In re Youngstrom, B- R. 506. 153 Fed. 98, 18 A. B. E. 572. § 1002] ExEMPTioKS 767 homestead, or it may be located in a town or village, and thus have the character of an urban homestead, although the town or village is not incorporated.** Where the property claimed by the bankrupt as a homestead appears to be worth more tian the homestead exemption, the same may be appraised and assigned as a homestead on payment of the excess over the exemption; ** or, if the bankrupt makes no application to retain it and pay such excess and it is indivisible, the referee may order a sale,*^ and the validity of such sale does not depend on the filing of the proceedings with the clerk of the bankruptcy court; and the bankrupt, not having objected to such order of sale, cannot thereafter attack its validity nor object to the deduction of the value of other assets from his share of the proceeds, which, though not exempt, he received without objection from the trustee.*® §1002. — Abandonment. Homestead rights may be lost by abandonment, but mere physical absence without the intent to abandon will not gen- erally destroy the right,*'' nor the use of part of the premises for another purpose, or the renting of part.** A temporary removal, even for a long time, or the renting of the property will not suffice to work an abandonment, if the animus revertendi remains,*® and this is true, although bankrupt, by his attorney's direction, closed and locked his business homestead on filing his petition, intending, however, to resume business, the building 43— Eurow v. Grand Lodge^ 133 Fed. 283; In re Sohulz,135 Fed. 228, 14 A. B. 708, 13 A. B. R. 542; In re Nicholson, 27 E- 317. A. B. E. 908. 48— In re MoCrary Bros., 169 Fed. 44-Bank of Nez Perce v. Pindel, 193 ^85, 22 A. B. E. 161; Cowan v. Burch- Fed. 917, 28 A. B. E. 69; In re Ander- ^^^^' ^^^ ^^d. 614, 25 A. B. E. 293; son, 103Fed. 854, 4A. B. E. 640; Inre ^'""'^'' ^- Ferguson-McKinney Dry- Carmichael, 108 Fed. 789, 5 A. B. E. 551. «°''^«i"'-' ^^^ ^^fj f ,»' ]l\^-^-:t''j AK -o 1 J, -KT T, T,- J 1 -.A, Ii ™ Presnall, 167 Fed. 406, 21 A. B. E, 45-Bank of Nez Perce v. Pmdel, 193 „„. , _ ', , t^ x, '-nt o«o •, * Fed. 917, 28 A. B. E. 905; In re Parker, 1 N. B. N. 262, 1 A. B. E. 708; In re Mayer, 108 Fed. 599, 46— In re Oderkirk, 103 Fed. 779, 4 g A B. E 117. A. B. E. 617. 49— In re Thedford, 28 A. B. E. 191; 47-In re Malloy, 188 Fed. 788, 26 i„ ^e Lynch, 1 N. B. N. 182, 1 A. B. E. A. B.E. 31; In re Presnall, 167 Fed. 406, 245; In re Boss, 2 N. B. N. E. 218; 21 A. B. E. 905; In re Pope, 2 N. B. E. Buddy v. Willis, 99 Mo. 132; Leach v. 427, 98 Fed. 722, 3 A. B. E. 525; In re King, 85 Mo. 413; Bailey Ass'n v. Corn- Thompson, 140 Fed. 257, 15 A. B. K. ings, 16 N. B. R. 382, Fed. Cas. No. 733. 768 Bbandenbubg on Bankeuptcy [§ 1002 and contents passing into the trustee's possession.^" There can be no intention to return to a state without a former or actual bona fide residence within it.°^ In Texas, the owner of a lot in a town or city occupied by him as a homestead may abandon a part thereof by devoting it to a purpose inconsistent with its use as a part of a homestead.^'^ § 1003. — In property mortgaged or transferred. Questions frequently arise as to the right of the bankrupt to have a homestead exemption where he has transferred or mort- gaged the property out of which he would be entitled. Under the act of 1867 the rule was that where a conveyance fraudulent as to creditors was set aside by a bankrupt court, at the instance of the assignee, the parties were restored to the status occupied prior to such conveyance, and a homestead exemption was allowed,^* and a similar doctrine under the present law was announced under the laws of Tennessee, where a bankrupt hus- band fraudulently conveyed property to his wife,®* though, if the wife joined in the fraudulent conveyance, it would not be so.^® The fact that the homestead is mortgaged to certain creditors does not make it an asset to be administered in bankruptcy,^^ and, it has been held that a bankrupt who mortgaged the only real estate he possessed, might nevertheless claim a homestead exemption out of it,®'^ though he would not be entitled thereto out of lands subject to purchase money mortgage,®* although without such mortgage, a discharge may be pleaded in bar in an action for the purchase money.® ^ So, the cestui que trust under 50— In re Harrington, 1 N. B. N. 513, tra, Keating v. Keefer, 5 N. B. E. 133; 99 Fed. 390, 3 A. B. E. 639. In re Dillard, 9 N. B. E. 8; In re Gra- 51— In re Dinglehoef, 109 Fed. 866, 6 ham, 2 Bias. 449; In re Everett, 9 N. B. A. B. E. 242. E. 90. 52— In re O 'Brien, 203 Fed. 1012, 30 54— In re Griffith, 1 N. B. N. 546. A. B. E. 151. 55— In re ToUett, 2 N. B. N. E. 1096, 53— In re Detert, 11 N. B. E. 293, Fed. 105 Fed. 425, 5 A. B. E. 305. Cas. No. 3829; Cox v. Wilder, 7 N. B. E. 56— In re Bailey, 176 Fed. 990, 24 A. 241, 2 Dill. 45, Fed. Cas. No. 3308; Penny B. E. 201. V. Taylor, 10 N. B. E. 200, Fed. Cas. No. 57— In re Brown, 3 N. B. E. 60, Fed. 10957; McFarland v. Goodman, 11 N. B. Cas. No. 1980. E. 134, 6 Bias. Ill, Fed. Cas. No. 8789; 58— In re Whitehead, 2 N. B. E. 180, Bartholomew v. West, 8 N. B. E. 12, Fed. Fed. Cas. i No. 17562. Cas. No. 1071; Smith v. Kehr, 7 N. B. E. 59— HosMns v. Wall, 17 N. B. E. 314, 97, 2 Bill. 50, Fed. Cas. No. 13071; eon- § 1005] Exemptions 769 a trust to secure present loans and future advances will be pro- tected against the borrower, who declared the land a homestead, and subsequently obtained such advances, fraudulently conceal- ing his declaration of homestead.®" Effect of fraudulent or preferential transfer, see also, post, section 1017. §1004. —Wife's right. Where a husband abandoned his wife, and she obtained a divorce, she has a right to have the premises set apart to her as a homestead, especially when she holds and has held the title in her own right, and continuous actual occupancy is not neces- sary; *^ and it has been held that she is entitled to a homestead out of lands fraudulently conveyed to her by her husband, a bankrupt, although the conveyance was made to hinder cred- itors.*^ In Virginia a married woman who holds the title to the property, although living with her husband, is entitled to claim the exemption, as against her own" creditors, where she had been trading as a feme sole. She is the head of a family, either alone or jointly with her husband, for homestead purposes.®* The bankrupt's wife having a separate estate cannot affect his right to a homestead, unless he occupies her property instead of his own.®* §1005. — Re-aJlotment. Where the homestead set apart in a state court some years prior to the bankruptcy has enhanced in value beyond the amounts prescribed by the statute, bankrupt should only be allowed the statutory value,®* although it was held under the act of 1867 that where there was no irregularity a re-assessment would not be ordered for mere excess of value.®® The latter view, however, would probably only hold good in case of recent allotments.®'^ 60— In re Haake, 7 N. B. E. 61, 2 64— In re Tonne, 13 N. B. R. 170, Fed. Sawy. 231, Fed. Cas. No. 5883. Cas. No. 14095. 61— In re Pope, 2 N. B. N. E. 427, 98 65— In re MeBride, 2 N. B. N. E. 345, Fed. 722, 3 A. B. E. 525. 99 Fed. 686, 3 A. B. E. 729. 62— Boughs V. Hooke, 3 Lea. 302; In 66— In re Hall, 9 N. B. E. 366, 2 re Griffith, 1 N. B. N. 546. Hughes, 411, Fed. Cas. No. 5921. 63— Eiehardaon v. Woodward, 104 Fed. 67— In re Ehodes, 109 Fed. 117, 6 A. 873, 5 A. B. E. 94. B. E. 173. Brandenburg — 49 770 Beandenbubg ON Bankeuptcy [§1006 § 1006. Indian allotments. The various treaties with the Indian tribes setting apart por- tions of the public domain for their use, as a rule contain restrictions either prohibitive or only after a long period of years, upon the alienation of lands allotted in severalty or other- wise. The bankruptcy law recognizes all exemptions whether state or federal, and also vests the trustee with title only of such property which, prior to the filing of the petition, bankrupt could by any means have transferred, or which might have been levied upon and sold under judicial process against him. Accordingly, since neither of these provisions applies to allotments to Indians, such lands as here indicated would not form a part of the assets of an Indian adjudicated bankrupt."^ § 1007. Insurance policies. Insurance policies exempt under the local laws must be regarded as exempt under the bankruptcy act, and do not pass to the trustee.*'' Where the state law provides that the proceeds of certain insurance policies shall inure to the wife it is not necessary that a claim thereto be made personally by the wife to prevent the trustee obtaining title to the policy. ''" For a full discussion and citation of authorities, see ante, section 815 et seq. § 1008. Exemptions in partnership property. § 1009. — Firm exemptions. There can be no exemption to a co-partnership as such, since it is a personal privilege, in addition to which the adjudication works an absolute dissolution of the firm, and its existence is terminated, so that there is no firm to claim or receive exemp- tions.'^^ 68— In re Kussie, 96 Fed. 609, 3 A. B. intendea benefits upon the death of her R. 6; In re Eenuie, 2 A. B. E. 182, 1 N. husband, and not to limited policies which B. N. 335. accrue to her only in the event of his 69— Holden v. Stratton, 198 TT. S. 202, death within a period specified, at the 49 L. ed. 1018, 14 A. B. R. 94, rev'g 113 expiration of or beyond which proceeds Fed. 141, 7 A. B. R. 615; In re PfaflSn- belong to husband. In re Churchill, 198 ger, 164 Fed. 526, 21 A. B. R. 255. Fed. 711, 29 A. B. R. 158. The Wisconsin statute making policies 70 — In re Orear, 189 Fed. 888, 26 A. payable to married women exempt held B. R. 521. to apply only to such policies as by their 71 — In re Vickerman & Co., 199 Fed. terms secure to a married woman the 589, 29 A. B. R. 298; In re Novak, 150 ^1010] Exemptions 771 § 1010. — Individual exemptions out of firm property. Upon this question the authorities are irreconcilable. The most logical conclusion, however, and that which is supported by the weight of authority, is that the individual members of a firm are not entitled to have any portion of the firm property set apart as exempt, though the other members consent, unless there should remain a surplus of such property after the pay- ment of all firm debts; ''^ this conclusion being based upon the theory that the partnership assets are a trust fund for the pay- ment of firm creditors, the interest of the partners being an interest in the surplus only. The authorities taking the opposite view generally agree, how- ever, that to entitle the individual partner to an allowance out of firm assets he must show that he has no personal property exemption independent of the firm property, ''* and the other partners must consent thereto and the claim must be seasonably and properly asserted, the signing of the petition by all the partners being prima facie evidence of such consent.'^* Ted. 602, 18 A. B. E. 236; In re Lentz, 2 N. B. E. 190, 97 Fed. 486; In re Friederieh, 100 Fed. 284, 3 A. B. E. 801 ; In re Blodgett, 10 N. B. E. 145, Fed. Cas. No. 1555. 72— In re Viekerman & Co., 199 Fed. 589, 29 A. B. E. 298; In re Scheier, 188 Fed. 744, 26 A. B. E. 739; In re Prince & Walter, 131 Fed. 546, 12 A. B. E. 675; Jennings v. Stannus & Son, 191 Fed, 347, 27 A. B. e! 384; In re Blanchard, 161 Fed. 793, 20 A. B. E. 417; In re Golden Rule Mercantile Co., 21 A. B. E. 397; In re Eushmore, 24 A. B. E. 55; In re Beau- champ, 101 Fed. 106; In re Lentz, 2 N. B. N. R. 190, .97 Fed. 486; In re Hafer, 1 N. B. E. 147, Fed. Cas. No. 5896; In re Handlin, 12 N. B. E. 49, 3 Dill. 290, Fed. Cas. No. 6018; In re Tonne, 13 N. B. E. 170, Fed. Cas. No. 14095; In re Booth- royd, 14 N. B. E. 223, Fed. Cas. No. 1652; In re Hughes, 16 N. B. E. 464, 8 Biss. 107, Fed. Cas. No. 6842; In re Croft Brothers, 17 N. B. E. 324, 8 Biss. 188, Fed. Cas. No. 3404; In re Stewart, 13 N. B. R. 295, Fed. Cas. No. 13420; In re Blodgett, 10 N. B. E. 145, Fed. Cas. 1555; In re Demarest, 110 Fed. 638, 6 A. B. E. 232; In re Meriweather, 107 Fed. 102, 5 A. B. E. 435; In re Hosier, 112 Fed. 138, 7 A. B. E. 268. Contra, In re Wilson, 101 Fed. 571, 4 A. B. E. 260; In re Friederieh, 95 Fed. 282, aff'd 100 Fed. 284, 3 A. B. E. 801; In re Young, 3 N. B. E. Ill, Fed. Cas. No. 18148 ; In re Eupp, 4 N. B. E. 25, Fed. Cas. No. 12141; In re Eichardson, 11 N. B. E. 114 Fed. Cas. No. 11776; EadclifE v. Woods, 25 Barb. 52; In re Camp, 1 N. B. N. 142, 91 Fed. 745, 1 A. B. E. 165; In re Steed, 107 Fed. 682, 6 A. B. E. 73, but in this case it was held that exemptions should not be allowed out of the firm assets unless there are no individual assets. It has been held that where a business is con- ducted as a partnership but in fact is not, the sole owner is entitled to exemp- tions. (In re Carpenter, 109 Fed. 558, 6 A. B. E. 465.) 73— In re Monroe & Co., 156 Fed. 216, 19 A. B. E. 255. 74— In re Monroe & Co., 156 Fed. 216, 19 A. B. E. 255 ; In re Wilson, 101 Fed. 571, 4 A. B. E. 260; In re Friedrich, 100 Fed. 284, 3 A. B. E. 801; In re Steven- son, 1 N. B. N. 531, 93 Fed. 789, 2 A, B, 772 Bbandenbubg on Bankeuptcy [§ 1010 Where partners purchased lots, taking the title in the firm name, and erected buildings thereon with the understanding that each should own in severalty the lot on which he built, it was held that the interest of each was sufScient to entitle him to a homestead.''^ And where one partner buys out the other mem- bers of his firm, he has been held to be entitled to have his exemption set apart, since the firm has been dissolved and he is in the same position as if no firm had ever existed,''^ but where the partners while insolvent agree to dissolve exemptions should not be allowedJ'^ A former partner who has retired from the firm will not be allowed a personal property exemption out of the assets of the firmJ* A partner who in proceedings against himself and his firm, successfully challenges the jurisdiction of the court against him by reason of his minority, thereby terminates his individual relation to the proceedings and cannot thereafter claim exemp- tions out of the partnership property. '''^ One member of a firm cannot estop himself as between him- self and the firm's creditors, by ariy dealings with a partner, from any duty that he owes such creditors, or deprive such creditors of any rights or remedies;®" as by transferring his interest in the firm to the other partner to enable the latter to claim exemptions out of the firm's assets. And, where one part- ner abandons his interest to his partner just before the latter files a petition, no consideration being given, no exemption should be allowed;*^ but where the partnership assets were transformed into individual assets of one of the partners by a dissolution of the firm in good faith shortly before bankruptcy, E. 230; In re Nelson, 2 A. B. E. 556; In 79— In re EUenbeeker, 205 Fed. 396,30 re Grimes, 1 N. B. N. 339, 94 Fed. 800, A. B. E. 537. 2 A. B. E. 160; In re Seabolt, 113 Fed. 80— In re Polidori, 2 N. B. N. E. 945; 766, 8 A. B. E. 57. See also In re Mc- In re Gorman, 18 N. B. E. 419, 9 Biss. 23, Crary Bros., 169 Fed. 485, 22 A. B. E. Fed. Cas. No. 5624. 161. 81— In re Eosenbaum, 1 N. B. N. 541; 75 — Bartholomew v. West, 8 N. B. R. In re Bergman, 2 N. B. N. E. 806; but 12, Fed. Cas. No. 1071. see In re Eudnick, 2 N. B. N. E. 975, 102 76— In re Bjournstad, 18 N. B. E. 282. Fed. 750, 4 A. B. E. 531, rev'g 2 N. B. 77— In re Head, 114 Fed. 489, 7 A. B. N. E. 769; In re Lockerby, 3 N. B. N. E. 556. E. 7. 78— In re Fowler & Co., 145 Fed. 270, 16 A. B. E. 580. §1012] Exemptions 773 it has been held that the bankrupt would not be denied his exemptions out of what formerly was firm property.®* A minor who contributed to the firm capital but who assented to being ignored in all firm transactions has been held not entitled to an exemption out of the firm assets.*^ An application by, a partner for a homestead exemption out of partnership property should be strictly construed as against such application.®* Where there is a surplus after paying all partnership claims, exemptions may properly be allowed to the individual part- ners, since such surplus would then become a part of their personal estate,®^ but such exemption cannot exceed his interest in the partnership.®^ § 1011. Pension money. All money due or to become due to any person as pension is exempt from attachment, levy or seizure, and is to inure wholly to his benefit,®'' and will be set apart to him in bankruptcy pro- ceedings, provided it is in his hands at the time of filing the petition as it was received, and not loaned, invested or changed in its nature so as to become intermingled with other property interests, thus rendering the pension funds incapable of identifi- cation.®® While such money need not be turned over to the trustee, it should be scheduled by the bankrupt as money on hand with the statement of the exemption.®^ §1012. Personal property. Since the exemption laws are peculiar to the various states and in tKeir interpretation the federal courts consider them- selves controlled by the decisions of the highest state courts, recourse must necessarily be had to such decisions interpreting the state statutes as to what personal property is exempt. 82— In re Kolber, 193 Fed. 281, 27 A. 86— In re Rutland Groe. Co., 189 Fed. B. R. 414; In re Loekerby, 3 N. B. N. 765, 26 A. B. E. 942. E. 7. 87— U. S. R. 8., § 4747. 83— In re Floyd, 154 Fed. 757, 18 A. 88— In re EUithorpe, 111 Fed. 163, 7 B. E. 827. A. B. R. 18, aff'g 5 A. B. R. 681; In re 84^In re Jennings & Co., 166 Fed. 639, Stout, 109 Fed. 794, 6 A. B. E. 505; 22A. B. R. 160. Martin v. Bank, 14 Atl. 649; Bank v. 85— In re Beauehamp, 101 Fed. 106, 4 Carpenter, 119 N. Y. 550. Contra: In A B. R. 151; In re Tonne, 13 N. B. B. le Jones, 166 Fed. 337, 21 A. B. R. 536. 170; In re Stewart, 13 N. B. R. 295; In 89— In re Bean, 100 Fed. 262, 4 A. B. re Price, 6 N. B. R. 400, Fed. Cas. No. E. 53. 11410. 774 Beandbnbtjeg on Bankeuptcy [§1012 Cases determining tlie right to exemptions in wearing apparel and personal ornaments,®" tools and implements of trade,®^ 90 — "Wearing Apparel" as generally used in exemption laws includes all the articles of dress usually worn by persons in the calling and condition of life and in the locality of the residence of the persons claiming the exemption. Sellers V. Bell, 94 Fed. 801, 2 A. B. E. 529. . The value or amount of the articles in any given case is wholly immaterial except in so far as such value or amount may he indicative of mala fides on the part of the debtor or an intent to de- fraud creditors. (In re Evans & Co., 158 Fed. 153, 19 A. B. E. 752.) Articles intended and adopted to be worn on the person and necessary to or promotive of protection of the person against the elements, or personal comfort or decency, or serving to ornament the person, may be wearing apparel. (In re Evans & Co., 158 Fed. 153, 19 A. B. R. 752.) Masonic regalia for occasional wear has been held exempt; Prazier v. Bar- num, 19 N. J. Eq. 316; contra. In re Everleth, 129 Fed. 620, 12 A. B. E. 236. A match safe has been held not exempt; In re Evans & Co., 158 Fed. 153, 19 A. B. E. 752. Whether jewelry is exempt as wearing apparel depends upon wheth- er it was acquired and used as ornamen- tal apparel or acquired and kept as an investment, as a matter of business. In re Leech, 171 Fed. 622, 22 A. B. E. 599. Accordingly there has been set aside as exempt a gold watch and chain; Sellers V. Bell, supra; In re Freeman, 2 N. E. N. E. 569; In re Jones, 2 N. B. N. E. 296; 97 Fed. 773, 3 A. B. E. 259; In re Headley, 2 N. B. N. E. 684; In re Steele, 2 Flip, 324, Fed. Cas. No. 13346; Stewart V. McClung, 12 Ore. 431; In re Henry, 14 Ohio Fed. Dec. 353, 14 A. B. E. 362; In re Evans & Co., 158 Fed. 153, 19 A. B. E. 752; contra. In re Turnbull, 106 Fed. 667, 5 A. B. E. 549; In re Graham, 2 Biss. 449; In re Eveleth, 129 Fed. 620, 12 A. B. E. 236; a ring, In re Evans & Co., 158 Fed. 153, 19 A. B. E. 752; con- tra. In re Henry, 14 Ohio Fed. Dee. 353, 14 A. B. E. 362; a scarf pin. In re Evans & Co., 158 Fed. 153, 19 A. B. E. 752; a diamond stud worth $250 habitually worn to fasten bankrupt's shirt, in the absence of circumstances connected with its ac- quisition or use tending to show fraud or bad faith toward his creditors. In re Smith, 96 Fed. 832, 3 A. B. E. 140. 91 — "Tools and implements of trade" have been set apart for a baker. In re Petersen, 1 N. B. N. 430, 95 Fed. 417, 2 A. B. E. 630; In re Osbom, 104 Fed. 780, 5 A. B. E. Ill; a carpenter and em- balmer. In re Harrington, 1 N. B. N. 513; an undertaker, Steiner v. Marshall, 140 Fed. 710, 15 A. B. E. 486; a dealer in farm produce. In re Conley, 162 Fed. 806, 19 A. B. E. 200; but they have been refused in case of a merchant, In re Pea- body, 16 N. B. E. 243, Fed. Cas. No. 10866; In re Schwartz, 4 N. B. E. 189, Fed. Cas. No. 12503; a retail druggist, In re Lynde, 17 A. B. E. 906. A watch may be set aside when neces- sary for a man's business. In re Coller, 111 Fed. 503, 7 A. B. E. 131; contra, In re TurnbuU, 106 Fed. 667, 5 A. B. R. 549. A cream separator is a tool or instru- ment of a farmer. In re Hemstreet, 139 Fed. 958, 14 A. B. R. 823; candy stove and marble top stove have,ieen held ex- empt as tools of a candy^aker, In re Trembly, 16 A. B. R. 598; and a guide for hunters and fishermen has been held entitled to hold a canoe, but not his rifle as exempt. In re Mullen, 140 Fed. 206, 15 A. B. R. 275. An electric motor and a lathe held im- plements under the Idaho statute. In re Robinson, 206 Fed. 176, 30 A. B., R. 686. The fact that articles specifically ex- empted by statute, such as horses, wagons, etc., may have been used by the bankrupt in the conduct of a business, does not warrant treating them as "tools or im- plements ' ' if they are not ordinarily and fairly to be treated as such. The bank- rupt in such case cannot be compelled to §1012] Exemptions 77^ domestic animals,®" government awards,®* necessaries,®* and the like, as well as the right to exemptions in the proceeds of prop- erty,®'* or upon a change of occupation,®^ will be found in the notes. include in his selection of "tools and im- plements" articles exempt under other provisions of the statute. In re Zimmer- mann, 202 Fed. 812, 30 A. B. K. 361. All the tools and implements necessary to carry on' the bankrupt's trade may be exempt though they relate ordinarily to various trades and are in common use in several callings. In re Bobinson, 206 Fed. 176, 30 A. B. E. 686. A statute exempting tools and instru- ments used for carrying on one's trade does not limit exemptions to mechanical tools, but, under it, horses, wagons, fur- niture, etc., may be set apart as exempt. The bankrupt, however, is not entitled to all tools and instruments that might add convenience. In re Conley, 162 Fed. 806, 19 A. B. E. 200. * 92 — "Domestic animals" when neces- sary, as two horses used for team work, have been set apart as exempt (Eowell v. Powell, 53 Vt. 302; Steel r. Lyford, 59 Vt. 230) ; but they must be capable of such use (Sullivan v. Davis, 50 Vt. 648) ; an unbroken colt intended for such work (In re Alfred, 1 N. B. N. 136, 1 A. B. E. 243), but not a race horse, though he has" been occasionally used for work (In re Lihby, 103 Fed. 776, 4 A. B. E. 615), and working animals generally (In re Pea- body, 16 N. B. E. 243, Fed. Cas. No. 10866, but see In re Grady, 14 A. B. E. 738) ; but unless a bankrupt personally follows some trade, occupation or pro- fession which necessitates the ownership of a wagon and team, and earns his liv- ing by such trade, etc., he is not entitled to such property as exempt under the law (In re Parker, 18 N. B. E. 43, Fed. Cas. No. 10724) ; as a whitewasher, kalsominer, paperhanger and repairer gf plastering (In re Hindman, 104 Fed. 331). The fact that the bankrupt has part of the meat of a swine does not prevent his hav- ing his best remaining swine as exempt under a statute exempting his best swine or meat of a swine (In re Libby, 103 Fed. 776, 4 A. B. E. 615). Money claimed in lieu of domestic animals, but which were never owned, cannot be allowed (In re "Williams, 2 N. B. N. E. 419). 93 — A government reward has been held not exempt. In re Ghazal, 169 Fed. 147, 22 A. B. E. 119. 94 — "Necessaries" have been set apart in the way of provisions and fuel (In re Bulow, 2 N. B. N. E. 230, 98 Fed. 86, 3 A. B. E. 389), but real estate will not be set aside to cover a deficiency in the value of articles and necessaries (In re Thornton, 2 N. B. E. 68, Fed. Cas. No. 13994), nor money as an exemption, ex- cept when it is the proceeds of articles which ought to be set aside under the head of ''other articles and necessaries" (In re Welch, 5 N. B. E. 248, 5 Ben. 230, Fed. Cas. No. 17366). "Where a bankrupt executed a mortgage two days before adjudication, he was per- mitted to retain sufficient for the support of himself and family (In re Thompson,' 13 N. B. E. 300, 4 Fed. Cas. No. 13938). "Whether the circumstances of the bank- i-upt require the setting apart of neces- saries is a question for the trustees to determine, subject to the approval of the iourt (In re Hay, 7 N. B. E. 344, 2 Low- ell, 180, Fed. Cas. No. 6253). 95 — In Pennsylvania a bankrupt may select a portion of his exemptions from personal property and the balance from the proceeds of the sale of real estate (In re Harber, 2 N. B. N. E. 449), and must be claimed in specie and not as cash out of proceeds (In re Sternberg, 3 N. B. N. E. 79; see In re Sunseri, 3 id. 65), but a liquor license not being subject to ex- ecution, he has no claim to exemption out of the proceeds of its pale (In re Myers, 102 Fed. 869, 2 N. B. N. E. 860, 1049, 96 — It has been held that vvhere one 776 Bbandenbueg ON Bankeuptcy [§1012 An alien,"'' or non-resident,'* is not entitled to personal prop- erty exemptions in some states. § 1013. Waiver of exemptions. Prior to the decision of the supreme court in Lockwood v. Exchange Bank,^ there was much diversity of opinion with reference to the power of the court of bankruptcy in cases where there was a waiver of the exemptions either generally as to all creditors or specially as to a particular creditor. Most courts took the position that since the title to exempt property does not pass to or vest in the trustee, the federal court has absolutely no control or jurisdiction over the same other than to set it apart leaving the person holding such waiver to resort to the state court to enforce this right, if any he has.^ This is the view adopted by the supreme court and has been, followed uni- versally.^ The objection that if the property has once been set apart as exempt, before the party holding such waiver can enforce his claim, the bankrupt will have received his discharge and the same may be pleaded in bar to an action thereon, is over- come by the holding that the discharge may be postponed a reasonable time to enable a creditor holding a waiver of exemp- tions to assert his rights in a state court.* In deciding whether a discharge should be withheld the district court cannot finally merely temporarily changes his pursuit, 5 A. B. E. 308; WoodrufE v. Cheeves, 105 he is entitled to the exemptions allowed Fed. 601, 5 A. B. E. 296, rev'g 96 Fed. in his former occupation, provided there 317, 2 A. B. E. 679. was no intention of making a permanent 3 — Eoden Grocery Co. v. Bacon, 133 change. (In re Fly, 110 Fed. 141, 6 A.B. Fed. 515, 13 A. B. E. 251; BeU v. Daw- E. 550.) son Grocery Co., 120 Ga. 628, 12 A. B. B. 97 — Mississippi: In re Kaplan, 186 159; Northern Shoe Co. v. Cecka, 22 N.D. Fed. 242, 24 A. B. E. 376. 631, 28 A. B. B. 935; In re Batten, 170 98 — In re Donahey, 176 Fed. 458, 23 Fed. 688, 22 A. B. E. 270; In re Edwards, A. B. E. 796; In re O'Hara, 162 Fed. 156 Fed. 794, 19 A. B. E. 632; MeKenney 325, 20 A. B. E. 714. > v. Cheney, 118 Ga. 387, 11 A. B. E. 54; In 1—190 U. S. 294, 47 L. ed. 1061, 10 re Paramore, 156 Fed. 211, 19 A. B. E. A. B. E. 107. 130. 2— In re Camp, 1 N. B. N. 142, 91 Fed. 4^-Lockwood v. Exchange Bank, 190 745, 1 A. B. E. 365; In re Jackson, 116 TJ. S. 294, 47 L. ed. 1061, 10 A. B. E. Fed. 46, 8 A. B. E. 594; In re Hill, 96 107; In re Allen & Co., 134 Fed. 620, 13 Fed. 185, 2 A. B. E. 798; In re Bass, 3 A. B. E. 518; Bell v. Dawson Grocery Co., Woods 382, Fed. Cas. No. 1064; In re 120 Ga. 628, 12 A. B. E. 159; H. S. Mein- Stevens, 5 N. B. E. 298; In re Preston, 6 hard & Bro. v. Pineus, 200 Fed. 736, 29 N. B. E. 545; In re Little, 110 Fed. 621, A. B. E. 619. 6 A. B. E. 681; In re WeUs, 105 Fed. 762, § 1013] Exemptions 777 pass on the validity of the waiver of exemptions, but should merely decide whether a prima facie weiiver exists,^ The peti- tion of a creditor holding a waiver to be allowed to prosecute his claim in the state courts will be disallowed where the banlirupt's exemptions have not yet been set apart.^ The right to have property set apart as exempt is a personal privilege, which a bankrupt may claim or waive,'^ and which can- not be assigned.* An assignment of the right to exemptions is a waiver thereof,® as is a failure to file exceptions to an order of the- referee denying the right to exemptions." In Georgia, the bankrupt has a choice between constitutional and statutory exemption, but he cannot have both. The selection of the one exemption is a waiver of his right to the other. ^^ A waiver of the right to the homestead in the property sched- uled by the bankrupt does not defeat the right of his or her spouse to have the homestead set apart to her or him.^^ A judgment creditor of the bankrupt who holds a waiver by him of his exemptions, may levy upon and sell the exempt prop- erty at any time before his final discharge.^^ The waiver of the homestead exemption in a mortgage is, however, in favor of the mortgage creditor alone, and does not inure to the benefit of others. If in other respects the mortgage is valid, the exemption as against the mortgage creditor is restricted to the equity of redemption, and the rights of other creditors are subordinate to both the mortgage lien and the payment of the bankrupt's exemption allowance." While a creditor holding a note or an 5— Meinhard & Bro. v. Pinous, 200 Fed. 161 Fed. 797, 20 A. B. R. 422; Mitchell 736, 29 A. B. B. 619. v. Mitchell, 147 Fed. 280, 17 A. B. B. ^In re Eichardson, 11 A. B. E. 379. 382. Contra: In re Hastings, 181 Fed. 7— In re Exum, 209 Fed. 716, 31 A. B. 33, 30 L. B. A. (N. S.) 982, 24 A. B. E. E. 691; In re Harrington, 200 Fed. 1010, 360. 29 A. B. E. 666; In re Pfeiffer, 155 Fed. 9— In re Sloan, 135 Fed. 873, 14 A. B. 892, 19 A. B. E. 230; In re Hastings, 181 B. 435. Fed. 33, 30 L. E. A. (N. S.) 982, 24 A. 10— In re Cohn, 171 Fed. 568, 22 A. B. B. E. 360. B. 761. Waiver of exemptions by failure to 11 — In re Jeffers, 17 A. B. B. 368. claim, see ante, § 991, . But see In re Eeinhart, 129 Fed. 510, 12 In Georgia the head of family cannot A. B, E. 78. waive the statutory homestead; the right 12 — In re Maxson, 170 Fed. 356, 22 of waiver relates exclusively to the con- A. B. E. 424. stitutional homestead. In re Eeinhart, 13 — Zumpfe v. Sehultz, 35 Pa. Super. 129 Fed. 510, 12 A. B. E. 78. Ct. 106, 20 A. B. B. 916. 8— In re Pfeiffer, 155 Fed. 892, 19 A. 14— In re Nye, 133 Fed. 33, 13 A. B, B. B. 230; In re Blanohard & Howard, E. 142. 778 Bbandenbubg on Bankbuptcy [§ 1013 obligation containing a waiver of exemption does not liave a specific lien on the exempt property it does create an incum- brance upon it.^® Thus, in passing upon a note under the act of 1867, containing a waiver of exemption. Chief Justice Waite said ^* that the owner of a homestead has the absolute control over it and may deal with it in such manner as he sees fit, and has the right to sell or incumber it as suits his convenience, and adds: "If he sells or incumbers before he selects, his power of selection as against such sale or incumbrance is gone. No par- ticular form of incumbrance is specified; that is left to the discretion of the legislature. Now, a waiver of the right to sell is, in effect, an incumbrance on the property which may be selected. ' ' Hence, while there is no lien on the property desig- nated, it comes into the bankruptcy court incumbered by a waiver of the right of the bankrupt to "claim the property as exempt. Accordingly, it is held that where a bankrupt claims his exemption in property surrendered and debts are proved as to which the benefit of the exemption has been waived, it is the duty of the trustee to sell the property claimed as a homestead, or so much thereof as may be necessary, to pay the debts proved as to which the benefit of the exemption has been waived, since the claim of such creditor must be paid out of the fund as to which he can alone resort. The residue of the exempt property, if any, or the proceeds of the sale thereof, should then be allowed the bankrupt under his claim. ^'^ § 1014. Successive exemptions. While successive allowances will not be made within short periods of time or out of the same property, the debtor may use the exemption allowed him by statute to acquire other property out of which he would be entitled to the same amount of allow- 15 — ^Boden Grocery Co. v. Bacon, 133 Nunn, 1 N. B. N. 427, 2 A. B. E. 664. Fed. 515, 13 A. B. E. 251. See In re Bragg, 2 N. B. N. E. 82 ; In re 16 — In re Solomon, 2 Hughes, 164, Fed. Harber, 2 N. B. N. E. 449; In re Becker, Cas. No. 13166. " 2 N. B. N. E. 202; In re Boss, 2 N. B. 17— In re Sisler, 1 N. B. N. 472, 96 N. B. 218; In re Garden, 1 N. B. N. 189, Fed. 402, 2 A. B. E. 760; In re Graves, 93 Fed. 423, 1 A. B. B. 582; In re Hoover, 2 N. B. N. E. 469; Beed v. Union Bk., 113 Fed. 136, 7 A. B. E. 330; In re Gar- 29 Gratt. 719; Linkenbroker v. Detrick, 81 ner, 115 Fed. 200, 8 A. B. E. 263; In re Va. 44; In re Solomon, 2 Hughes, 164; Hopkins, 1 A, B. E. 209. In re Harber, 2 N. B. N. B. 449; In re '§1017] Exemptions 779 ance exempt from levy and sale, for it is not contemplated that a debtor having once received his exemptions can never receive them again.^^ It has been held, however, that where the bank- rupt has been allowed his homestead exemption in a former pro- ceeding, he is not entitled to a second allowance in a subsequent proceeding.^* § 1015. Denial of right of exemption. § 1016. — Assignment for creditors. Upon the filing of a petition in bankruptcy within four months of a general assignment for the benefit of creditors, the latter is void and the trustee in bankruptcy takes the property as though such assignment had never been made and may, by proper pro- ceedings, recover the same if not voluntarily surrendered to him. While the making of such an assignment is not actually fraudulent but only fraudulent in law, and, since the exemption laws are given for the protection of the family and not the benefit of the individual and are to be liberally construed,^" the assignor in such assignment is entitled to his exemptions out of the assigned property in case of subsequent bankruptcy proceed- ings,*^ or out of the proceeds if the same has been sold.** § 1017. — Concealment and fraudulent transfer of property. The authorities are not in harmony upon the right of a bank- rupt to exemptions where he has failed to account for all his assets, or has fraudulently transferred or concealed his prop- erty, many courts holding that exemptions should be allowed since a remedy is afforded by which they may be recovered,** 18— In re Buckingham, 2 N. B. N. E. Cas. No. 13392; Bashinski v. Talbott, 119 617. Fed. 337. 19— In re Jeffers, 17 A. B. B. 368. 22 — In re Noell, supra; In re Jones, 2 20— In re Tilden, 1 N. B. N. 134, 91 Dill. 343, Fed. Cas. No.. 7445; In re Fed. 500, 1 A. B. E. 300; Iri re Bucking- Welch, 5 N. B. E. 348, 5 Ben. 230, Fed. ham, 2 N. B. N. E. 617; Sears v. Hanks, Cas. No. 17366; In re Ellis, 1 N. B. E. 14 0. S. 298, 301. 154, Fed. Cas. No. 4400; Vaughan v. 21— In re Noell, 2 N. B. N. E. 789; In Thompson, 17 111. 78; Berry v. Hanks, 28 re Talbott, 116 Fed. 417, 8 A. B. E. 427; 111. App. 57. Eex V. Capitol Bk., 2 Dill. 367, Fed. Cas. 28— In re Allen & Co., 134 Fed. 620, 13 No. 11869; In re Poleman, 9 N. B. E. A. B. E. 518; In re Thompson, 140 Fed. 376, 5 Biss. 526, Fed. Cas. No. 11247; In 257, 15 A. B. E. 283; In re Denson, 195 re Griffin, 2 N. B. E. 85, Fed. Cas. No. Fed. 857, 28 A. B. E. 162; In re Neal, 5813; In re Stevens, 2 Biss. 373, Fed. 15 Ohio Fed. Dee. 1J.3, 14 A. B. E. 550; 780 Beandenbubg on Bankeuptcy [§ 1017 but the better rule would seem to be opposed to such doctrine,^* and certainly in those states where the exemption law requires the bankrupt to come into court with clean hands, there can be no question that such acts will operate as a bar to the right to have property set aside as exempt.*" The concealment must be established by clear and unequivocal evidence,^" but the evidence need not make out a case of fraud- ulent concealment in every detail as indicated and defined by the statute.*'^ The transfer of real estate by the bankrupt to his wife more than four months prior to the filing of the petition will not deprive him of his exemptions,*® and the mere failure of the bankrupt to include in his schedule, property in the possession of his wife is not conclusive of concealment or an attempt to conceal.*® It has been held that property or the proceeds thereof consti- tuting a preference which is surrendered to the trustee by the In re Noell, 2 N. B. N. B. 789; In re Park, 2 N. B. N. R. 981, 102 Fed. 602, 4 A. B. E. 432; In re Detert, 11 N. B. R. 293, Fed. Gas. No. 3829; Cox v. Wilder, 7 N". B. R. 241, 2 Dill. 45, Fed. Caa. No. 3308; Penny v. Taylor, 10 N. B. R. 200, Fed. Gas. No. 10957 ; MeFarland v. Good- man, 11 N. B. R. 134, 6 Biss. Ill, Fed. Gas. No. 8789; Bartholomew v. West, 8 N. B. R. 12, Fed. Gas. No. 1071; Smith V. Kehr, 7 N. B. R. 97, 2 Dill. 50, Fed. Gas. No. 13071; In re Peterson, 1 N. B. N. 215, 1 A. B. R. 254; Gomstock v. Bechtel, 63 Wis. 656; Wilcox v. Hawley, 31 N. Y. 648; In re Talbott, 116 Fed. 417, 8 A. B. R. 427; In re Falconer, 110 Fed. Ill, 6 A. B. R. 557. 24 — ^In re Sussman, 183 Fed. 331, 24 A. B. R. 909; Kinder v. Trotti, 130 La. 360, 28 A. B. R. 939; Gowan v. Burch- field, 180 Fed. 614, 25 A. B. R. 293; In re Leverton, 155 Fed. 925, 19 A. B. B. 426; In re Long, 116 Fed. 113, 8 A. B. R. 591; In re White, 109 Fed. 635, 6 A. B. R. 451; In re Duffy, 118 Fed. 926, 9 A. B. E. 358; In re Yost, 117 Fed. 792, 9 A. B. R. 153; In re Evans, 116 Fed. 909, 8 A. B. B. 730. 25 — In re Simon v. Sternberg, 151 Fed. 507, 18 A. B. R. 204; In re Shaefer, 151 Fed. 505, 18 A. B. R. 361; In re Alex, 141 Fed. 483, 15 A. B. R. 450; In re Gochran, 185 Fed. 913, 26 A. B. R. 459; In re Dobbs, 172 Fed. 682, 22 A. B. R. 801; In re Magata, 2 N. B. E. 456; Mc- Nally V. Mulherin, 79 Ga. 614; In re Waxelbaum, 101 Fed. 228, 4 A. B. E. 120; In re Tollett, 2 N. B. N. E. 1096, 105 Fed. 425, 5 A. B. E. 305; reversed on ground that conveyance was only con- structively fraudulent, in 106 Fed. 866, 54 L. R. A. 222, 5 A. B. R. 404; In re WiUiamson, 114 Fed. 190, 8 A. B. R. 42, 114 Fed. 192, 8 A. B. R. 53; In re Tay- lor, 114 Fed. 607, 7 A. B. R. 410; In re Boorstin, 114 Fed. 696, 8 A. B. E. 89; In re West, 116 Fed. 767, 8 A. B. E. 564. 26— In re Gotton & Preston, 183 Fed. 190, 25 A. B. E. 532. 27— In re Morris, 2 N. B. N. E. 260. 28— In re Cotton & Preston, 183 Fed. 190, 25 A. B. R. 532. 29— In re Diamond, 158 Fed. 370, 19 A. B. E. 811. § 1021] Exemptions 781 preferred creditor, can be applied ih the setting off of exemp- tions.®" Homestead exemptions in property mortgaged or transferred, see also, ante, section 1003. § 1018. — Engaging in illegal business. A debtor engaged in the illegal sale of liquor is not entitled to exemptions in some states.^^ § 1019. — Failure to give security. The bankrupt has been held not entitled to exemptions in property for which he agreed but failed to give security, since no title passed.** §1020. —Fraud. While exemptions cannot ordinarily be claimed in property obtained by fraud,^* it is only where the fraud inheres in the very transaction itself by its intended effect preventing the collection of the debt that the fraudulent debtor can claim no right to exemption. The mere fact that the debtor was dealing under an assumed name will not work a forfeiture of his right to exemptions.** In some states, no exemption can be claimed in property obtained shortly before bankruptcy by means of a false or erroneous report to a mercantile agency,*® while in others it is held that the making of false statements in writing to his creditors to obtain credit will not deprive the bankrupt of his right to his homestead exemption.*® The trustee, as well as the creditors, may except to the allow- ance of the exemption on the ground of fraud.*'' § 1021. — Purchase of property with non-exempt funds. Courts of bankruptcy proceed upon equitable principles, and should no more sustain a positive fraud than would a court of 30— In le Soper, 173 Fed. 116, 22 A. 32— In re Hennis, 17 A. B. E. 889. B. E. 868; In re Talbott, 116 Fed. 417, 33— In re Woleott, 140 Fed. 460, 15 8 A. B. E. 427; In re Falconer, 110 Fed. A. B. E. 386. Ill, 6 A. B. E. 557; contra, In re Long, 34— In re McUlta, 189 Fed. 250, 26 116 Fed. 113, 8 A. B. E. 591 ; In re Wish- A. B. E. 480. nefsky, 181 Fed. 896, 24 A. B. E. 798; 35— In re Peacock, 203 Fed. 191, 30 In re Coddington, 126 Fed. 891, 11 A. B. A. B. E. 179. B. 122; In re Neal, 15 Ohio Fed. Dee. 36— In re Cotton & Preston, 183 Fed. 113, 14 A. B. E. 550; In re Geo. M. Sharr, 190, 25 A. B. E. 532. 15 A. B. E. 491. 37— In re Eice, 164 Fed. 589, 21 A. B . 31— In re Lynde, 17 A. B. E. 906. E. 202. 782 Bbandenbueg on Bankkuptcx [§ 1021 equity, and it would seem that exemptions should not be allowed in property purchased by the bankrupt for the express purpose of claiming an exemption, with funds that would otherwise have gone to the creditors.^^ The bankruptcy court is, however, bound by the state laws as construed by the highest courts of the state, and it seems to be generally held that the bankrupt is entitled to exemptions 'in property though the same was purchased with non-exempt property in contemplation of bankruptcy.^^ § 1022. — Purchase money borrowed from wife. That the goods claimed as exempt were paid for out of moneys borrowed from the wife, is no bar to the exemption.*" § 1023. — Purchase of property with embezzled funds. The good faith required by the Georgia statute to entitle a debtor to a homestead exemption is merely the making of a full and fair disclosure of his personal property, and his exemptions will not be denied him by the bankruptcy court on the ground that the property was purchased with the money of the county of which he was treasurer.*^ § 1024. — Purchase price not paid. By statute in many states it is specifically provided that prop- erty or the proceeds thereof when sold, cannot be set apart as exempt where the purchase price has not been paid.*^ Even 38— In re Gerber, 186 Fed. 693, 26 A. A. B. E. 308; MuUinix v. Simon, 196 Fed. B. E. 608. And see In re Boston, 98 775, 28 A. B. E. 1. Fed. 587, 2 N. B. N. E. 19, 3 A. B. E. In Ohio: In re Stem, 208 Fed. 488, 388. 30 A. B. E. 694; In re Nunemaker, 208 89— In re Hammond, 198 Fed. 574, 28 Fed. 491, 30 A. B. E. 697. A. B. E. 811; In re Wood, 147 Fed. 877, In Arkansas there is no exemption 17 A. B. E. 93 ; In re Litson, 157 Fed. 78, against a judgment or other process for 19 A. B. E. 506. the purchase price while the property re- 40 — In re Bailes, 176 Fed. 460, 23 A. mains in the vendee's possession, the pos- B. E. 789. session of which the trustee holds (Fell- 41— In re Castleberry, 143 Fed. 1018, heimer v. Durham, 3 N. B. N. E. 30). 16A. B. E. 159. In Washington: In re Phillips, 209 42— In re O'Connor, 16 A. B. E. 784; Fed. 490, 31 A. B. E. 597. A bankrupt's In re Anderson, 103 Fed. 854, 4 A. B. E. claim for exemptions out of a stock of 640; McGahan V. Anderson, 113 Fed. 115, merchandise, some of which had been 7 A. B. E. 641; In re Durham, 104 Fed. paid for in full, and all of which had 231, 4 A. B. E. 760; In re Seydel, 118 been paid for in part, was allowed, not- Fed. 207; In re Wells, 105 Fed. 762, 5 withstanding the provision of the statute §1027] Exemptions 783 in the absence of a statute to hold to the contrary would be unconscionable and operate as a great hardship. Some courts, however, hold that the fact that the bankrupt obtained property with an intention not to pay for the same cannot defeat his right to exemptions therein, on the theory that any right to rescind the purchase is personal to the vendor and cannot be asserted by other creditors or the trustee.** So, it is held, that the objection that the purchase price has not been paid cannot be urged in the bankruptcy court, but must be urged in the state court.** § 1025. — As aigainst claims for wages. In some states the right of exemption can be asserted against a claim for salary or wages.*^ Compensation earned by a trustee is not salary or wages within the meaning of such statute.*^ §1026. Deductioii& §1027. —In general. The amount of the proceeds from sales used by the bankrupt since the c^ommencement of the bankruptcy proceedings may be deducted from his allotment,*'^ and, under the laws of some states, property shown to have been in the bankrupt's possession at the time of the filing of the petition and not disclosed in his inventory nor surrendered to the trustee may be deducted from his exemptions.*® In such case an. established discrepancy of a large amount, together with proven concealment of some of his assets establish a prima facie case for the trustee entitling him, that no property should be exempt 44 — ^In re Maynard & Co., 183 Fed. 823, against a claim for the purchase price. 25 A. B. E. 732. (In re Petrini, 1 N. B. N. 264.) 45— In re PhiUips, 209 Fed. 490, 31 In Virginia it was held that where A. B. E. 597. the goods surrendered by a bankrupt were 46 — In re Pears, 205 Fed. 255, 30 A. honestly acquired in the regular course o£ B. E. 563. business, he is entitled to a homestead ex- 47 — In re Ansley Bros., 153 Fed. 983, emption in same, although they were paid 18 A. B. E. 457. for out of the proceeds of goods not paid 48 — In re Denson, 195 Fed. 857, 28 A. for. (In re Tobias, 103 Fed. 68, 3 N. B. ■ B. E. 162. N. E. 23, 4 A. B. E. 555.) 43— In re Hammond, 198 Fed. 574, 28 A. B. E. 811. 784 Bbandenbubg ON Bankbxtptcy [§1027 in the absence of explanation by the bankrupt, to charge the bankrupt's exemptions.*® § 1028. — Costs and expenses of proceedirigs. Property set aside to a bankrupt under his claim to exemption forms no part of the bankrupt estate and the expenses and com- missions of the referee or trustee, or counsel fees to the attor- neys of the bankrupt or the trustee cannot be allowed from the proceeds thereof,®" when exempt property is sold. It is held, however, that the exemptions allowed by the law do not excuse the payment from them of the fees of the bankruptcy court, so as to permit the suit to proceed on an affidavit of inability to advance the costs, as required.®^ The bankrupt's right to his exemption out of the proceeds of exempt property cannot be subjected to the costs and expenses of the sale ®^ even though the property is of a perishable nature.®* Eent for the time the trustee is compelled to occupy premises after adjudication, has been held a proper charge against the estate which must be paid before bankrupt's exemption can be set apart.®* § 1029. Liens on exempt property. § 1030. — How created. Homestead waiver notes held by creditors of a bankrupt do not of themselves constitute liens on the property surrendered by him,®® though they are in the nature of an incumbrance. A state law giving the vendor of property otherwise exempt, the right to subject it to the payment of his debt due for the pur- chase money, gives no lien thereon.®* 49— In re Denson, 195 Fed. 857, 28 A. 53— In re LeVay, 125 Fed. 990, 11 A. B. E. 162. B. R. 114. 50— In re Teager, 182 Fed. 951, 25 54r-In re Grimes, 1 N. B. N. 516, 96 A. B. E. 51. Fed. 529, 2 A. B. R. 730. 51— In re Herbold, 14 A. B. R; 116; 55— Bowen & Thomas v. Keller, 130 In re Hines, 117 Fed. 790, 9 A. B. E. 27; Ga. 31, 22 A. B. R. 727; In re Sohuller, In re Collier, 93 Fed. 191, 1 N. B. N. 108 Fed. 591, 6 A. B. R. 278; In re 257, 1 A. B. E. 182 ; In re Bean, 100 Fed. Moran, 105 Fed. 801, 5 A. B. E. 472. 262, 4 A. B. R. 53; contra. Sellers v. 56— In re Wilkes, 112 Fed. 975, 7 A. Bell, 9.4 Fed. 801, 2 A. B. R. 529. B. R. 574. 52— In re Hopkins, 103 Fed. 781, 4 A. B. E. 619. § 1032J Exemptions 785 § 1031. — Acquisition within four months. Liens acquired against exempt property by means of legal proceedings within four months of the filing of the petition are rendered void under section 67f of the act.^'^ Any other inter- pretation of the act would defeat its purpose which is to discharge the bankrupt from its liabilities and start him afresh with property set apart to him as exempt.^* Section 67f, however, applies only to liens obtained by legal proceedings within four months and does not defeat rights in exempt property acquired by contract or by waiver of the- exemption. These may be enforced or foreclosed by judgments obtained even after the petition in bankruptcy was filed.^® A lien acquired before the bankrupt files his homestead decla- ration but within four months of the filing of the petition in bankruptcy will not be enforced.®" § 1032. — Acquisition after bankruptcy. A judgment obtained after the filing of the petition in bank- ruptcy but before the gramting of the discharge may become a lien upon property which was exempt at the time of the filing of the petition but which was not exempt at the time of the cre- ation of the debt, the homestead exemption having in the interim been enlatged by statute."^ Execution sales of the homestead of the bankrupt, upon judg- ments docketed after bankruptcy based upon claims for material sold to the bankrupt for the repair of the homestead, will be stayed where it appears that under the state law no lien attaches against the homestead until the filing of an acknowledgment or the docketing of a judgment.®^ 57— ^Chicago, B. & Q. E. E. Co. v. Hall, Trustee is not entitled to the bank- 229 tr. S. 511, 57 L. ed. 1306, 30 A. B. E. rupt's exemption as against a creditor 619, aff'g 88 Neb. 20, 25 A. B. E. 53. levying on the same within four months 58 — Contra, Jewett Bros. v. Huffman, prior to bankruptcy on a judgment waiv- 14 N. D. 110, 13 A. B. E. 738; McKen- ing exemption. Sharp v. Woolslare, 25 ney v. Cheney, 118 Ga. 387, 11 A. B. E. Pa. Super. Ct. 251, 12 A. B. E. 396. 54; Powers Dry Goods Co. v. Nelson, 10 60— In re Forbes, 186 Fed. 79, 26 A. N. D. 580, 7 A. B. E. 506; In re Little, B. E. 355. 110 Fed. 621, 6 A. B. E. 681. See also, 61— Gregory Co. v. Cale, 115 Minn. 508, Northern Shoe Co. v. Cecka, 22 N. D. 631, 27 A. B. E. 131. 28 A. B. B. 935. 62— In re Hassler, 204 Fed. 139, 29 59— ai(fago, B. & Q. E. E. Co. v. Hall, A. B. E. 502. 229 U. S. 511, 57 L. ed. 1306, 30 A. B. E. 619, aff'g 88 Neb. 20, 25 A. B. E. 53. Brandenburg — 50 786 Bkandenbueg on Bankruptcy [§ 1033 § 1033. — On exempt and non-exempt property. A mortgage constituting an unlawful preference, where it includes both exempt and non-exempt property, is only voidable as to the non-exempt property.®^ If property has value in excess of the amount of the statutory exemption, the lien will hold upon the excess.®* Where it is conceded that part and possibly all of certain attached property is exempt, the property may be held under an attachment until it has been determined in the bankruptcy pro- ceedings what part, if any, of the attached property is non- exempt and passes to the trustee,®^ and where a mortgage is partly on exempt property and the entire property is sold, the trustee should hold the amount of the exemption to await the outcome of a suit in a state court to determine the right to exemption as between the bankrupt and the mortgagee.®' § 1034. — Lien not waived by proof of claim. A creditor may assert whatever peculiar right he may have against the homestead exemption notwithstanding he has proven his claim as unsecured,®'^ and the fact that a creditor, after the adjudication in bankruptcy, abandoned attachment proceedings instituted by him within four months prior thereto and filed his claim as a general creditor does not constitute a waiver of his right to attach, or estop him from subsequently attaching, prop- erty which has been set aside by the bankruptcy court as exempt.®* § 1035. — Remedies of lien-holders. Setting aside the property as exempt does not affect the rights of one holding a lien thereon, nor does it prevent a creditor whose claim is not avoided by the discharge, from proceeding against the property in the hands of the bankrupt.®^ The trus- tee, in alloting exemptions, is not obliged to designate articles 63— In re Bailey, 176 Fed. 990, 24 A. 67— In re Loden, 184 Fed. 965, 25 A. B. E. 201. See, also, ante, § 957. B. B. 917. 64r— Haworth v. Travis, 13 N. B. E. 68— Northern Shoe Co. v. Ceeka, 22 145. N. D. 631, 28 A. B. E. 935. 65— Jewett Bros. v. Huffman, 14 N. D. 69 — In re Hartsell & Son, 140 Fed. 30, 110, 13 A. B. E. 738. 15 A. B. E. 177. 66— First Nat. Bank v. Lanz, 202 J'ed. 117, 29 A. B. E. 247. § 1035] Exemptions 787 free from liens,^" while such action, when taken, in no wise impairs the right of lien holders whose liens were valid against the property before it was set apart. ^^ They need not come into the bankruptcy court for relief, but may proceed without regard to the bankruptcy proceedings, and in case they hold waivers of exemptions, the discharge may be withheld a reasonable time to enable them to proceed in the state court.''^ A creditor may enforce a lien superior to the exemption under the state law if such lien be fastened on the exempt property prior to the final discharge in bankruptcy, but if a debtor succeeds in obtaining his discharge and pleads it prior to the fastening of a specific lien on his exempt property, the effect is to release the debtor from the payment of the debt and the creditor's right of action is destroyed/^ The court of bankruptcy has no power to partition property, on a portion of which there is valid mortgage executed by the bankrupt and his wife, so as to set off a homestead free from liens, or otherwise impair the security, or discharge any part of the property until the debt is paid or to substitute other secur- ity for the mortgage.''* A creditor with an enforceable lien or claim against exempt property can collect only the deficiency from the general assets,''^ and a creditor having a mortgage on the bankrupt's homestead may be required to exhaust that remedy before he can enforce his other remedies against the bankrupt's estate.'^® Where the homestead premises have been mortgaged and exceed in value the homestead exemption, the bankrupt is enti- tled to have the property not exempt first subjected to the mortgage debt,''^^ or, if all the property is required to be sold, he 70— In re Preston, 6 N. B. E. 545, Fed. N. B. R. 453 ; In re Broome, 3 N. B. E. Cas. No. 1394; In re Thomas, 1 N. B. 343, 3 Ben. 488. ^ N. 551, 96 Fed. 828, 3 A. B. E. 78. 72— See ante, § 1013. 71— Haworth v. Travis, 13 N. B. E. 73 — Bowen & Thomas v. Keller, 130 145; Eobinson v. Wilson, 14 N. B. E. Ga. 31, 22 A. B. E. 727. 565; In re Haake, 7 N. B. E. 61, 2 Sawy. 74^-In re Thomas, 1 N. B. N. 551, 96 231, Fed. Cas. No. 5883; In re Preston, Fed. 828, 3 A. B. E. 99. 6 N. B. B. 545, Fed. Cas. No. 1394; In 75— In re Gale, 182 Fed. 439, 25 A. B. re Lambert, 2 N. B. E. 426; In re Gar- E. 367. rett, 11 N. B. E. 493 ; In re Dillard, 9 76— In re Sautoff, 14 N. B. E. 364, 7 W. B. E. 8; In re Hutton, 3 N. B. E. 787; Biss. 167, Fed. Cas. No. 12379. In re Whitehead, 2 N. B. E. 599; In re 77— In re Barrett, 140 Fed. 569, 16 Deokert, 10 N. B. E. 1; In re Bass, 15 A. B. E. 46. 788 Bbandenbueg on Bankbuptcy [§ 1035 is entitled out of the proceeds over and above tlie mortgage, the amount of his exemption, free from the claims of other cred- itors.''* In Pennsylvania, an execution attachment will not lie to reach personal chattels in the hands of the trustee in bankruptcy, which are claimed by the bankrupt as his exemption.''® § 1036. Sales of exempt property. The supreme court, in Lockwood v. Exchange Bank,*" expressly holds that a court of bankruptcy has no jurisdiction over exempt property except to set it apart, from which it would seem to follow that the court is without jurisdiction to order a sale of the bankrupt's exempt property,*^ and, since consent cannot confer jurisdiction not authorized by law, it would seem that the consent of the bankrupt or his creditors is immaterial.*^ It follows that the court will not, upon the petition of a creditor claiming a lien upon exempt property, order the bankrupt to restore the same after it has been delivered to him by the trus- tee, in order that it may be sold for the benefit of creditors.*^ The trustee in bankruptcy has no equity in the homestead exemption that can be made the subject of a sale by him, nor can the homestead be sold by the bankruptcy court subject only to the life estate of the bankrupt.** It is held in numerous cases, however, that it is not improper to permit the bankrupt to claim the proceeds of the sale of exempt property if such property has been sold by order of the court before the time for filing schedules has expired,*^ unless 78 — In re Barrett, 140 Fed. 569, 16 direct a sale of the same, in whieh ease A. B. E. 46. the bankrupt should be allowed his ex- 79 — ^Hyde v. HoUand, (Pa. Ct. Com. emption from the proceeds of the sale. PI.) 31 A. B. E. 785. 82— In re Eising, 27 A. B. E. 519. 80—190 V. S. 294, 47 L. ed. 1061, 10 83— In re Bender, 15 Ohio Fed. Dec. A. B. E. 107. 253, 17 A. B. E. 895. 81— Ingram v. Wilson, 125 Fed. 913, 84 — Sullivan v. Mussey, 184 Fed. 60, 11 A. B. K. 192; In re GriflSn, 2 N. B. E. 25 A. B. E. 781, aff'g 179 Fed. 1007, 25 85, Fed. Gas. No. 5813. A. B. E. 91. A referee cannot direct the sale of ex- 85 — ^In re Kane, 127 Fed. 552, 11 A. B. empt property. In re Eemmerde, 206 E. 533; Lipman v. Stein, 134 Fed. 235, Fed. 822, 30 A. B. E. 701. But see In re 14 A. B. E. 30, afP'g 130 Fed. 629, 12 Paramore, 156 Fed. 208, 19 A. B. E. A. B. E. 384; In re Sloan, 135 Fed. 873, 126, holding that where the homestead is 14 A. B. E. 435 ; In re Eenda, 149 Fed. covered by a mortgage containing a 614, 17 A. B. E. 521; In re Luby, 155 waiver of the exemption, the court may Fed. 659, 18 A. B. E. 801 ; In re Andrews § 1036] Exemptions 789 the exemption has been waived,^* and, it is held that if he fails to select his exemptions, before the estate is sold, he loses his right thereto.®'' A creditor is not prevented from pursuing his remedy in the state courts, and a sale by order of a state court, or under the terms of a mortgage or pledge, is not invalid. A mortgagee may enforce his lien in a state court against property that has been set aside as exempt in the bankruptcy court,*® and a vendor's lien against land may be enforced by sale.®* In some states it is held that exemptions claimed out of per- sonal property, must be claimed in specie and not out of the proceeds of the sale,^° but it is held that such rule will not pre- vent the bankrupt from claiming his exemption out of the proceeds of perishable property under order of the court.®^ Where, after an exemption is set apart from a stock of goods which has been inventoried and a part of the stock is sold, the bankrupt is not entitled to the whole of his exemption out of the proceeds of the sale, but merely that portion of the proceeds which the amount of his exemption bears to the inventory value.*^ A creditor acquiescing in a sale is estopped to deny the right of the bankrupt to have exemptions allowed out of the proceeds.'* It frequently happens that the bankrupt is entitled to a homestead exemption of a specified amount and the property & Simonds, 193 Fed. 776, 27 A. B. E. 49; Bush v. Lester, 15 N. B. E. 36; In re 116; In re Pinklestein, 192 Fed. 738, 27 Bass, 15 N. B. E. 453; In re Everett, 9 A. B. E. 229; In re Zaek, 196 Fed. 909, N. B. E. 90; In re Hunt, 5 N. B. E. 493; 28 A. B. E. 138; In re Clark, 102 Fed. Hatcher v. Jones, 14 N. B. E. 387, 53 602; In re Eodenhagen, 2 N. B. N. E. Geo. 208. 674; In re Buckingham, 2 N. B. N. E. ' 89— In re Perdue, 2 N. B. E. 67, Fed. 617; In re Beckerford, 4 N. B. E. 59, Cas. No. 10975; see also In re Martin, 13 Fed. Cas No. 1209; In re Bolinger, 108 N. B. E. 397, 2 Hughes, 418, Fed. Cas. Fed. 374, 6 A. B. E. 171 ; In re Wilson, No. 9152 ; In re Owens, 12 N. B. E. 518, 108 Fed. 197, 6 A. B. E. 287. In some 6 Biss. 432, Fed. Cas. No. 10632; In re states this rule does not hold good. See Ellis, 1 N. B. E. 154, Fed. Cas. No. 4400. In re Haskin, 109 Fed. 789, 6 A. B. E. 90— In re Donahey, 176 Fed. 458, 23 485; In re Manning, 112 Fed. 948, 7 A. A. B. E. 796; In re Suiiseri, 3 N. B. N. E. B. E. 571. 65; see In re Sternberg, 3 id. 79; In re 86— Matter of Hargraves, 19 A. B. E. Pfeiffer, 155 Fed. 892, 19 A. B. E. 230. 238; In re Highfield, 163 Fed. 924, 21 91— In re LeVay, 125 Fed. 990, 11 A. A. B. E. 92; Citizens' Bank of Douglas B. E. 114. V. Hargraves, 164 Fed. 613, 21 A. B. E. 92— In re Arnold, 169 Fed. 1000, 22 323, rev'g 160 Fed. 758, 20 A. B. E. 186. A. B. E. 392. 87— In re Solomon, 10 N. B. E. 9, F.ed. 93 — Dunlap Hardware Co. v. Huddle- Cas. No. 13166. ston, 167 Fed. 433, 21 A. B. E. 731. 88— Gumming v. Clegg, 14 N. B. B, 790 Bkandknbueg our Banketjptcy [§ 1036 occupied by him is of greater value and incapable of partition. In such case it is held the property will be sold and the amount of the exemption paid from the proceeds; ^* also where the prop- erty is incapable of division without injury and where the interest of the estate and all the parties will be best subserved by its sale as a whole; ^^ or where the estate in question is only an estate for years; ^° or out of the equity of redemption, where property is sold under a mortgage by the bankniptcy court; ^'^ or where the bankrupt consents to the sale upon condition of receiving a share of the proceeds,^® and where the trustee has, without just cause, refused to set his exemptions aside upon due claim, he may receive his exemptions from the proceeds.®^ Of a different nature from these sales is the case where articles which would have been pxempt are seized and sold under distress for rent; under such circumstances, the bankrupt could not be allowed their value from the general fund, for the proceeds of the sale did not go to swell such fund.^ Where the goods are sold and the proceeds are in the hands of an officer of the court, the court may determine conflicting claims to the fund,^ but the distribution of the money will be regulated Ijy the state laws.^ Where exempt property is sold by consent of the' bankrupt, it is held that the costs and expenses of the bankruptcy proceedings may be paid out of the proceeds of the sale, in preference to the claim of one holding an equitable lien upon the property.* The bankrupt as well as the assignee of his exemption have the right to contest any claim on the 94^In re Lynch, 2 N. B. R. 374, 101 1— In re Lawson, 2 N. B. B. 19, Fed. Fed. 579. Cas. No. 8149. And see In re Sloan, 135 95— In re Edwards, 2 N. B. E. 109; In Fed. 873, 14 A. B. E. 435. re Brown, 3 N. B. E. 250; In re Poleman, 2 — ^In re Eenda, 149 Fed. 614, 17 A. B. Fed. Cas. No. 11247; In re Grimes Bros., E. 521. 1 N. B. N. 426, 2 A. B. E. 610; In re 3— In re Park, 2 N. B. N. E. 981, 102 Eiehard, 1 N. B. N. 487, 94 Fed. 633, 2 Fed. 602, 4 A. B. E. 432; In re Bueking- A. B. E. 506; In re Diller, 100 Fed. 931; ham, 2 N. B. N. E. 617; In re Staunton, In re Ansley Bros., 153 Fed. 983, 18 A. 117 Fed. 507, 9 A. B. E. 79. B. E. 457. Landlord held entitled to the payment 96 — In re Beckerford, 4 N. B. E. 59, of rent as a priority out of the proceeds Fed. Cas. No. 1209. of a sale of exempt property, the lease 97 — In re Beede, 19 N. B. E. 68, Fed. containing a waiver of exemptions. In re Cas. No. 1226. Sloan, 135 Fed. 873, 14 A. B. E. 435. 98— In re Woodard, 1 N. B. N. 430, 4— In re Castleberry, 143 Fed. 1021, 16 95 Fed. 955, 2 A. B. E. 692. A.'B. E. 430. 99— In re Brown, 1 N. B. N. 511. § 2038] Exemptions 791 proceeds and should not be deprived of a hearing.^ Where the trustee pays the assignee of the bankrupt the full amount of the bankrupt's exemption out of the proceeds of a sale of the bank- rupt's entire stock, he will be reimbursed for the amount paid, although the sale nets the estate but a portion of the appraised value of the stock.* A sale of the homestead for an amount less than the amount to which the bankrupt is entitled in lieu of the homestead will not be effectived § 1037. Fraudulent transfers of exempt property. Exempt property cannot be the subject of a fraudulent trans- fer.^ A debtor may convey existing exemptions as well as exempt property to be acquired in the future.® § 1038. Taxes on exempt property. By section 64 of the law the trustee is required to pay from the general assets "all taxes legally due and owing by the bankrupt," even though they are assessed against property which is set off to the bankrupt as exempt, or are a lien upon and enforceable against such property. This is true, although the effect of such payment is to exhaust the fund which would other- wise be distributed among the general creditors.^" While such an interpretation of the law may work an injustice to the cred- itors the doctrine is doubtless founded upon that liberality of construction of exemption laws which is necessary for the pro- tection of the family in the vicissitudes of financial distress. 5— In re Sloan, 135 Fed. 873, 14 A. B. 150 Fed. 307, 18 A. B. E. 148. See, also, B. 435. ante, § 799. 6— In re Hutchinson, 197 Fed. 1021, 28 9— In re Hastings, 181 Fed. 33, 30 L. A. B. E. 405. E. A. (N. S.) 982, 24 A. B. E. 360. 7— In re Nye, 133 Fed. 33, 13 A. B. E. 10— In re Tilden, 1 N. B. N. 134, 91 142. Fed. 500, 1 A. B. E. 300 ; In re Baker, 1 8— First Nat. Bank v. Lanz, 202 Fed. N. B. N. 212, 1 A. B, E. 526. 117, 29 A. B. E. 247; MeCarty v. Coflan, CHAPTEK XXV Suits by and Against Bankrupt i 1039. Jurisdiction over applications to stay proceedings. i 1040. — In general. i 1041. — Jurisdiction of referees. i 1042. Stay compulsory — Voluntary and involuntary proceedings. i 1043. Bankruptcy proceedings are in rem. i 1044. State courts not to administer bankrupt's estate. i 1045; Nature and effect of stay. i 1046. Adjudication not per se a stay or injunction. i 1047. Class of suits stayed. i 1048. — In general. i 1049. — Alimony. i 1049%. — Suits to administer assignments. i 1050. — Attachment suits. i 1051. — Breach of promise and seduction. i 1052. — Contempt proceedings. i 1053. — Conversion. i 1054. — Costs. i 1055. — Creditor 's suits. i 1056. — E jeetfnent. i 1057. — Proceedings on judgments. i 1058. — Proceedings to enforce liens. ( 1059. — Mechanic 's liens. 1 1060. — Proceedings to remove official. i 1061. — Receivership proceedings. i 1062. — Eeplevin. i 1063. — Action for services. i 1064. — Stockholder's suit. i 1065. — Action to compel delivery of stock. i 1066. — Action by trustee of another estate. j 1067. — Unlawful detainer and distress for rent. i 1068. — Action for wrongful death. i 1069. Period during which stay may be had. i 1070. Application for stay. i 1071. — Form of application and notice thereof. ( 1072. — Where made. i 1073. Form of restraining order. i 1074. Ground of stay must be pleaded. ( 1075. Eeview of stay. i 1076. pissolution of stay. i 1077. Permission to sue. i 1078. Eevival of right to sue after bankruptcy. i 1079. Defense of suits pending against bankrupt. 792 § 1040] Suits by and Against Bankbupt 793 § 1080. — Eight and duty of trustee to defend. § 1081. — Necessary parties. § 1082. — Manner of becoming a party. 1 1083. — Effect of trustee 's appearance. § 1084. — What trustee may plead. §1085. —Costs. § 1086. — Kemoval of cause. § 1087. Judgments after bankruptcy. § 1088. Intervention of trustee as plaintiff in creditors ' suit, § 1089. Intervention of receiver. § 1090. Trustee to prosecute suits. § 1091. Actions by bankrupt after bankruptcy. § 1039. Jurisdiction over applications to stay proceedings. §1040. — In general. Application for injunction to stay proceeding^ in a state court should be made to the court of bankruptcy,^ which may hear and decide the question, though it may refer such application, or any specified issue arising thereon, to the referee to ascer- tain and report the facts.^ The jurisdiction of the bankruptcy court to determine, for the purpose of such application, whether the claim on which the proceedings in the state court are founded is one from which a discharge would be a release, is exclusive and its determination conclusive until revised,* and its pow;er to enjoin proceedings in a state court on a dischargeable debt is plenary but its exercise is discretionary. An injunction will usually issue (1) if the bankrupt is threatened with arrest or needless annoyance, (2) if the suit is not yet in judgment, and (3) even after judgment if (a) the rights of general creditors, not parties to such proceedings, will be jeopardized, or (b) the judgment is based on an act of bankruptcy or a fraud on cred- itors or the law; but in the absence of (a) and (b) it should never issue after execution sale provided the state court has or can be given jurisdiction of all the interested parties.* Thus it will 1— In re Bolinger, 1 N. B. N. 254; In 3— Wagner v. IT. S., 2 N. B. N. E. 1116, re Klein, 1 N. B. N. 486, 97 Fed. 31; 104 Fed. 133, 4 A. B. E. 596. contra, In re Geister, 2 N. B. N. E. 297, 4 — ^In re Southern L. & T. Co. v. Ben- 97 Fed. 322, 3 A. B. E. 228. bow, 1 N. B. N. 499, 96 Fed. 514, 3 A. B. Action of state court in denying a stay E. 9 ; Globe Cycle Wks., 1 N. B. N. 421, is not final. New Eiver Coal Land Co. v. 2 A. B. E. 447, in which the oases are ' Euffner Bros., 165 Fed. 881, 21 A. B. E. collated and distinguished; In re Sabine, 474. 1 N, B. N. 45, 1 A. B. E. 315; In re 2— G. 0. XII. Northrop,, 1 A. B. R. 427; Bear v. Chase, 794 Bean-denbueg on Bankbxjptcy [§ 1040 restrain a third person from selling or incumbering property of the bankrupt;^ or restrain action against the trustee, if the continuance of the action will embarrass the administration of the estate." The jurisdiction to issue an injunction in certain cases exists notwithstanding the fact that a discharge has been granted/ The court of bankruptcy has no authority to with- draw from the state court suits pending therein between the bankrupt and other parties and compel their trial in the district court.* An application by the bankrupt for relief from a fine for civil contempt imposed by a state court subsequent to the adjudica- tion should be made to the state court.® § 1041. — Jurisdiction of referees. Wherever the court has jurisdiction the referee also has juris- diction, except where the case is referred to him for a special purpose, or it is a question arising out of applications of a bank- rupt for composition or discharge even though it be a case where the premises affected are in another cotinty of the same federal judicial district. While this is true, applications for an injunction to stay proceedings of a court or officer must be heard and decided by the judge unless he refers the application or any specified issue arising thereon to the referee to ascertain and 3 A. B. E. 746, 99 Fed. 920, citing Ex 5— In re Smith, 8 A. B. E. 55, 113 parte Christy, 3 How. 292, 11 L. ed.451; Ted. 993; Beach v. Macon Grocery Co., Chapman v. Brewer, 114 IT. S. 158, 29 L. 116 Ped. 143, 8 A. B. E. 751; In re Gut- ed. 83, 173 ; Moran v. Sturges, 154 U. S. man & Wenk, 114 Fed. 1009, 8 A. B. E. 256, 269, 270, 274, 38 L. fed. 981; In re 252; Dietzseh v. Huidekoper, 103 TJ. S. Bruss-Eitter, 90 Fed. 651, 1 N. B. N. 39; (13 Otto) 494, 26 L. ed. 497; Chapman Lea V. Geo. M. West Co., 1 N. B. N. 79, 1 v. Brewer, 114 U. S. 158, 29 L. ed. 83; A. B. E. 261, 91 Fed. 237; In re Smith, Garner v. Second Nat. Bk. of Providence, 92 Fed. la's, 1 N. B. N. 356, 2 A. B. E. 9; 87 Fed. 833; James v. Central Trust Co., In re Kenney, 1 N. B. N. 401, 2 A. B. E. 98 Fed. 489; MueUer v. Nugent, 184 IJ. S. 494, 95 Fed. 427, s. c. 2 N. B. N. E. 141, 1, 46 L. ed. 405, 7 A. B. E. 224. 3 A. B. E. 353, 97 Fed. 557, 558; In re 6— In re Gutman & Wenk, 114 Fed. Clark, 9 Blachf. 372, Fed. Cas. No. 2801; 1009, 8 A. B. E. 252. Watson V. Bk., 2 Hughes, 200, Fed. Cas. 7 — Southern L. & T. Co. v. Benbow, 1 No. 17279; In re Whipple, 6 Biss. 516, N. B. N. 499, 96 Fed. 514, 3 A. B. E. 9. Fed. Cas. No. 17512; In re Merchants' 8 — Samson v. Burton, 4 N. B. E. 1, 5 Ins. Co., 3 Biss. 162, Fed. Cas. No. 9441; Ben. 343, Fed. Cas. No. 12285. In re Miller, 6 Biss. 30, Fed. Cas. No. 9— People v. Sheriff of Kings Co., 206 9551; In re Kimball, 1 N. B. N. 515, 97 Fed. 566, 31 A. B. E. 84. Fed. 29, 3 A. B. E. 161; In re Seebold, 105 Fed. 910, 5 A. B. E. 358. § 1042] Suits by akd Against Bankrupt 795 report tlie facts, in which case the referee also has like power with the court to stay suits in the state courts." It is held that when it is sought to stay a suit pending in a state court, it is the duty of the referee, when the matter is before him and he has jurisdiction, to inquire into the nature of the cause of action and determine whether the plaintiff in the state court is proceeding upon a claim which he asserts bona fide is not dischargeable; but, if the referee comes to the conclusion that such claim is not merely colorable, but is bona fide, he has no jurisdiction of the merits of the suit, but must remand the parties to the state court, and permit that court to pass upon the merits of the contention as to whether it is barred by the discharge in bankruptcy." §1042. Stay compulsory — Voluntary and involuntary proceed- ings. It should be observed that the first three subdivisions of sec- tion 11 of the act deal with suits pending when the petition is filed, that subdivision "a" makes the stay of all suits founded on dischargeable claims and pending when the petition is filed compulsory until an adjudication is made or the petition is dis^ missed; and leaves the further stay only to the court to determine, and also that though the phrase is "petition against him," voluntary proceedings are included. ^^ A creditor may, however, bring an action against the bankrupt upon a provable claim after his adjudication, no application for a discharge having been made. As said in a recent case, "If a suit antedate the adjudication, section 63a(5) allows it to be prosecuted to judgment; and reasons may readily exist to make even a post-dated suit desirable, e. g., to avoid the possible bar of the statute of limitations, or to liquidate the claim, or to fix a secondary liability on another person. ' ' ^^ 10— In re Mussey, 2 N. B. N. E. 113, In re Siebert, 133 Fed. 781, 13 A. B. E. 99 T'ed. 71, 3 A. B. E. 592; In re Adams, 348. See, also, ante, § 333. 1 N. B. N. 167, 1 A. B. E. 94; In re 11— In re Lawrence, 163 Fed. 131, 20 Sabine, 1 N. B. N. 45, 1 A. B. E. 315; A. B. E..698. In re Northrop, 1 A. B. E. 427; In re 12— Sec. 1, Act of 1898; In re Geister, Huddleston, 1 N. B. N. 214, 1 A. B. E. 2 N. B. N. E. 297, 97 Fed. 322, 3 A. B. 572; In re Bolinger, 1 N. B. N. 254; In E. 228. rfe Sogers, 1 A. B. E. 541, 1 N. B. N. IS^Chase v. Farmers' •& Merchants' 211. And see In re Eoger Brown & Co., Nat. Bank of Baltimore, 202 Fed. 904, 196 Fed. 758, 28 A. B. E. 336; contra, 30 A. B. E. 200. 796 Bbandenbtjeg on Bankbuptcy [§ 1043 § 1043. Bankruptcy proceedings axe in rem. The estate is regarded as in custodia legis from the filing of the petition, and the bankruptcy court will not thereafter permit any interference with its possession even though it be by an officer of a state court acting under its process.^* The assertion of any right against or to participate in the res so in custodia legis must be sought in the court in whose custody it is. An attempt to assert such right elsewhere would be a contempt. All persons interested in the res are regarded as parties to the bankruptcy proceedings, including not only the bankrupt and trustee but all the creditors, including lienors. Hence the dis- trict court has full jurisdiction over the liens and mortgages upon the bankrupt's property and may inquire into their validity and extent and grant the same relief as could the state courts but for the bankruptcy, without regard to the consent of the lienor.^^ Property in its possession cannot be interfered with by a sheriff under a writ of replevin issued out of a state court, and such proceeding will be stayed ; ^® nor can a suit be main- tained in a state court by one claiming to be owner to determine title and enjoin the officers of the bankruptcy court from pro- ceeding; " nor to restrain a trustee from paying out to creditors a fund in his hands, pending the determination of a suit to estab- lish a lien on such fund; but application must be made to the court of bankruptcy; ^^ nor to prevent a trustee from collecting a note payable to the bankrupt; ^® nor will a state court interfere by injunction with a party applying for the benefit of the bank- ruptcy law ; ^" nor by an injunction restraining the collection of 14— Mueller v. Nugent, 184 TJ. S. 1, 15 — Carter v. Hobbs, 1 N. B. N. 191, 46 L. ed. 405, 7 A. B. E. 224; Corbett v. 92 Fed. 594, 1 A. B. E. 215. Eiddle, 209 Fed. 811, 31 A. B. E. 330; 16— Crosby v. Spear, 98 Me. 542, 11 In re Eogers v. Stefani, 156 Fed. 267, A. B. E. 613; In re Eussell, 101 Fed. 248, 19 A. B. E. 566 ; In re Chambers, 2 N. B. 3 A. B. E. 658 ; In re Schloerb, 2 N. B. N. E. 388, 98 Fed. 865, 3 A. B. E. 537; N. E. 234, 3 A. B. E. 224, 97 Fed. 326; Byers v. McAuley, 149 U. S. 608, 37 L. In re Gutwillig, 1 N. B. N. 19; In re ed. 867; Ex parte Johnson, 167 U. S. 120, Agins, 1 N. B. N. 180. 42 L. ed. 103; Jordan v. Taylor, 98 Fed. 17— Keegan v. King, 96 Fed. 758, 3 A. 643 ; Keegan v. King, 96 Fed. 758, 3 A. B. E. 79. B. E. 79; Chapin v. James, 11 E. I. 87; 18 — Cha;tt. Nat. Bank v. Eome Iron Co., In re Tune, 115 Fed. 906, 8 A. B. E. 285. 99 Fed. 82, 3 A. B. E. 582. Property title to which is vested in the 19 — Southern v. Fisher, 16 N. B. E. trustee cannot be attached. French v. 414. White, 78 Vt. 89, 22 E. A. (N. S.) 804, 20— Fillingin v. Thornton, 12 N. B. 18 A. B. E. 905. E. 92. § 1044] Suits by and Against Bankbupt 797 taxes, prevent a federal court proceeding to judgment in an action of which it has jurisdiction, nor from enforcing its judg- ment by mandamus to compel the levy and collecting of taxes to pay it.^^ In order to preserve the property and protect the rights of all the creditors, a court of bankruptcy in which the bankruptcy proceedings are pending has the unquestionable jurisdiction and power to enjoin any disposition thereof which would be in viola- tion of the spirit, intent and purpose of the act^^ and may fine and imprison any of said creditors for attempting to interfere without leave through proceedings in the state court.^^ § 1044. State courts not to administer bankrupt's estate. The jurisdiction of a state court does not extend to the admin- istration of a bankrupt's estate,^* so that an attempt on its part to collect and distribute the assets of an insolvent is in contravention of the bankruptcy law, although the law un'der which the state court proceeds does not provide for or purport to discharge the debtor from his liabilities.^^ When the right of the state court is to be questioned, it can only be done by the intervention of the trustee.^® In order that the state court may have proper notice of the bankruptcy proceedings, the bankrupt, who is defendant in such court, should file there a proper pleading setting up such pro- ceedings.^'' After it is shown that the defendant has been 21— Clapp V. Otoe County, Neb., 104 7076; In re Whipple, 13 N. B. R. 373, 6 Fed. 473. Biss. 516, Fed. Cas. No. 17512. 22— In re Nathan, 1 N. B. N. 326, 563, 24— Thornhill v. Bank, 3 N. B. R. 110, 92 Fed. 590; In re Calendar, Fed. Cas. Fed. Caa. No. 13990; In re Independent No. 2308; In re Camp, Id. 2346; In re Ins. Co., 6 N. B. E. 260 Holmes, 103, Fed. Holland, 12 N. B. E. 403, Fed. Cas. No. Cas. No. 7011; In re Merchants Ins. Co., 6605; In re Smith, Fed. Cas. No. 12993, 6 N". B. E. 43, 3 Biss. 162, Fed. Cas. No. 12994; In re Francis- Valentine Co., 1 N. 9*41; Carling v. Seymour Lumber Co., B. N. 104, 529, 2 A. B. E. 522, 94 Fed. ^^^ ^^^- *®^' ^ ^- ^- ^- ^^' ^"^ ^^ Eogers, 793; In re Murphy, 2 N. B. N. R. 393, "« ^«^- ^^S- 8 A. B. E. 723. q A T? T? Aoa T -D- 1, ini -c ;, 25— In re Eeynolds, 127 Fed. 760, 11 3 A. B. R. 499; In re Russell, 101 Fed. * tj t> -jco t -mt i, j. > t n 248, 3 A. B. B. 658; In re Chambers, 2 ^- ^^ ^^ ^^^' ^'^ '" Merchants' Ins. Co., N. B. N. E. 388, 98 Fed. 865, 3 A. B. E. Te-Valliant v. Childress, 11 N. B. E. 317; see Bear v. Chase, 99 Fed. 920, 3 ■ 23-In re Winn, 1 N. B. E. 131, Fed. a. B. E. 746. See In re Federal Biscuit ' Gas. No. 17876; Markson v. Heaney, 4 N. Co., 203 Fed. 37, 29 A. B. R. 393. B. B. 165, Fed. Cas. No. 9098; Irving v. 27— In re Geister, 2 N. B. N. R. 297, Hughes, 2 N. B. R. 20, Fed. Cas. No. 3 A. B. R. 228, 97 Fed. 322. 798 Bbandbnbukg on Banketjptcy [§ 1044 adjudged a bankrupt, the court is bound to take judicial notice that all his property is vested in the trustee, and in the case of proceeds of mortgaged property in its possession, not brought there by final process to enforce the mortgage lien, such pro- ceeds must be paid to such trustee and the mortgagee remitted to the bankruptcy court to assert his lien.^* § 1045. Nature and effect of stay. A restraining order, under section 11, granted ex parte, with permission therein to move to vacate at any time, is in the nature of an order to show cause, and the party restrained thereby becomes a party to the proceeding in bankruptcy, even before adjudication, for the purpose of moving to vacate the order; ^* but not to make a motion to declare a preference in his favor in the proceeds of property attached by him in the state court, if he has not filed his claim in the bankruptcy court. ^" Such an order is in its nature temporary only, and should ordinarily be vacated as a matter of course on application of the creditor, after the bankrupt has been discharged.^^ A stay of a suit pending in a state court is not a dismissal of the suit. It does not defeat the cause of action but merely sus- pends the proceedings in the state court so long as the injunction remains in force. If, therefore, in the further proceedings in the bankruptcy court, the petition in bankruptcy is dismissed, or if the injunction is dissolved, or if, in the end, the bankruptcy court should determine that the basis of the suit in the state court is a claim against which the discharge in baukrutpey is not a release, then the case pending in the state court may pro- ceed as if it had not been interrupted. If, however, a bank- ruptcy court holds that the claim is discharged, then the bankrupt may go into the state court and plead his discharge as against the recovery.^^ § 1046. Adjudication not per se a stay or injunction. The bankruptcy court may grant a stay of suits pending against a bankrupt, but in the absence of a restraining order, the 28— Morris v. Davidson, 11 N. B. E. 31— In re Rosenthal, 108 Fed. 368, 5 454. A. B. E. 799. 29— In re Globe Cycle Works, 1 N. B. 32 — New Eiver Coal Land Co. v. Euff- N. 421, 2 A. B. E. 447. ner Bros., 165 Fed. 881, 21 A. B. R. 474. 30— In re Ogles, 1 N. B. N. 400, 2 A. B. E. 514. § 1048] Suits by and Against Bankeupt 799 adjudication presents no reason why a suit should not be prose- cuted.^^ § 1047. Class of suits stayed. § 1048. — In general. Any suit interfering with the control of the court of bank- ruptcy over the bankrupt or his property, or with the due and complete administration of his estate, pursuant to the provisions of the bankrupt law will be stayed.^* The granting of a stay after adjudication is always discre- tionary, but this will not be exercised unless the suit to be stayed is founded upon a claim from which a discharge would be a release.*® Section 11a makes a distinction between suits upon claims from which a discharge would be a release and those from which it would not. The logic of this provision is plain. To prose- cute to judgment a suit pending against a person at the time 33— Maas v. Kuhn, 130 App. Div. (N. Y.) 68, 22 A. B. E. 91 ; Friedman v. Zweifler, 74 Misc. (N. T.) 448, 27 A, B. E. 412. 34— In re NuttaU, 201 Fed. 557, 29 A. B. E. 800; In re Swofford Bros. Dry- Goods Co., 180 Fed. 549, 25 A. B. E. 282; New Eiver Coal Land Co. v. Euffner Bros., 165 Fed. 881, 21 A. B. E. 474; Mitchell Storebuilding Co. v. CarroU, 193 Fed. 616, 27 A. B. E. 894; Virginia Iron, Coal & Coke Co. v. Oleott, 197 Fed. 730, 28 A. B. E. 321; Booth v. Nickerson, 1 N. B. N. 476, 96 Fed. 943, 2 A. B. E. 770; In re Spencer, 1 N. B. N. 154; In re Gutman & Wenk, 114 Fed. 1009, 8 A. B. B. 252. 35 — ^In re Hymes Buggy & Implement Co., 130 Fed. 977, 12 A. B. E. 477; In re Alder, 152 Fed. 422, 18 A. B. E. 240; In re Katz, 1 N. B. N. 165, 1 A. B. E. 19; Eeid V. Cross, 1 N. B. N. 165, 1 A. B. E. 34; In re Winn, 1 N. B. E. 181, Fed. Gas. No. 17876; In re Van Buren, 19 N. B. E. 149, Fed. Cas. No. 16833; In re Belden, 6 N. B. E. 443, 5 Ben. 476, Fed. Cas. No. 1239; McGehee v. Hentz, 19 N. B. E. 136, Fed. Cas. No. 8794; Penny v. Taylor, 10 N. B. E. 200, Fed. Cas. No. 10957; Boyn- ton V. Ball, 121 IT. S. 457, 30 L. ed. 985; Scott V. EUery, 142 V. S. 381, 35 L. ed. 1050; In re Camelo, 195 Fed. 632, 28 A. B. E. 353. See In re Eogers, 1 N. B. N. 211, 1 A. B. E. 541; see also Chap. XVII; Mackel v. Eoehester, 135 Fed. 904, 14 A. B. E. 429; Linstroth Wagon Co. v. Ballew, 149 Fed. 960, 8 L. E. A. (N. S.) 2104, 18 A. B. E. 23; In re Cole, 106 Fed. 837, 5 A. B. E. 780. Eule that where the question as to whether a discharge would operate as a release, a stay may be granted in the dis- cretion of the court, applied to action in which^ it was alleged that the bankrupt intending to get property from plaintiffs with which to pay certain relatives, and intending to go into bankruptcy, when he ought to have known he was insolvent, offered to purchase goods and pay for them, but which did not allege that plain- tiff made any inquiries as to defendant 's financial condition, or that the latter made any misrepresentations. In re NuttaU, 201 Fed. 557, 29 A. B. E. 800. 800 Bbandenbubg on Bankruptcy [§ 1048 the petition is filed is useless, if it is based upon a claim from which a discharge would be a release, unless necessary to settle disputed questions, establish the plaintiff's right, or, under the direction of the court of bankruptcy, liquidate a provable claim,^® as under any circumstance each creditor would share equally with the others in the distribution of the estate and his rights would be fully preserved by proving his claim against the estate. If, however, the bankrupt is not discharged, the suit may then be prosecuted to judgment. The power to stay suits in the state court is given only for the benefit of the bankrupt estate and if the estate has no interest in the suit or action, no stay should be granted.^'' The character of the action in the state court is to be deter- mined by the pleadings.** A stay is not, however, confined to technical debts or fixed liabilities,®^ consequently on a motion for a stay for the purpose of determining if a debt is discharge- able a claim sounding in tort on which a verdict assessing the damages has been rendered, but which is not yet in judgment, will be considered so far liquidated as to come within "judg- ments in actions. ' ' *" The bankruptcy court is without jurisdiction to stay a pro- ceeding in rem where the state court has acquired jurisdiction of the res prior to the filing of the bankruptcy petition,*^ and where an action is commenced long prior to bankruptcy proceed- ings, the bankruptcy court has not jurisdiction to enjoin such action or to order the property turned over to the trustee in bankruptcy.*^ 36— 63b, Act of 1898. 88— In re Adler, 152 Fed. 422, 18 A. B. 37 — Eule held inapplicable where action E. 240. was commenced by attachment within 39 — In re Hilton, 3 N. B. N. E. 105, four months of bankruptcy upon a claim 104 Ped. 981, 4 A. B. B. 774. provable in bankruptcy and attachment 40 — In re Sullivan, 1 N. B. N. 380, 2 was discharged by a bond given by a A. B. E. 30. surety company, it appearing that an oS.- 41 — Tennessee Producer Marble Co. v. cer of the bankrupt entered into an Grant, 135 Fed. 322, 14 A. B. E. 288. indemnity agreement with the surety Section 11a does not apply to a suit company under which the bankrupt con- in a state court to enforce an asserted veyed certain property to the surety com- right in rem. Stay of sale of real estate pany, since the result of the prosecution in an action to foreclose a mortgage de- of the attachment suit in such case would nied. In re Wagner, 206 Fed. 864, 30 A. be an indirect appropriation of the prop- B. E. 896. erty of the estate to the payment of the 42 — Sample v. Beasley, 158 Fed. 607, debt of the plaintiff. In re Federal Bis- 20 A. B. E. 164; Pickens v. Dent, 106 cuit Co., 203 Fed. 37, 29 A. B. E. 393. Fed. 658, 5 A. B. E. 644, aff 'd 9 A. B. E. § 1049] Suits by and Against Bankeupt 801 The court of bankruptcy cannot enjoin the bankrupt's co- licensee in a liquor license from applying for a renewal, nor require him to join in transferring it to a prospective purchaser, though such license, as far as banknipt's interest is concerned, passes to the tmistee; *^ nor can it enjoin attaching creditors, and a state court receiver appointed at their instance, because they do not become amenable to its jurisdiction by the filing of a petition against the debtor, though they are therein charged with having received an unlawful preference, unless they are made parties and served with process or voluntarily appear; ** nor, where a creditor undertaking to reach assets, held in an alleged fiduciary capacity, by trustee process in a state court, enters into a stipulation to discontinue such suit which if carried out will avoid the necessity of any injunction, since such ques- tions relate to the discharge and not to the assets or the trustee's right thereto, which is what the court seeks to protect;*^ nor pro- ceedings on appeal taken by the bankrupt before bankruptcy.*^ A suit by a creditor seeking to enforce his rights under a note containing a waiver of exemptions will not be stayed.*'' Upon a petition for an injunction to restrain the enforcement of an execution from a state court, the court of bankruptcy is not bound by the finding of the state court that the debt is one not released by the discharge.*® § 1049. — Alimony. As has been said, the claim on which the judgment is founded must be one which is Released by a discharge, to authorize the court of bankruptcy to stay further proceedings. Since Con- gress has by its amendment of February 5, 1903, specifically excepted alimony from the effects of a discharge, the court of bankruptcy will not stay proceedings to enforce payment of the same. 47; Metcalf v. Barker, 9 A. B. R. 36, 187 46— O 'Neil v. Dougherty, 10 N. B. E. U. S. 165, 47 L. ed. 122. 294; Flanagan v. Pearson, 14 N. B. E. 37. 43— In re Brodbine, 1 N. B. N. 325, 47 — Eoden Grocery Co. v. Bacon,. 133 279, 93 Fed. 643, 2 A. B. E. 53. Fed. 515, 13 A. B. E. 251. See ante, 44— In re Ogles, 1 N. B. N. 326, 93 §1013. Fed. 426, 1 A. B. E. 671. 48— Knott v. Putnam, 107 Fed. 907, 45— In re Jackson, 1 N. B. N. 531, 94 6 A. B. E. 80. I'ed. 797, 2 A. B. E. 501. Brandenburg — 51 802 Beandenbubg on BANKEtrpTcy [§ 10491/^ § 104914. — Suits to administer assignments. A suit in a state court for the administration of an estate under a general assignment for the benefit of creditors should be stayed by the court of bankruptcy when an adjudication has been made within four months of such assignment, notwithstand- ing the state court had prior to the filing of the petition secured possession of the corpus of the estate; *^ and service of a copy of the injunction issued by the court of bankruptcy against the assignee is unnecessary, in order to put him in contempt for a violation thereof.^" A protest by creditors, made in a state court, against further proceedings under a general assignment executed by the debtor before their petition in bankruptcy, does not have the effect of a writ of injunction from the federal court.^^ § 1050. — Attachment suits. An attachment issued by a state court more than four months before the commencement of proceedings in bankruptcy will not be dismissed; ^^ but, if issued within that period, it will be dis- solved, though judgment has been entered, sale made and proceeds paid to attaching creditor.^^ A suit commenced by attachment within four months of bankruptcy in which the bankrupt gave a bond for the release of the attachment will be stayed prior to adjudication,^* though after adjudication the suit may be prosecuted to a special judgment for the purpose of fulfilling the conditions of an attachment bond, and so perfecting the creditor's right against the surety on the bond.^^ If a levy be made upon the bankrupt's property upon an attachment granted within four months of the filing of the petition, the sheriff is not required to assume the responsibility of releasing 49— In re Knight, 125 Fed. 35, 11 A. R. 35; Munson v. R. E. Co., 14 N. B. E. B. E. 1; Lea v. West Co., 1 N. B. N. 79, 173. 1 A. B. B. 261, 91 Fed. 237; In re Me- 53— Dickerson v. Spaulding, 15 N. B. Kee, 1 A. B. E. 311; In re Solomon, 2 E. 213. N. B. N. E. 460; In re Ghitwillig, 1 N. B. 54 — In re Eastern Commission & Im- N. 554, 92 Fed. 337, 1 A. B. E. 388. porting Co., 129 Fed. 847, 12 A. B. B. 50— In re Krinsky, 112 Fed. 972, 7 305. A. B. E. 535. 55— In re Maaget, 173 Fed. 232, 23 A. 51— In re Scholtz, 106 Fed. 834, 5 A. B. B. E. 14; and see In re Mercedes Import K. 782. Co., 166 Fed. 427, 21 A. B. E. 590, rev'g 52— In re Snell, 125 Fed. 154, 11 A. B. 20 A. B. E. 648. § 1052] Suits by and Against Bankbupt 803 the levy, but the trustee should apply to the court granting the attachment, for an order releasing the same.^® Where the bankruptcy court declines to adjudicate the debtor or unreasonably delays its action upon the bankruptcy petition, the state court may proceed to judgment in an attach- ment suit commenced after the filing of the petition in bankruptcy.®'' A sale of property in the hands of an assignee for the benefit of creditors seized in attachment proceedings against the bank- rupt will not be enjoined where the trustee has not commenced a plenary action to set aside the assignment.®* As to validity of attachments after the filing of the petition, gee ante, section 864. § 1051. — Breach of promise and seduction. Execution on a judgment for breach of promise and seduc- tion will be stayed.®® § 1052. — Contempt proceedings. A bankrupt should at all times from his adjudication in bank- ruptcy until the hearing on his application for discharge be at the disposal of the referee and the court, and any proceeding which may or will result in his arrest and imprisonment during the pendency of bankruptcy proceedings, even though such arrest and imprisonment might be contempt of court and habeas corpus would lie, will be stayed; ^^ but this is not so if the bank- rupt were summoned to appear and filed a petition in bankruptcy between the time of the service and the date fixed for his exam- 56— Tennant Sons & Co. v. N. J. Oil 153, Fed. Cas. No. 9538; In re Patterson, & Meal Co., 31 A. B. E. 901; Hardt v. 1 N. B. E. 58, 2 Ben. 155, Fed. Cas. No. Sclmylkm Plush & Silk Co., 69 App. Div. 10817; In re Williams, 11 N. B. E. 145, (N. Y.) 90, 8 A. B. E. 479. 6 Biss. 233, Fed. Cas. No. 17700; but see 57 — ^Aeme Harvester Co. v. Beekman In re Graham, 1 N. B. N. 59; In re Lumber Co., 222 TJ. S. 300, 56 L. ed. 208, Baker, 1 N. B. N. 325; contra. In re Ko- 27 A. B. E. 262. ronsky, 170 Fed. 719, 21 A. B. E. 851; 58— In re Shinn, 185 Fed. 990, 25 A. In re Hall, 170 Fed. 721, 22 A. B. K. B. E. 833. 498. 59— In re Warth, 196 Fed. 571, 28 A. State court has no jurisdiction to pun- B. E. 41. ish a bankrupt for contempt for failing 60— In re Summers, 1 N. B. N. 60 ; to obey an order to pay costs pending the Wagner v. TJ. S., 2 N. B. N. E. 1116, 104 bankruptcy proceedings. In re Summers, Fed. 133, 4 A. B. E. 596; In re Grist, 1 1 N. B. N. 60. A. B. E. 89; In re Migel, 2 N. B. B. 804 Beandenbubo on Bankeuptcy [§ 1052 ination.®^ Contempt proceedings instituted in a state court to enforce a judgment will be stayed if such judgment is a dis- chargeable debt.^^ It is held that an application by the bankrupt for relief from a fine for civil contempt imposed by a state court subsequent to the adjudication should be made to that court.®* § 1053. — Conversion. The liability of an agent for failure to account for the pro- ceeds of sales made by him,"* as well as the liability of a broker for the conversion of the stock of a customer,®^ or the liability of a pledgor for conversion of goods returned to him by the pledgee,®® being dischargeable, an action to enforce the same will be stayed. Though the state law provides that exemptions cannot be claimed against a judgment in tort, a suit in the state court alleged to be for damages for fraud and embezzlement while acting as a fiduciary may be stayed until a determination by the bankruptcy court of the right to a discharge, where the defendant claims the debt to be founded upon contract only in which case his exempt property would not be subject to levy in satisfaction of any judgment obtained by the plaintiff.®'^ § 1054, — Costs. Execution on a judgment for costs in an action for slander, recovered by defendant will not be stayed.®* § 1055. — Creditors' suits. It will be observed that two principles underlie the bankrupt act, (1) the bankrupt's discharge from his provable debts and (2) the equitable and ratable distribution of his collectible assets among his creditors. Wherever these principles are involved the district court has exclusive jurisdiction and pending suits in state courts may be stayed until the bankruptcy proceedings 61 — Cent. Nat. Bank v. Graham, 1 N. 65 — ^In re Floyd, Crawford & Co., 15 B. N. 59. A. B. R. 277. 62— In re Adler, 144 Fed. 659, 16 A. B. 66— In re Toklas Bros., 201 Fed. 377, R. 414. 29 A. B. R. 709. 63— People v. SherifE of Kings Co., 206 67— In re Butler-Kyser Mfg. Co., 174 Fed. 566, 31 A. B. E. 84. Ala. 237, 27 A. B. R. 419. 64— In re Hale, 161 Fed. 387, 20 A. B. 68— In re Dowie, 202 Fed. 816, 29 A. p. 033, B. R, 338, §1056] giUiTS BY AND Against Bankeupx 805 are closed; but, if the cause of action pending in the state court is not dischargeable in bankruptcy or for some other reason the pending suit does not violate the spirit, intent and purpose of the act, it should not be enjoined. Therefore, since subject to certain stated exceptions prior liens upon the bankrupt's assets are not divested by bankruptcy proceedings, only the residue going to the trustee, a judgment creditor's bill seeking to subject specific assets to the payment of the judgment, filed more than four months before the bankruptcy proceedings, should not be stayed, but the trustee may intervene for the protection of the estate.''® However, it is held that a creditor's bill brought against the bankrupt in a district other than that in which the bankruptcy proceedings are pending wiU be dismissed upon the fact of the pendency of such proceedings being brought to the court's attention.'"* §1056. —Ejectment. Where a receiver or trustee appointed by the bankruptcy court has taken possession of a building containing bankrupt's stock in trade or property, he cannot be ousted by proceedings in ejectment brought by the landlord in the state court, but such proceeding will be enjoined especially where it appears that the enforcement of judgment therein would seriously interfere with the administration of the estate and cause loss to creditors. In such case the landlord must seek his remedy in the bankruptcy court which, in the exercise of its equitable powers, while giving the fullest recognition to the landlord's legal right, will regu- late the time and manner of its exercise so as to cause no unnecessary loss to others '^ and will direct the receiver to sur- render the premises at the expiration of such time as may be reasonably necessary for the execution of his trust (unless it is the purpose to assume the lease as an asset), awarding the landlord suitable compensation for such occupation.''^ 69— Blick V. Nimmo, 30 A. B. E. 770; 70 — Cruchet v. Bed Eover Mining Co., Continental Bank v. Katz, 1 N. B. N. 165, 155 Fed. 486, 18 A. B. E. 814. 1 A, B. B. 19; Eeid v. Cross, 1 N. B. N. 71— Deweese v. Eeinhard, 165 TJ. S. 165, 1 A. B. E. 34; TreadweU v. HaUo- 386, 390, 41 L. ed. 757. way, 12 N. B. E. 61; In re Pitts, 19 N. B. 72— In re Chambers, 2 N, B. N. E. 388, E- 63 Fed. Cas. No. 11190; Mason v. 98 Fed. 865, 3 A. B. E. 537. Warthen, 14 N. B. E. 346. But see Moore V. Green, 145 Fed. 472, 16 A. B. E. 648. 806 Beandenbueg on Bankeuptcy [§ 1057 § 1057. — Proceedings on judgments. A court of bankruptcy has jurisdiction over a judgment cred- itor of the bankrupt for the purpose of enjoining him from proceeding in a state court for the enforcement of his judgment against property of the debtor, where the judgment was ren- dered null or inoperative by the adjudication of the debtor as a bankrupt within four months after its rendition, because all creditors are parties to the proceedings in bankruptcy, and also because the court has power to restrain any person from illegally possessing himself of assets of the estate.''* The jurisdiction of the court in such case is not affected by the fact that the debt upon which it is based is not a provable claim and will not be affected by the discharge of the bankrupt.''* Where the pro- ceedings are against the bankrupt and another, it will enjoin them as to the bankrupt but not as to the other judgment debtor; ''^ or will enjoin an action to revive a judgment so that it will operate as a lien on real estate ; ""^ or an action to enforce a lien when the trustee has appeared therein and the stay of execu- tion is asked that parties may apply to the federal court.'''' The bankruptcy court will also restrain a threatened levy by a sheriff to satisfy a judgment against the trustee.''* 73 — ^In re Lesser, 3 A. B. B. 815, 2 to be erroneous, it is of no force. See N. B. N. E. 599, 100 Fed. 433, s. c. 99 also Jones v. Leach, 1 N. B. E. 165, Fed. Fed. 913, 3 A. B. E. 758; In re Kletchka, Cas. No. 7475; In re Tifft, 19 N. B. E. 1 N. B. N. 160, 92 Fed. 901, 1 A. B. E. 201, Fed. Cas. No. 14034; but the rule 479 ; Johnson v. Eogers, 15 N. B. E. 1, which obtained under the act of 1867 that Fed. Cas. No. 7408; In re Pitts, 9 Fed. an honest execution levied prior to the 542; Olney v. Tanner, 10 Fed. 101, 113; petition was not void, no longer obtains. Becker v. Torrance, 31 N. T. 631; First Goddard v. Weaver, 6 N. B. R. 440, Fed. Nat. V. Shuler, 153 N. T. 172; Kitchen Gas. No. 5495; Beattie v. Gardner, 4 N. V. Lowry, 127 N. Y. 53; In re Spencer, 1 B. E. 106, Fed. Cas. No. 1195; In re N. B. N. 154; In re Globe Cycle Works, Shuey, 9 N. B. E. 526, Fed. Cas. No. 1 N. B. N. 421, 2 A. B. E. 447; In re 12821. Kenney, 1 N. B. N. 401, 2 A. B. E. 494, An examination in supplementary 95 Fed. 427; Booth v. Nickerson, 1 N. B. proceedings may be stayed. In re Burke, N. 476, 96 Fed. 943, 2 A. B. E. 770; In 155 Fed. 703, 19 A. B. E. 51. re Francis- Valentine Co., 1 N. B. N. 529, 74^-In re Green, 179 Fed. 870, 24 A. 94 Fed. 793, 2 A. B. E. 522, afE'g 1 N. B. E. 665. B. N. 532, 93 Fed. 953, 2 A. B. E. 188; 75— In re DeLong, 1 N. B. N. 26, 1 In re Pruschen, 1 N. B. N. 526. A. B. E. 66. This is contradicted In re Easley, 1 76 — Bratton v. Anderson, 14 N. B. E. N. B. N. 230, 1 A. B. R. 715, 93 Fed. 99. 419, but as that was decided on the theory 77 — Bowe v. Page, 13 N. B. B. 366. that § 67f 'only applied to involuntary 78— In re Neely, 108 Fed. 371, 5 A. B. proceedings, which position is now held E. 826. § 1057] Suits by and Against Bankkupt 807 Where a state court has acquired jurisdiction by levy of an execution on a judgment prior to the filing of the petition, a court of bankruptcy will not enjoin the sale of property under the execution upon petition of the bankrupt.''® Neither will it enjoin the enforcement of judgment and execution against the surety on a bail bond taken in a state court suit pending at the date of the adjudication in bankruptcy.^" If the judgment was recovered more than four months prior to the filing of the petition in bankruptcy, the creditor may be permitted to enforce his judgment by execution against real property of the bankrupt or an interest therein on which it is a legal lien.®^ In case the suit is stayed the trustee will be subrogated to the rights of such plaintiffs and may continue it for the benefit of all the creditors.** Proceedings upon a judgment against the bankrupt for per- sonal injuries inflicted by a dog owned by his tenant will be stayed, since the judgment is a dischargeable debt.®* After the bankrupt's discharge, execution on a judgment upon a debt within the operation of the discharge, will be perpetually stayed,** and the enforcement of a judgment against the non- exempt portion of the bankrupt's salary becoming due after his adjudication will be enjoined until the question is determined whether he shall receive a discharge, in which case, however, an order will be made directing the bankrupt's employer to withhold such non-exempt portion of the salary until that ques- tion is determined.*** The act does not forbid the bringing of a suit against one who has been adjudged a bankrupt or the recovery of a judg- ment therein. Such suits or proceedings upon judgments therein may be stayed by the bankruptcy court, but the judgment is neither void nor voidable, and the plaintiff may pursue his 79— In re Shoemaker, 112 Fed. 648, v. Sharkey, 3 N. B. E. 138; In re Huf- 7 A. B. E. 437. nagel, 12 N. B. E. 554, Fed. Cas. No. 80— In re Franklin, 106 Fed. 666, 5 6837; In re MoNamara, 2 N. B. N. E. A. B. E. 284. 341. 81— In re Arden, 188 Fed. 475, 26 A. 83— In re Lorde, 144 Fed. 320, 16 A. B. B. 684. But see In re Vastbinder, 132 B. E. 201. Fed. 718, 13 A. B. E. 148. But see In re 84— Barnes Mfg. Co. v. Norden, 67 N. Baughraan, 138 Fed. 742, 15 A. B. E. 23. J. L. 493, 7 A. B. E. 553. 82— In re Lesser, supra; In re Adams, ■ 85 — In re Van Buren, 164 Fed. 883, 1 N. B. N. 167, 1 A. B. E. 94; Smith v. 21 A. B. E. 338, s. o. 20 A. B. E. 896. Meisenhemier, 1 N. B. N. 19; Goodwin 808 Beandenbueg on Bankeuptcy [§ 1057 remedy in the state court against the exempt property of the bankrupt.*" The sale of the property of a surety on a forthcoming bond, given by the bankrupt, to satisfy a judgment on the bond will not be restrained.*^ Effect of bankruptcy upon judgments obtained in actions commenced within the four-month period, see also ante, section 870. § 1058. — Proceedings to enforce liens. A court of bankruptcy has power to stay proceedings in the state court seeking to take away from its trustee either the prop- erty itself or to impose a lien upon it,*^ and may stay proceed- ings to enforce valid liens against the bankrupt's property until the trustee can look into the matter and decide if any benefit can be secured from the encumbered property for the estate; and may stay such proceedings permanently as far as any personal judgment against the bankrupt is concerned.®* A suit brought to enforce a lien, the creation of which is charged to have been an act of bankruptcy, may be stayed where the property is still in the possession of the bankrupt ®^ and lien holders may be enjoined from prosecuting the foreclosure of their liens in a suit brought in a state court before the commence- ment of the bankruptcy proceedings, but within four months thereof, though it is not claimed that the liens are fraudulent or preferential, or invalid for any other reason.®^ A bankruptcy court, notwithstanding bankrupt has received his discharge, will enjoin an officer of a state court and all others from selling bankrupt's property under a decree procured by fraud, and direct its sale by the trustee in bankruptcy free of all liens, transferring to the proceeds of the sale all valid liens on the property.®* 86— Snyder v. Guthrie, 6 Pa. Dist. Ct. 484; In re Snedaker, 3 N. B. E. 155; In Eep. 490, 17 A. B. E. 902. re MigeU, 2 N. B. E. 153, Fed. Cas. No. 88— Terry v. Johnston, 129 Fed. 354, 9538. 12 A. B. E. 17. 91— In re DoneUy, 188 Fed. 1001, 26 89— In re Bluestone Bros., 174 Fed. 53, A. B. E. 304. 23 A. B. E. 264. 92— In re Dajia, 167 Fed. 529, 21 A. 90— Porter v. Cummings, 1 N. B. N. B. E. 683. 520; In re Ball, 118 Fed. 672, 9 A. B. 93— Southern L. & T. Co. v. Benbow, E. 276; McKay v. Funk, 13 N. B. E. 1 N. B. N. 499, 96 Fed. 514, 3 A. B. E. 334; Markson v. Heaney, 12 N. B. E. 9. §1058] Suits by and Against Bankbupt 809 Creditors holding an assignment of wages may be enjoined from collecting wages due at the time of the filing of the petition, or becoming due thereafter.®* The bankruptcy court will so regulate the time and manner of enforcement of valid liens, as not to cause unnecessary loss to others.®^ Since the stay is purely discretionary with the bank- ruptcy court, unless it appears that a larger sum would be , realized from a sale by the trustee in bankruptcy than under authority of the state court, and the general creditors would be the beneficiaries of this increased price, the proceedings in the state court to foreclose a mortgage or enforce a valid lien should not ordinarily be stayed,®^ but the trustee should be permitted to intervene or otherwise keep himself informed so as to protect the interest of the estate should a surplus be unexpectedly real- ized.®^ The same is true where the trustee claims that the amounts claimed by the mortgagees are subject to credits and set-offs;®* nor will proceedings be stayed where the holder of a chattel mortgage took possession of the mortgaged property long prior to the filing of the petition and brought suit to fore- close such mortgage in a state court, that being the only court in which he could bring it ; ®® but they will be stayed if such suit is commenced after the filing of the petition and the validity of the mortgage lien or some part of it is involved in the bank-' niptcy proceedings.^ A suit to foreclose a valid lien commenced more than four months prior to bankruptcy,^ or commenced within four months to enforce a lien created before that period,* will not be stayed, and the filing of a petition by the defendant in a state court proceeding to foreclose a lien on realty created more than four months before the filing of the petition, does not 94— In re Driggs, 171 Fed. 897, 22 1 A. B. E. 659, 93 Fed. 638; In re A. B. E. 621; In re Sims, 176 Fed. Tait, 1 N. B. N. 140. 792, 23 A. B. E. 899. 98— In re Porter, 109 Fed. Ill, 6 A. 95— In re PoUman, 16 A. B. E. 144. B. E. 259. 96— In re Sabine, 1 N. B. E. 45, 1 99— Heath v. Shaffer, 1 N. B. N.. 326, A. B. E. 315; In re Pittelkow, 1 N. B. 399, 93 Fed. 647, 2 A. B. E. 98. N. 234, 92 Fed. 901, 1 A. B. E. 472; 1 — In re San Gabriel Sanatorium Co., see In re Kerosene Oil Co., 2 N. B. E. 2 N. B. N. E. 827, 102 Fed. 310, 4 529; In re Duryea^ 17 N. B. E. 495; Au- A. B. E. 197. gustlne v.- MeFarland, Fed. Cas. . No. 2 — In re TTnited Wireless Telegraph 648; Eyster v. Gaff, 91 XT. S. (1 Otto) Co., .192 Fed. 238, 27 A. B. E. 1. , 521, 23 L. ed. 403; Orr v. Tribble, 158 3— In re Eohrer, 177 Fed. 381, 24 Fed. 897, 19 A. B. E. 849. A. B. E. 52, 97— In re HoUoway, 1 N. B. N. 264, 810 Bbandenbubg on Bankbuptcy [§ 1058 affect the right of the plaintiff to proceed, unless he prove his demand in the bankruptcy court.* Where the trustee abandons incumbered property, either vol- untarily or by order of the court,^ or takes no steps to redeem such property,® the secured creditor may foreclose his lien or mortgage in the state court, after first obtaining leave of the court of bankruptcy; '' and a decree made and a sale had there- after are valid and a good title passes.^ Though the bankrupt may apply for a stay at any time, it has been held that the trustee's application will be denied and he will, be charged with costs where he waited until all the costs except those attending the sale had been incurred in a fore- closure suit.^ § 1059. — Mechanics' liens. It is abundantly established by the courts of last resort, fed- eral and state, that when the jurisdiction of a state court to enforce the liens of a mechanic or materialman has attached, that jurisdiction will not be divested by proceedings in bankruptcy instituted subsequently thereto.^" After the adjudication in bankruptcy, proceedings may be taken to enforce the liens ^^ thus obtained, though the better practice is to first obtain leave of the bankruptcy court to enforce the same. § 1060. — Proceedings to remove official. A proceeding to remove a city fireman for nonpayment of his debts will be restrained, he having obtained a discharge.** 4 — ^Beed v. Equitable Trust Co., 115 9 — In re Brinkman, 6 N. B. R. 541, Ga. 780, 8 A. B. E. 242. Fed. Gas. No. 1883; The World Co. v. 5— In re Zehuer, 193 Fed. 787, 27 A. Brooks, 3 N. B. E. 146. B. E. 536; Bank v. Bank, 11 N. B. E. 10— Hobbs v. Head & Dowst Co., 184 49. Fed. 409, 26 A. B. E. 63, aff'd 231 V. 6— McKay v. Funk, 13 N. B. E. 334. S. 692, 58 L. ed. 440, 31 A. B. E. 656; 7— In re Brinkman, 7 N. B. E. 421, Seibel v. Simeon, 62 Mo. 255; see also Fed. Cas. No. 1884 ; In re Duryea, 17 ante, § 914. N. B. E. 495, Fed. Cas. No. 1196; In re 11— In re Grisaler, 136 Fed. 754, 13 Kerosene Oil Co., 2 N. B. E. 164, 3 Ben. A. B. E. 508; In re Emslie, 2 N. B. N. 35, Fed. Cas. No. 7725. E. 992, 102 Fed. 291, 4 A. B. E. 126, 8— Eyster v. Gaff, 13 N. B. E. 546, rev'g 2 N. B. N. E. 324, 98 Fed. 716, 91 U. S. (1 Otto) 521, 23 L. ed. 403; 3 A. B. E. 516; In re Beck Provision Cutter V. Dingee, 14 N. B. E. 294, 8 Co., 2 N. B. N. E. 532; In re Droles- Ben. 469, Fed. Cas. No. 3518; In re baugh, 2 N. B. N. E. 1079; Clifton v. Wynne, 4 N. B. E. 5, Fed. Cas. No. Foster, 3 N. B. E. 162. 18117; Jerome v. McCarter, 15 N. B. 12— In re Hicks, 133 Fed. 739, 13 A. E. 546. B. B. 654. § 1062] Suits by and Against Bankeupt 8H § 1061. — Receivership proceedings. Where the main purpose of a suit in a state court is to fore- close a mortgage, and there is also an incidental prayer for relief appropriate to insolvency proceedings, a receiver's posses- sion thereunder will not be affected by a subsequent adjudication in bankruptcy of the mortgagor,** But where the main purpose of the petition is to obtain relief appropriate only in insolvency proceedings, the fact that a mortgage may be foreclosed as an incident therein will not save the case from the nullifying effect of bankruptcy upon pending state insolvency proceedings.** A sale by a receiver appointed by the state court more than a year prior to the filing of the petition in bankruptcy will not be stayed.^' A stay should not be granted in an interlocutory proceeding for the appointment of a receiver to take charge of realty claimed by the plaintiff, in which the order was framed to avoid conflict between the state and federal courts as to the final disposition of the realty and the rents and profits which might accrue therefrom in the receiver's hands, further than to enjoin the granting of any money judgment against the defendant; *" nor where a receiver had, more than four months before the bankruptcy proceedings, secured a judgment setting aside cer- tain transfers by bankrupt as fraudulent, but he should be allowed to administer the property recovered for the benefit of the creditor he represents; " nor will a receiver appointed by a state court or attaching creditors be restrained, merely on a prayer in a petition in involuntary bankruptcy, from disposing of the property in his hands.** §1062. —Replevin. A replevin suit instituted by a vendor of chattels who rescinds for fraud is not affected by bankruptcy,** but where after an 13— Merry v. Jones, 119 Ga. 643, 11 re Meyers, 1 N. B. N. 293, 1 A. B. E. A. B. E. 625. 347. 14— Merry v. Jones, 119 Ga. 643, 11 18— Mather v. Coe, 1 N. B. N. 554, A. B. B. 625. 92 Fed. 333, 1 A. B. E. 504; In re Ogles, 15— In re Sterlingworth Ey. Supply 1 N. B. N. 326, 1 A. B. E. 671, 93 Fed. Co., 165 Fed. 267, 21 A. B. E. 342. 426, 1 A. B. E. 671. 16 — ^Porter v. Cummings, 1 N. B. N. 19 — Linstroth Wagon Co. v. BoUew, 520. 149 Fed. 960, 8 L. E. A. (N. S.) 1204, 17— In re 'United Wireless Telegraph 18 A. B. E. 23. Co., 192 Fed. 238, 27 A. B. E. 1; In 812 Bkandenbueg on Bankeuptcy [§ 1062 assignment for creditors a vendor of goods alleged to liave been fraudulently obtained assigns his claim and the assignee replevies the goods, a miscellaneous seizure being made there- under prior to the bankruptcy, proceedings under said replevin should be enjoined on account of the abuse of the replevin writ and the proper protection of bankrupt's other creditors.^** § 1063. — Action for services. An action for legal services rendered the bankrupt may be stayed, though it is alleged that the services were obtained through fraud and misrepresentation.^^ § 1064. — Stockholder's suit. A stockholder's suit against the bankrupt, its director and a subsidiary company will not be enjoined where the receivers appointed therein have turned over all the assets of the corpora- tion to the trustee in bankruptcy and there is a legitimate scope for the judgment of the state court.^^ § 1065. — Action to compel delivery of stock. An action against a bankrupt corporation to compel delivery of a certificate of its stock will not be stayed.^^ § 1066. — Action by trustee of another estate. An action against the bankrupt by the trustee of the estate of another bankrupt to recover an alleged preference will be restrained only in so far as it may attempt to seek the recovery of property in the possession of the trustee of the defendant, or to liquidate damages against the defendant's estate.^* § 1067. — Unlawful detainer and distress for rent. A writ of forcible detainer is not a suit within the meaning of section 11, so that it may be enjoined.^^ However, a sale of goods distrained for rent in arrear has been stayed.^® 20 — In re Gutwillig, 1 N. B. N. 19, 23— In re Clipper Mfg. Co., 179 Fed. 166,' 90 Fed. 481. 843, 24 A. B. R 683. 21— Gleason v. Thaw, 185 Fed. 345, 24 — In re Tomlinson, 193 Fed. 101, 27 34 L. E. A. (N. S.) 894, 25 A. B. E. A. B. E. 780. 782, afe'g 180 Fed. 419, 24 A. B. E. 25— In re Van Da Grift Motor Car 759. Co., 192 Fed. 1015, 27 A. B. E. 474. 22— In re United Wireless Tel. Co., 26— In re Lines, 133 Fed. 803, 13 A. 196 Fed. 153, 28 A. B. E. 394. ^ B. E. 318. §1071] Suits by and AaAiNST Bankeupt 813 § 1068, — Action for wrongful death. A claim for unliquidated damages founded in tort, unaccom- panied with contractual liability is not provable and therefore not discharged and an action for damages for death by wrongful act will not be stayed.^^ § 1069. Period during which stay may be had. Courts of bankruptcy will only interfere by summary order to avoid a conflict of jurisdiction between the officers of state courts and those of the court of bankruptcy when such conflict clearly appears to exist,^® and their jurisdiction extends to the enjoin- ing of state court bankruptcy proceedings, though the latter were commenced prior to the filing of the petition in the bank- rupt court.^® They will not restrain proceedings against a bankrupt in a state court unless bankruptcy proceedings are pending; *" but as soon as they are commenced, the court of bankruptcy acquires sole jurisdiction and may enjoin further proceedings in other courts.*^ The stay must be until after an " adjudication, "^^ which means 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 a decree is finally confirmed.*' § 1070. Application for stay. § 1071. — Form of application and notice thereof. The application for stay when addressed to a court of bank- ruptcy, should be in the form of a motion or petition, setting forth the necessary- facts as to the nature of the debt and grounds for relief, supported by affidavits. When the application is made to a state court direct, in addition to the foregoing, the better rule requires that it should be accompanied by a certified 27— In re New York Tunnel Co., 159 Cas. No. 16983; Zahm v. Fry, 9 N. B. Fed. 688, 20 A. B. E. 25. E. 546, Fed. Cas. No. 18198; In re 28— In re Davidson, 2 N. B. E. 49, Ulrich, 8 N. B. E. 15, Fed. Cas. No. 2 Ben. 506, Fed. Cas. No. 3598. 14328; In re Wallace, 2 N. B. E. 52, 29— In re Citizens' Sav. Bk., 9 N. B. Fed. Cas. No. 17094; Keenan v. Shan- E. 152, Fed. Cas. No. 2J35. non, 9 N. B. B. 441, Fed. Gas. No. 7640. 30— In re Eieha;rdson, 2 N. B. E. 74, 32— See 11a Act of 1898. 2 Ben. 517, Fed. Cas. No. 11774. 33— Section 1 (2), Act of 1898. 31— In re Vogel, 2 N. B. E. 138, Fed. 814 Bbandenbueg on Bankruptcy [§ 1071 copy of the petition in bankruptcy, and a copy of the motion should be served upon the party to be restrained. As a foun- dation for enforcing the order by proceedings in contempt, a copy should be served upon the parties against whom it runs. It has been held, however, that a stay directed to the debtor and "all other persons" if served upon the persons to be restrained, need not contain their names.** Injunctions in bankruptcy, at least when issued in the primary stage of the proceedings, may be allowed and issued without notice,*" but the bankruptcy court has no jurisdiction to issue an ex parte injunc- tion, without notice or service of process, attempting to restrain a creditor from suing in a state outside of its jurisdiction.*^ An injunction will not be granted where the grounds are alleged in the petition on information and belief merely, and the petition is not accompanied by affidavits sustaining the allega- tions.*'^ If the papers disclose that the moving creditor lives at a distance, the application may be made by his attorney in his behalf. It should be apparent from the application papers, in which court the bankruptcy proceedings are pending.** ^ §1072. —Where made. The application for stay may be made either to the state court direct or to the court of bankruptcy. If the purpose is to enjoin the action of some person not a party to the proceeding, he should be named in the petition and brought in by subpoena. Thus a bankrupt who is defendant in a state court should file in that court proper pleadings setting up the pendency of the bankruptcy proceedings and ask for a stay; as otherwise the court is without proper notice upon which to act; and it is also the necessary procedure because the creditors, who are plaintiffs in the suit to be stayed, being parties to such action are within the state court's jurisdiction, and will be bound accordingly, while they are not subject to the jurisdiction of the bankruptcy court, and otherwise have not had proper notice of the petition, nor in any way been brought within its actual jurisdiction.*^ 34 — In re Lady Bryan Min. Co., 6 37 — In re Bloss, 4 N. B. E. 37, Fed. N. B. R. 252, Fed. Cas. No. 7980. Gas. No. 1562. 35— See In re Muller, 3 N. B. E. 86; 38— In re Goldberg, 117 Fed. 692, 9 Deady, 513, Fed. Cas. No. 9912. A. B. E. 156. 36 — Acme Harvester Co. v. Beekman 39 — In re Geister, 2 N. B. N. R. 297, Lumber Co., 222 U. S. 300, 56 L. ed. 208, 3 A. B. E. 228, 97 Fed. 322 ; Hill v. 27 A. B. E. 262. Harding, 107 U. S. (17 Otto) 631, 27 §1075] Suits by and Against Bankbupt 815 §1073. Form of restraining order. "When issued on a creditor's petition, the restraining order should conform to the language of the statute.*" § 1074. Ground of stay must be pleaded. The mere filing of a petition in bankruptcy does not divest the jurisdiction of a state court over an action; *^ but to affect such jurisdiction over pending actions, the adjudication or discharge must be pleaded,*^ which may be. done at any time after the institution of bankruptcy proceedings, but, if the bankrupt does neither, a judgment rendered against him is lawful and valid.** A plaintiff will be estopped from proceeding further with his suit without an order authorizing it where the pendency of the bankruptcy proceedings has been suggested and not denied,** or where an affidavit of defense, setting up the adjudication, is filed and the time has not arrived for discharge^*^ If a dis- charge would be a bar to a suit restrained, the creditor's remedy is to oppose the discharge in the manner provided by the act.** § 1075. Review of stay. The power of the bankruptcy court to stay pending suits after adjudication being purely discretionary, the appellate court will not interfere with its action in the matter on petition for review unless such discretion has been abused.*'^ An order sta,ying an action of replevin brought in a state court against a trustee in bankruptcy by a third party, is not a final decision or appealable, but may be brought before the appellate court for review by petition invoking the supervisory power of that court.*® L. ei. 493; Boynton v. Ball, 121 XI. S. B. E. 489; Hubert v. Horter, 14 N. B. 457, 30 L. ed. 985; Byster v. Gaff, 91 E. 430. V. S. (1 Otto) 521, 23 L. ed. 403. 43— Cutter v. Evans, 11 N. B. K. 448; 40— In re Keiler, 18 N. B. E. 10, Fed. Flanagan v. Pearson, 14 N. B. E. 37. Caa. No. 7647. 44^-Penny v. Taylor, 10 N. B. E. 2p0, 41— In re Irving, 14 N. B. K. 289, 8 Fed. Cas. No. 10957. Ben. 463, Fed. Cas. No. 7073; Murphy 45— Frostman v. Hicks, 15 ,N. B. E. V. Young, 18 N. B. E. 505. 41. 42 — Hellman v. Goldstone, 161 Fed. 46 — In re Archenbrown, 11 N. B. E. 913, 20 A. B. E. 539; In re Wesson, 88 149, Fed. Cas. No. 504. Fed. 855; Serra e Hijo v. Hoffman, 17 47 — New Elver Coal Land Co; v. Euff- N. B. E. 124; Haber v. Klauberg, 15 ner Bros,, 165 Fed. 881, 21 A. B. E. 474; N. B. E. 377; Holden v. Sherwood, 18 In re Lesser, 2 N. B. N. B. 599, 100 Fed. N. B. E. Ill; Bracken v. Johnson, 15 433, 3 A. B. E. 815. N. B. E. 106, 4 DUl. 518, Fed. Cas. No. 48— Section 24, b, Act of 1898; In re 1761; Eevere Cojiper Co. v. Dimook, Eussell, 101 Fed. 248, 3 A. B. E. 658. 19 N. B. E. 372; Smith v. Engle, 14 N. 816 Bbandenbubg on Bankbupiox [§ 1076 §1070. Dissolution of stay. The general rule is that if the discharge is granted, it may be pleaded in the state court, but if refused, the injunction will be dissolved. If the judgment creditor s^eks to have it dismissed, it must be by motion to dissolve and not by petition to dis- miss;*" and, if it restrained a suit pending adjudication, it is dissolved by a discharge in bankruptcy.^* The fact that the bankrupt had given bond in an action to release an attachment prior to liis bankruptcy, and the effect of his discharge on the liabilities of the sureties under the state statute, are matters which cannot be taken into consideration by the court on a motion to vacate the stay, but both parties should be remitted to their ^ghts in the court where the action is pending.^^ A stay may be vacated so as to permit the creditors to move the state court to punish the bankrupt for contempt committed prior to his adjudication.^^ § 1077. Permission to sue. The bankruptcy court may restrain a secured creditor from enforcing his claim in any other court or it may authorize him to litigate his claim in a state court; ^* and this will be done as the justice of the case seems to require.®* It may be permitted for the purpose of ascertaining the amount due, which amount shall be proved in the bankruptcy proceedings, but execution will be stayed; ®^ or to liquidate a claim in composition cases; ^* or to prevent the running of the statute of limitations against it, or to make service, or that testimony may not be lost, in the case of a debt from which a discharge would not be a release; ^'^ or it may permit a sale under execution, where an injunction has 49— In re Mallory, 6 N. B. E. 22, 1 7725; In re HoUoway, 1 N. B. N. 264, Sawy. 88, Fed. Oas. No. 8991. 1 A. B. E. 659, 93 Fed. 638; In re John- 50— In re Thomas, 3 N. B. B. 7, Fed. son, 127 Fed. 618, 11 A. B. B. 544. Gas. No. 13890. 54— In re Pittelkow, 1 N. B. E. 234, 51 — In re Bosenthal, 108 Fed. 368, 5 1 A. B. B. 472, 92 Fed. 901. A. B. B. 799. 55— Allen v. Montgomery, 10 N. B. E. 52— In re Sims, 176 Fed. 645, 23 A. 503; In re Bundle, 2 N. B. B. 49, Fed.: B. B. 899. Gas. No. 12138; In re Winn, 1 N. B. E, 53— Carter v. Hobbs, 1 N. B. N. 191, 132, Fed. Gas. No. 17876. 1 A. B. E. 215, 92 Fed. 594; In re Brink- 56— Ex p. Trafton, 14 N. B. B. 507, man, 7 N. B. B. 421, Fed. Gas. No. 2 Lowell, 505, Fed. Gas. No. 14133 ; In re 1884; In re Duryea, 17 N. B. B. 495, Fed. Wehe, 1 N. B. N.' 267. Gas. No. 1196; In re Kerosene Oil COi, 57 — In re GhirardelE, 4 N. B. E. 42. . 2 N. B. B. 164, 3 Ben. 35, Fed. Gas. No. § 1080] Suits by and Against Bankrupt 817 been granted restraining sucli sale, and the judgment creditors are bound by the order of the bankruptcy court and cannot recover the proceeds of the sale from the sheriff;''^ or a sale upon executions issued, on judgment notes dated six months previous and payable one day after date^ no resistance being made to the judgments, the liens to remain on the proceeds which were held subject to the court's order; '® or to bring an action of detinue; ®" but leave is not necessary to enable a landlord to sue a receiver in bankruptcy for fixtures removed from the premises during such receiver's occupancy.^^ Where the bankrupt has given a bond conditioned for the payment of any judgment that might be recovered, the court in which the action is pending should be left free to take whatever steps it thinks equitable in the premises in accordance with its own practice.**^ § 1078. Revival of right to sue after bankruptcy. Where an application for a discharge is pending no suit can be brought against the bankrupt until the application is dis- posed of, but after a discharge has been refused a creditor may institute and prosecute any action against the bankrupt as to after-acquired property which he might have instituted and prosecuted but for the adjudication in bankruptcy.®* Since the stay of a suit does not opera:te as a dismissal but merely suspends the proceedings, if the time within which a discharge may be granted expires without action, it has been beld that the right of action revives, since, bankruptcy proceed- ings are not terminated without a discharge.®* § 1079. Defense of suits pending against bankrupt. § 1080. —Right and duty of trustee to defend. A trustee may be ordered by the court to enter his appearance and defend any pending suit against a bankrupt,®® 58— O'Brien V. Weld, 15 N. B. R. 405; 62— In re Mercedes Import Co., 166 Samson v. Clark & Burton, 6 N. B. R. Ted. 427, 21 A. B. R. 590, rev'g 20 A. 403; Markson v.Heantsy, 4 N. B. R. 165, B. R. 648. 1 Dill. 497, Fed. Cas. No. 9098. 63— In re Barton's Estate, 144 Fed. 59— In re Meyer, 1 N. B. N. 99. 540, 16 A. B. R. 569. 60— In re Btuddleston, 1 N. B. N. 214, 64— Wood v. Hazen, 15 N. B. R. 491. 1 A. B. R. 572. 65— Section 11 (b) of Act of 1898. 61— In re Kelly Dry Goods Co., 102 Fed. 747, 4 A. B. R. 528. Brandenburg — 52 818 Beandenbtjeg on Bankeuptcy [§ 1080 Suits begun against a bankrupt before tbe latter 's bankruptcy may be defended or stayed, in the discretion of the court of bankruptcy, according as the interests of the bankrupt's cred- itors shall require; «« and, if it is decided to defend them, the trustee is entitled to be made a party, and the bankrupt will be enjoined from interfering.®^ The trustee cannot be compelled to defend a pending suit against his own wishes and those of a majority of the creditors, where the chances of success are slight and the advantage, if any, to be gained is small,®* and if he be appointed during the pendency of an action, the other defendants cannot make him a party defendant. If they have a claim for contribution against the bankrupt, their remedy is by intervention in the bankruptcy proceedings.^® § 1081. — Necessary parties. A bankrupt before bankruptcy, or his trustee' thereafter, is a necessary party to suits concerning the bankrupt's property, as a suit in equity or an action at law,''^" though it is held that the trustee is not entitled to intervene in a suit begun by attach- ment to recover possession of the property of the bankrupt.''^ He is a proper though not a necessary party to a suit by the vendor of a chattel electing to rescind the sale for fraud, and to recover the property, where the property has been seized prior to the institution of the bankruptcy proceeding under a writ of sequestration. '^^ § 1082. — Manner of becoming a party. The trustee in bankruptcy should appear in the state court and, by pleading the adjudication of bankruptcy and his appoint- ment as trustee, lay the foundation for the protection of his 66 — ^In re St. Albans Foundry Co., 2 69 — Oliver v. Chmningham, 19 N. B. N. B. N. E. 1093, 4 A. B. E. 594. E. 400, Fed. Cas. No. 10493. 67— Samson v. Burton, 4 N. B. E. 1, 70 — Walker v. Seigel, 12 N. B. E. 394, Fed. Cas. No. 12285; In re O ^Connor, 1 Fed. Cas. No. 17085; In re Carow, 4 N. B. N. 132, 1 A. B. E. 381. N. B. E. 178, Fed. Cas. No. 2426. 68 — Kessler v. HerHotz, 132 App. Div. 71 — Jewett BroS. v. Huffman, 14 N. (N. T.) 278, 22 A. B. E. 257; In re D. 110, 13 A. B. E. 738. Kearney Bros., 184 Fed. 190, 25 A. B. E. 72— Linstorth Wagon Co. v. Ballew, 757; Serra e Hijo v. Hoffman, 17 N. B. 149 Fed. 960, 8 L. E. A. (N. S.) 1204, E. 124; and see Victor Talking Mach. 18 A. B. E. 23. Co. V. Hawthorne etc. Co., 173 Fed. 617, 23 A. B. E. 234. §1084] Suits by and Against Bankrupt 819 rights. If he questions the jurisdiction of the state court, he can plead thereto in proper form. If the case be one that is removable under the provisions of the judiciary act, he can make the requisite showing. If he does not dispute the validity of any lien asserted by the plaintiff, he can set up his title and rights as trustee, subject to ihe admitted liei^, and the state court will protect his rights in the premises. If he wishes to contest the validity or extent of the adverse claim asserted by the plain- tiff in the state court, he can do so by answer or cross-bill.''^ It has been held that upon an application to intervene by a trustee, the statutes of the state and the rules and practice of its courts, govern as to whether or not the intervention will be permitted, the same as when any other party invokes such court's juris- diction. ''* § 1083. — Effect of trustee's appearance. The trustee will take up the case in the same situation which existed at the time of his intervention.'^^ If he appears and pleads in an action he waives want of notice before the bringing of the suit "' and, should he be substituted for the bankrupt^ he is bound by the judgment and the bankruptcy court will not interfere to prevent its execution, nor will he be allowed to attack such judgment any more than any other party.'''' § 1084. — What trustee may plead. A trustee may plead any defense which the bankrupt may plead, unless it is purely personal to the bankrupt, as is a plea of discharge,''® which must be pleaded affirmatively in a pro- ceeding by scire facias to revive a judgment as well as in an original suit.'^' Where, with the consent of the referee, a scire facias is issued after the adjudication and before the appoint- ment of a trustee upon a rbortgiage given by the bankrapt, he will not be allowed to have such judgment opened, the testiinony 73— Heath v. Shafeer, 1 N. B. N. 399, 2 N. B. N. E. 642, 4 A. B. K. 42; In re 93 Fed. 647, 2 A. B. E. 98. Skinner, 3 A. B. E. 163, 97 Fed. 190. 74— Bank of Oommeroe v. Elliott, 109 78 — Serra e Hijo v. Hoffman, 17 N. Wis. 648, 6 A. B. E. 409. B. E. 124; In re Kitzinger, 19 N. B. E. 75— Malleoli V. Adams, 199 Fed. 542, 152, Fed. Caa. No. 7861. 28 A. B. E. 916. 79— In re Wesson, 88 Fed. 855, 4 76— Eowe V. Page, 13 N. B. E. 366. Hughes 522. 77— In re Van Alstine, 100 Fed. 929, 820 Beakdenbueg on Banketjptct [§ 1084 showing the claim to be valid and his bankruptcy not relieving the defendant of the duty of filing an affidavit of defense; but the court will permit the trustee, after his appointment, to set up any meritorious defense and open the judgment for that purpose, except when it appears that the claim is valid and permission had been given to enforce it, in which latter case, however, the trustee should be permitted to intervene to be heard on any question arising upon subsequent proceedings.*" §1085. —Costs. The trustee will incur no liability for costs accrued before his intervention, nor will he become personally liable for any costs whatever, so long as he acts in good faith.*^ Where a non-resident trustee seeks to intervene in an admi- ralty suit pending in another district, the court in its discretion may determine whether he should give security for costs.*^ § 1086. — Removal of cause. A trustee in bankruptcy cannot remove a cause, commenced in a state court against the bankrupt, to a federal court unless the necessary jurisdictional facts appear,*^ § 1087. Judgments after bankruptcy. A judgment in an action against the bankrupt begun after the adjudication in bankruptcy does not bind the trustee not a party, even though the action was commenced before his appointment.** § 1088. Intervention of trustee as plaintiff in creditors' suit. The trustee is not entitled to be substituted as plaintiff in a creditor's bill commenced by a creditor holding valid security, who has filed his claim unless such creditor has surrendered or waived his security.®' Nor is he entitled to be substituted as 80— Neiman v. Shoolbraid, 2 N. B. N. Oregon, 140 Fed. 957, 15 A. B. R. 564; R- 668. and see Heath v. Shaffer, 1 N. B. N. 399, 81— Malloeh v. Adams, 199 Fed. 542, 93 Fed. 647, 2 A. B. R. 98. 28 A. B. R. 916. 84^Hull v. Burr, 61 Fla. 625, 26 A. 82— Malloeh v. Adams, 199 Fed. 542, B. R. 897. 28 A. B. B. 916. 85— Kohout v. Chaloupka, 69 Neb. 83 — Swofford v. Cornucopia Mines of 677, 11 A. B. R. 265. § 1090] Suits by and Against BANKEtrpT 821 plaintiff in a creditor's suit commenced more than four months prior to the bankruptcy proceedings.®* Whether the action was commenced more than four months prior to bankruptcy, must be determined as of the date of the service of the summons. If the action is to set aside an alleged fraudulent transfer of a partnership the service of summons upon one partner more than four months prior to the bankruptcy of the partnership will prevent its trustee from being substi- tuted against the objection of the creditor.*'' § 1089. Intervention of receiver. The receiver in bankruptcy is not bound to intervene in a suit against the bankrupt,®* and an agreement by him providing for the appearance of the bankrupt in a proceeding in the state court is not an agreement that he himself should also appear.*® Where the receiver intervenes, in a cause, commenced in a state court against the bankrupt he cannot have the same removed to' a federal court, unless the jurisdictional facts appear.^" § 1090. Trustee to prosecute suits. Section lie of the act provides that a trustee may, with the approval of the court, be permitted to prosecute as trustee any suit commenced by the bankrupt prior to the adjudication, with like force and effect as though it had been commenced by him,®^ so that the bankrupt cannot maintain a suit in his own name in 86 — ^Ninth Nat. Bank v. Moses, 39 ing at the time of the adjudication of Misc. (N. T.) 664, 11 A. B. E. 772; but bankruptcy, in which such bankrupt is a see Blick v. Ninuno, 30 A. B. K. 770. party in his own name, in the same man- 87 — ^Ninth Nat. Bank v. Moses, 39 ner and with the like effect as they Misc. (N. T.) 664, 11 A. B. E. 772. might have been presented or defended 88 — American Graphophone Co. v. by such bankrupt. . . . Leeds & Catlin Co., 174 Fed. 158, 23 A. "Section 16. . . . If, at the time B. B. 337. of the commencement of proceedings in 89 — ^In re Muncie Pulp Co., l5i Fed. bankruptcy, an action is pending in the 732, 18 A. B. E. 56. name of the debtor for the recovery of 90 — Swofford v. Cornucopia Mines of a debt or other thing which might or Oregon, 140 Fed. 957, 15 A. B. E. 564. ought to pass to the assignee by the 91 — Analogous provision in Act of assignment, the assignee shall, if he re- 1867. "Section 14. . . . he may quires it, be admitted to prosecute the sue for and recover the said estate debts action in his own name, in like manner and effects, and may prosecute and de- and with the like effect as if it had been fend all suits at law or in equity, pend- originally commenced by him." 822 Bbandenbubg on Bankeuptoy [§ 1090 relation to property not exempt, after the appointment of ■■ a trustee.®^ This provision applies only to suits in which the estate of the bankrupt has an interest, or which may be prosecuted by the trustee for the benefit of all the creditors, and not one that is personal to the bankrupt.®^ An action by a bankrupt in a state court does not abate upon the adjudication in bankruptcy or the appointment of a trustee, and in the absence of an application by the trustee for substitu- tion it may be prosecuted by the bankrupt.®* The trustee may be made a party by supplemental bill to a suit in equity as the bankruptcy of the plaintiff merely makes such suit defective; ** and it is not necessary to allege his representative character; ^ or be substituted on motion as appellant in a case before the U.S. supreme court on appeal where the appellant becomes bank- rupt after appeal.®'' The trustee will not be substituted as plain- tiff in a suit which has already proceeded to judgment against the banlirupt, where it appears that the only object of the motion for such substitution is to relieve the plaintiff of the judgment against him for costs.®* The trustee is not bound to intervene in a suit commenced by the bankrupt.®® ,, Uppn tiiie question as to the effect of the trustee's refusal to prosecute a suit in which he is entitled to enter his appearance, the decisions are conflicting, it being held on the one hand that sucl^ suit must be dismissed,^ and on the other that it idight be prosecuted in the naine of the bankrupt; ^ or more properly by . 92--Picl£ens v. Dent, 106 Fed. 653, 5 94— Colgan v. Finek, 30 A. B. B. 535. A. B. If. 644, aff 'd 187 V. S. 177, 47 L. 95— Bank v. Fowler, 12 N. B. E, 289. ed. 128, 9 A. B. R. 47. 96— Dambmann v. White, 12 N. B. B. 93— In re Haensell, 1 A. B. B. 286, 91 438. Fed. 355, 1 N, B. R. 340 (note) ; Towle 97— Herndon v. Howard, 4 N. B. E. 61, V. Davenport, 16 N. B. B. 478; Noo^an 9 Wall. 664, 19 L. ed. 809. V. Qrton, 12 N. B. E. 405; In re Franks, 98 — Murtaugh v. Sullivan, 74 Misc. 2 A. B. E. 634, 95 Fed. 635; In re Price, (N. Y.) 517, 27 A. B. E. 431. 92 Fed. 987,, 1 A. B. B. 606. 99— Kessler v. Herklotz, 132* App. Div. Trustee cannot be substituted as plain- (N. Y.) 278, 22 A. B. E. 257- Griffin tiff in action for libel. Epstein v. Hand- v. Mut. Life Ins. Co., 119 Ga, 664 11 verker, 29 Okla. 337, 26 A. B. E. 712. A. B. E. 622. Bankrupt may maintain an action for 1 — Towle v. Davenport, 16 N. B. E. ipersonal iiijury sustained prior to the 478. .adjudication. Sibley v. Nason, 196 Mass. 2 — Johnson v. Collier, 222 XJ. S. 538 125, 22 A. B. E. 712. 56 L. ed. 306, 27 A. b'. E. 454; Grifto § 1091] Suits by and Against Bankrupt 823 ■ creditors.^ There seems to be no good reason why the bankr rupt should not be permitted to prosecute such suit where the trustee declines to do so. While the approval of the court appointing the trustee is essential to the right of the trustee to prosecute a suit com- menced by the bankrupt,* yet, such approval having been given, a court in another district has jurisdiction to permit the trustee to intervene in a suit pending in such court.^ The trustee can- not, by intervening in a suit pending in a state, oust that court of jurisdiction.® The trustee, when substituted as plaintiff in a suit commenced- by the bankrupt, prior to his adjudication occupies no different position than the bankrupt would have occupied, and the trustee's rights as to the sale of the subject matter of the suit, are those which the bankrupt would have possessed but for his adjudication.'' Where the trustee brings suit he may be required under state laws to give security for costs,* but where he is not authorized to intervene in an action commenced by the bankrupt and does nothing to create an estoppel to assert that he has taken no part in the prosecution thereof, he cannot be held liable for costs although he acquiesced in the continuance of the action.^ § 1091. Actions by bankrupt after bankruptcy. The bankrupt has title to all choses in action until the appoint- ment and qualification of a trustee, and may institute suit thereon even after the filing of the petition.^" In such case, upon V. Mut. Life Ins. Co., 119 Ga. 664, 11 5— Malloeh v. Adams, 199 Fed. 542, A. B. E. 622; Hahlo v. Cole, 112 App. 28 A. B. E. 916. Div. (N. Y.) 636, 15 A. B. E. 591; 6 — ^Des Moines Savings Bank v. Mor- Noonan v. Orton, 12 N. B. E. 405. gan Jewelry Co., 123 Iowa 432, 12 A. B. 3— In re Groves, 2 N. B. N. E. 466. E. 781. The surety. upon an attachment bond 7 — Earl v. Jacobs, 142 N. W. 1079, 31 given in an action commenced by the A. B. E. 90. bankrupt may be substituted as plaintiff 8 — Joseph v. Eaff, 78 N. Y. S. 310, 9 in the action where the trustee declines A. B. B. 227; Joseph v. Makley, 73 App. to continue the suit. Blue Grass Canning Div. (N. Y.) 156, 8 A. B. E. 18. Co. V. Steward, 175 Fed. 537, 23 A. B. 9— Kessler v. Herklotz, 22 A. B. E. 257. E. 726. 10— Johnson v. Collier, 222 U. S. 538, 4— Malloeh V. Adams, 199 Fed. 542, 56 L. ed. 306, 27 A. B. E. 454; Band v. 28 A. B. E. 916; Hahlo v. Cole, 112 Iowa Cent. Ey. Co., 186 N. Y. 58, 16 App. Div. (N. Y.) 636, 15 A. B. E. 591; A. B. E. 692, rev'g 96 App. Div. (N. Kessler v. Herklotz, 132 App. Div. (N. Y.) 413, 12 A. B. E. 164. Y.) 278, 22 A. B. E. 257. 824 Bbandenbukg oh Bankeuptcy [§ 1091 the appCintment of a trustee, the latter may intervene in the suit commenced by the bankrupt, or he may institute a new suit, in which case the one commenced by the bankrupt will abate.^^ If, because of the disproportionate expense, or uncertainty as to the result, the trustee neither sues nor intervenes, the bank- rupt may continue the litigation. The right of a bankrupt who, prior to the bankruptcy pro- ceedings, had brought suit, reverts to him to commence such action after the trustees in bankruptcy have been discharged upon completion of their trusts, if they have done nothing in the original suit in the interval.** 11— See ante, § 1091. 12 — Connor v. Southern Exp. Co., 9 N. B. E. 138. CHAPTER XXVI Suits by and Against Tbustees § 1092. Jurisdiction under section 23a. § 1093. — In general. § 1094. — CompariBon of Acts of 1898 and 1867. § 1095. Jurisdiction under section 23b. §1096. — In general. § 1097. — Different constructions. § 1098. — Supreme court decision — ^Bardes v. Bank. § 1099. — Decisions prior to Bardes v. Bank favoring jurisdiction. § 1100. — Early decisions against jurisdiction. § 1101. — Consent of defendant. § 1102. — Decisions under Act of 1867. § 1103. Ancillary jurisdiction. § 1104. State courts. 1 1105. — Jurisdiction under Acts of 1867 and 1898 compared. § 1106. — Illustrative cases. § 1107. — When state courts do not have jurisdiction. § 1108. — Rule governing state courts. § 1109. — Acts of state courts which bind federal courts. § 1110. Courts of District of Columbia. § 1111. Trustee 's rights of action. § 1112. — In general. § 1113. — Trustee represents creditors as well as bankrupt. § 1114. — Title to bankrupt 's choses in action. § 1115. — As to fraudulent conveyances. § 1116. — As to preferences. § 1117. — Contest of administrator 'b account. § 1118. — Accounting from assignee. § 1119. — Rights as to property in custody of law. 1 1120. — Rights as to collateral. § 1121. — Action for conspiracy. § 1122. — Liability of corporate officers. § 1123. — Assignment of trustee 's right of action. §1124. —Form of suit. §1125. —Stockholder's liability. § 1126. — Usurious contracts. § 1127. — Form of proceeding — At law or in equity. §1128. Conditions precedent to trustee's right of action. §1129. —Demand. § 1130. — Tender of purchase price. ^ 1131. — Judgment at law. § 1132. — Suit against receiver. § 1133. —Proof of claims. 825 826 Bbandenbueg on Banketjptcy [§ 1092 § 1134. — Order of court. § 1135. Notice of pendency of action. § 1136. Defenses. § 1137. — Former adjudication. § 1138. — Collateral attack on adjudication. § 1139. — Limitations. § 1140. Abatement of proceedings. § 1141. — Death or removal of trustee. § 1142. — Death or insanity of bankrupt. § 1143. Parties plaintiff. § 1144. Parties defendant. § 1145. Intervention by creditors. § 1146. Possession of property pending suit. § 1147. Injunction and sequestration pending snit^ § 1148. Stay of proceedings. § 1149. Process. § 1150. Bules of practice in general. § 1151. Petition or complaint. § 1152. — Caption. § 1153. — Allegations in general. § 1154. — Multifariousness. § 1155. — Prayet for judgment. §1156. — Variance; .. § 1157. Demurrer or plea. § 1158. Answer. § 1159. Cross-biU. § 1160. Jury trial. § 1161. Burden of proof. § 1162. Evidence. § 1163. Instructions. § 1164. Verdict. § 1165. Judgment or decree — ^Amount of recovery. §1166. Costs and attorney's fees. § 1092. Jurisdiction under section 23a. §1093. —In general. Section 23a deals with the jurisdiction of the United States circuit courts, and provides that ' ' such courts shall have juris- diction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy," (thus clearly recognizing the essential difference between proceedings in bankruptcy, on the one hand, and suits at law or in equity on the other), "between trustees as such and adverse claimants, concerning the prop- erty acquired or claimed by the trustees," restricting that juris- diction, however, by the further words, "in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between §1093] Suits BY AND Against Trustees 827 the bankrupts and such adverse claimants. ' ' ^ This clause must be construed in connection with section 291 of the Judicial Code of 1911 which abolishes the circuit court and provides that "Wherever, in any law not embraced within this act, any refer- ence is made to, or any power or duty is conferred or iiiiposed upon, the circuit court, such reference shall, upon the taking effect of this act, be deemed and held to refer to, and to confer such power and impose such duty upon, the district court's." As a result, the district courts now exercise, in addition to the jurisdiction conferred in bankruptcy proceedings proper, juris- 1 diction in all matters, including that conferred by section 23a, formerly exercised by the circuit courts. Section 23a, while relating to the circuit courts only, and not to the district courts of the United States, indicates the intention of congress that the ascertainment, as between the trustee in bankruptcy and a stranger to the bankruptcy proceedings, of the question whether certain property claimed by the trustee does or does not form part of the estate to be administered in bankruptcy, shall not be brought within the jurisdiction of the circuit court (now the district court) solely because the rights of the bankrupt and of his creditors have been ti^ansferred to the trustee in Isankniptcy. While the evident purpose of the act of 1898 was that the circuit court should be prohibited from entertaining jurisdiction of suits between the trustee and an adverse claimant to property which the creditors claimed belonged to the estate of the bankrupt, unless the bankrupt him- self could have resorted to the circuit court for the assertion of such claim against the adverse claimant,* the act of February 5, 1 — ^Analogous proyision of Act of 1867. For provisions with reference to pro- " Section 2. . . . That the several ceedings in law and equity, see G. O, circuit courts of the United States, with- XXXVti. The jurisdiction of circuit in and for the districts where the pro- courts of the United States is set forth ceedings in bankruptcy shall be pending in U. S. Eev. Stat., §§ 629-657, as . . . shall also have concurrent juris- amended by the Act of August 13, 1888 diction with the district courts of the (1 Supp. U. S. Eev. Stat. 611), and the same district of all suits at law or in acts specified in note 1 thereto, equity which may or shall be brought by 2 — Bardes v. Bank, 178 U. S. 524, 44 the assignee in bankruptcy against any L. ed. 1175, 2 N. B. N. E. 725, 4 A; B. person claiming an adverse interest, or E. 163 ; Hicks v. Knost, 2 N. B. N. E. by such person against such assignee, 734, 178 U. S. 541, 44 L. ed. 1183; touching any property or rights of prop- Mitchell v. McClure, 2 N. B. N. E. 735, erty of said bankrupt transferable to 178 U. S. 539, 44 L. led. 1182; Norcross or vested in such assignee." v. Nathan, 2 N. B. N. B. 405, 99 Ted. 828 Bbandenbxjeg on Bankeuptcy [§ 1093 1903, amending subdivision "b" of this section, expressly excepts actions to recover property, the transfer of which is voidable as a preference, or where such transfer was with the intent and purpose to hinder, delay or defraud his creditors. In view of the fact that the supreme court in the case of Bardes V. Bank held that subdivision "b" applied to the circuit as well as the district courts, it seems that the circuit courts also had jurisdiction over suits of this class by the trustee. "Where the amount in controversy exceeds $3,000 and there is diverse citizenship the district courts have jurisdiction irre- spective of the bankruptcy law.* The mere fact that the plaintiff . is a trustee in bankruptcy does not, however, confer jurisdic- tion under section- 23a.* Nor is the citizenship of the trustee material to the jurisdiction of a suit by him to recover assets in the hands of adverse claimants,® though in a controversy not within section 23 jurisdiction may be based on diversity of citi- zenship between the trustee and the defendant.^ A claimant could not be constrained to go into the district court to litigate his claim against the trustee, by the refusal of the circuit court to act, where such court had jurisdiction by reason of the amount involved and the citizenship of the parties.'' § 1094. — Comparison of Acts of 1898 and 1867. Under the act of 1898, four things were necessary to give the circuit court jurisdiction: (1) it must be a controversy at law or in equijty, as distinguished from proceedings in bankruptcy; (2) between a trustee in bankruptcy as such and adverse claim- ants; (3) concerning property acquired or claimed by such trustee; and (4) such as the bankrupt himself might have brought in such circuit court if the bankruptcy proceedings had not intervened. By the amendatory act of 1903, this jurisdiction was doubtless extended to include the recovery of property under sections 60b and 67e. No general rule can be given for determining what is a controversy at law or in equity as distin- 14, 3 A. B. B. 613; In re Murphy, 2 N. 5— Bush v. EUiott, 202 IT. S. 477, 50 B. N. R. 393, 3 A. B. B. 499. L. ed. 1114, 15 A. B. B. 656. 3— See Act March 3, 1887, 25 Stat. 6— McEldowney v. Card, 193 Fed. 475, U 433. 27 A. B. B. 937. 4 — McEldowney v. Card, 193 Fed. 475, 7 — ^MeFarlan Carriage Co. v. Bolanas, 27 A. B, E. 937. 106 Fed. 145, 5 A. B. K. 442. § 1094] Suits by and Against Trustees 829 guished from proceedings in bankruptcy, but considerable assistance may be had by consulting the cases,* in which the United States supreme court has considered the question. They held that adverse claimants were those who claimed some prop- erty, or right of property, as a fund, or lien upon a fund, or a right to proceeds of a judgment, which it was also claimed had belonged to the bankrupt and been transferred to his assignee in bankruptcy. Under the act of 1867 the circuit courts had con- current jurisdiction with the district courts of all suits at law or in equity between the assignee in bankruptcy and persons claiming an adverse interest touching any property or rights of property of said bankrupt transferable to or vested in such assignee. This practically coincides with the first three requi- sites under the present law and hence the .decisions under the act of 1867 may be consulted to ascertain what are "suits at law or in equity" and "persons claiming an adverse interest touching property or rights of property of bankrupt transfer- able to assignee" as they will aid in determining what is "a controversy at law or in equity, as distinguished from proceed- ings in bankruptcy" and an "adverse claimant"; but, owing to the restriction imposed by the present act as to such con- troversies being such as the bankrupt might himself have been a party to if there had been no bankruptcy proceedings, few of those cases would now be within the jurisdiction of the dis- trict court by virtue of section 23a.® 8 — Morgan v. Thornhill, 11 Wall. 65, of a trust fund, held by a trustee ap- 75, 20 L. ed. 60; Marshall v. Knox, 16 pointed in bankruptcy proeeedinga; Wall. 551, 21 L. ed. 481; Smith v. Mason, (Sutherland v. L. S. S. C. R. & I. Co., 14 Wall. 419, 430, 20 L. ed. 748; Bur- 9 N. B. R. 298; Fed. Cas. No. 13643) a bank v. Bigelow, 92 TJ. S. (2 Otto) 179, bill by an assignee against lien holders 23 L. ed. 542; Bush v. Elliott, 202 U. S. to ascertain the amount due and sell the 477, 50 L. ed. 1114, 15 A. B. R. 656. property free from incumbrances; (Hnd- 9— Consult Payson v. Dietz, 8 N. B. son v. Schwab, 18 N. B. R. 480; Fed. E. 193; 2 Dill. 504; Fed. Gas. No. 10861, Cas. No. 6835) restraining an action of an action by assignee to recover a debt in trover against a marshal for taking pos- a state other than that where bank- session, under a warrant in bankruptcy, mptey proceedings were pending: (In re of certain goods claimed by the plaintiff Ballou, 3 N. B. R. 177; 4 Ben. 135; in trover; (Markson v. Heaney, 4 N. B. Fed. Cas. No. 818) to procure delivery R. 165; Fed. Cas. No. 9098) refusing to of property suffered to be taken through enjoin a foreclosure suit by a district legal proceedings with intent to prefer; court in another state; (N. C. v. Univer- (Lewis V. U. S., 14 N. B. R. 64, 92 U. sity, 5 N. B. E. 466; 1 Hughes, 183, Fed. S. (2 Otto) 618, 23 L. ed. 513) a bill Cas. No. 10318) holding that it had no filed by the V, S, to obtain payment out jurisdiction of a suit by a state against 830 Beandenbtjeg on Bankruptcy [§ 1094 Section 23a did not confer jurisdiction upon the circuit court in all controversies in which trustees as such were involved, but only in controversies between the trustee and adverse claimants, involving, generally speaking, the ascertainment, as between the trustee in bankruptcy and a stranger to the bankruptcy pro- ceedings, of the question whether certain property claimed by the trustee formed a part of the estate in bankruptcy,^" It. has no application where the controversy is not one with an adverse claimant as to right or title of the trustee to any property claimed by the trustee to have passed to him as part of the estate, but involves transactions between the defendant and the trustee himself, subsequent to the adjudication.^^ Thus in a suit by the trustee in trover to recover the value of property belonging to the estate that has been converted by the defendant to his own use after the adjudication in bank- ruptcy, jurisdiction of the circuit court could not have been maintained under either clause of section 23, but, as in any other case in which the requisite amount was involved, might have been based upon diversity of citizenship between the trustee personally and the defendant.^^ So, the circuit court had no jurisdiction under section 23a over a suit which involved merely the right of the trustee to recover for an alleged breach of contract for the purchase of property from the trustee.^' § 1095. Jurisdiction under section 23b. §1096. —In general. Section 23b of the act provides that "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 proposed defend- ant,^* except suits for the recovery of property under section its citizens, neither the eonstruetion nor Silk Co., 191 TT. S. 526, 48 L. ed. 287, 11 act of congress conferring such jurisdic- A. B. E. 563. tion. 12— McEldowney v. Card, 193 Fed. 475, 10— McEldowney v. Card, 193 Fed. 475, 27 A. B. R. 937. 27 A. B. R. 937. 13— McEldowney v. Card, 193 Fed. 475, 11— McEldowney v. Card, 193 Fed. 27 A. B. E. 937. 475, 27 A. B. R. 937 i Spencer v. Duplau 14— The amendment to this subdivision § 1096] Suits by and Against Trustees 831 60, subdivision b; and section 67, subdivision e; and section 70, subdivision e."*® The original act of 1898 limited the jurisdiction of the federal courts to those cases which the bankrupt might have brought in the absence of a bankruptcy law, unless by consent of the proposed defendant. This necessarily excluded that large class of cases for the recovery of property in the hands of a third person or stranger to the bankruptcy proceedings under a con- veyance either voidable as a preference or null and void as given with intent to hinder, delay or defraud Creditors. The court of bankruptcy had no power by summary order to direct the surrender of such property to the trustee in bankruptcy nor to restrain its disposition, but resort must have been to the forum having jurisdiction over the person or property of the proposed defendant. ^^ To meet the difficulty incident to such restricted jurisdiction, congress, by the act of February 5, 1903, specifically gave the federal courts jurisdiction over actions (1) to recover property transferred to a creditor who had reasonable cause to believe that a preference was thereby intended, as defined by the law, (2) to recover property con- veyed, transferred, assigned or incumbered within four months of the filing of the petition in bankruptcy, with the intent and purpose on the bankrupt's part to hinder, delay and defraud by the aet of 1903 consists in the addi- Bernheimer, 181 U. S. 188, 45 L. ed. .SW, tion of the words at the end thereof, 5 A. B. R. 623 ; In re Baird, 116 Fed. "except suits for the recovery of prop- 765, 8 A., B. E. 649; In re Silberhorn, erty under section sixty, subdivision b, 105 Fed. 899, 5 A. B. E. 568; In re and section sixty-seven, subdivision e." Gerdes, 102 Fed. 318, 4 A. B.'B. 346; In 15 — The amendment of 1910 adds the re Sau Gabriel Sanatorium Co., Ill Fed. •words, "and section 70, subdivision e." 892, 7 A. B. R. 206; In re Sheinbaum, 16— Bardes v. Hawarden Bk., 178 IT. 107 Fed. 247, 5 A. B. E. 187; In re T61- S. 524, 44 L. ed. 1175, 2 N. B. N. E. lett, 105 Fed. 425, 5 A. B. E. 305; Wood- 725, 4 A. B. E. 163 ; Hieks v. Konst, 178 rufE v. Cheeves et al., 105 Fed. 601, 5 A. IT. S. 541, 44 L. ed. 1183, 4 A. B. E. 178, B. R. 296; Eeal Estate Trust Co.* v. 2 N. B. N. E. 734; Mitchell v. McClure, Thompson, 112 Fed. 945, 7 A. B. E. 520; 178 TJ. S. 539, 44 L. ed. 1182, 2 N. B. N. In re Ward, 104 Fed. 985, 5 A. B. R. E. 735, 4 A. B. E. 177; Wall v. Cox, 181 215; In re Michie, 116 Fed. 749, 8 A. U. S. 244, 45 L. ed. 845, 5 A. B. E. 727; B. R. 734, 116 Fed. 749; In re Steed, Mueller v. Nugent, 184 XT. S. 1, 46 L. ed. 107 Fed. 682, 6 A. B. E. 73; Bush v. 405, 7 A. B. E. 224; Louisville Trust Co. Elliott, 202 U. S. 477, 50 L. ed. 1114, 15 V. Cominger, 184 U. S. 18, 46 L. ed. 413, A. B. E. 656; Haffenberg v. Chicago Title 7 A. B. E. 421; Pickens v. Roy, 187 U. & Trust Co., 192 Fed. 874, 27 A. B. E. S. 177, 47 L. ed. 128; Jaquithv. Rowley, 708. 188 U. S. 620, 47 L. ed. 620; Bryen v. 832 Beandenbueg on Bankeuptcy [§ 1096 his creditors; and by the act of June 25, 1910, gave the federal courts jurisdiction Over actions (3) to recover property trans- ferred by the bankrupt, in fraud of creditors, prior to the four- month period.^'^ Suits of the character indicated could, under the amendments, be brought in either the circuit or district courts, since, under the decision of the supreme court, subdivision " b " of this section applied equally to both courts, but by an amendment to sections *'60b," "67e," and "70e" it is provided that for the purpose of the recovery of such property "any court of bankruptcy as here- inbefore defined, and any state court which would have had jurisdiction if bankruptcy had not intervened, shall have con- current jurisdiction." Accordingly the court of bankruptcy is now -given jurisdiction over actions for the recovery of such property, irrespective of the amount involved, which is con- current with the state courts, while the circuit court, during its existence, had a like jurisdiction where the amount exceeded $2,000. While the bankruptcy court has jurisdiction over a suit by the trustee to recover the value of property obtained by the bankrupt through fraud and transferred to the defendant with knowledge of the facts,^* it has no jurisdiction of a suit to recover damages suffered by reason of the conspiracy between the bankrupt and defendant,^'' nor of a suit by the trustee to recover property in the hands of a third person, alleged to belong to the bankrupt, where there is no allegation of fraud, but merely a wrongful refusal to surrender. 2° The fact that a complaint contains an allegation of conversion does not, how- ever, oust the court of jurisdiction.^^ Trust property belonging to the bankrupt, but never in his possession or transferred by him cannot be reached by a suit in bankruptcy court.^^ The referee is not a court of bankruptcy within the meaning of section 23b, and while he has jurisdiction to set asi'de a f raudu- 17 — Newcomb v. Biwer, 199 Fed. 529, 21 — Grant v. Nat. Bank of Auburn, 197 29 A. B. E. 15. Fed. 581, 28 A. B. E. 712. 18— In re MoMahon, 147 Fed. 684, 17 22 — Eule applied where property -was A. B. E. 530 ; Lynch v. Bronson, 160 Fed. alleged to be held by wife under secret 139, 20 A. B. E. 409. trust. Newcomb v. Biwer, 199 Fed. 529, 19— Lynch v. Bronson, 177 Fed. 605, 29 A. B. E. 15. 24 A. B. E. 513. 20— Harris v. First Nat. Bank, 216 tJ. 8. 382, 54 L. ed. 528, 23 A. B. E. 632. ► §1097] Suits by and Against Tbustees 833 lent transfer where the res is in the possession of the court, he has no such jurisdiction where the property is not in the posses- sion of the court."^ Section 23b relates only to suits by trustees and has no restric- tive effect on the right of receivers (or trustees for that matter) to maintain or defend their possession of the goods seized as those of the bankrupt.^* It should be observed that the amend- ments extending jurisdiction to the federal courts, apply only to suits by the trustee, and not by an adverse claimant, as to whom the jurisdiction remains the same as prior to the amendment. Adverse claimants may, in a proper case, sue or be sued in the federal courts when the bankrupt might have sued there on the same cause of action; that is, in ease of diversity of citizenship and requisite amount involved. But when the adverse claimants come voluntarily into the court of bankruptcy and claim prop- erty in the possession of the trustee, wherever situated, or assert a lien thereon and seek to have it established and enforced or protected, the bankruptcy court has jurisdiction uHder sub- division 7 of section 2 of the act.^^ §1097. — Different constructions. This subdivision as it appeared in the act of 1898 was the source of much difference of opinion, but the amendments of 1903 and 1910, largely remove the difficulty. Three construc- tions were put upon the limitations imposed by this subdivision as it appeared before the amendments. The first confined its operation to the circuit courts; ^® the second gave to the state courts exclusive jurisdiction, except with the defendant's con- sent, of all suits concerning the bankrupt's estate brought by the trustee against any person other than the bankrupt; ^'' and the third gave the state courts exclusive jurisdiction, except with the defendant's consent, of suits concerning the bankrupt's estate, if they were such as bankrupt himself could have brought had he not been a bankrupt, but reserved to the district court, at least concurrent jurisdiction, of those suits by the trustee 23— In re Overholzer, 23 A. B. E. 10. 26— In re Sievers, 1 N. B. N. 168, 1 24— In re Lipman, 201 Fed. 169, 29 ^- B- E- 117, 91 Fed. 366. j^ g jj -„„ 27— Perkins v. MoCauley, 98 Fed. 286, ■ ■ ■ 3 A. B. E. 445; Shoshone Min. Co. v. 25— In re MacDougaU, 175 Fed. 400, Eutter, 177 U. S. 505, 511, 513, 44 L. 23 A. B. E. 762. ed. 864. Brandenburg — 53 834 Bbandenbuecs on Bankeuptcy , [§ 1097 against a stranger, which the bankrupt himself could not have brought; as suits to set aside an assignment or restrain the sale of property held nnder an attachment avoided by the bankrupt act, or, as otherwise expressed, suits origiiial with the trustee and not derived by him through those whom he represents.^* § 1098. — Supreme court decision — Bardes v. Bank. Notwithstanding the amendment which entirely changed the jurisdiction, the decision of the supreme court of .the United States in the leading case of Bardes v. Hawarden Bank, is interesting as a treatment of the jurisdiction of the court, although the amendment of 1903 is designed to meet the obstacles presented by that decision. In that case the court stated that subdivision "b" applied to the district courts and to the circuit courts of the United States, as well as to the state courts, this appearing not only by the words of the title of the section, but also by the use, in this clause, of the general words, "the courts," as contrasted with the specific words, "the United States circuit courts," in the first and third clauses. It posi- tively directs that "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 proposed defendant." Had there been no bankruptcy proceedings, the bankrupt might have brought suit in any state court of competent jurisdiction; or, if there was a sufficient jurisdictional amount, and the requi- site diversity of citizenship existed, or the case arose imder the constitution, laws or treaties of the United States, he could have brought suit in the circuit court of the United States.^® He could not have sued in a district court of the United States,^" because such a court had no jurisdiction of suits at law or in equity between private parties, except where, by special provision of an act of congress, a district court had the powers of a circuit court, or was given jurisdiction of a particular class of civil suits. Congress appeared by this subdivision to have clearly mani- 28 — In re Hammond, 98 Fed. 845, 3 30 — Changed by the amendment of A. B. E. 466. Feb. 5, 1903. 29— Act of Aug. 13, 1888, ehap. 866, 25 Stat. L. 434. §1098 ] Suits by and Against Trustees 835 fested its intention that controversies, not strictly or properly part of the proceedings in bankruptcy, but independent suits brought by the trustee in bankruptcy to assert a title to money or property as assets of the bankrupt against strangers to those proceedings, should not come within the jurisdiction of the district courts of the United States, "unless by consent of the proposed defendant." ^^ In other words the question of the forum in these cases was to be determined as if there were no bankruptcy. Since congress has no constitutional power to impose upon the state courts the duty of administering any part of the bank- rupt act, and since the preformance of such duty by such state courts is purely discretionary and they might at any time wholly renounce it or impose onerous conditions,*^ the question is sug- gested whether the foregoing decision of the supreme court ** did not leave aU actions by the trustees against adverse parties where the cause of action arose under the bankrupt act at the discretion of the state courts ; and is not that fact a strong argu- ment in favor of the construction contended for by those who held this subdivision applied if the cause of action existed in. the bankrupt — that is, independently of the bankrupt law — ^but not if the cause of action was created in the trustee by the law, and are not both constructions equally consonant with the language of the subdivision? This view is strongly supported by a recent well considered opinion of a state supreme court which holds that bills by the trustee to reach property trans- ferred in fraud of the bankruptcy act. should not be brought in a state court.** 31— Bardes v. Hawarden Bk., 178 U. 193, 3 Bigs. 219, Fed. Cas. No. 5533; S. 524, 44 L. ed. 1175, 2 N. B. N. E. Martin v. Hunter's Leasee, 1 Wheat. 304, 725, 4 A. B. E. 163; Hicks v. Knost, 178 330, 4 L. ed. 304; Eobertson v. Baldwin, U. S. 541, 44 L. ed. 1183, 2 N. B. N. E. 165 U. S. 275, 41 L. ed. 715; see also 734, 4 A. B. E. 178; Mitchell v. McClure, Claflin v. Houseman, 93 U. S. (3 Otto) 178 U. S. 539, 44 L. ed. 1182, 2 N. B. 130, 23 L. ed. 833; Alleman v. Booth, N. B. 735, 4 A. B. E. 177; Wall v. Cox, 21 How. 506, 16 L. ed. 169; The Moses 181 U. S. 244, 45 L. ed. 845, 5 A. B. E. Taylor, 4 Wall. 411, 429, 18 L. ed. 397; 727; Shoshone Min. Co. v. Eutter, 177 Ex p. MeNiel, 13 Wall. 236, 20 L. ed. U. S. 505, 511, 513, 44 L. ed. 864. 624. 32— In re Woodbury, 2 N. B. N. E. 33 — Bardes v. Hawarden Bk., supra. 284, 98 Fed. 833, 837, 3 A. B. E. 457, 34r-Lyon v. Clark, 2 N. B. N. E. 792, citing Sherman v. Bingham, Fed. Cas. rev'd 2 N. B. N. E. 1100, in deference Jfo, 12762; Gooddl v. Tuttle, 7 N, B, E. to Bardes v. Bk., 178 U. S. 524, 44 L, ed, 836 Beandenbxjkg on Banketjptcy [§ 1099 §1099. — Decisions prior to Bardes v. Bank favoring juris- diction. Prior to the decision of the United States supreihe court in Bardes v. Bank, the circuit courts of appeals in four circuits in passing upon various phases of the question, sustained in general the jurisdiction of courts of bankruptcy over contro- versies arising in bankruptcy proceedings,^" in addition to which there are a number of similar decisions by other federal courts.*" A careful examination of the decisions, however, shows much purely obiter discussion of this subdivision. In those cases of general assignments and legal proceedings rendered void by the bankruptcy proceedings, the persons claiming under them did not claim adversely, but by right of the bankrupt's title and their right ceased. The appointment of the receiver is specif- ically provided for,*''' and the enjoining of the others was a necessary incident to the execution of other powers of the court. In none is there a plenary suit by the trustee. It was held, however, that actions by trustees in bankruptcy to set aside fraudulent conveyances as void at common law, or as preferences, or because in fraud of the bankruptcy law, could be brought in the district courts as courts of bank- ruptcy,** because, as said in one, this subdivision did not impair 1175, 2 N. B. N. E. 725, 4 A. B. E. E. 472, 92 Fed. 901; In re Booth, 1 N. 163; see also Mueller v. Bruss, 112 Wis. B. N. 476, 2 A. B. E. 770, 96 Fed. 943; 406, 8 A. B. E. 442. In re Nathan, 1 N. B. N. 563, 92 Fed. 35— In re Gutwillig, 1 N. B. N. 554, 590; In re KimbaU, 1 N. B. N. 515, 3 1 A. B. E. 388, 92 Fed. 337; a. c. below A. B. E. 161, 97 Fed. 29; Keegan v. 1 N. B. N. 40, 1 A. B. E. 78, 90 Fed. King, 96 Fed. 758, 3 A. B. E. 79; Trust 475; Carriage Co. v. Stengel, 1 N. B. N. Co. v. Benbow, 1 N. B. N. 499, 3 A. B. B. 387, 95 Fed. 637, 2 A. B. E. 383; Davis 9, 96 Fed. 514; In re Fixen, 1 N. B. N. V. Bohle, 1 N. B. N. 216, 92 Fed. 325, 568, 2 A. B. E. 822, 96 Fed. 748. 1 A. B. E. 412, s. e. below, In're Sievers, 37— Section 2 (3) Act of 1898. 1 N. B. N. 168, 91 Fed. 366, 1 A. B. E. 38— Eobinson v. White, 1 N. B. N. 513, 117; In re Francis- Valentine Co., 1 N. B. 3 A. B. E. 88, 97 Fed. 33; In re New- N. 529, 2 A. B. E. 522, 94 Fed. 793. berry, 2 N. B. N. E. 56, 3 A. B. E. 158", 36— In re Smith, 1 N. B. N. 356, 2 97 Fed. 24; Carter v. Hobbs, 1 N. B. N. A. B. E. 9, 92 Fed. 135; In re Hammond, 529, 2 A. B. E. 224, 94 Fed. 108; s. c. 98 Fed. 845, 3 A. B. E. 466; In re Fel- 1 N. B. N. 191, 1 A. B. E. 215, 92 Fed. lerath, 1 N. B. N. 292, 2 A. B. E. 40, 95 594; Norcross v. Nathan, 2 N. B. N. E. Fed. 121; In re Kenney, 1 N. B. N. 401, 405, 99 Fed. 14, 3 A. B. E. 613; Cox v. 2 A. B. E. 494, 95 Fed. 427; In re Wall., 2 N. B. N. E. 572, 99 Fed. 546, Kletchka, 1 N. B. N. 160, 92 Fed. 901, 3 A. B. E. 664; Trust Co. v. Marx, 98 Fed. 1 A. B. E. 479; In re Eiehards, 1 N. B. 456; In re Woodbury, 2 N. B. N. E. 284, N. 487, 2 A. B. E. 506, 94 Fed. 633; In 98 Fed. 83, 3 A. B. E. 457; Lehman v. re Pittelkow, 1 N. B. N. 234; 1 A. B. Crosby, 99 Fed. 542, 2 N. B. N. E. 451) §1100] Suits by and Against Trustees 837 the jurisdiction conferred by section 2, of the law, but related to the venue; and, in another, only when the cause of action existed originally in the bankrupt. For the last reason, an action by the trustee to subject to creditors an income held in trust for the bankrupt was cognizable in the bankruptcy court; *^ so also an action to quiet title,*" or to determine the rights of the joint holders of a liquor license; *^ or an action to enforce the liability of stockholders for the unpaid subscription to stock upon call by trustee; *^ or by consent to set aside a bill of sale made within four months.*' § 1100. — Early decisions against jurisdiction. In a number of cases the opposite view was taken, and the district court sitting in bankruptcy was held not to have juris- diction to determine by summary proceeding a controversy between the trustee as such and an adverse claimant concerning property claimed by the trustee, or by a trustee against a creditor of the bankrupt to recover money alleged to have been paid as a preference or in fraud of other creditors,** or the like, nor did it make any difference whether the cause of action existed in the bankrupt prior to the bankruptcy, or had arisen since.*** 3 A. B. E. 662; In re Kerski Bros., 1 45 — Perkins v. McCauley, 98 Fed. 286; N. B. N. 328, 2 A. B. E. 79; Shutts v. Burnett v. Mercantile Co., 1 N. B. N. Bk., 2 N. B. N. E. 320, 98 Fed. 705, 3 138, 91 Fed.' 365, 1 A. B. E. 229; In re A. B. E. 492; Hall v. Kincell, 102 Fed. Abraham, 1 N. B. N. 281, 2 A. B. E. 266, 301, 2 N. B. N. E. 745; In re San Gab- 93 Fed. 767; contra, iPepperdine v. Head- riel Sanatorium Co., 102 Fed. 310, 2 N. ley, 98 Fed. 863, 3 A. B. E. 455; Lehman B. N. E. 827, 4 A. B. E. 197. v. Crosby, 2 N. B. N. E. 451, 99 Fed. 542, 39— In re Baudouine, 1 N. B. N. 506, 3 A. B. E. 662. 3 A. B. E. 55, 96 Fed. 536, 101 Fed. 574, See generally, as opposed to the juris- 3 A. B. E. 651. diction of the Federal Courts in suits of 40 — Murray v. Beal, 2 N. B. N. E. 164, this character unless diverse citizenship 3 A. B. E. 284, 97 Fed. 567. existed : In re Abraham, 93 Fed. 767, 2 41— In re Brodbine, 1 N. B. N. 279, A. B. E. 266; Heath v. Shaffer, 1 N. B. 326, 93 Fed. 643, 2 A. B. E. 53. N. 399; 2 A. B. E. 98, 93 Fed. 647; comp. 42— In re Crystal Spring Bottling Co., In re Brooks, 1 N. B. N. 240, 2 A. B. E. 96 Fed. 945, 3 A. B. E. 194. 531, 91 Fed. 508; In re Buntrock Cloth- 43— In re Connolly, 2 N. B. N. E. 564, ing Co., 1 N. B. N. 291, 1 A. B. E. 454, 100 Fed. 620, 3 A. B. E. 842, aff'g 2 92 Fed. 886; In re Franks, 95 Fed. 635, N. B. N. E. 557. 2 A. B. E. 634; In re Blair, 102 Fed. 987, 44— Hicks V. Knost, 178 TJ. S. 541, 44 2 N. B. N. E. 890, 4 A. B. E. 220; Mitch- L. ed. 1183, 2 N. B. N. E. 734, s. c. 1 ell v. McClure, 178 V. S. 539, 44 L. ed. N. B. N. 336, 2 A. B. E. 153, 94 Fed. 1182; 2 N. B. Ti on A 48— In re Hemtz, 201 Fed. 338, 29 45— In re Bacon, 159 Fed. 424, 20 A. A. B. E 19 ^- ^- ^"^^ 49— FideUty Trust Co. v. Gaskell, 195 46— In re Bacon, 210 Fed. 129, 31 A. Fed. 865, 28 A. B. E. 4. §1175] Summary Pboceedings 887 § 1174. — Jurisdiction of referee. Where property is in the possession of a bankrupt at the time of the bankruptcy proceedings, and passes as part of his estate into the possession of the trustee in bankmiptcy, and a third person claims an interest therein, the referee may, by a sum- mary proceeding, require such third person to appear in the bankruptcy court, present his claim, and adjudicate the rights of the parties in respect thereto.^" Where the property is in the possession of a third person the referee may make inquiry to ascertain whether an adverse claim to property in possession of the claimant exists. Where a claim is merely colorable, he may compel the delivery of the property to the trustee.^ ^ But unless he can find it merely color- able, he has no jurisdiction to proceed further. He cannot hear and determine its merits under a summary petition, if there is a real controversy as to the merits.^^ The trustee cannot enlarge the referee's jurisdiction merely by alleging that the claim under which the property is held has no merits or is fraudulent, or by calling it "merely colorable," when no other reasons appear for so describing it than its alleged want of merit or fraudulent character.'* §1175, Compelling completion of contract by summary pro- ceedings. The bankruptcy court has power to compel, by summary pro- ceedings, the completion of a contract of purchase from one of its officers.^* One who has purchased real property from the bankrupt a long time prior to bankruptcy and has been in pos- session ever since the purchase has a title superior to that of the trustee though no conveyance thereof has ever been made, 50— Knapp & Spencer v. Drew, 160 623, 22 A. B. R. 764; .In re Ellis Bros. Fed. 413, 20 A. B. E. 355; In re Dray- Printing Co., 156 Fed. 430, 19 A. B. E. ton, 135 Fed. 883, 18 A. B. E. 602; 472; In re Peacock, 178 Fed. 851, 24 A. Mound Mines Co. v. Hawthorne, 173 Fed. B. E. 159 ; Spears v. Freuehton & B. R. 882, 23 A. B. E. 242; In re Jackson E. Co., 213 Fed. 784, 31 A. B. E. 679. Brick & Tile Co., 189 Fed. 636, 26 A. B. Eeferee has no jvirisdiction of action to B. 915; In re Epstein, 156 Fedv 42, 17 recover preference. In re Carlile, 199 L. E. A. (N. S.) 465, 19 A. B. E. 89. Fed. 612, 29 A. B. E. 3,7'3. 51— In re Knopf, 144 Fed. 245, 16 A. 53— In re Tarbox, 185 Fed. 985, 26 A., B. E. 432. B. E. 432. 52— In re Tarbox, 185 Fed. 985, 26 54— Mason v. Wolkowich, 150 Fed. 699, A. B. E, 432j In re Hayden, 172 Fed. 17 A. B. E. 709. 888 Bbandenbtjeg on Baistkbitptct [§ 1175 and may compel a conveyance from the trustee. Sueli proceed- ing is summary and a demurrer therein is improper.^^ § 1176. Determining title to land. The question of title to land should be determined by a plenary suit in a proper court and not upon affidavits.^^ § 1177. Compelling surrender of property. § 1178. — In possession or control of bankrupt. A referee ^'^ or a court of bankruptcy has jurisdiction and power to order a bankrupt to pay over to his trustee money, or other property, found to be in his possession or control, and properly belonging to his estate in bankruptcy, and, if the bank- rupt fails to obey such order, he may be committed as for a contempt until he complies, upon motion of the trustee.^* Thus, where the court of bankruptcy finds a transfer of property by a bankrupt in fraud of creditors, the property still remaining in |)ankrupt's hands, it must be turned over to the trustee,^® but no such order can be made until the issue is squarely raised between the trustee and the bankrupt, as to whether the bank- rupt has in his possession or under his control such money or property; ^° nor unless the testimony proves beyond a reason- able doubt that the same is in fact in his possession or under his control."'^ To sustain such order it must appear, first, that the 55— In re Snelling, 202 Fed. 259, 29 59— In re Smith, 1 N. B. N. 533, 100 A. B. E. 818. Fed. 795, 3 A. B. E. 95. 56 — In re Bailey, 156 Fed. 691, 19 A. 60— In re Pearson, 1 N. B. N. 474, 2 B, E. 470. A. B. E. 819; but see In re Prank, 182 57— In re MiUer, 105 Fed. 57; MueUer Fed. 794, 25 A. B. E. 486. V. Nugent, 184 IJ. S. 1, 46 L. ed. 405, 61— In re Kreuger, 197 Fed. 124, 28 7 A. B. R. 224. A. B. E. 890; In re MeCormiek, 2 N. B. 58— In re Schlesinger, 102 Fed. 117, N. E. 104, 3 A. B. E. 340, 97 Fed. 566; 4 A. B. E. 361;'Eipon Knitting Wka. Eipon Knitting Wks. v. Sehreiber, 2 N. V. Sehreiber, 2 N. B. N. E. 899, 101 B. N. E. 545, 899, 101 Fed. 810, 4 A. Fed. 810, 4 A. B. E. 299; In re Purvine, B. E. 299; In re Tisehler, 2 N. B. N. E. 1 N. B. N. 326, 96 Fed. 192, 2 A. B. 549; In re Mayer, 2 N. B. N. E. 257, 3 E. 787; In re Eosser, 1 N. B. N. 469, 2 A. B. E. 533, 98 Fed. 839; In re Bryant, A. B. E. 746, 96 Fed. 308, s. c. 101 Fed. 2 N. B. N. E. 1058. 562; In re Oliver, 1 N. B. N. 329, 3 Order is not to be made except upon A. B. E. 783, -96 Fed. 95; In re Kuntz, convincing evidence. In re Lesaius, 163 1 N. B. N. 256; In re Salkey, 11 N. B. Fed. 614, 21 A. B. E. 23. E. 423, 516, Fed. Gas. No. 12253; In re Concealment of assets need only be yer, 6 N. B. E. 255, Fed. Cas. No. shown by a preponderance. In re 13339. Cramer, 175 Fed. 879, 23 A.-B. E. 637. § 1178] SuMMAEY Peooeedings 889 title to the property is in the trustee, and second, that the posses- sion and control of it is in the bankrupt, or in one who holds for him or in his right.®^ • In the absence of concealment or fraud, the court can only order the delivery of property which the bankrupt is physically able to deliver, having the same in his possession or control,"* and if the bankrupt absolutely denies having it and the evidence to^the contrary is only inferential, and there is any reasonable doubt as to bankrupt's ability to comply with the order, it should not be made.®* The fact that the bankrupt accounts falsely for the disposition of his money, or does not satisfactorily disclose the uses of it, or evades the exhibition of his conduct in the premises, may indicate that he has defrauded his creditors, but is not sufficient to justify and order to turn over assets under the penalties for contempt unless it is clearly shown that the property is in his possession.®^ The court may, however, render the order without definite proof that the assets are actually in the bankrupt's possession or subject to his control, if from the facts presented no other reasonable conclusion is deducible."® The trustee need not prove by eyewitnesses that the bankrupt has the goods or money in his possession. Property traced to the recent possession or control of the bankrupt is presumed to continue in his possession or control, and in absence of satis- factory explanation for its disappearance an order compelling The referee must be satisfied and 62 — In re Nisenson, 182 Fed. 912, 24 reasonably sure that the property or pro- A. B. E. 915. ceeds thereof are in the possession or 63 — ^In re Soloway & Katz, 196 Fed. under the control of the bankrupt. In 132, 28 A. B. E. 345; Stuart v. Eeynolds, re KraU, 182 Fed. 191, 24 A. B. E. 941. 204 Fed. 709, 29 A. B. E. 412; In re Eey- The evidence must be plain and con- nolds, 190 Fed. 967, 27 A. B. E. 200; In vincing beyond a reasonable controversy, re Euos, 164 Fed. 749, 21 A. B. E. 257; but need not be beyond a reasonable In re Barton Bros., 149 Fed. 620, 18 doubt. In re Alphin & Lake Cotton Co., A. B. E. 98; In re Longbottom & Bons, 134 Fed. 477, 14 A.'B. E. 194. 142 Fed. 291, 15 A. B. E. 437; In re A denial of a discharge on the ground Sax, 141 Fed. 223, 15 A. B. E. 455. of the bankrupt's complicity in a theft 64 — In re Thiessen, 2 N. B. N. E. 625; of his store is not conclusive that the In re Friedman, 1 N. B. N. 332, 2 A. bankrupt had the stolen property in his B. E. 301; In re Ogles, 1 N. B. N. 400, possession four years later. In re Bar- 2 A. B. E. 514. ton Bros., 149 Fed. 620, 18 A. B. E. 98. ^5— In re Adler, 129 Fed. 502, 12 A. Evidence sufficient to warrant order to B. E. 19. turn over. Kirsner v. Taliaferro, 202 66 — ^In re Goodman Shoe Co., 196 Fed. Fed. 51, 29 A. B. E. 832. 566, 27 A. B, E. 697. 890 Bkandenbubg on Bankruptcy [§ 1178 him to turn over tlie property is proper.*'^ The presumption is one of fact varying in weight. The burden is upon the bankrupt to satisfactorily account for the non-production of the property, but in assuming such burden he is entitled to the benefit of a reasonable doubt.®^ The conclusion of the referee that the bank- rupt had certain property under his control at the date of the filing of the petition and is concealing same is entitled to great weight."® Where a bankrupt admits receiving a large sum of money just before his bankruptcy for which he fails to satisfactorily account, or there is an unexplained deficit in his stock, or in the proceeds of sales, he may' be ordered to turn over to his trustee such goods or money, less reasonable cost of living; ■"* but, if the difference has been used in paying creditors, or business expenses or in any other similar manner or is claimed to be due to a defective appraisal and defects are shown in such appraisal, the order will not be made.'^^ A bankrupt, whose funds are deposited with an agent, cannot excuse himself from delivering over the same to the trustee because so deposited, unless he shows as a matter of fact an inability to obtain possession.''^ So, the mere fact that property 67— In re Silverman, 206 Fed. 960, 30 A. B. E. 798; Shea v. Lewis, 206 Fed. 877, 30 A. B. B. 436; In re Bosenthal, 200 Fed. 190, 29 A. B. E. 515; In re Walder, 142 Fed. 784, 16 A. B. E. 41; In re Epstein, 15 A. B. E. 711; In re Leinweber, 128 Fed. 641, 12 A. B. E. 175. When a smn of money or goods has been traced into the hands of the bank- rupt he must aeoount for the same. It may not be necessary to make such an account with mathematical nicety, but there must be some explanation satis- factory to the judge before whom the matter may come. A general statement that the money is lost or stolen or gambled away or lived up vrill not suflfice. Some details must be given. In re Cantor, 26 A. B. E. 859. 68— In re Nisenson, 182 Fed. 912, 24 A. B. E. 915. 69— In re Cole, 135 Fed. 439, 14 A. B. E. 389. 70— In re Kuntz, 1 N. B. N. 256; In re Friedman, 1 N. B. N. 332, 2 A. B. E. 301; In re MeCormick, 2 N. B. N. E. 104, 3 A. B. E. 340, 97 Fed. 566; In re Eosser, 1 N. B. N. 469, 2 A. B. E. 746, 96 Fed. 308; In re Purvine, 1 N. B. N. 326, 96 Fed. 192, 2 A. B. E. 787; In re Tudor, 2 N. B. N. E. 168, 100 Fed. 796, 4 A. B. E. 78; In re DeueU, 100 Fed. 633; In re Schlesinger, 2 N. B. N. E. 169, 3 A. B. E. 342, 97 Fed. 930, 102 Fed. 117; In re Peltasohn, 16 N. B. E. 265, Fed. Gas. No. 10912; Eipon Knitting Works V. Schreiber, 2 N. B. N. E. 545, 899, 101 Fed. 810, 2 A. B. E. 299; In re De Gottardi, 114 Fed. 328, 7 A. B. E. 723. 71— In re Tischler, 2 N. B. N. E. 549; In re Mayer, 2 N. B. N. E. 257, 3 A. B. E. 533, 98 Fed. 839. 72— In re Cole, 144 Fed. 392, 16 A. B. E. 302. § 1179] SuMMAEY Proceedings 891 is in the possession of the bankrupt's husband will not, without a further showing, justify her refusal to turn over property.''* The summary jurisdiction of the court cannot be invoked to compel the bankrupt to deliver the property of a third: person in his possession to the trustee for the benefit of the owner,''* but the fact that the money sought to be obtained is carried in a bank account labelled with the bankrupt's name as "man- ager" is not conclusive that the ownership of the same is not in the bankrupt individually^^ The bankrupt may be ordered to restore money which he has paid to himself after the filing of the petition in bankruptcy, as trustee of a corporation whose money he had improperly used,''® and where third persons alleged to have an interest in a fund held by the bankrupt have not attempted to enforce any trust in their behalf, but have put in their claims against the bankrupt estate as general creditors, it is no answer to an order requiring the bankrupt to pay over the fund that such third persons have an interest therein.^^ A bankrupt who, in good faith, has paid over money to some of his creditors after the commencement of the bankruptcy pro- ceedings vrill not be compelled to account for the money so paid on the theory that he has constructive possession thereof.^^ § 1179. — In possession or control of third persons. A summary proceeding is not appropriate for the recovery of property or the proceeds thereof, after the same has passed into the hands of the purchaser in good faith, prior to the filing of the petition. After the property has passed under such con- ditions, it amounts to a transfer, and can only be recovered in the manner prescribed by section 60,''^ The court has power, however, to make an order to show cause why property in the possession of a third person should not be delivered to the trustee®" or, if no trustee has been appointed, to the receiver ia bankruptcy,*^ but a summary order directing a party to sur- 73 — In re Cole, 144 Fed. 392, 16 A. R. 78 — In re Laplume Condensed Milk E. 302. Co., 145 Fed. 1013, 16 A. B. E. 729. 74— In re Eliowich, 148 Fed. 510, 17 79— In re Bailey, 144 Fed. 214', 16 A. A. B. E. 419. B. E. 289. 75 — In re Samuel Kurtz, 125 Fed. 992, 80 — In re Famous Clothing Co., 179 11 A. B. E. 129. Fed. 1015, 24 A. B. E. 780. 76 — In re Longbottom & Sons, 142 Fed. 81 — In re Muneie Pulp Company, 139 291, 15 A. B. E. 437. Fed. 546, 14 A. B. E. 70, eertiorari de- 77— Cummings v. Synnott, 184 Fed. nied 202 IT. S. 621, 50 L. ed. 1175. 718, 25 A. B. E. 859. 892 Bbandbnbtjkg on Bankbuptcy [§ 1179 render property alleged to belong to the bankrupt should not be made unless the property can be sufficiently identified to enable the marshal to take it into possession/^ and unless the party is physically able to comply therewith,^^ and his possession and control of the property are shown beyond a reasonable doubt.®* So, the fact that the court does not believe the statements of a witness as to what became of property of the bankrupt, is not sufficient basis for an order requiring him to turn over the prop- erty, where none of the property is actually traced into his possession.®^ When property of the bankrupt estate is traced to the recent possession of a third person it is presumed that it remains in his possession or under his control until he satisfactorily accounts for its disposition or disappearance. The burden is upon him to satisfactorily so account for it, and he cannot escape an order for its surrender by simply denying under oath that he has it, or that it is the property of the bankrupt estate.®® Any pro- ceeding to compel the bankrupt to turn over property which was concealed by him or for him may be based upon an examination of the bankrupt's agent as to what disposition he made of the bankrupt's property. But until the property or its proceeds is traced through the hands of the bankrupt, and until he avoids responsibility by showing that his control over it had termi- nated, because it had reached the possession of his agent and had been converted or stolen, and was hence out of his own con- trol, the agent cannot be compelled to account for the property, unless the property or its proceeds be specifically shown to be in his hands.® '^ A partner in a bankrupt firm may be compelled to turn over assets traced into his hands,®® and in proceedings against a part- . 82— In re Jackier, 179 Fed. 720, 24 86— In re Meier, 182 Fed. 799, 25 A. A. B. E. 790. B. B. 272; In re Famous Caothing Co., 83— Order directing agent to surren- 179 Fed. 1015, 24 A. B. E. 780; In re der property improper where it appeared Alphin & Lake Cotton Co., 134 Fed. 477, that he had delivered the same to his 14 A. B. E. 194. • principal who was in possession at the 87 — In re Fogelman, 188 Fed. 755, 26 time of the order. In re Denson, 195 A. B. E. 742. Fed. 854, 28 A. B. E. 158. 88— In re Shaffer v. Stern, 185 Fed. 84— In re Feldser, 134 Fed. 307, 14 549, 26 A. B. E. 54. A. B. E. 216. Partner withdrawing his interest in 85^In re Eosenzweig, 206 Fed. 360, firm shortly before bankruptcy of firm 30 A. B, E, 680, and in contemplation thereof required to § 1180] StJMMAEY Proceedings 893 nership alone, the court may take such proceedings as are necessary to ascertain what assets of an objecting partner are available and to subject such as are available to the payment of partnership creditors.*® The wife of the bankrupt will not be ordered to turn over money saved by her from an allowance made for household expenses where the circumstances negative any trust relation- ship.®" An order enjoining the wife of the bankrupt from dis- posing of property in her possession may be discontinued during the pendency of a rule to show cause where both the bankrupt and his wife file answers denying that the property belongs to him.9i The bankrupt court may order the return of property forcibly taken from its possession,®^ and where a creditor wrongfully receives payment of its claim from a receiver, the court has juris- diction to order the amount received restored upon condition that it be shown that there was no existing indebtedness at the time of the payment, and to determine in a summary proceeding the issue of the existence of such indebtedness.®^ But the court caimot by a summary order compel a bank acting as depository of bankruptcy funds to pay over the funds deposited with it, especially where the bank is itself insolvent.®* § 1180. — The application or petition. If it is determined that the facts justify the institution of summary proceedings, then the trustee should demand of the bankrupt such money or property as it is thought he is with- holding, and upon his refusal to turn over the same, a petition should be filed setting forth the claim, demand and refusal, and seeking an order against the bankrupt to show cause why he should not be ordered to pay the sum to the trustee, and in default of same to be punished for contempt.®® The bankrupt is entitled to a distinct issue upon petiton and answer and testi- reatore same to partnership trustee. In 92 — In re Landis, 151 Fed. 896, 18 A. re Eosenthal, 200 Fed. 190, 29 A. B. E. B. E. 483. 515. 93 — In re Burkhalter & Co., 179 Fed. 89— Diekaa v. Barnes, 140 Fed. 849, 5 403, 24 A. B. E. 553. L. E. A. (N. S.) 654, 15 A. B. E. 566. 94— In re Bologh, 185 Fed. 825, 25 90— In re Simon, 197 Fed. 102, 28 A. A. B. E. 726. B. E. 616. 95— In re Kreuger, 197 Fed. 124, 28 91— In re Latimer, 141 Fed. 665, 15 A. B. E, 890, A, B, E, 461, 894 Beandenbubg on Bankruptcy [§ 1180 mony taken thereunder,®® and the petition should contain definite allegations so that the bankrupt may know what he is called upon to produce.*'' It should allege that the bankrupt has assets of the estate in his possession or under his control, and should describe or identify the assets, or so point out the source from which the petitioner claims they came, as to give the bankrupt fair notice of the charge.®* It is held, however, that the fact that the petition is indefinite or uncertain in its averments or that no answer is filed or issue joined upon the petition does not deprive the referee of jurisdiction.®' A petition for an order to turn over which does not show that the respondent has possession is insufficient.^ The petition for an order to compel an officer of the bankrupt to turn over prop- erty need not negative the fact that the officer holds the property adversely.^ §1181. — Demurrer. A demurrer is improper in summary proceedings.^ A demurrer to the trustee's petition, if interposed, is waived by answering.* Where a demurrer to a motion of the trustee for an order for the delivery of property is overruled, the parties are entitled to an opportunity to be heard upon the issue tendered by the motion.^ 96 — In re Lasch, 12 A. B. E. 158. But tion of the receiver asking for a general see In re Adler, 129 Fed. 502, 12 A. B. inquiry as to the whereabouts of the E. 19, holding that a formal petition to bankrupt's property. In re Buos, 164 compel the bankrupt to turn over assets Fei. 749, 21 A. B. E. 257. need not be resorted to unless the pur- 98 — Blirsner v. Taliaferro, 202 Fed. pose is to bring to the notice of the 51, 29 A. B. E. 832. court some outside matter that does not 99 — In re Frank, 182 Fed. 794, 25 A. appear by the ordinary record, or some B. E. 486; In re Buos, 164 Fed. 749, 21 outside party who is not bound or ready A. B. E. 257. to take , notice of the bankruptcy pro- 1 — In re Brockton Ideal Shoe Co., 202 ceedings, and that simple notice and rule Fed. 199, 29 A. B. B. 846. to show cause, and oftentimes a mere 2 — ^In re Brockton Ideal Shoe Co., 202 affidavit, is all that is necessary to accom- Fed. 199, 29 A. B. E. 846. plish everything that can be accomplished 3 — In re Snelling, 202 Fed. .259, 29 by a formal petition. A. B. E. 818. 97— In re Greer, 189 Fed. 511, 26 A. 4— In re Koplin, 179 Fed. 1013, 24 B. E. 811. A. B. E. 534. An order directing the bankrupt to de- 5 — Ellis y. Krulewitch, 141 Fed. 954. liver certain property, or pay its value to 15 A. B. E. 615. the trustee, cannot be based upon a peti- §1185] SuMMAEY Peoceedings 895 § 1182. —Notice of hearing. Unless the property is of an exceedingly perishable nature, notice and an opportunity to be heard ought to be given the bankrupt or person in whose possession the property is found." § 1183. — Reference. The subject of a direction to the bankrupt to turn over assets may be referred to a special master.'' § 1184. — Evidence and jury trials. It lies within the discretion of the referee to determine whether the testimony shall be heard orally, taken in long hand, or written out in the form of stenographer's minutes. If the bank- rupt desires the testimony to be perpetuated, the obligation is on him to provide the means therefor especially where the trustee has no funds in his hands.* The testimony of the bankrupt, or the officers of a bankrupt corporation taken under section 7a or 21a is admissible, but that of other witnesses is not.® A jury trial is proper to try issues of fact raised in summary proceedings.^" § 1185. — Findings of referee and order of court. The referee should not confine himself to a summary of the testimony and a statement of his belief therein, but should make definite findings of fact." After all the evidence offered by both sides has been received, the referee maltes up his findings. If he is of the opinion that the allegations of the trustee's petition have been sustained, in whole or in part, he so finds, and he thereupon orders the bankrupt by some certain date to turn over to the trustee the assets of the estate which he holds the bankrupt unlawfully retained and still has in his possession or control. The bankrupt may ask a review of these findings or he may not. If he does and the referee 's order is confirmed, or if he 6— Kirsner v. Taliaferro, 202 Fed. 51, 29 A. B. E. 832; In re Greer, 189 Fed. 29 A. B. E. 832; In re Prank, 182 Fed. 511, 26 A. B. E. 811; In re Wiesen 794, 25 A. B. E. 486; In re Sunseri, Bros., 135 Fed. 442, 14 A. B. E. 347; 156 Fed. 103, 18 A. B. E. 231. In re AlpMn & Lake Cotton Co., 131 Fed. 7— In re Herskovitz, 152 Fed. 316, 18 824, 12 A. B. E. 653. A. B. E. 247. 10— Bill v. Beckwith, 2 N. B. E. 82, 8— In re Goldstein, 155 Fed. 695, 19 Fed. Cas. No. 1406. A. B. E. 96. 11— In re Turetz, 29 A. B. E. 752. 9— Kirsner v. Taliaferro, 202 Fed. 51, 896 Beandenbueg on Bankeuptcy [§ 1185 does not, the same procedure in substance follows. Before lie can be treated in contempt, he must be notified to show cause why he should not be attached and committed for failing to comply with the order of the court. If he shows cause, the court is bound to hear any new evidence he may offer.^^ An order which leaves the question of the bankrupt's default and his con- sequent contempt to be determined without further action by the court is erroneous.^^ An order allowing the bankrupt additional time to comply with an order of the referee to turn over assets is in effect an affirmance of the order of the referee, and the court by striking out the provision in the referee's order, "that in default thereof let the above-named bankrupt be committed for contempt" does not adjudicate that the bankrupt should not be punished for contempt, but leaves such a motion to be brought on at a subsequent period, if the bankrupt did not avail himself of the opportunity to pay within the extended time.^* The order to turn over assets must be supported by the plead- ings,^^ and should direct the bankrupt to turn over the money to the trustee.^* It is not necessary to do more than describe the property generally in the order.^'^ An order directing the bank- rupt to turn over certain goods or pay to the trustee their esti- mated value is not erroneous.^® The court cannot make a summary order which is directly enforceable outside of its territorial jurisdiction.^^ 12— Kirsner v. Taliaferro, 202 Fed. 51, mer & Muehnick, 209 Fed. 627, 31 A. B. 29 A. B. E. 832. E. 377. 13 — In re Euoa, 164 Fed. 749, 21 A. B. An order which describes the goods to E. 257. be turned over as such as he carried in 14 — In re Herskowitz, 136 Fed. 950, his stores, namely, dry goods, notions, 14 A. B. E. 86. and ladies' ready made wear of the cost 15 — Where the petition alleges the con- and wholesale price of $4,166, held suffi- cealment of money, an order requiring ciently definite. Kirsner v. Taliaferro, the delivery of specific property is not 202 Fed. 51, 29 A. B. E. 832. justified. An order directing the delivery of Lesaius v. Goodman, 165 Fed. 889, "merchandise" by the bankrupt, which 21 A. B. E. 446, rev'g 163 Fed. 614, 21 does not point out or describe the arti- A. B. B. 23. cles, by kind or class, is insufficient. In 16— In re Baum, 169 Fed. 410, 22 A. re Kramer & Muehnick, 209 Fed. 627, 31 B. E. 295. A. B. E. 377. 17— In re Lesaius, 163 Fed. 614, 21 A. 18— Kirsner v. Taliaferro, 202 Fed. 51, B. E. 23. 29 A. B. E. 832. An order directing the payment of 19 — Staunton v. Wooden, 179 Fed. 61, "money" in a definite sum, by the bank- 24 A. B. E. 736. rupt, is sufficiently specific. In re Kra- CHAPTER XXVIII AbBITEATION and COMPEOMISE § 1186. Eights and duties of trustee § 1187. When compromise granted. § 1188. Compounding claims. § 1189. Plan of settlement not authorized. § 1190. Application for compromise or arbitration, §1191. — In general. § 1192. — To whom addressed. § 1193. Selection of arbitrators. §1194. Findings of arbitrators. § 1186. Rights and duties of trustee. Pursuant to the court's direction, the trustee may submit any controversy arising during the settlement of the estate to arbitra- tion; ^ and, with the approval of the court, compromise any controversy upon such terms as he deems for the best interests of the estate.^ Creditors representing the majority in number and amount, however, cannot compel him to compromise a claim, though where they have expressed their disapproval of the com- mencement of an action on the claim, the court may direct the delivery of a bond by the creditors opposing the compromise, saving the estate from costs, expenses, and counsel fees of litiga- tion.^ The bankrupt cannot maintain an action in a state court to restrain the trustee from carrying out a compromise.* § 1187. When compromise granted. Section 27 authorizes the compromise of claims of trustees against third persons to recover moneys due bankrupt or con- troversies between such trustees and persons holding or claiming adversely to them, as a claim by a trustee to an accounting by a preferential transferee and fraudulent grantee of bankrupt; ^ or 1— Section 26, Act of 1898; G. 0. 4— In re Kranieh, 174 Fed. 908, 23 XXXIII. A. B. E. 550. 2— Section 27, Act of 1898. 5— Hicks v. Knost, 1 N. B. N. 336, 2 3— In re Meadows, Williams & Co., 181 A. B. R. 153, 94 Fed. 625; citing In re Fed. 911, 25 A. B. R. 100. Sievers; 1 A. B. R. 117, 1 N. B. N. 68, Brandenburg — 57 897 898 Bbandenbubg oh Bankruptcy [§ 1187 of controversies between trustee and a stranger to the bank- ruptcy proceedings ; ® or at law or in equity, as distinguished from proceedings in bankruptcy, between a trustee as such and adverse claimants concerning the property acquired or claimed by the trustee.'^ Notwithstanding the fact that the creditors may by vote approve a proposed compromise submitted by a debtor of the estate, such action is not conclusive, for the court may for good cause disallow it.® Any agreement of compromise with reference to payments or transfers held to be preferential, or any compromise with regard to claims against the estate which will increase the asset of and be a benefit to the estate will be approved, but if it is coupled with an agreement not to furnish evidence in a criminal prosecu- tion against the bankrupt, or in any way stifle a prosecution that may be contemplated, the court will not approve the agreement, not interfere in any way with the disposition of money obtained from third parties as a result of the agreement.® § 1188. Compounding claims. Whenever it may be deemed for the benefit of the estate to compound and settle any debts or other claims due or belonging to the bankrupt, the trustee or bankrupt or any creditor who has proved his debt may file his petition therefor addressed to the judge or referee and thereupon he will appoint a suitable time and place for the hearing thereof, notice of which must be given ag the court may direct, presumably at least ten days, so that all creditors and other persons interested may appear and show cause, if any they have, why an order should not be passed by the coTjrt upon the petition authorizing such act on the part of the trustees." Under the act of 1867, it was held that an assignee could not be authorized to compound debts for the purpose of compro- mising the same under direction of a committee of creditors, 91 Fed. 366, and Carter v. Hobbs, 1 6— Shutts, tr. v. Bank, 2 N. B. N. E. A. B. E. 215, 1 N. B. N. 191, 92 Fed. 320, 3 A. B. E. 492, 98 Fed. 7'05. 594, with disapproval; and Burnett v. 7 — In re Abraham, 2 A. B. E. 266, 93 Morris Mercantile Co., 1 A. B. E. 229, Fed. 767, 1 N. B. N. 281. 91 Fed. 365, 1 N. B. N. 138; Mitchell v. 8— In re Heyman, 108 Fed. 207, 5 A. McClure, 1 A. B. E. 53, 1 N. B. N. 138, B. E. 808. 91 Fed. 621, and In re Abraham, 1 A. B. 9— In re Eosenblatt, 153 Fed. 335, 18 E. 266, 93 Fed. 767, 1 N. B. N. 281, with A. B. E. 663. ' approval. 10— G. 0. XXVIII. § 1191] Aebiteation and Compbomise 899 where all creditors did not vote when such committee was appointed, but that each case must be presented separately and the facts making the compromise properly stated." If after a proposition of settlement has been made a trustee applies for instructions as to a suit the creditors wish brought, he must show that a better result is likely to be obtained by suit than by accepting the proposed settlement and that he will probably succeed, though he is not expected to demonstrate that he will certainly do so.^^ § 1189. Plan of settlement not authorized. "Where a plan for the settlement and distribution of the bank- rupt's estate not within the provisions of the act is proposed, it is only justifiable if all known creditors consent; and is liable to be interfered with if other creditors appear within the year, for such creditors are entitled to their day in court and to their ratable share of the undistributed assets; and, on a motion by such creditors to set aside an order authorizing the execution of such plan, the distribution of the estate must be arrested until their claims can be liquidated or found invalid, but their merits are not to be passed upon on such motion but in the regular course of the proceedings.^^ The court cannot compel a creditor to consent to have all the bankrupt estate transferred to a corporation and accept in settle- ment of his claim the unsecured obligations of the new corpora- tion payable in the future.^* § 1190. Application for compromise or arbitration. §1191. — In general. Sections 26 and 27 afford an expeditious and inexpensive mode of adjusting, without litigation, many of the contested claims arising in the settlement of an estate. The application of the trustee for a compromise or to submit a controversy to the determination of arbitrators must clearly and distinctly set forth 11— Tn re Dibblee, 3 N. B. R. 17, 3 14— In re Cornell Co., 186 Fed. 859, 26 Ben. 354, Fed. Cas. No. 3885. A. B. E. 252; In re Northampton Port- 12— In re Phelps, 2 N. B. N. B. 484, 3 land Cement. Co., 185 Fed. 542, 25 A. B. A. B. E. 396. E. 565. 13— In re Loekwood, 3 N. B. N. R. 57, 104 Fed. 794, 4 A. B. E. 731. 900 Beandenbukg on Bankettptcy [§ 1191 the subject-matter of the controversy and the reasons why he thinks it proper and for the best interests of the estate to have the controversy so settled.^® The court may hear testimony and arguments of counsel upon an application for submission to arbi- tration, and though there is no provision for notice to creditors of such hearings or proceedings, the better practice is to give notice. Creditors, however, must, by express provision of the act, have at least ten days' notice by mail of the proposed com- promise of any controversy." § 1192. — To whom addressed. This application may be addressed to the court of bankruptcy or to the referee, since he is required generally to perform the duties of such court ^"^ and is comprehended within the definition of the term "court." ^* Under the act of 1867 the application had to be made to a judge.^8 § 1193. Selection of arbitrators. "Three arbitrators shall be chosen by mutual consent, or one by the trustee, one by the other party to the controversy, and the third by the two so chosen, or if they fail to agree in five days after their appointment the court shall appoint the third arbitra- tor. " ^^ It is unlawful for the third arbitrator to be selected by the two contending parties.^^ § 1194. Findings of arbitrators. "The written finding of the arbitrators, or a majority of them, as to the issues presented, may be filed in court and shall have like force and effect as the verdict of a jury." ^^ Such finding when so filed is necessarily reviewable and liable to be set aside 15— G. O. XXXIII. 22— Section 26e, Act of 1898. 16 — Section 58a (7), Act of 1898; In Analogous provision of Act of 1867. re Heyman, 108 Fed. 207, 5 A. B. E. "Sec. 17. . . . He may, under the 808. direction of the court, submit any con- 17 — Section 38a (4), Act of 1898. troversy arising in the settlement of de- 18 — Section 1 (7), Act of 1898. mands against the estate, or of debts 19 — In re Graves, 1 N. B. E. 237, Fed. due it, to the determination of arbitra- Cas. No. 5709. tors, to be chosen by him, and the other 20 — Section 26b, Act of 1898. party to the controversy, and may, under 21 — In re McLam, 97 Fed. 922, 3 A. such direction, compound and settle any B. E. 245. ch controversy, by agreement with the 1 1194] Aebitbation and Compbomise 901 or adjudged upon by the court as a verdict would be. Conse- quently in a case where a few days before filing his petition a bankrupt gave a mortgage to one of his creditors which on being submitted to arbitrators was held not given with intent to hinder, delay or defraud creditors, such finding was held unwar- ranted and set aside as its necessary effect was to prefer the mortgagee and to hinder and delay others, and such must be presumed to have been his intent.*^ When one becomes a party to a submission to arbitration he is bound by the decision in a collateral action.^* other party, as he thinks proper and 24 — Johnson v. Worden, 13 N. B. B. most for the interest of the creditors. ' ' 335, 23— In re MeLam, 97 Fed. 922, 3 A, B. B. 245, CHAPTER XXIX Compositions ) 1195. Statute strictly construed. i 1196. Offer of composition. ) 1197. — Procedure in general. i 1198. — Petition for composition. ) 1199. — The statements or schedules. i 1200. Composition meetings. } 1201. — Necessity of meeting. i 1202. — Voting at meeting. i 1203. Eights of secured creditors. i 1204. Eights of litigating creditors. j 1205. Eights of minority creditors. i 1206. Partnership compositions. i 1207. Consideration. i 1208. — Nature. i 1209. — Amount. i 1210. — Deposit. i 12ll. Conflrmatiop of compositions. i 1212. — Time of application. i 1213. — Hearing and objections. i 1214. — Power of referee. i 1215. — When confirmed in general. i 1216. — Best interests of creditors. i 1217. — Acts in bar of confirmation. il218. —Bad faith. i 1219. — Frauds and omissions. i 1220. — Order or decree of confirmation. i 1221. Performance of composition. i 1222. — In general. i 1223. — Distribution of consideration. i 1224. — Proof of claims. i 1225. — Eight of set-off. i 1226. — Failure to perform. i 1227. Appointment of trustee. i 1228. Effect of composition. i 1229. — Conclusiveness. i 1230. — Effect on bankruptcy proceedings. 11231. — Effect on bankrupt's debts. i 1232. — Effect on secured creditors. i 1233. — Effect on co-debtors and partners. i 1234. — Effect on bankrupt 's property. i 1235. — Effect on liens and attachments. i 1236. — Subsequent litigation. 902 § 1197] Compositions 903 § 1237. Composition must be beaded. § 123S. Effect of failure to confirm composition. § 1239. Certified copy of order as evidence. § 1240. Appeal and review. § 1241. Setting aside compositions. § 1242. — Comparison of Acts. § 1243. — Grounds for setting aside. 1 1244. — Parties in interest. § 1245. — Limitations. §1246. — Petition to set aside. § 1247. — Notice of hearing. § 1248. — Restoration or deposit of consideration. § 1249. — Jury trial. § 1250. — Burden and quantum of proof. § 1251. — Effect of setting aside. § 1252. — Order setting aside as evidence. § 1195. Statute strictly construed. The provisions of the act as to compositions are to be strictly construed.* §1196. Offer of composition. § 1197. — Procedure in general. "A bankrupt may offer, either before or after adjudication, terms of composition to his creditors after, but not before, he has been examined in open court or at a meeting of his creditors and has filed in court the schedule of his property and list of his creditors, required to be filed by bankrupts. ' ' ^ 1 — In re Eider, 1 N. B. N. 483, 3 A. The provisions of the two acts may be B. E. 178, 96 Fed. 808; In re Shields, found in In re Scott, 15 N. B. E. 73, 15 N. B. E. 532, 4 DiU. 588, Fed. Cas. Fed. Cas. No. 12519. Under the amend- No. 12784; Broadway Trust Co. v. Man- ment of 1874, a composition might be heim, 47 Misc. (N. T.) 415, 14 A. B. K. confirmed before an examination of the bankrupt, although a petition for a com- 122. 2 — Section 12a, Act of 1898 as position might be included in the petition amended June 25, 1910. The words for adjudication, or presented at any time "either before or after adjudication" before, in Whieh event a meeting of the were added by the Amendment of 1910. creditors was necessary for the exam- Act of 1867 contained no analogous pro- ination of the debtor and the filing of a vision to this, but by the amendment of schedule of assets (In re Spades, 13 N. B. June 22, 1874 (18 St. L. 182, par. 17) E. 72, 6 Biss. 448, Fed. Cas. No. 13196). terms of composition might be offered If a resolution of composition was either before or after adjudication, fol- adopted, a reasonable time might be al- lowing largely the provision in the 126th lowed to secure the additional signatures section of the English Act of 1869, which, necessary to confirm it (Idem; In re however, was open to serious objection. Spillman, 13 iT. E. E. 214, Fed. Cas. No. 904 Brandenburg on Bankruptcy [§ 1197 The offer may be made to the referee, and the examination and filing of schedules referred to in the act as a condition precedent to an offer may be had before him,^ bnt questions arising there- after out of the application of the bankrupt for the confirmation of the composition must be heard by the court of bankruptcy and not by the referee.* Prior to the amendment of 1910 a com- position could not be offered and accepted before adjudication,^ but any one adjudged bankrupt could offer terms of composition.® The calling of a" special meeting of creditors to receive an offer of composition is not required, and a submission of such offer to the creditors at their first meeting after an examination of the bankrupt is competent and sufficient; such submission being within the terms of the notice prescribed, which states that the purpose of the meeting embraces the transaction of "such other business as may properly come before said meet- ing. ' ' '^ Upon the filing of an application for the confirmation of a com- position a time and place should be fixed for the hearing thereon and of any objections thereto and, unless waived, ten days' notice thereof given.* It should not be confirmed where there was no general notice to creditors of its terms and it had been offered by bankrupt at the first meeting to certain creditors whose claims had been allowed at that meeting and who accepted it, being at that time but not at the time of the hearing a major- ity in number and value of those whose claims had been allowed.^ § 1198. — Petition for composition. The bankrupt must make an offer of specific terms upon which he shall have back his estate. He must get the consent of half 13242) ; but the delay in obtaining them, 158 Fed. 679, 19 A. B. E. 835, rev'g 19 unaeeompanied by laches, would not de- A. B. E. 33. feat it (In re Cavan, 19 N. B. E. 303, 6 — ^In re Weber Furniture Co., 13 N. Fed. Cas. No. 2528); and the creditors B. E. 529; s. c. on appeal, 13 N. B. E. affixing signatures to the resolution need 559, Fed. Cas. No. 17330 ; Pool v. McDon- not have been present at the meeting, aid, 15 N. B. E. 560, Fed. Cas. No. but their names must have been attached 11268. at or before the hearing (In re Scott, 7 — ^In re Hilborn, 104 Fed. 866; 4 A. supra). B. E. 741. 3 — In re Bloodworth-Stembridge Co., 8 — Section 12c, Act of 1898; see In re 178 Fed. 372, 24 A. B. E. 156. Spades, 13 N. B. E. 72, 6 Biss. 448, Fed. 4— Section 38 (a), Act of 1898; In re Cas. No. 13196; Smith v. Engle, 14 N. B. Bloodworth-Stembridge Co., 178 Fed. 372, E. 481. 24 A. B. E. 156. 9— In re Eider, 96 Fed. 808, 3 A. B. E. 5 — In re Back Bay Automobile Co., 178, 192. § 1201] Compositions 905 the creditors who have filed claims. Then he may file a peti- tion and have the remainder accept the terms, if he can induce the court to so order. ^^ The petition should set forth the num- ber of creditors to whom presented, the proposed percentage of payment, and conclude with a prayer for a meeting of cred- itors to consider its terms." Under the act of 1867 it was held that on filing a petition for a composition, the court would call a meeting of creditors.^^ §1199. — The statements or schedules. The schedules the bankrupt is required to file are the same as those prescribed when filing a voluntary petition. If the bankrupt in composition understates a debt unintentionally,^^ or omits a claim which he believes, on the advice of counsel, to be worthless, or omits an asset from the statement without fraud and with knowledge of the creditors," or makes a mistake with- out fraud in the statement of the amount due a creditQr,^^ or states the value of his real estate as unknown, ^^ such defects will not vitiate the composition. The statement of composition should conform to the schedule in bankruptcy,^'' and debtor's testimony under oath at a meeting of creditors may be con- sidered as part of his statement.^* § 1200. Composition meetings. § 1201. —Necessity of meeting. A submission of an offer of composition may be made at the first meeting of creditors after the examination of the bank- rupts^ Since the bankrupt's examination and the filing of his schedule must now precede the offer of composition, no necessity exists for a subsequent meeting of creditors, unless for confer- ence, though Official Form 60 (§1815 post) evidently eontena- plates one after the offer of composition has been presented to 10— In re Ennis & Stoppani, 183 Fed. 16— In re Welles, 18 N. B. E. 525, Fed. 859, 25 A. B. E. 383. Cas. No. 17377. 11— Form 60, § 1815 post. 17— In re Haskell, 11 N. B. E. 164, 12— In re Sp&des, 13 N. B. E. 72, 6 Fed. Cas. No. 6192. BisB. 448, Fed. Cas. No. 13196. 18— In re Beiman, 13 N. B. E. 128, 12 13— Beebe v. Pyle, 18 N. B. E. 162. Blateh. 562, Fed. Oas. No. 11675. 14— In re Eeiman, 13 N. B. E. 128, 12 19— In re Hilborn, 104 Fed. 866, 4 A. Blateh. 562, Fed. Cas. No. 11675. B. E. 741. 15— Ex parte Traf ton, 14 N. B. E. 507, 8 Lowell, 505, Fed. Cas. No. 14138. 906 Bbandenbueg on Bankexjptcy [§ 1201 the creditors. The rules, forms and orders can not add to or subtract from the act and must yield when any inconsistency appears as here.^" But, if upon presentation of such an offer to all the creditors collectively, or separately, a majority in number of those whose claims have been allowed and a majority in amount of such claims accept the offer, no reason would exist for the meeting. In such case as soon as the con- sideration to be paid by the' bankrupt to his creditors, and the money necessary to pay all debts which have priority and the costs, have^been properly deposited, an application for con- firmation, alleging such facts, may be presented to the judge, by whom it must be "heard and decided," though he may refer the application or any issue arising thereon to the referee,^^ and set a time for a hearing thereon. But a com- position cannot be confirmed until after it has been presented to all of the creditors of the bankrupt, whether they have proved their debts or not, and has been accepted in writing by the requisite majority in number and amount of those whose claims have been allowed.^^ It is not essential that proofs of claims shall be made before or at, the first meeting, but may be made at any time within a year after the adjudication.^* § 1202. — Voting at meeting.^s* A submission of an offer of composition at the first meeting of creditors after the examination of the bankrupt is sufficient and is in law a submission to all the creditors ^* and they may pass a resolution as part of the proceedings that in their opinion such composition is desirable and in the interests of creditors.^^ It has been held that a creditor who was present at such meeting and filed his proof of claim, but was not present at the session when the vote was taken on the composition,*^ or failed to act tliereon,^'' should be counted as voting against it, but such is not true under the present law. Only creditors present in per- 20— In re Slade, 1 N. B. N. 182, 1 A. Cihapter XIV relating to creditors' meet- B. B. 193. ings generally. 21 G. O. XII (3). 24 — Sections 12 and 55, Act of 1898. 22-In re Bider, 1 N. B. N. 483, 3 A. 25-In re Hilbom, 104 Fed. 866, 3 N. B. B. 178, 96 Fed. 808; In re Walker, 1 ^'J^' f" ®^" . , , ,„ „ x, •„ «o ■KT T> -KT L,n n^ T, 3 J^^ « . -r. T, l.^ 26— In re Eichmond, 18 N. B. E. 362, N. B. N. 510, 96 Fed. 550, 3 A. B. E. 35. Fed. Caa. No. 11798 23-Seetion 57n, Act of 1898. 27-In re Lissberger, 18 N. B. B. 230, 23a— Reference should also be had to Fed. Gas. No. 6632a. § 1203] Compositions 907 son or represented by proper proxy, or who have signified their acceptance or rejection in writing, should be counted. An objec- tion to a claim and the right to vote thereon made for the first time at a composition meeting, has been held to be too late.^^ Only those who prove and have their claims allowed ^^ can vote at a composition meeting. *° The fact that a creditor *^ has bought a debt to prevent a composition will not prevent him from voting on it, if he have no fraudulent motive.** In voting, a creditor to whom a number of claims have been assigned, will have but one vote.** Creditors who have signed an acceptance of an offer of com- position and procured the court to act thereon will not be per- mitted to withdraw their signatures ; unless it appears that they were procured by fraud or misrepresentation.** § 1203. Rights of secured creditors. Under the act of 1898, secured creditors may vote and their claims will be counted in computing the number and amount but only for the excess over the security,*^ but where one considers himself fully secured, but is not, he cannot be counted to make a majority.*" A secured creditor taking no part in composition proceedings though present, is entitled to the agreed percentage on his unpaid balance after exhausting his security; *^ or may have his security valued and come in for the difference.** If a creditor holds a bond, mortgage or other security for his debt, where no present liability has arisen, and the value of the security is not capable of present determination, because the debt is subject solely to the contingency of a deficiency arising upon foreclosure, such deficiency being merely contingent and 28— In re Block, 18 N. B. B. 328, Fed. 32— Ex parte Morris, 12 N. B. E. 170. Cas. No. 1551. 33— In re Messengill,. 113 Fed. 366, 7 29— See 56a, Act of 1898. A. B. E. 699. 30— In re Scott, 15 N. B. E. 73, Fed. 34— In re Levy, 110 Fed. 744, 6 A. B. Cas. No. 12519; In re Keller, 18 N. B. E. E. 299. 331, Fed. Cas. No. 7654; In re Mathers, 35— Sections 56b, 57c, h, Act of 1898. 17 N. B. E. 225, Fed. Cas. Np. 9274; In 36— In re Snelling, 19 N. B. E. 120, re Eider, 1 N. B. N.'483, 3 A. B. E. 178; Fed. Gas. No. 13140. In re Bruce, 19 N. B. E. 287, Fed. Cas. 37— Paret v. Tieknor, 16 N. B. E. 315, ^°- 2069. 4 Dill. Ill, Fed. Cas. No. 10711. 31— In re Trafton, 14 N. B. E. 507, 2 38— The "Home," 18 N. B. E. 557, Lowell, 509, Fed. Cas. No. 14133; see also Fed. Cas. No. 6657. section 1 (9), Act of 1898. 908 Beandenbubg on Bankbxjptcy [§ 1203 not provable, the holder of such security is neither a necessary nor a proper party to a composition.*® § 1204. Rights of litigating creditors. Attaching creditors have no right to participate in a composi- tion meeting " unless they first relinquish their security.*^ Under the act of 1874, it was held that when the debtor filed a petition in bankniptcy and also for composition and was not adjudicated, and a creditor began suit before composition approved, the debtor was not entitled to restrain the creditor.*^ § 1205. Rights of minority creditors. A creditor is not bound to acceed to a composition,** nor is he legally or morally censurable because he refuses to unite with others, if his refusal proceeds from want of confidence in the debtor; ** but a minority of creditors will not be permitted to defeat a proposed composition because, if defeated, some special benefit will accrue to them,*^ but they may examine the bank- rupt before the composition is confirmed.*® It must appear that wrong has been done such minority by the vote of the majority on the composition before the court will interfere; " and the determination that a proper proportion of the creditors have agreed to the composition cannot be impeached in a collateral action.** § 1206. Partnership compositions. Partnerships may enter into compositions with their creditors, the same as individuals. "When one partner proposes a compo- sition, the majority in number and amount of creditors, whose acceptance in writing is required, may be composed of individual and partnership creditors, whose claims have been allowed,*® 39— In re Kahn, 121 Fed. 412, 9 A. B. 45— In re Scott, 15 N. B. E. 73, Fed. E. 107. Cas. No. 12519. 40— In re Shields, 15 N. B. E. 532, 5 46— In re Little, 19 N. B. E. 234, Fed. Dill. 588, Fed. Cas. No. 12784. Cas. No. 8392. 41— In re Seott, 15 N. B. E. 73, Fed. 47— In re Wronkow, 18 N. B. E. 81, 15 Caa. No. 12519; Section 57e, Act of Blateh. 38, Fed. Cas. No. 18105. 1898. 48— Smith v. Engle, 14 N. B. E. 481. 42— In re Tifft, 18 N. B. E. 78, Fed. 49— In re Spades, 13 N. B. E. 72, 6 Cas. No. 14031. Biss. 448, Fed. Gas. No. 13196. Contra, 43— In re Eider, 1 N. B. N. 483, 3 A. In re Ullman, 180 Fed. 944, 24 A. B. B. B. E. 178. 755. 44— Bean v. Brookmire, 7 N. B. E. 568, 2 Dill. 108, Fed. Cas. No. 1170. ^ 1208] Compositions 909 but a special partner would seem to have no right to take part in composition proceedings by a firm.^" An individual member may properly propose a composition to his and firm creditors, and such composition will be valid if accepted by the requisite number.^* A partner cannot have a composition set aside and his firm put into bankruptcy by setting up his own fraud in effecting the composition.^ ^ The acceptance of a composition offered by a partner is not a bar to a claim against the estate of the other partner arising out of wrongful conversion for which all partners are liable joiutly and severally as tort-feasors.^* §1207. Consideration. §1208. —Nature. A composition in money may be offered, and the money required may be acquired by the bankrupt by the use of his credit.^* The consideration is not, however, limited to money but must be something equivalent thereto which may ultimately be convertible into money and extends to reasonably safe secur- ities or promises to pay, such as a good business man would naturally accept in payment of merchandise sold.^^ A composi- tion providing for deferred payments or promises to pay,^® evidenced by time notes or other negotiable paper,^'' is not incon- sistent with a statute requiring payment' "in money," but a composition deed that provides for preferred payments evi- dence by notes, "to be satisfactorily endorsed," is too indefinite and void.^* The court cannot compel a creditor to consent to have all the bankrupt's estate transferred to a corporation and 50— In re Henry, 17 N. B. B. 463, 9 Ben. 455, Fed. Gas. No. 11673, s. c. 13 Ben. 449, Ted. Gas. No. 6730. N. B. B. 128, 12 Blateh. 562, Fed. Cas. 51— Pool V. McDonald, 15 N. B. B. 560, No. 11675; In re Langdon, 13 N. B. B. Fed. Cas. No. 11268. 60, 2 Lowell, 387, Fed. Cas. No. 8058; In 52— In re Hamlin, 16 N. B. B. 522, 8 re Lewis, 14 N. B. E. 144, Fed. Cas. No. Hiss. 122, Fed. Cas. No. 5994. 8314. 53— In re Coe, 183 Fed. 745, 26 A. B. 57— In re McNab, 18 N. B. E. 388, R. 352. Fed. Cas. No. 8906; .In re Hurst, 13 N. B. 54r-Zavelo v. Beeves, 227 TJ. S. 625, E. 455, 1 Flip. 462, Fed. Cas. No. 6925. 57 L. ed. 676, 29 A. B. E. 493. 58— In re Eeiman, 11 N. B. B. 21, 7 55— In re Eider, 1 N. B. N. 483, 96 Ben. 455, Fed. Cas. No. 11673, s. c. 13 Fed. 808, 3 A. B. E. 178. N. B. E. 128, 12 Blateh. 562, Fed. Cas. 56— In re Eeiman, 11 N. B. E. 21, 7 No. 11675. 910 Bbandenbueg on Bankeuptcy [§ 1208 accept in settlement of Ms claim obligations of tlie new corpora- tion, payable at a future date.^* Delay in paying notes occasioned by legal difficulties will not prejudice bankrupt's right as to creditors who have been paid; ^^ and a composition will not be deemed uncertain because pay- ment is not secured.''^ A proposed composition, payable in thirty days, on condition that bankrupt's property be surren- dered and all suits discontinued, is not improper.*^ Under the act of 1874, it was held that a composition which provided that the payment should be guaranteed by a satisfac- tory bond to a committee of creditors might be confirmed,*^ which would also probably now suffice. A composition is illegal if part of the consideration therefor is the payment of one of the bankrupt's creditors in full.®* A composition agreement whereby 'the bankrupt offers to pay his debts with worthless stock of a corporation of which he holds the majority of stock, the acceptance of which will impose a large personal liability, will not be confirmed against the objec- tion of a creditor, although a large majority of the creditors have assented thereto.''^ § 1209. — Amount. The amount of the consideration must be at least as much as the creditors could reasonably expect to receive if the estate was administered in bankruptcy ; ®® and since it is to be presumed that the owner of a business can make more out of it than another who is a stranger, though possibly of greater business capacity, a bankrupt can afford to offer his creditors more than they could obtain by the administration of the estate in bankruptcy and yet have a margin left for himself."^ In accordance with the general 59— In re J. B. & J. M. CorneU, 186 66— In re Eider, 1 N. B. N. 483, 3 A. I'ed. 859, 26 A. B. E. 252. B. E. 178, 96 Fed. 808^ In re Eeiman, 60— In re KoMsaat, 18 N. B. E. 570, n n. b. E. 21, 7 Ben. 455, Fed. Cas. No. Fed. Cas. No. 7918. 11673, s. e. 13 N. B. E. 128, 12 Blatch. 61— In re Wilson, 18 N. B. E. 300, Fed. cet, -p^^ n„o, -nt ne^c t -m h i77or; ' ^^' ^°' 11675; In re Wells, Cas. No. 17785. 18 N. B. E. 525, Fed. Cas. No. 17377; 62— In re Ca van, 19 N. B. E. 303, Fed. ^ n, „. !„ „ ^ - ^ , Cas. No. 2528. ' In re Snelhng, 19 N. B. E. 120, Fed. 63-In re Lewis, 14 N. B. E. 144, Fed. ^^^- ^°- ^^^^°' ^^^ ^ "^^ Arrington Co., Cas. No. 8314. "3 Fed. 498, 8 A. B. E. 64. 64r-McCormick v. Solinsky, 152 Fed. 67— In re Morris, 11 N. B. E. 443; In 984, 18 A. B. E. 540. le Whipple, 11 N. B. E. 524, 2 Lowell, 65— In re Woodend, 133 Fed. 593, 18 404, Fed. Cas. No. 17513 ; see also In re A. B. E. 768. Weber Furniture Co., 13 N. B. E. 529, § 1210] Compositions 911 rule in composition proceedings, the consideration must be pro rata on all tlie debts scheduled by the bankrupt,®* § 1210. — Deposit. Before the application to confirm is made, an amount sufficient to cover costs, priority claims and expenses, and the percentage named on scheduled claims,*® whether filed before or after the acceptance of the composition agreement,'^" must be deposited in a depository designated by the judge.'^^ The cost of the pro- ceeding and the deposit must be designated by the judge and not the referee, and must be subject to his order. '^^ The deposit must provide for the payment of taxes legally due and owing,''*, but secured claims not liquidated need not be considered in fix- ing the amount thereof.''* The securities tendered in compliance with a composition agreement will not be impounded to await the outcome of a suit to establish a lien against the property of the bankrupt.''^ The amendment of 1874 provided that "the composition should, subject to the priorities declared in the act; provide for a pro rata payment, etc." It was held under that provision that priority of payment out of the assets of the debtor was meant and, where there were no assets, there could be no priority and therefore, the means of making the composition being derived from other sources, debts having priority under the act stood np higher than the claims of general creditors.''® In view of the change of phraseology, and that the law must be strictly construed,''^ the application to confirm can be made only under the circumstances stated in the act, including the deposit of the Ped. Cas. No. 17330, s. e. on appeal, 13 72 — In re Bloodworth-Stembridge Co., N. B. E. 559, Fed. Cas. No. 17331. 178 Fed. 372, 24 A. B. R. 156. 68— In re Trafton, 14 N. B. E. 507, 2 73— In re Flynn, 134 Fed. 145, 13 A. Lowell, 505, Fed. Cas. No. 14133; Drake B. E. 720. V. McQuade, 66 N. H. 303. 74^In re Harvey, 144 Fed. 901, 16 A. 69— Section 12b, Act of 1898; In re B. E. 345. Mayer, 2 N. B. N. E. 527; In re Harris, 75 — York Mfg. Co. v. Merchants' Ee- 117 Fed. 575, 9 A. B. E. 20; In re Fox, frigerating Co., 168 Fed. 108, 21 A. B. 6 A. B. E. 525; Zavelo v. Beeves, 227 E. 748. TJ. S. 625, 57 L. ed. 676, 29 A. B. E. 493. 76— In re Chamberlin, 17 N. B. E. 49, 70— In re Harvey, 144 Fed. 901, 16 A. 9 Ben. 149, Fed. Cas. No. 2580. B. E. 345; and see In re Ennis & Stop- 77— In re Eider, 1 N. B.- N. 483, 3 A. pani, 183 Fed. 859, 25 A. B. E. 383. B. E. 178, 96 Fed. 808; In re Shields, 15 71— In re Bloodworth-Stembridge Co., N. B. E. 532, 5 Dill. 588,, Fed. Cas. No. 178 Fed. 372, 24 A. B. E. 156. 12784. 912 Beandenbueg on Banketjptcy [§ 1210 money necessary to pay debts having priority and tlie costs; and the position taken under the former act would not apply. A failure to make the deposit will prevent the pendency of such petition from being urged as an objection to a sale of the bank- rupt's assets.'^® § 1211. Confirmation of compositions. § 1212. — Time of application. An application for confirmation of a composition may be made after, but not before, the deposit of the consideration.'^* § 1213. — Hearing and objections. Unless waived in writing at least ten days' notice must be given to creditors, by mail, of all hearings upon applications for confirmation of compositions ; *" and where objection is made to the confirmation, the creditor is required to appear on the day of the return of the order to show cause and within ten days thereafter, unless the time is enlarged by special order of the judge, file a specification in writing of the ground of his oppo- sition.®^ Objections as to regularity of a composition and as to what is for the best interest of the parties can be presented at the hear- ing of confirmation.*^ A "party in interest," being any one affected, is entitled to be heard so that any one having a provable claim, although it has riot been proven and allowed,** or an assignee of a claim,** or a partially secured creditor;*® but not one fully secured *® should be heard. The bankrupt is required to pay his own attorney for his services with respect to objections to the composition.*'^ 78— In re Fisher & Co., 135 Fed. 223, 83— In re Walker, 1 N. B. N. 510, 96 14 A. B. E. 366. Fed. 550, 3 A. B. R. 35. 79— Zavelo v. Beeves, 227 U. S. 625, 57 84— In re Comstoci, 154 Fed. 747, 19 L. ed. 676, 29 A. B. E. 493. See ante A. B. R. 65. § 1210. 85— Sections 56b and 57e, h, Act of 80— Section 58a, Act of 1898. 1898. 81— G. O. XXXII; City Nat. Bank of 86— In re Scott, 15 N. B. E. 73, Fed, Dallas V. Doolittle, 107 Fed. 236, 5 A. B. Cas. No. 12519. E. 736. See also In re Seckler & Silver- 87 — In re Martin, 152 Fed. 582, 18 A. man, 197 Fed. 128, 28 A. B. R. 627. B. E. 250. 82— In re Scott, 15 N. B. R. 73, Fed. Cas. No. 12519. § 1215] Compositions 913 , It is tjie duty of tlie qourt to examine objections of a minority fully as to requisite number,^* and to investigate the facts inde- pendently of any conclusion or agreement the creditors may have made, and it may investigate whether objections are well founded, though the creditor has withdrawn his objection,*® § 1214. — Power of referee. The law expressly excepts from the duties of the referee all connection with bankrupt's application for approval of compo- sition,*" but such applications or any specified issue arising thereon may be referred to the referee to ascertain and report the facts,®^ and upon questions arising, the referee, when requested, should appoint a day for bringing the composition before the court, and to issue the required notices to creditors, suggesting in his report any legal questions arising upon the composition, papers.®^ He has, however, power to conduct inquiries and adjourn meetings,®* and examine disputed claims and report thereon;®* but the court may roropen questions in regard to his ruling on all points.®^ § 1215. — When confinned in general. The court has no power to confirm or reject a composition except pursuant to section 12d of the law,®® which provides that "The judge shall confirm a composition if satisfied that (1) it is for the best interests of the creditors; (2) the bankrupt has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to his discharge; and (3) the offer and its acceptance are in good faith and have not been made or procured except as herein provided, or by any means, promises, or acts herein forbidden, ' ' If the papers presented to the judge 88 — ^In re Keiler, 18 N. B. E. 36, Fed. 94 — But see In re Bloodworth-Stem- Cas. No. 7648. bridge Co., 178 Fed. 372, 24 A. B. K. 89— In re Waynesboro Drug Co., 157 156; In re Keller, 18 N. B. E. 331, Fed. Fed. 101, 19 A. B. E. 487; In re Levy, Cas. No. 7654. 172 Fed. 780, 22 A. B. E. 769. 95— In re Spencer, 18 N. B. E. 199, 90— Section 38a (4), Act of 1898; In Fed. Cas. No. 13229. re Sonnabend, 18 A. B. E. 117, 96— In re French, 181 Fed. 583, 25 A. 91_G. O. XII. (3). . B. E. 77; In re Eudnick, 1 N, B. N. 531, 92— In re HUborn, 104 Fed. 866, 3 N. 2 A. B. E. 114, 93 Fed. 787. B. N. E. 62, 4 A. B. E. 741. 93— In re Proby, 17 N. B. E. 175, Fed. Cas. No. 11439. Brandenburg — 58 914 Bbandenbueg on Bankruptcy [§ 1215 on tbe hearing of the application to confirm show that, after his examination and the filing of his schedule of property and list of creditors, the bankrupt offered a composition which was presented to all his creditors; that a majority in number and amount of those whose claims have been allowed, agreed to accept such composition; that the consideration agreed to be paid and the money necessary to pay all debts which have prior- ity and the costs of the proceedings have been deposited in the designated depository; and it does not appear on the face of the papers that the amount the creditors will receive by such com- position is less than they would receive by the administration of the estate in bankruptcy or that there is any fraud or other valid grounds for refusing to confirm such composition, it should be confirmed, as of course, that is, if a prima facie case is made, unless the dissenting creditors have filed proper objections and support them by satisfactory evidence. The burden of proving the existence of valid grounds for refusing to confirm the com- position is on the dissenting creditors ^'^ and the decision of the majority in number and amount accepting the composition will not be disturbed except on sufficient evidence unless manifest fraud, accident or mistake is shown. A provision in the composition that an assignment by the bank- rupt within four months of the filing of the petition shall be sanctioned does not invalidate the agreement,^* nor can the fact that a creditor has through accident or mistake failed to file his claim against the bankrupt estate within the statutory period be urged as an objection to the confirmation.®^ Objections to the confirmation of the composition have been overruled where it was contended, for instance, that a corporation w£is not entitled to the privileges of composition; ^ that property in name of bankrupt 's wife should have been included in the sched- ules;^ that the estate could pay more than the composition;' 97— In re Barde & Levitt, 207 Fed. , 1— In re Weber Turn. Ce., 13 N. B. 654, 31 A. B. E. 161 ; City Nat. Bank of E. 529, Fed. Cas. No. 17330. Dallas V. Doolittle, 107 Fed. 236, 5 A. B. 2— In re Welles, 18 N. B. E. 525, Fed. E. 736; In re Waynesboro Drug Co., 157 Cas. No. 17377. Fed. 101, 19 A. B. E. 487; In re Hoxie, 3— In re Welles, 18 N. B. E. 525, Fed. 180 Fed. 508, 25 A. B. E. 32. Cas. No. 17377; In re Arrington Co., 113 98— In re Linderman, 166 Fed. 593, Fed. 498, 8 A. B. E. 64. 22 A. B. E. 131. 99— In re French, 181 Fed. 583, 25 A. B. E. 77. § 1216] Compositions 915, that debtor paid more in composition than his estate would pay in bankruptcy; * or that he was excused from examination on account of illness.® Objections to the confirmation of a composition have been sustained where the trustees were to leave the estate in the hands of the president of a corporation who was a defaulter and not trustworthy; * or where deferred payments were pro- vided and the property was to be returned to bankrupt, he not being trustworthy; '' or where the money deposited was not sufficient to pay the costs, or notice of the proceedings had not been given the creditors, although a majority of those who had notice and proved their claims had accepted.® The composition cannot be confirmed if the statement of assets and debts shows that the requisite proportion of creditors have not accepted it; * but it is too late to raise an objection to the right of a creditor to vote for the first time at the confirmation hearing.^" § 1216. — Best interests of creditors. Scotland adopted the French cession, the Eoman cessio bono- rum, and, while her courts passed on the reasonableness of a composition, the tendency was to uphold it if fairly adopted. England introduced insolvent laws later and there the decision of the creditors was accepted, unless fraudulently procured, though, if grossly unreasonable, it was presumptively fraudu- lent." While, in England, the court will closely scrutinize a composition and must be first satisfied that it is for the cred- itor's benefit; ^^ here a composition will not be confirmed if it appears not to be for the interest of the creditors, no matter how small a proportion dissent.^* How far the court should go into the merits of the composition to determine its advisability for the creditors as between themselves and reject it against the wish of the majority as not for the interest of the creditors is an 4— In re Snelling, 19 N. B. E. 120, 9— In re Asten, 14 N. B. E. 7, 8 Ben. Fed. Cas. No. 13140. 350, Fed. Gas. No. 594. 5— In re Wilson, 18 N. B. E. 300, Fei. 10— In re Bloeh, 18 N. B. E. 328, Fed. Cas. No. 17785. Cas. No. 1551. 6— In re Scott, 15 N. B. E. 73, Fed. 11— In re Whipple, 11 N. B. E. 524, 2 Cas. No. 12519. Lowell, 404, Fed. Cas. No. 17518. 7— In re Bloeh, 18 N. B. E. 328, Fed. 12— In re Burr, 9 Morrell, 133. Cas. No. 1551. " 13— In re Whipple, 11 N. B. E. 524, 8— In re Eider, 1 N. B. N. 483, 8 A. B. 2 Low. 404, Fed. Cas. No. 17513; In re E. 178, 96 Fed. 808. Eeinheimer, 1 N. B. N. 861. 916 Beandenbueg on Bankruptcy [§ 1216 open question. The present act expressly requires the judge to be satisfied that the composition is for the best interests of the creditors, thus laying on the court the difficult burden of instruct- ing parties as to their own interests, which practically will usually be discharged by adopting the creditors' view, in the absence of fraud or collusion and when the offered composition is equa;lly or more advantageous pecuniarily to the creditors than the administration of the estate in bankruptcy would be; ^* but if the offered composition would not yield the creditors as much as the administration of the estate in bankruptcy, the composition should not be confirmed. A great variance between the probable value of the assets and the composition would jus- tify the court in acting on its own motion, though an apparent discrepancy between the estimated value of the assets and the composition is not sufficient, ^^ and it has been held, that a dis- crepancy of as much as 15 per cent would not warrant the court in overruling the discretion of the creditors.^® In determining whether the composition will yield the cred- itors more, or less, than the administration of the estate in bankruptcy, the costs of such administration, the fact that no one can ordinarily administer a man's affairs as well as himself, the delay caused thereby, and the fact that a forced sale brings less than a private sale must all be talcen into consideration. In ascertaining if the composition is for the best interests of the creditors the fact that there is no security for the payment of the composition notes should be considered; ^^ or that the debtor proposes advance in per cent of composition; ^® or that the consideration which is offered is satisfactory to the requisite majority of creditors.^^ Either party may furnish evidence on 14— In re Eider, 1 N. B. N. 483, 3 A. Case Mfg. Co., 8 A. B. E. 206; In ra B. E. 178, 96 Fed. 808; In re Morris, 11 Waynesboro Drug Co., 157 Fed. 101, 19 N. B. E. 443 ; In re Weber Furniture Co., A. B. E. 487. Fed. Cas. No. 17331; In re Kain, 9 A. 16— In re Arrington Co., 113 Fed. 498, B. E. 107. 8 A. B. E. 64; In re Weber Furniture 15— In re Eeiman, 11 N. B. E. 21, 7 Co., Fed. Cas. No. 17331; Adler v. Jones, Ben. 455, Fed. Cas. No. 11673, s. c. 13 N. 109 Fed. 967, 6 A. B. E. 245. B. E. 128, 12 Blateh. 562, Fed. Cas. No. 17— In re Wilson, 18 N. B. E. 300, Fed. 11675; In re Whipple, 11 N. B. E. 524, 2 Cas. No. 17785. LoweU, 404, Fed. Cas. No. 17513; In re 18— In re Seott, 15 N. B. E. 73, Fed. Weber Furn. Co., 13 N. B. E. 529, Fed. Cas. No. 12519. Cas. No. 17330 ; In re Eeinheimer, 1 N. 19— In re Purcell, 18 N. B. E. 447, Fed. B. N. 361. See In re Criterion Watch Cas. No. 11470. § 1217] Compositions 917 the question whether the composition is for the best interests of the creditors,^" but the offer and its acceptance by the major- ity of the creditors indicate that it is for the interest of the creditors until attacked by the dissentients who may rely on the record and need not always produce extrinsic proof.^^ The approval of the majority of the creditors is prima facie evidence that the composition is for the best interests of the estate and the burden is upon those who attack the composition,^^ and unless specific errors can be pointed out on the confirmation of a composition, whether it is for the best interests of the creditors will not be inquired into by the appellate court.^* § 1217. — Acts in bar of confirmation. Guilt of any of the acts or failure to perform any of the duties which would be a bar to discharge are expressly made a bar also to the confirmation of a composition. Those acts are the con- cealment of property from the trustee, making a false oath or presentation or use in composition of a false claim,^* and fraud- ulently, and in contemplation of bankruptcy, destroying, concealing, or failing to keep books of aceount.^^ If the bank- rupt has been guilty of any of the acts or failed to perform any of the duties named the judge must reject the composition, even if satisfied that it would be for the best interest of the estate not to do so.^* Violation by the bankrupt of a criminal law of the state will not prevent the confirmation of a composition.^^ The fact that a discharge has been refused is not an absolute bar to composition.^^ The fact that a discharge was barred by failure to apply for it in time would seem not to be one of the acts barring a confirmation, if a discharge could have been obtained if applied for in time, since the purpose is to prevent 20— In re Keller, 18 N. B. E. 331, Fed. 25— See 14b, Act of 1898; In re Wil- Cas. No. 7654. son, 107 Fed. 83, 5 A. B. E. 849; In re ' 21— In re Weber Furn. Co., 13 N. B. E. Barde & Levitt, 207 Fed. 654, 31 A. B. E. 529, Fed. Cas. No. 17330. 161 ; In re Olman, 134 Fed. 681, 13 A. B. 22— In re Barde & Levitt, 207 Fed. E. 395. 654, 31 A. B. E.,161; In re Hoxie, 180 26— In re Griffin, 180 Fed. 792, 25 Fed. 508, 25 A. B. E. 32; In re Waynes- A. B. E. 206; In re Comstock, 154 Fed. boro Drug Co., 157 Fed. 101, 19 A. B. E. 747, 19 A. B. E. 65. 487. 27— In re McLellan, 204 Fed. 482j 30 23— In re Wronkow, 18 N. B. E. 81, 15 A. B. E. 325. Blatch. 38, Fed. Cas. No. 18105. 28— In re Odell, 16 N. B. E. 501, 9 24^See 29b, Act of 1898. Ben. 247, Fed. Cas. No. 10427. 918 Bkandenbueg on Bankbuptcy [§ 1217 a bankrupt obtaining at his creditor's bands a discharge which his conduct prohibited his getting otherwise. Until there is an authoritative decision on the latter point, it is safer to apply for the confirmation of a composition before the expiration of such period; but the filing of an application within the period would suffice, the hearing and decision being held after its expi- ration. The evasiveness of an answer by the bankrupt will not alone warrant the rejection of a composition on the ground of false oath. The false oath must have been knowingly and corruptly made.^^ § 1218. — Bad faith. Absolute good faith is required of the bankrupt and all those connected with a composition, and, if the bankrupt has made false statements about his debts, or assets, or other creditors, or anything which may have influenced the making of the compo- sition, or creditors have used improper means to induce others to accept or refrain from opposing a composition, it will not be confirmed.** As the court has no power to confirm or reject a composition, except pursuant to this section, and no power to set one aside unless fraud was practiced in securing it and knowl- edge of such fraud has come to the petitioners since such confirmation,*^ any objections consistent with this section, except those based on after discovered fraud, should be presented on the hearing to confirm and not a hearing to set aside. Where there is a discrepancy between the composition and the apparent value of bankrupt's property and other evidence of fraud, the composition should not be rejected without notice to the parties interested and taking into account the relations and relative number of creditors favoring the composition; ^^ nor should the composition be rejected if, without fraudulent intent, assets were omitted, or non-existent debts inserted in the schedule, such errors not requiring a change in the terms of the composition, especially if the creditors knew of them when they accepted the 29— In j;e Cohen, 149 Fed. 908, 18 A. 8 N. B. R. 228, 10 BJateh. 361, Fed. Cas. B. R. 84. No. 1167 ; Bean v. Brookmire, 7 N. B. B. 30— In re Sawyer, 14 N. B. R. 241, 2 568, 2 Dill. 108, Fed. Cas. No. 1170. Lowell 475, Fed. Cas. No. 12395 ; In re 31— Section 13, Act of 1898. Whitney, 14 N. B. R. 1, 2 LoweU 455, 32— In re Weber Furn. Co., 13 N. B. B. Fed. Cas. No. 17580; Bean v. Amsinck, 529, Fed. Cas. No. 17330. § 1218] Compositions 919 composition; ^* nor because bankrupt is related to some of tlie ac- cepted creditors,^* nor because an indorsee on a note of tbe bankrupt advises him to accept a composition and such accept- ance will not serve to discharge the indorsee.*" Confirmation should be refused if lack of good faith appears; as the giving of money to one creditor to induce him to sign; ** or the purchase of claims to be used in favor of a composition unless there is clear proof that the motive was proper; or improperly inducing the withdrawal of opposition; or expecta- tion of an advantage from accepting without any positive promise, or giving one creditor a secret benefit or advantage ^'^ or secret preference; ** or promise to settle, accepting creditors' claims at expense of others;*^ or agreeing through sympathy or friendship for the bankrupt to take that which would not be for the interest of all the creditors.*" That the attorney for the receiver in bankruptcy after the examination ai the bankrupt and his offer of composition, secured powers of attorney from creditors, and, as their attorney, voted in favor of a composition is no ground for refusing to confirm the composition, no fraud being practiced.*^ While the fact that the bankrupt made a preferential transfer should not prevent the confirmation of a composition yet a com- position should not be confirmed where it clearly appears that there have been preferential transfers which may be recovered by the trustee, and that the estate in hand with such preferences recovered and added, will net the creditors a greater percentage than offered in the proposed composition.*^ 33— In re Scott, 15 N. B. E. 73, Fed. 38— In re Jacobs, 18 N. B. E. 48, Fed. Cas. No. 21519; In re Eeiman, 11 N. B. Cas. No. 7159; In re Knox, 98 Fed. 585. E. 21, 7 Ben. 455, Fed. Cas. No. 11673, See Jacobs v. Siff, 74 Misc. (N. Y.) 58, s. c. 13 N. B. E. 128, 12 Blatch. 562, 27 A. B. E. 189. Fed. Cas. Noi 11675. 39— In re Vetterlein, 6 N. B. E. 518, 34^In re Eider, 1 N. B. N. 483, 3 A. 5 Ben. 571, Fed. Cas. No. 16928. B. E. 178, 96 Fed. 808. 40— Ex parte Williams, L. E. 10, Eq. 35 — ^In re Jacobson & Son Co., 196 55. Fed. 949, 28 A. B. E. 492. 41— In re McLellan, 204 Fed. 482, 30 36— Dauglish v. Tennent, L. E. 2 Q. A. B. E. 325. B. 49. 42— In re McLellan, 204 Fed. 482, 30 37— In re Sawyer, 14 N. B. E. 241, 2 A. B. E. 325. Lowell 475, Fed. Cas. No. 12395; In re Morris, 12 N. B. E, 170, See In re Chaplin, 115 Fed. 162, 8 A. B. E. 121. 920 Brandenburg on Bankruptcy [§ 121^ § 1219. — Frauds and omissions. The court, on application to confirm should correct mistakes and expose and punish fraud and improper practices,*® as where a creditor after receiving payment in full signs an agreement ■with other creditors to take seventy cents in the future; or where one creditor exacts an advantage not known or enjoyed by the others for uniting in the composition; ** or where an agent in composition obtains the same by false representa- tions; *' or if a partner after composition, procures assignment of claims to a relative and then institutes proceedings to set aside the composition and put the firm in bankruptcy; *® but a pre- ferred creditor is liable for the amount of the advantage over others; and, if he pays, his original claim can be proved.*'' A mis-statement of assets to warrant the refusal to confirm a composition must be materially false and have been intentionally made for the purpose of obtaining credit,*^ and credit must have been actually obtained by means of the untrue statement.*® § 1220. — Order or decree of confirmation. The confirmation need not be made at a meeting^" and it is only necessary to record the decree containing the resolution.®^ § 1221. Performance of composition. § 1222. — In general. A composition must be carried out according to its terms and can not be added to by demanding a discontinuance and surrender of property before the per cent is paid; ^^ nor will the mere delivery of the notes provided for in it cancel the debt; ®® and if the debts are not paid according to the terms of the com- 43— In re Spencer, 18 N. B. E. 199, A. B. R. 774; In re O'Callaghan, 199 Ted. Gas. No. 13229. Fed. 662, 29 A. B. R. 304. 44 — ^Bean v. Brookmire, 7 N. B. E. 49 — In re O'Callaghan, 199 Fed. 662, 568, 2 Dill. 108, Fed. Cas. No. 1170. 29 A. B. E. 304. 45— Blfelt V. Snow, 6 N. B. E. 57, 2 50— In re SpiUman, 13 N. B. E. 214, Sawy. 94, Fed. Cas. No. 4342. Fed. Cas. No. 13242. 46— In re Hamlin, 16 N. B. E. 522, 8 51— Smith v. Barnhard, 14 N. B. E. 41. Biss. 122, Fed. Cas. No. 5994. 52 — In re MeKeon, UN. B. E. 182, 7 47— Brookmire v. Bean, 12 N. B. E. Ben. 513, Fed. Cas. No. 8858. 217, 3 Dill. 136, Fed. Gas. No. 1942. See 53— In re Eeiman, 13 N. B. E. 128, 12 In re Chaplin, 115 Fed. 162, 8 A. B. E. Blateh. 562, Fed. Cas. No. 11675. See 121. also In re Hurst, 13 N. B. E. 455, 1 Flip. 48— In re Seligman, 163 Fed. 549, 20 462, Fed. Cas. No. 6925. § 1224] Compositions 921 position they are payable in their original amount;^* but the tender of money according to the terms of the composition is equivalent to payment."^ An agreement of the trustee to guarantee to a certain cred- itor a certain dividend cannot be enforced against him, the agreement being void as against public policy.^* § 1223. — Distribution of consideration. The act provides that the consideration shall be distributed as the judge shall direct." As the amount is fixed by the com- position and as it must be paid to all the creditors pro rata^* this provision can only mean that, upon the confirmation of the composition, the judge shall direct or order the distribution of the deposit, including debts having priority and costs, to be made and, in case no trustee has been appointed, by whom it shall be made. In Official Form 63 (§ 1823, post) the clerk is ordered to do it but there is nothing in the act which would prevent the judge selecting some one else, or appointing a person specially for the purpose,^^ although in view of the small fees provided by the act such appointments might be deemed the perquisites of the clerk. In pro-rating the consideration among creditors, the interest to be considered in making a distribution is that of the creditors at the time of acceptance <"' and of all of them because the fact that one might be specially benefited by the refusal to confirm the composition would not justify such refusal.^ ^ § 1224. — Proof of claims. To be entitled to a share in the distribution of the considera- tion a creditor must have filed and proved his claim within the time and in the manner provided for by section 57n of the act.®^ A creditor whose claim has not been scheduled and who has not filed same until after the filing of a petition to confirm the com- 54— In re Leipziger, 18 N. B. E. 264; 57— Section 12e, Act of 1898. In re Hurst, 13 N. B. B. 455, 1 Flip. 462, 58— In re Trafton, 14 N. B. E. 507. Fed. Cas. No. 6925; In re Eeiman, 13 59— Ex parte' Hamlin, 16 N. B. E. 320, N. B. E. 128, 12 Blatch. 562, Fed. Cas. 323, 2 Lowell 571, Fed. Cas. No. 5993. No. 11675, s. c. 11 N. B. E. 21, 7 Ben. 60— In re Haskell, 11 N. B. E. 164, 455, Fed. Cas. No. 11673. Fed. Cas. No. 6192. 55— In re Hinsdale, 16 N. B. E. 550, 61— In re Scott, 15 N. B. E. 73, Fed. 9 Ben. 91, Fed. Cas. No. 6526. Cas. No. 12519. 56— Jacobs v. Siff, 74 Misc. (N. Y.) 62— In re French, 181 Fed. 583, 25 A. 68, 27 A. B. E. 189. B. E. 77. 922 Bkandenbueg on Bankruptcy [§ 1224 position cannot share tlie deposit ratably with other creditors, but may be entitled to any surplus remaining after the paying of expenses and the dividends of the scheduled claims and those not scheduled but filed before the issue of the rule nisi.®* The bankrupt has the right to appear in opposition to the allowance of a claim,®* and he may be heard to object to the allowance in composition of a claim offered for proof after the expiration of a year, though the same has not been scheduled.®^ § 1225. — Right of set-off. The bankrupt in a composition stands, as to set-off, in the position of a trustee, if none has been appointed,®® but a creditor who receives a composition payment from his bankrupt debtor, with knowledge of all the facts, is not entitled to have a set-off enforced which he neglected to assert when the composition was made.®'^ §1226. — Failure to perform. The failure of the bankrupt to perform a composition accord- ing to its terms does not empower a creditor to disregard the proceedings and sue for his debt;®* but if fraud was practiced in securing it, there seems to be no reason why it might not be set aside. An offer to compromise is not a defense to an invol- untary petition.®^ The court has no power to imprison a creditor for refusing to receive money on finality of a composition,'^'' nor will s]ich refusal in any way affect the validity of the proceedings. § 1227. Appointment of trustee. Under the act of 1867 it was held that the bankruptcy act, in authorizing a composition before adjudication, contemplated 63— In re Eunis & Stoppani, 183 Fed. 68— In re Bayly, 19 N. B. E. 73, Fed. 859, 25 A. B. E. 383. Cas.'No. 1144. But see In re Garton & 64— In re French, 181 Fed. 583, 25 Co., 148 Fed. 63, 17 A. B. E. 343; A. B. E. 77. Pubke v. Churchill, 91 Mo. 81. 65— In re Lane, 125 Fed. 772, 11 A. 69— Simonson v. Sinsheimer, 95 Fed. B. E. 136. 948, 3 A. B. E. 824, rev'g 1 N. B. N. 66— Ex parte Howard Nat. Bank, 16 230, 92 Fed. 904, 1 A. B. E. 197. N. B. E. 420, 2 Lowell 487, Fed. Cas. No. 70— In re Hinsdale, 16 N. B. E. 550, 6764. 6 Ben. 91, Fed. Cas. No. 6526. 67— Hunt V. Holmes, 16 N. B. E. 101, Fed. Cas. No. 6890. § 1230] Compositions 923 that it be made without appointment of an assignee, and without requiring the debtor to surrender his assets/^ which is prac- tically the rule adopted under the present act.^^- § 1228. Effect of composition. § 1229. — Conclusiveness. If the court had jurisdiction of the subject matter and the persons, and jurisdiction is shown to have attached, all the sub- sequent proceedings are presumed to be regular and its decision upon every question properly arising in the proceeding is bind- ing oh all courts till reversed on appeal. The order of confirma- tion is conclusive that the proper number of consents have been obtained; that proper and sufficient notice was given; that the consideration deposited is valid; that the papers are properly executed; that every act required by the law was duly and prop- erly done;'^^ and that the court had jurisdiction and the proceedings were regular,'^* and the order cannot be collaterally attacked. ''^^ § 1230. — Effect upon bankruptcy proceedings. A composition does away with the effect of the bankruptcy proeeediags.'^® After the confirmation of the composition and the distribution of the consideration, the case is to be dismissed. , Before dis- missal the necessary orders should be made to authorize the proper disposition of any property held subject to the court's orders as money belonging to the estate held by the sheriff which, without a proper order of the court, would not be at bankrupt's disposal. ''^'^ When the order of dismissal is made, all proceedings are then at an end, unless subsequent steps should be taken to set aside the composition,'^® and no claims can there- after be filed.^9 71— In re Van Auken, 14 N. B. R. 425, 76— Gordon v. Mechanics ' & TradeTs' Ted. Caa. No. 16828. Ins. Co., 120 La. Ann. 441, 22 A. B. R. 72— In re Rung, 1 N. B. N. 406, 2 A. 649. B. E. 620. 77— In re Mickel, 19 N. B. R. 374, 73— Smith v. Engle, 14 N. B. R. 481. Fed. Gas. No. 9529. 74^Seetion 21f, Act of 1898. 78— Section 13, Act of 1898. 75— Abbott V. Anderson, 31 A. B. R. 79— In re Cooper Bros., 166 Fed. 932, 877. 20 A. B. R. 634. 924 Bkandenbueg on Bankbuptcy [§ 1230 The referee does riot, however, lose his powers in the adminis- tration of the estate because of the pendency of a composition offer, and the pendency of a petition to set aside a composition does not operate to prohibit him from exercising his right inde- pendently of, or in conjunction with, such application to re-open the estate, and such re-opening is not an interference with the administration of the estate.*" § 1231. — Effect on bankrupt's debts. The order of confirmation serves as a discharge by opera- tion of law ®^ and no further discharge is required.*^ The confirmation of a composition discharges a bankrupt from his debts other than those agreed to be paid by its terms and those not affected by a discharge.*^ Debts are released by the confirmation although they may be incorrectly stated in the schedules, unless such errors were substantial or intentional,** and the same is true of a claim which is not proven, the creditor failing or refusing to participate with the other creditors when the composition is offered,*^ but the claim of a creditor whose debt is not scheduled and who has no notice of the proceedings prior to the filing of the application for the confirmation of the composition agreement is not discharged.*® The failure of a creditor to ascertain the amount allowed on his claim, where notice of the composition proceeding has been properly given, will estop him from asserting that his claim was in excess of the amount scheduled by the bankrupt.*'' A composition includes and binds debts created by fraud,** and a debt so created is discharged by a composition in which the creditor participates.*® Holders of a note who take no part in composition proceedings 80— In re Sonnabend, 18 A. B. E. 117. A. B. E. 235; In re Trafton, 14 N. B. E. 81— Mandell & Co. v. Levy, 47 Misc. 507, 2 Lowell 505, Fed. Cas. No. 14133. (N. T.) 147, 14 A. B. E. 549 j In re 85— Glover Grocery Co. v. Dome, 116 Cooper Bros., 166 Fed. 932, 20 A. B. E. ^^- ^16, 8 A. B. E. 702. 634; In re Friend, 134 Fed. 778, 13 A.B. 86— Broadway Trust Co. v. Manheim, E. 595; In re Merriman, 18 N. B. E. 411, ^^ ^^^«- ^^- ^O «5, 14 A. B. E. 122. Fed. Cas. No. 9479. ^ ^ItJI '' ^^'^^"^' ^^^ ^^^\ »*' ^7 A- 5. K. 235, 82-In re Becket, 12 N. B. E. 201, 2 ^^_^^ ^^ ^ ^^ ^_ ^ ^ ^^^^ Woods 173, Fed. Cas. No. 1210. Cas. No. 12695. 83— Sections 14c, 17, Act of 1898. 89— Wells v. Lamprey, 16 N. B. E. 84— In re Wilkens, 191 Fed. 94, 27 205. § 1234] Compositions 925 of indorsers are not bound, and can recover from them, ihe maker not paying, where the note did not become due until after the bankruptcy of the indorsers.®" ' The acceptance of a composition is not considered as being a voluntary assent of the creditor to the satisfaction of the debt, so that if thereafter the bankrupt makes a new promise to pay the unpaid balance of the debt, such promise may be made the foundation of a new suit by the creditor.^^ § 1232. — Effect on secured creditors. A secured creditor who accepts an offer of composition thereby loses his right to retain any securities held for the debt.®^ § 1233. — Effect on co-debtors and partners. The present act expressly provides that the liability of a per- son who is a co-debtor with, or guarantor or in any manner surety for, a bankrupt shall not be altered by the discharge of such bankrupt.®* A composition is a substitute for a discharge and the bankrupt's discharge from his debts under a composi- tion is a discharge by operation of law which does not release his partners, sureties or guarantors; though the usual rule is that a creditor releasing the principal debtor on a composition releases the surety.®* An order approving the composition of a partnership releases partners from individual liability for firm debts.®^ § 1234. — Effect on bankrupt's property. The confi.rmation of the composition revests the title to the property in the banlirupt,®® notwithstanding the trustee has not been discharged.®'^ The creditors cease to have any interest 90— Smith v. Krauskopf, 18 N. B. 94 — See Mason &r Hamlin Organ Co. K.6. V. Bancroft, 1 Abb. N. C. 415; Ex parte 91 — Cohen v. Eachenmaier, 147 Wis. Jacobs, 44 L. J. 34; Baston Furniture 649, 27 A. B. R. 416. Mfg. Co. v. Caminez, 146 App. Div. (N. Promise to pay dischargeable debt not T.) 436, 27 A. B. E. 29. But see In re affected by composition. Zavelo v. Benedict, 18 A. B. E. 604. Beeves, 227 IT. S. 625, 57 L. ed. 676, 29 95— Abbott v. Anderson, 184 111. App. A. B. E. 493. 598, 31 A. B. E. 877. 92— McDonald v. Ta^ylor Co., 144 App. 96— Section 70f, Act of 1898. Div. (N. Y.) 329, 26 A. B. E. 635. 97-^BracWee Co. v. O'Connor, 67 Misc. 93— Section 16, Act of 1898. (N. T.) 599, 24 A. B. E. 499. ; 926 Bbandenbtjeg on Bankruptcy [§ 1234 in it and any money on hand should be paid to the bankrupt,®^ who is at liberty to deal with it as he wishes if no fraud has been practiced.** If there is no provision for the disposition of property, the bankrupt retains the same subject to the summary order of the court,^ and where the composition gives his prop- erty and books back to the bankrupt, the creditors will not be permitted to undo what they consented to.^ The bankrupt is entitled to the benefit of any leases made by the trustee,* and his receiver has no claim on the rents and profits of his land, it being after acquired property under the composition.* § 1235. — Effect on liens and atta.chments. After filing a petition a creditor cannot acquire a lien and this is not affected by composition proceedings.^ An attachment made within four months of the commence- ment of proceedings will be dissolved by a composition;^ but not by a prematurely initiated composition ; ^ nor can confirma- tion give validity to such illegal composition.* §*1236. — Subsequent litigation. Creditors have a right to receive their quota under the com- position and its payment to them cannot be suspended by iajunction unless there is a lien upon the fund; * nor will an injunction be allowed because the debtor fails to plead the com- position.^" A creditor, seeking to liquidate his claim in a replevin suit in a state court, has no standing to ask that other creditors wait for their dividends under a composition until he can get judgment, when the bankruptcy court finds the evidence does not sustain the charge of fraud on which the repleyin suit 98— In re August, 19 N. B. E. 161, 5— In re Tifft, 19 N. B. E. 201, Fed. Fed. Cas. No. 645. * Cas. No. 14034. 99— In re Shaw, 9 N. B. E. 512, Fed. 6— Miller v. Mackenzie, 13 N. B. E. Cas. No. 12716. 496; Smith v. Engle, 14 N. B. E. 481. 1— In re Eeiman, 11 N. B. E. 21, 7 7 — In re Clapp, 14 N. B. E. 191, 2 Ben. 455, Fed. Cas. No. 11673. Lowell 468, Fed. Cas. No. 2785. 2— In re Eodger, 18 N. B. E. 381, Fed. 8— In re Hyman, 18 N. B. E. 299, Fed. Cas. No. 11992. Cas. No. 6985. 3— Bracklee Co. v. O'Connor, 67 Misc. 9— In re KoMsaat, 18 N. B. E. 570, (N. Y.) 599, 24 A. B. E. 499. Fed. Cas. No. 7918. 4— Conover v. Dumahaut, 17 N. B. E. 10— In re Tooker, 14 N. B. E. 35, 8 558. Ben. 390, Fed. Cas. No. 14096. §1240] / Compositions 927 is based;" but where a composition has been complied with, an injunction restraining a suit in a state court is proper.^^ § 1237. Composition must be pleaded. The composition is a defense that may be waived and, if a suit is brought on a debt after confirmation, it must be pleaded or it is deemed to be waived and the court will not thereafter relieve the party from the result of his laches.^^ An order confirming a composition may be pleaded as a discharge, and under an allegation that a discharge was obtained, proof of an order confirming a composition is admissible.^* § 1238. Effect of failure to confirm composition. Whenever a composition is not confirmed, the estate shall be administered in bankruptcy.^® An order refusing to confirm a composition on the ground that it is not for the best interest of the estate is not res adjudicata as to the right to a subsequent discharge.^® § 1239. Certified copy of order as evidence. A certified copy of an order confirming a composition is evi- dence of the jurisdiction of the court, the regularity of the proceedings and the fact that the order was made,^'^ and con- stitutes evidence of the revesting of the title of his property in the bankrupt, and, if recorded, will impart the same notice that a deed from the trustee to the bankrupt, if recorded, would impart.^* § 1240. Appeal and review. The act gives the effect of a discharge to an order confirming a composition and thus makes it the equivalent, to an order 11— In re Heinsfurter, 1 N. B. N. 510, 14 — Broadway Trust Co. v. Manheim, 97 Fed. 198, 3 A. B. E. 109, 113. 47 Mise. (N. Y.) 415, 14 A. B. E. 122. 12— In re Shafer, 17 N. B. E. 116, Fed. 15— Section 12e, Act of 1898. Cas No 12695 16— In re McVoy Hardware Co., 200 '„ J ' Ped. 949, 29 A. B. R. 3221. 13-In re Tooker, 14 N. B. E. 35, 8 i7_Section 21f, Aet of 1898; MandeU Ben. 390, Fed. Cas. No. 14096; Dimock & ^0. v. Levy, 47 Mise. (N. Y.)' 147, 14 V. Severe Copper Co., 117 IT. 8. 559, 29 x. B. E. 549. L. ed. 994; Consolidated Eubber Tire Co. 18— Section 21g, Aet of 1898; 2 Lowell V. Vehicle Equipment Co., 121 App. Div. 505, Fed. Cas. No. 14133; Drake v. Me- (K. T.) 764, 19 A. B. E. 862. Quade, 66 N. H. 303. 928 Beandbnbubg on Bankruptcy [§ 1240 granting a discharge, so either the hankrupt or a creditor, if aggrieved by the granting or refusing of an order confirming a composition, may appeal to the circuit court of appeals.^® § 1241. Setting aside compositious. § 1242. — Comparison of acts. Section 13a of the act of 1898, provides that "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 practiced in the procuring of such composition, and that the knowledge thereof has come to the petitioners since the confirmation of such composition." There was no analogous provision in the act of 1867, but by the amendment of 1874^" it was provided that "If it shall at any time appear to the court, on notice, satisfactory evidence and hearing, that a composition, under this section, cannot, in consequence of legal difficulties, or for any sufficient cause, proceed without injustice or undue delay to the creditors or to the debtor, the court may ... set it aside." The differ- ence in the provisions of the two acts is accordingly great. Under the former, if at any time the court found the composi- tion could not proceed "without injustice or delay," it might be set aside. Under the act of 1898, a composition can only be set aside upon an application filed within six months after confilmation and for fraud in procuring it, of which the appli- cants — ^who need only be "parties in interest" — must have been ignorant at the time of the confirmation.^^ 19— Section 25a, Act of 1898; V. S. ex 17 N. B. E. 440, 8 Ben. 436, Fed. Cas. No. rel. Adler v. Hammond, 3 N. B. R. 58, 6405) ; that it could be set aside if not of 104 Fed. 862, rev'g 3 N. B. N. E. 15, benefit to creditors as well as bankrupt 103 Fed. 444, 4 A. B. E. 583; see City (In re Allen, 17 N. B. E. 157, Fed. Cas. Nat. Bank of Dallas v. Doolittle, 107 No. 210) ; that creditors who have not Fed. 236, 5 A. B. E. 736. proved their debts can not take part (In 20—18 U. S. Stat. 184. re Bryee, 19 N. B. E. 287, Fed. Cas. No. 21 — The difference in the two acts ren- 2069) ; and that creditors who accepted ders many of the decisions under the the compromise can not vote for assignee earlier aet inapplicable to the present, as (Ex parte Hamlin, 16 N. B. E. 320, 2 for instance, that the court might, two Lowell 571, Fed. Cas. No. 5993; In re years after the final order, set aside a Herman, 17 N. B. E. 440, 9 Ben. 436, composition, though in that case it did Fed. Cas. No. 6405). not on account of laches (In re Herman, §1243] Compositions 929 The provisions for tlie setting aside of a composition and of a discharge ^^ are alike, and , decisions construing them should be considered together. § 1243. — Grounds for setting aside. The court of bankruptcy^has no power to set a-side a composi- tion except as given in section 13, which limits section 2 (9) of the act.^* The sole ground for setting aside a composition is fraud,, and it must have been unknown to the applicants at the time of con- firmation.** The want of knowledge must not only be actual but legal. If on proper inquiry they might have known or if facts existed which would have caused a reasonable man to make such inquiry they will be charged with knowledge. But, even if a creditor has relied on the general observance of the bank- ruptcy act, he will not be estopped from seeking to set aside a composition, unless it be clearly shown that he was in posses- sion of the information as to which he was guilty of laches or that he deliberately ignored an opportunity to keep posted.*^ A fraudulently procured composition will be set aside,*® as where it was procured by fraudulent conduct of the trustee seek- ing to aid the bankrupt,*'' or by false assurances made by the bankrupt's attorneys that there was no haste and that the cred- itor would be included in the composition,** or by concealment of assets,*® or by a false statement by the bankrupt which was relied upon by a creditor in accepting the terms of a compo- . sition.^" As a general rule, it may be said that frauds which would have been a bar to the confirmation if discovered there- tofore may be urged as grounds for setting the composition aside where discovered after its confirmation.*^ However, the volun- , 22— Section 15, Act of 1898. 27— In re Wrdsley Co. 133 Fed. 388, 23— In re Btidniek, 1 N. B. N. 531, 93 13 A. B. E. 193. Fed. 787, 2 A. B. E. 114; City Nat. Bank 28— In re Abrams & Eubins, 173 Fed. of Dallas v. Doolittle, 107 Fed. 236, 5 430, 23 A. B. E. 25. A. B. E. 736. 29— In re Kaplan, 29 A. B. E. 54. 24— In re Abrams & Eubins, 173 Fed. 30— In re BaUance, 206 Fed. 505, 30 430, 23 A. B. E. 25; In re Cooper Bros., A. B. E. 689. 166 Fed. 932, 20 A. B. E. 634. False statement in schedules. In re 25— In re BaUanoe, 206 Fed. 505, 30 Eoukous, 128 Fed. 645, 12 A. B. E. 128. I A. B. E. 689. . 31— In re Eoukous, 128' Fed. 645, 12 26— Elfelt V. Snow, 6 N. B. E. 57, 2 , A. B. E. 218. Sawy. 94, Fed. Cas. No. 4342. Brandenburg — 59 930 Bbandenbueg on Bankeuptcy [§ 1243 tary payment in full of other debts after bankrupt's release by composition does not render fraudulent a promise to a creditor to induce bim to sign composition "that no other creditor shotild receive better terms," ^^ nor is the failure of a creditor to get notice because his address was misstated in the schedule through mistake, sufficient grounds for setting aside the composition.** A composition, though fraudulent, will not be set aside, where the creditors will not profit by setting it aside, as where a secoiid petition in bankruptcy has been filed since its confirmation and the bankrupt is unable to meet the notes given to the creditors in payment of their claims.** § 1244. — Parties in interest. The confirmation of the composition can only be set aside ' ' upon the application of parties iu interest. " *^ A creditor who has assigned his claim cannot petition for the vacation of. an order confirming a composition.*® § 1245. — Limitations. A composition can only be attacked in the bankruptcy court and there only within six months after the order of confirmation. After that, and elsewhere at all times, it is unimpeachable.*^ § 1246. — Petition to set aside. The petition to set aside a composition need not set out in detail how and when the petitioner learned the facts relied upon. It is sufficient that it allege that the petitioner had no knowledge of the facts at the time the composition was confirmed.** Fail- ure of a petition to make all creditors assenting to the composition parties is not fatal.*® A verification in the usual form for a bill of equity is suflS- 32— In re Sturgis, 16 N. B. E. 304, 8 37— Section 13a, Act of 1898; In re Bias. 79, Fed. Cas. No. 13565. Eisenberg, 148 Fed. 325, 16 A. B. E. 33— In re Eudnick, 1 N. B. N. 276, 531, 776; In re Jersey Island Packing Co., 152 2 A. B. E. 114, 93 Fed. 787. Fed. 839, 18 A. B. E. 417. 34— In re Saeharoff & Kleiner, 163 38— In re Eoukous, 128 Fed. 645, 12 Fed. 664, 20 A. B. E. 814. A. B. E. 128. 35— Section 13, Act of 1898. 39— In re Wrisley Co., 133 Fed. 388, 36— In re Wrisley Co., 133 Fed. 388, 13 A. B. E. 193. 13 A. B. E. 193. §1250] Compositions ' 931 cient,*° but a verification by an agent who has no personal knowledge of the facts, upon information and belief, is insuffi- cient.*' The commencement of an action at law by a creditor on his claim is not an abandonment of his petition to have a composi^ tion set aside.** § 1247. — Notice of hearing. Though no provision is expressly made for notice of the hear- ing on the application to set a composition aside the better practice is to give notice to the parties interested,*' especially to any creditor charged with being a party to the fraud. § 1248. — Restoration or deposit of consideration. The restoration of the consideration received by the creditor, or an offer to restore the same is not a condition precedent to the setting aside of a composition.** It is held, however, that if a note given to applicant under a composition falls due while his application to set such composir tion aside is pending, the amount thereof should be paid into court by the bankrupt; *^ but, if the applicant in such circum- stances does not appear to receive payment after notice, he is entitled, upon subsequent refusal, to a summary order. §1249. — JurytriaL Section 13 provides that "if it shall be made to appear upon a trial," thus clearly distinguishing the mode to be adopted here froin that in section 12, which provides (par. c) for a "hearing" and (par. d) that the "judge" should be satisfied. The question of fraud is to be tried by a jury.** § 1250. — Burden and quantum of proof. The burden rests upon the creditor seeking to have a composi- tion set aside, to show by proper averments and evidence, sufficient grounds why this should be done.*'' 40-41-42— In re Boukous, 128 Fed. 45— In re Eeynolds, 16 N. B. B. 176, 645, 12 A. B. R. 128. Fed. Cas. No. 11725. 43— -Ex parte Hamlin, 16 N. B. E. 320, 46 — But see In re Kaplan, 29 A. B. Fed. Cas. No. 5993; Re Dunn; 53 Fed. E. 54. 341. 47— City Nat. Bank of Dallas v. Doo- 44— In re Eonkous, 128 Fed. 645, 12 little, 107 Fed. 236, 5 A. B. E. 736. A. B. E. 128. 932 - Brandenbtjeg on .Bankbtjptcy [§ 1250 Clear proof of fraud is necessary to set aside a compositioui** § 1251. — Effect of setting aside. While a composition induced by fraud may be set aside, the property acquired by the bankrupt, in addition to his estate at the time the composition was confirmed, must be applied to the payment in full of claims of creditors for property sold to him on credit in good faith while such composition was in force, and the residue, if any, added to his estate in bankruptcy *® to be applied to the payment of debts arising at the time of adjudica- tion. Whenever a composition is set aside the court must rein- state the case^" and the trustee, upon his appointment and qualification, is vested with the title to all of the bankrupt's property as of the date of the final decree setting aside the composition.^^ It has been held that where payments have been made under a composition which is afterwards set aside, such payments are not affected.^ ^ § 1252. — Order setting aside as evidence. A certified copy of the order setting a composition aside, not revoked, is evidence of the jurisdiction of the court, the regular ity of the proceedings and of the fact that the order was made.^* 48 — Union Furniture Co. v. Walker- 52 — MeCormiek v. Solinsky, 152 Fed. Cooley Furniture Co., 206 Fed. 217, 31 984, 18 A. B. K. 540; Ex parte Hamlin, A. B. E. 73. 16 N. B. E. 320, 2 Lowell 571, Fed. Gas. 49— Section 64e, Act of 1898. No. 5993. 50— Section 2 (9), Act of 1898. 53 — Section 21f, Act of 1898. 51— Section 70d, Act of 1898. CHAPTER XXX Appbaisal and Sale op Pkopeety § 1253. Jurisdiction and power to sell. §1254. — Ancillary jurisdiction. § 1255. — State court has no power over sales. § 1256. — Power of referee. § 1257. Liquidation without sale. § 1258. Sale pending composition proceedings. § 1259. Eeeeiver 's sales. § 1260. What may be sold or assigned. §1261. — In general. §1262. — Exempt property. §1263. —Good-will. § 1264. — Interest in real estate, § 1265. — Incumbered property. § 1266. — Leases. § 1267. — Liquor license. § 1268. — Property in possession of adverse claimant. §1269. — Trustee's right of action. § 1270. Sale free of liens. §1271. —In general. § 1272. — Sale free from dower. § 1273. — Order to sell. § 1274. — Eecovery of proceeds. § 1275. Procedure governing sales. §1276. —In general. § 1277. — Order of sale. §1278. — Notice of sale — Private sales. § 1279. — r Appraisement. § 1280. — Time of sale. § 1281. — Place of sale. § 1282. — Sales in parcels and in bulk. § 1283. — Auctioneer. § 1284. — Bids and acceptance thereof. § 1285. Confirmation and setting aside of sale. § 1286. — Necessity of confirmation. § 1287. — Notice to creditors. § 1288. — Parties entitled to be heard. § 1289. — Manner of making objections. § 1290. — Grounds for setting aside sale. §1291. — Appeal and review. § 1292. Resale of property by trustee. § 1293. Trustee to make conveyance. §1294. Bankrupt to execute necessary papers. 933 934 Bbandenbueg on Bankbuptcy [§ 1253 § 1295. Eights, duties and liabilities of purchaser. 1 1296. — Performance of contract. § 1297. — Application of liens to purchase price. § 1298. — Title of purchaser. 'i § 1299. — Payment of taxes and water-rents. § 1300. — Eecovery of deficiency. § 1301. — Besale by purchaser. § 1302. — Removal of fixtures — Indemnity. § 1303. Distribution of proceeds of sale. § 1304. — As between creditors. §1305. —Interest. § 1306. — Deduction of payments by bankrupt. § 1307. — Expenses, fees and costs. § 1308. Effect of sale. § 1309. — In ease of liens. §1310. — Dower of bankrupt's wife. §1311. — Leases. § 1253. Jurisdiction and power to sell. § 1254. — Ancillary jurisdiction. Where real property of the bankrupt is situated in another district, the bankruptcy court of that district has ancillary juris- diction to make a sale thereof.^ There exists no necessity for invoking ancillary jurisdiction, however, for the court of original jurisdiction has the power to order a sale in another state or district.* § 1255. — State court has no power over sales. The title to the bankrupt's property vests in the trustee as soon as the adjudication is made; any sale thereafter must be made by such trustee under the direction of the bankruptcy court. The state court has no jurisdiction to sell such property under such circumstances, but if it did make sale, the purchaser would take no title.® Where a federal court authorizes a sale, and the deposit of the proceeds, such decision will control in spite of the fact that the action of a state court in which insolv- ency proceedings were brought prior to the bankruptcy proceed- ings, permitting a sale, was reversed on appeal.* 1 — In re Britannia Min. Co., 197 Fed. 3 — In re Azule Nat. Seltzer Water Co., 459, 28 A. B. R. 651. Contra, In re 2 N. B. N. R. 639 ; In re Lyon, 7 N. B. E. Granite City Bank of Dell Rapids, 137 182, Fed. Cas. No. 8644. But see In re Fed. 818, 14 A. B. R. 404, aff'g 131 Fed. Zehner, 193 Fed. 787, 27 A. B. E. 536. 1003, 12 A. B. R. 727. 4— In re Eiker, 107 Fed. 96, 5 A. B. E. 2— Eobertson v. Howard, 229 II. S. 720. 254, 57 L. ed. 1174, 30 A. B. R. 611. § 1262] Appraisal and Sale of Peopeety 935 § 1256. — Power of referee. The petition for an order of sale may be presented to and granted by the referee.** § 1257. Liquidation without sale. The trustee may, if to the interest of the estate, relieve the property from the lien by discharging the incumbrance, or he may agree with the creditors as to the value of the property,® or he may apply to have the lien ascertained and liquidated, or for an order directing the sale of the property held as security for any provable claim, as the most correct means of ascertaining its true value, and from the proceeds may pay the debts cov- ered by the security.'' § 1258. Sale pendi^ composition proceedings. A failure to make the deposit required by section.l2b upon the filing of a petition for composition, will prevent the pendency of such petition from being urged as an objection to a sale of the bankrupt's assets.^ § 1259. Receiver's sale. See ante, section 220. § 1260. What may be sold or assigned. §1261. —In general. It may be stated as a general rule that any property passing to the trustee as an asset of the estate may be sold.* Property of the bankrupt which is unassignable cannot, 'however,, be sold.»» § 1262. — Exempt property. Exempt property cannot be sold without the consent of the bankrupt " and the court will not, upon the petition of a cred- 5— In re Fisher & Co., 135 Fed. 223, 9 — See Chapter XXI for a full diseus- 14 A. B. E. 366. - sion of what property passes to the 6— Eeed v. BuUington, 11 N. B. B. trustee. 408. 10— Snyder v. Bougher, 214 Pa. St. 7— In re Stewart, 1 N. B. E. 42, Fed. 453, 16 A. B. E'. 792. Cas. No. 13418. 11— In re Jackson, 18 A. B. E. 216. 8— In re Fisher & Co., 135 Fed. 223, I 14 A. B. E. 366. 936 Brandbnbubg on Bankbuptcy [§ 1262 itor claiming a lien thereon, order the bankrupt to restore the same aiter it has been delivered to him by the trustee, in order that it may be sold for the benefit of creditors.^^ For a full discussion and citation of authorities, see ante, section 1036. §1263. — Good wiU. The practice and good will of a bankrupt physician cannot be sold by his trustee.^* The good will of a bankrupt corporation becomes extinguished by the trustee's sale of all goods and chattels thereof and cannot thereafter be sold by the trustee.^* § 1264. — Interest in. real estate. An interest such as a remainder in real property may be sold, subject to liens thereon.^^ The interest of a bankrupt as legatee under a will may be ordered sold though the extent thereof has not been determined.^^ While the court will not take posses- sion of immoral places, to conduct a disreputable biisiness there carried on, it will, under proper circumstances and at the proper time, take possession to sell bankrupt's interest therein.^'' § 1265. — Incumbered property. A court of bankruptcy, as well as the referee, has power to order the sale of property upon which a lien is asserted, and direct the money arising therefrom to be brought into court for distribution among those entitled to it ^® without first determin- ing either tl^e validity or amount of the lien.^^ Such sale should not be ordered unless it is satisfactorily shown that the interests of the general creditors will be thereby advanced,^" and if the 12— In re Bender, 15 Ohio Fed. Dee. 18— In re Salmons, 2 N. B. E. 19, Fed. 253, 17 A. B. B. 895. Cas. No. 12268; In re Styer, 2 N. B. N. 13— In re Myers, 208 Fed. 407, 31 A. E. 205, 98 Fed. 290, 3 A. B. E. 424. Con- B. E. 24. tra. In re Fite, 31 A. B. E. 308. 14— In re Jaysee Corset Co., 201 Fed. 19— In re Littlefield, 155 Fed. 838, 19 779, 29 A. B. E. 856. A. B. E. 18. j 15— In re Arden, 188 Fed. 475, 26 A. 20— In re Eose, 193 Fed. 815, 26 A. B. B. E. 684. E. 752; In re Styer, 2 N. B. N. E. 205, 16— In re Cronse, 196 Fed. 907, 28 A. 98 Fed. 290, 3 A. B. E. 424; In re Shaef- B. E. 540; In re Gutterson, 136 Fed. 698, fer, 105 Fed. 352, 5 A. B. E. 248; In re 14 A. B. E. 495. Huggins, 179 Fed. 490, 29 L. R. A (N. 17— In re Pittner, 2 N. B. E. 915. S.) 737, 24 A. B. E. 71p, § 1269] Appbaisal and Sale of Pbopeety 937 validity of the liens is unquestioned and their amount is such that there is probably no excess of value in the property, it should be surrendered to the lien holders or others entitled thereto, unless some other reason appears for retaining control.^^ See also. Sale free from liens, post, section 1270. §1266. —Leases. A lease should not be sold unless sufficient money is realized to pay the rentals due and to become due thereunder, or unless a bond conditioned upon the payments of such rents be given.^^ § 1267. — Liquor license. Whether a liquor license held by the bankrupt naay be sold^ depends upon whether the same is assignable.^* § 1268. — Property in possession of adverse dadmant. ■A court will not summarily order the sale of property, real or personal, claimed by the trustee, even though the title be in dispute, if the estate be in the actual possession of a third person holding as owner and claiming absolute title to it, whether derived from the debtor before he was adjudged bankrupt or from another.^* § 1269. —Trustee's right of action. A trustee's right of, action cannot ordinarily be assigned.^** While the right of a trustee in bankruptcy to bring suit to set aside a transfer made more than four months prior to bank- ruptcy in fraud of creditors may not alone be assigned, yet, the trustee has a transferable interest in the property so transferred, which he may transfer or convey and assign with it the right vested in him to maintain an action to set aside the transfer. Such transfer or assignment should only be authorized, how- 21— In re Cogley', 107 Ted. 73, 5 A. B. 24— In re Mimms & Parham, 193 Fed. E. 731; In re Huggins, 179 Fed. 490,. 29 276, 27 A. B. R. 469; Gifford v. Helms, L. E. A. (N. S.) '737, 24 A. B. B. 715. 19 N. B. B.'llS, 98 XI. S. ("8 Otto) 248, 22— In re Gntman, 197 Fed. 472, 28 25L. ed. 57; Beach v. Macon Grocery Co., A. JB. E. 643. ■ 116 Fed. 143. 23— Snyder V. Bougher, 2i4 Pa. St. 24a— Belding-HaHMfg; Co. v. Mercer 453, 16 A. B. K. 792. And see In re & Fendon Lumber Co.,. 175 Fed. 335, BaumDIatt, 153 Fed. 485, 18 A. B. E. 23 A. B. R. 595. 720. 938 BEANDENBtTRG ON BANKRUPTCY [§1269 ever, under extraordinary and peculiar circumstances making sucli course necessary to protect and serve the best interests of the estate.^*^ A decision by a state court in an action by the trustee to set aside a transfer of the bankrupt's interest in an estate that the same was assignable and passed to the trustee is conclusive and cannot be attacked in a proceeding to enjoin the trustee from selling such interest as an asset of the estate.^* § 1270. Sale free of liens. § 1271. — In general. A court of bankruptcy, including the referee, has authority to direct a sale of property by the trustee in bankruptcy free and clear of all liens and incumbrances, in which event the liens are transferred to the proceeds ^"^ according to their priority; ^® or it may direct a sale of the property and require the trustee in bank- ruptcy to institute suit to determine the validity of a lien.** Such an order of sale is discretionary,*" and will not be made where it is evident that there is no equity in the property, and 25— In re Downing, 192 Ted. 683, 27 A. B. R. 309, afE'd 201 Fed. 98, 29 A. B. R. 228. 26— In re Seavey, 195 Fed. 825, 27 A. B. R. 373. 27— In re Zehner, 193 Fed. 787, 27 A. B. R. 536; In re Roger Brown & Co., 196 Fed. 758, 28 A. B. E. 336; In re Prince & Walter, 131 Fed. 546, 12 A. B. R. 675; In re Vastbinder, 132 Fed. 718, 13 A. B. E. 148; In re Bourlier Cornice & Eoofing Co., 133 Fed, 958, 13 A. B. E. 585; In re Shoe & Leather Eeporter, 129 Fed. 588, 12 A. B. E. 248; In re GasWU, 130 Fed. 235, 12 A. B. E. 251; In re Moore, 146 Fed. 187, 17 A. B. R. 164; In re Stevens, 173 Fed. 842, 23 A. B. E. 239; In- re United States Gra- phite Co., 161 Fed. 583, 20 A. B. E. 573; In re American Architects Tube Co., 184 Fed. 694, 25 A. B. E. 651; In re Wor- land, 1 A. B. E. 450, 92 Fed. 893; also see In re Pittelkow, 1 A. B. E. 472, 92 Fed. 903 ; Southern Loan & Trust Co. v. Benbow, 3 A. B. E. 9, 96 Fed. 514; In re Sanborn, 96 Fed. 551, 3 A. B. E. 54; In re Nat. Iron Co., 8 N. B. E. 422, Fed. Cas. No. 10, 45; In re Kahley, 4 N. B. E. 124, Fed. Cas. No. 7593 ; In re Barrow, 1 N. B. R. 125, Fed. Cas. No. 1057; Foster V. Ames, 2 N. B. E. 147, Fed. Cas. No. 4965; Ex parte The City Bank of New Orleans, 3 How. 292, 11 L. ed. 603; Houston V. Bank, 6 How. 486, 12 L. ed. 790; Bay v. Norseworthy, 23- Wall. 128, 23 L. ed. 116; In re Salmons, 2 N. B. B. 19, Fed. Cas. No. 12268; Markson v. Heaney, 12 N. B. E. 484; In re Styer, 2 N. B. N. E. 205, 98 Fed. 290, 3 A. B. E. 424; In re Gerson, 4 A. B. E. 346, 102 Fed. 318; Forms 43, 44; In re Freedman, 31 A. B. E. 53, aff 'g 29 A. B. E. 135. 28— McNair v. Melntyre, 113 Fed. 113, 7 A. B. E. 638; In re Eiker, 107 Fed. 96, 5 A. B. E. 720. 29— In re Eeed, 117 Fed. 358. 30 — Equitable Trust Co. of New Tork V. Vanderbilt Eealty Improvement Co., 140 N. Y. S. 1008, 31 A. B. R. 834. Judicial discretion in' ordering a sale free from liens will not be reviewed. In re Throckmorton, 196 Fed. 656, 28 A. B. E. 487. § 1271] Appraisal and Sale of Property 939' the sale will prejudice lienors,*^ but only where the interiests of the gfeneral creditors will be advanced thereby.** So, where the holder of bonds of the bankrupt secured by mortgage giving him' the right to apply the bonds to the purchase of the mortgaged property upon a foreclosure sale has instituted suit to foreclose the mortgage in which the trustee, who disputes the holder's* title, is made a party defendant, a sale free from liens should not be made, especially where it appears that the mortgaged, property will not bring enough to pay the bonds.*^ The same rule with reference to the sale free of liens would apply to pferisht. able property.** A sale- free of liens does not, however, affect a lien in the nature of a tax assessment against the property sold, but in this case the trustee should protect the purchaser by providing for the payment of the taxes.*' Where more than four months before the petition was filed, the bankrupt executed a real estate mortgage to one creditor, a chattel mortgage on fixtures to the real estate to another and suffered judgments to be takeii by a third, the bankruptcy court will direct a sale clear of all liens,, and out of the proceeds pay off the incumbrances or liens accordr. ing to the priority to which they would be entitled under the said law,** A referee or court of bankruptcy may direct the trustee to^ sell free of incumbrances, personal property of the bankrupt in his possession, but covered by a chattel mortgage, on notice to the incumbrancers, and to approve the sale when made. It is within the fair exercise of his discretion to approve a sale fotmd to be for the fair cash value of the property, though less than the amount of the m<}rtgage debt.*'^ 31— In re Alden, 15 Ohio Fed. Deo. Lumber Co., 197 Ted. 180, 28 A. B, B. 120, 16 A. B. E. 362; In re Holmes Lum- 307; In re Saxton Furnace Co., 136 Fed. ber Co., 189 Fed. 178, 26 A. B. E. 119; 697, 14 A. B. E. 483. In re Rose, 193 Fed. 815, 26 A. B. E. 34 — In re San Gabriel Sanatorium Co., 752; In re Cogley, 107 Fed. 73, 5 A. B. 2 N. B. N. E. 827, 102 Fed. 310, 4 A. B. B. 73l. But see in re Keet, 128 Fed. 651, E. 197. 11 A. B. E. 117; In re Foster, 181 Fed. ,35— In re Keller, 109 Fed. 131, 6 A. B. 703, 25 A. B. E. 96. E. 334. 32— In re Styer, 2 N. B. N. E. 205, 36— In re Worland, 92 Fed. 893, 1 A. 3 A. B. E. 425, 98 Fed. 290; In re B. E. 450. Shaeffer, 105 Fed. 352; In re Waterlow 37— In re Sanborn, 3 A. B. E. 54, 96 Organ Co., 118 Fed. 904. Fed. 551. 33 — In re Fayetteville Wagon- Wood & 940, Bbandenbubg on Bankeuptcy [§ 1272 § 1272. — Sale free from dower. Property, of the bankrupt may be sold free from his wife's inchoate right of dower, with her consent.^® It is held th9,t a trustee who has been ordered to sell real estate free of all liens, is not authorized to sell subject to an inchoate dower interest, of the bankrupt's wife.^® , § 1273. — Order to seU. A sale is not free from liens unless so provided by order,*" and the trustee cannot sell free from liens without a judicial decision of the validity thereof, notwithstanding he denies their validity.*^, An order merely directing the sale of the property without mentioning liens, will be taken as directing a sale sub- ject to liens/^ but in case of a direction to sell free from first or superior liens, without mentioning inferior liens, the latter may also be divested and transferred to the proceeds, if such is the intention of the parties and the result is equitable.*^ A certificate from the referee concerning an order to sell prop- erty discharged of liens should affirmatively show that notice has been given creditors and lienholders. A general statement that such notice has been given will not suffice.** § 1274. — Recovery of procseeds. Where incumbered property has been sold free from liens without the consent of the lienor, the latter may proceed by suit in the state court to determine his right to recover the amount of the mortgage debt from the trustee.*^ An action in trover by a lienor to recover the proceeds of a sale free from liens is an affirmance of such -sale.** Where a mortgagee institutes summary proceedings to obtain 38— In re Acretelli, 173 Fed. 121, 21 42— In re Platteville Foundry & Ma- A. B. E. 537; Savage v. Savage, 141 Fed. chine Co., 147 Fed. 828, 17 A. B. E. 291. 346, 3 L. B. A. (N. S.) 923, 15 A. B. E. 43— McKay v. HamiU, 185 Fed. 11, 26 599, certiorari denied 201 TJ. S. 646, 50 ■^- S- '^- 164. L ed 904 ^* — ^'^ '^ Saxton Furnace Co., 136 39-In re Codori, 207 Fed. 784, 30 A.' ^^f «^^' ^^ A. B. E. 483. B j{ 453 45 — In re Platteville Foundry & Ma- '40lBassett v. Thackara, 72 N. J. 81, ^"^^ ''°- "' ^'^ «'«' ^' ^- ^- «• 16 A. B. E. 786 46— In re Platteville Foundry & Ma- 41-In re Saxton, 136 Fed. 697, 14 A. chine Co., 147 Fed. 828. 17 A. B. B. 291. § 1276] Appraisal and Sale or Pbopebty 941 tlie proceeds of the sale of mortgaged property, the trustee has a right to be heard on the amount due under the mortgage. An answer which alleges that the mortgagee through its agent took from the bankrupt a trust deed of all its property, and that the agent exercised control over all financial affairs of the bankrupt until its adjudication, and that the mortgagee obtained a large amount of money from the bankrupt has been held sufficient to justify the introduction of evidence as to amount due the mortgagee.*'' § 1275. Procedure governing sales. § 1276. — In general. The provisions of the act of congress of March 3, 1893, c. 225, relating to sales of land by order of United States courts is inap-. plicable to sales by a trustee in bankruptcy which are con- trolled solely by the provisions of section 70b of the Bankruptcy Act and No. 18 of the General Orders in Bankruptcy,** a"nd it is held that the trustee may sell realty at public auction without any order of the court, and after such notice and at such place as in his judgment seems best.*® A sale by a trustee in bankruptcy is, however, except where otherwise controlled by statute, subject to the general rules and principles of procedure obtaining in other judicial proceedings.®" Official Form 42 (§ 1799, post) should be followed where a sale of real property is desired.®^ The referee is not bound by the prayer of the trustee in making the sale, but may conduct the same in such manner as he deems to the best interests of the estate.^2 The court may bring a lienholder objecting to a sale before it by service of a rule to show cause why the petition of the trustee to sell the property should not be granted,®^ but the 47 — In re Keystone Press, Inc., 203 50 — Coal City House Furnishing Co. v. Fed. 710, 29 A. B. E. 715. Hogue, 197 Fed. 1, 28 A. B. R. 258. 48 — Robertson v. Howard, 229 TJ. S. 51 — In re Nevada-Utah Mines & Smelt- 254, 57 h. ed. 1174, 30 A. B. E. 611; In ers Corporation, 198 Fed. 497, 28 A. B. re La France Copper Co., 205 Fed. 207, E. 409. 30 A. B. E. 381; In re Britannia Min. 52— In re Freedman, 29 A. B. E. 135, Co., 203 Fed. 450, 29 A. B. E. 472, rev'g aff'd 31 A. B. E. 53. 197 Fed. 459, 28 A. B. E. 651; In re Na- 53 — In re American Architects Tube tional Mining Exploration Co., 193 Fed. Co., 184 JPeb. 694, 25 A.. B. E. 651. 232, 27 A. B. E. 92. 49't— In re La France Copper Co., 205 Fed. 207, 30 A. B. E. 381.' 942 Beandenbueg on Bankbuptcy [§ 1276 validity of an incumbrance against property sought to be sold cannot be summarily determined upon petition of the trustee to sell." § 1277. — Order of sale. An order of court for the sale of property is not essential in the case of sales, at public auction^" though in cases of private sales it is essential.^® The better practice is, however, to procure such order in all cases, since it might in some contingencies pro- tect the trustee. Where an order is made, the form thereof is sufficient if it directs the sale of the right, title, etc., of the bankrupt, and it need not direct the sale of the right, title, etc., which the trustee acquired by the decree of bankruptcy.^'^ An upset price need not be fixed in the order.^* Where an order of sale is made after a lienholder has given notice of his alleged lien, the order should provide for the imposition of such lien on the proceeds of sale.^* Irregularity in the form of the order will not invalidate the sale.®" Order of sale as a condition precedent to a sale free of liens, see ante, section 1273. § 1278. — Notice of sale — Private sales. A private sale made without an appraisal of the property and without the order or approval of the court vests no title in the buyer,®^ but a sale is none the less public because not conducted by an auctioneer, or because notice thereof is not posted on the premises as required by a rule of court."^ All sales are to be at public auction unless otherwise ordered by the court. For good reason shown a specified portion may be 54 — In re Henderson, 206 Fed. 139, 61 — ^In re Monsawat, 25 A. B. E. 815. 30 A. B. B. 468. 62— See In re Nevada-Utah Mines & 55 — In re La France Copper Co., 205 Smelters Corporation, 198 Fed. 497, 28 Fed. 207, 30 A. B. E. 371. A. B. E. 409, s. e. 202 Fed. 126, 29 A. B. 56— G. O. XVIII. E. 1754. 57— Smith v. Seholtz, 17 N. B. E. 520. Where an advertisement was addressed 58— Schuler v. Hassinger, 177 Fed. 119, only to ' ' creditors, stockholders and other 24 A. B. E. 184. parties in interest," sale held private. 59— In re Kohl-Hepp Brick Co., 176 In re Nevada-Utah Mines & Smelters Fed. 340, 23 A. B. E. 822. Corp., 202 Fed. 126, 29 A. B, E. 754. 60— In re Throckmorton, 196 Fed. 656, 28 A. B. E. 487. § 1278] AppBAisAii AND Sale op Pbopeety 943 ordered sold at private sale, in which case an account of each article, the price brought and to whom sold must be kept and filed. Perishable property may be ordered sold immediately with or without notice.^* Perishable property may consist of buildings rapidly deteriorating and in a dilapidated condition and requiring immediate expenditure of a large sum of money to prevent absolute loss.** It has been held that perishability in bankruptcy involves physical deterioration of the property itself, not mere depreciation in value, and hence a stock of hardware cannot be sold as perishable without notice, though becoming unseasonable."' On the other hand it has been held that a horse comes within this provision since he consumes food and thus reduces his value; "" and salt which could be sold* for immediate delivery, but otherwise would be unsalable;®'^ and, in fact, Christmas toys and the like, would be considered, immediately before the holidays, or fireworks before the Fourth of July. In other words if a thing became unseasonable after the lapse of a few days, there would be no physical deterioration but a serious depreciation in value which would warrant a sale without the required notice. Objections to a private sale and a sale before appraisement, cannot be made for the first time before the dis- trict judge.** At least ten days' notice by mail of all sales must be given creditors, unless waived in writing,*® or the court orders it with- out notice.™ Notice to lienholders is essential in case of a sale free from Uens,^^ and the record must disclose affirmatively that all cred- 63— G. O. XVIH;" Official Forms 42, . 68— In re Gutterson, 136 Fed. 698, 14 45 and 46, §§ 1799, 1802, post; In re A. B. E. 495. Beutel's Sons,/ 2 N. B. N. K. 1011, 7 69— Section 58a (4), Act .of 1898; In A. B. E. 768; In re Hawkins, 125 Fed. re Groves,. 2 N. B. N. E. 30; In re 633, 11 A. B. E. 49; In re Milne Mfg. Hunter, 18 N. B. E. 504, Fed. Gas. No. Co., 21 A. B. E. 468 ; In re Bdes, 135 Fed. ^^*'^- 595, 14 A. B. E. 382; In re Nevada- ^"^ °^ ^^'""^ ^' ^^^^' "^^q^i^i'ig J8 Utah Mines & Smelters Corp., 202 Fed. ^^^'[ "°*'f ^°^ '^°^ "P^^^' \l' ^^^ ,„„•„._ ^' tional Mining Exploration Co., 193 Fed. !'/ T ; 232, 27 A. B. E. 92. 64— In re Milne Mfg. Co., 21 A. B. E. yg q q XVIII *^** 71— In re Crowell, 199 Fed. 659, 29 65— In re Beutel's Sons, 2 N. B. N. ^_ g, j{, 308. E. 1011, 7 A. B. E. 768. Notice to trustee of bondholders is 66-^In re Smith, 1 N. B. N. 180. sufficient, in ease of sale of lands of bank- 67^Anon., 1 N. B. N. 204. rupt free from lien of the mortgage 944 Brandenbxjeg on Banketjptcy [§ 1278 itors whose liens were discharged have received notice of the application to sellJ^ Notice to a creditor whose name and address appear in the bankrupt's schedule of liabilities is not notice to the assignee of the creditors whose proof of claim containing his address is duly filed.'^* Where the time allowed by an order for the sale of property has expired, a sale cannot be had after expiration of the time fixed by the order without the giving of a new notice to cred- itors and lienors.'^* Creditors attending sale and bidding on property are estopped to set up want of notice/^ A sale of real property cannot be collaterally attacked for alleged error in the description of the property sold, contained in the published notice.'^® No notice to stockholders of a bankrupt corporation of a pro- posed sale of its assets is necessary J'' §1279. — Appraisement. Section 7bb of the act provides that "All real and personal property belonging to bankrupt estates shall be appraised by three disinterested appraisers; they shall be appointed by, and report to, the court." Want of appraisal does not, however, necessarily invalidate a sale,'^® cannot be raised for the first time before the district judge,^* and is no ground for collateral attack.*" The referee has general authority to appoint appraisers and his action is subject to revision by the court of bankruptcy. An' appraiser is not disqualified because he is a stockholder and ofiScer in a corporation in which a creditor is also interested.*' While the appointment of appraisers is not void by reason of the fact that the referee permitted creditors to express their securing their bonds. Equitable Trust 76 — Robertson v. Howard, 229 TT. S.' Co. of New York v. Vanderbilt Realty 254, 57 L. ed. 1174, 30 A. B. E. 611, Improvement Co., 140 N. Y. S. 1008, 31 77— In re Witherbee, 202 Fed. 896 30 A. B. R. 835. A. B. R. 314. 72— In re Platteville Foundry & Ma-" 78— In re Monsarratt, 25 A B R 820. chine Co., 147 Fed. 828, 17 A; B. R. 291. 79— Private sale. In re Gutterson, 136 73 — In re Monsarrat, 25 A. B. R. 820. Fed. 698, 14 A. B. R. 495. 74— Allgair v. FisHer & Co., 143 Fed. SO— Robertson v. Howard 229 tl S 962, 16 A. B. R. 278. 254, 57 L. ed. 1174, 30 A. B.R 611 ' 75-In re Caldwell, 178 Fed. 377, 24 81— In re Columbia Iron Works, 142 A. B. R. 495. Fed. 234, 14 A. B. R. 326. ^ i § 1282] AppbaisAXi and Sale op Peoperty 945 preference, the better practice is for the referee to act inde- pendently of the creditors.®^ ' The particularity with which an appraisement is to be made must depend somewhat upon circumstances. The appraisement, however, should be general, rather than special, only such par- ticularity being given as will be sufficient to reasonably identify the property in character and quantity and give a fair idea of its value.®* The prevailing cost to the trade should be adopted by the appraisers as the actual value, due allowance l)eing made for any actual deterioration or depreciation in value.** § 1280. — Time of sale. A sale of incumbered property should not be ordered until the trustee's appointment, so as not to interfere with the exer- cise of his election to redeem the property pledged, to sell it subject to the lien, or to release thfe equity of redemption at an agreed price.® ^ While the uaiform practice is to make no order of sale until after adjudication, unless necessary to preserve the property, an brder of sale made by a referee prior to the adjudication, while exercising the power of the district judge, will not be disturbed, when the sale was made by consent and tio prejudice is shown.®® § 1281. — Place of sale, A sale of real property or any interest in land need not be made on the property itself, though situated in another district and state.®^ § 1282. — Sales in parcels and in bulk. Assets should not be segregated and sold separately without' an order of the court.®® 82— In re Columbia Iron Works, 142 Fed. 747, 4 A. B. E. 528; see In re Grin- Pe'd. -234, 14 A. B. E. 526. nell, 9 N. B. E. 29, 7 Ben. 42, Fed. Cas. 83 — In re Gordon Supply & Mfg. Co., No. 5830; but see March v. Heaton, 2 133 Ped. 798, 13 A. B. E. 352. ' N. B. E. 66, 1 Lowell 278, Ped. Cas. No.' 84r— In re Prager, 8 A. B. E. 856. 9061. ' " 85— In re'Griimell, 9 N. B. E. 29, 7 87— In re Britannia Min. Co., 203 Fed. Ben. 42, Ped. Gas. Nc*. 5830^ consult In 450, 29 A. B. E. 472, rev'g 197 Fed.' 45'9, re Kelly Dry Goods Co.,. 102 Fed. 747, 28 A. B. E. 651. 4 A. B. E. 528. 88— In re Hinson Bros., 26 A. B. B. . 86— In re Kelly Dry Goods Co., 102 754. Brandenburg — 60 946 Bbandenbttbg on Ban-keuptcy [§ 1282 Where the property of the bankrupt is sold in bulk and it is impossible to determine the proportionate value of the particular part subject to a lien to the gross purchase price, the lien will not attach to the proceeds.*® So, it is held, that a creditor hold- ing a mortgage upon a part of the stock, of goods sold loses his lien by his failure to object to a sale of the entire stock and ask for a separation.®* A sale of the bankrupt's interest in real estate may be had without partition,®^ and assuming that a sale of real estate by a trustee is to be assimilated to a sale under a decree in equity silent as to the manner of sale, it cannot be attacked collaterally and held void because not made in parcels.®^ The court will not determine in advance of sale whether a building placed upon leased property by the bankrupt is severable and should be sold separately. The trustee is only authorized to sell the bankrupt's rights in the property, the extent of which he cannot guarantee, nor the court pronounce upon.®* §1283. —Auctioneer. The court may appoint persons other than the trustee to con- duct the sale.®* The trustee may employ an auctioneer to conduct the sale, and need not be personally present thereat,®® but the court may, in its discretion, disapprove the selection by the trustee. The appoint- ment of an auctioneer by the court to conduct sales operates as a. disapproval of any selection the trustee makes thereafter, as well as any previously made by him.®" § 1284. — Bids and acceptance thereof. The trustee in the absence of fraud or manifest inability of the bidder to comply with the terms of the sale, is bound to accept all 89— Keyser v. Wessel, 128 Fed. 281, 93— In re aorwood, 138 Fed. 844, 15 12 A. B. B. 126, aff'g 23 Fed. 188, 10 A. B. E. 107. A. B. B. 586; and see VoUmer v. Mc- 94 — Sturgis v. Corbin, 141 Fed. 1, 15 Fadgen, 161 Fed. 913, 20 A. B. E. 540, A. B. E. 543. aff'g 165 Fed. 715, 19 A. B. E. 481. 95— In re Nat. Mining Exploration Co., 90— In re Caldwell, 178 Fed. 377, 24 193 Fed. 232, 27 A. B. E. 92. A. B. E. 495. 96— In re Benjamin, 136 Fed. 175, 14 91— Hobbs V. Frazier, 56 Fla. 796, 22 A. B. E. 481, aff'g 13 A. B. E. 18. A. B. E. 684. 92— Smith v. Soholtz, 17 N. B. B. 520. § 1286] Appbaisal and Sale of Pbopebty 947 bids,*'' and a bidder whose bid, though higher than any other, has been refused is entitled to a review of an order affirming a sale to another bidder,®* unless the order of sale expressly reserves the right of the referee to reject any bid.®® The trustee cannot demand that a bidder disclose for whom he is acting, nor can one whose bid in a representative capacity has been refused, be thereafter refused the right to bid as an individual, nor can his right to bid be conditioned upon his making an upset bid greatly in excess of any other bids.^ The bankrupt has a right to bid at a trustee's sale.* Where a prospective bidder and the trustee's solicitor agree that the bidder will let the solicitor have the property ; at a certain price without reference to the selling price, such agree-: ment will not avoid the sale ; ^ nor will a private agreement between the auctioneer and the ultimate purchaser that the bid of any other person is to be raised $50 each time until a sign is given to stop, invalidate the sale.^ The trustee may demand immediate compliance after accepting the bid, and upon failure on the part of the bidder, may resell the property.® Where the trustee is authorized to sell at a private sale, an offer or bid which is accompanied by a substantial payment in evidence of good faith cannot be withdrawn before the acceptance or rejection thereof by the trustee.® § 1285. Confirmation and setting aside of sale. § 1286. — Necessity of confirmation. Section 70b of the act provides that, ' ' real and personal prop- erty shall, when practicable, be sold subject to the approval of the court; it shall not be sold otherwise than subject to the approval of the court for less than seventy-five per centum of its appraised value. ' ' 97— Coal City House rurnishing Co. 3 — Citizens' Bank, v. Ober, 13 N. B. V. Hogue, 197 Fed. 1, 28 A. B. B. 258. E. 328, 1 Woods 80, Fed. Caa. No. 98— Coal City House Furnishing Co. v. 2731. Hogue, 197 Fed. 1, 28 A. B. B. 258. 4— In re Ketterer Mfg. Co., 156 Fed. 99— In re Chandler, 194 Fed. 944, 28 719, 19 A. B. E. 638. A. B. E. 89. 5 — Coal City House Furnishing Co. T. 1— Coal City House Furnishing Co. v. Hogue, 197 Fed. 1, 28 A. B. E. 258. Hogue, 197 Fed. 1, 28 A. B. E. 258. 6 — In re Lane Lumber Co., 207 Fed. 2— In re Mitchell, 15 A. B. E. 735. 762, 31 A. B. E. 148. 948 Bbandbnbubg on Bankbuptcy [§ 1286 In judicial sales, that is, a sale of particular property specific- ally pointed out by the court and ordered during the pendency of proceedings concerning it, such as are sales by trustees, the court is the seller and the trustee its agent to get the highest; bidder, the sale not being consummated nor any title passing, until confirmation, the act of confirmation alone completing, the passing of the title. In execution sales, that is, a sale of any property belonging to the judgment debtor that the sheriff maiy seize, the court has rendered its decision and is done with it, the sheriff being the real seller and the title passing at once to the highest bidder. In execution sales the purchaser imme- diately becomes vested with rights which can only be divested by showing that he himself or his agents have been guilty of fraud, whilst, in judicial sales, until confirmation, the so-called purchaser has no such rights, but is' simply the preferred bidder awaiting the acceptance of his offer by the court.''^ The approval, of a sale by the receiver upon terms offered by a prospective purchaser, renders the transaction a judicial sale as fuUy as if the sale had been ordered before any offer was made, and the offer subsequently made had been considered and approved.® » § 1287. — Notice to creditors. , Creditors need not, be notified of an application to confirm a sale.® § 1288. — Parties entitled to be heard. The purchaser is entitled to be heard upon an application to set aside a sale, to the extent of showing that he has rights, and to. point out why the discretion of the court should not be exer- cised.^" A stockholder of a bankrupt corporeiion cannot contest the validity of a sale of its assets." § 1289. — Maimer of making: objections. Objection to a sale must be made in a court of bankruptcy and not in a collateral action; and where fraud by the trustee is 7 — ^In re Metallic Specialty Mfg. Co., ers Corporation, 198 Fed. 497, 28 A. B. 193 Fed. 300, 27 A. B. E. 408; In re B. 409. Shea, 126 Fed. 153, 11 A. B. E. 207. 10— In re Kronrot, 183 Fed. 653, 25 8— la re Jungman, 186 Fed. 302, 26 A. B. R. 738. A. B. E. 401. 11— In re Witherbee, 202 Fed. 896, 30 9 — In re Nevada-Utah Mines & Smelt- A. B. E. 314. § 1290] AppRAiSAii AND Sale of Property 949 alleged, every fact relied on to establish it should be distinctly stated, and the whole should be verified by some one cognizant of the facts.i2 § 1290. — I Grounds for setting aside sale. No sale for less than seventy-five per cent of the appraised value ought to be confirmed,^* unless good reasons are shown why a better price would not be obtainable on a Resale, and the burden of proof rests upon the trustee, who brings such report to the court for confirmation, to make such showing, rather than upon the creditors to make good their objections thereto. In a case where the inadequacy of price is insignificant, the sale should not be set aside on that ground especially when the objecting party was present as a creditor at the sale,^* but where there is a gross inadequacy of price or circumstances impeaching the fairness of the sale (by which is not meant a subsequent offer of a better price), the sale should be set aside.^^ To warrant the setting aside of a sale for inadequacy of price the difference between what the property brought and its real value must be such as to be unconscionable, and as to create a presumption of fraud.^® A sale will not be set aside because of a slightly higher bid made by the bankrupt than that accepted, where the bankrupt has failed to make a deposit or pay the amount of his bid, though given opportunity to d?rso.^'^ A sale for an inadequate price may nevertheless be allowed to stand if the purchaser pays the trustee the difference between the price paid and the actual value of the property with interest. So, if the price paid is found to be inadequate, the purchaser may return the property and have back the purchase price with interest, upon condition that if the funds of the estate are 12— In re Peabody, 16 N. B. E. 243, 216; In re Brousfield, 16 N. B. E. 481, Fed. Cas. Nos. 10866. Fed. Cas.'No. 1703. 13 — In determining the adequacy of 15 — In re Ethier, 118 Ted. 107, 9 A. B. the price, the sworn value of the prop- E. 160. erty fixed by the appraisers controls. Advance of 4 per cent in bid held not Sehuler v. Eassuiger, 177 Fed.^ 119, 24 to show gross inadequacy. Sturgis v. A. B. E. 184. ' Corbin, 141 Fed. 1, 15 A. B. E. 543. 14— In re Kronrot, 183 Fed. 653, 25 16— In re Shapiro, 154 Fed. 673, 19 A. A. B. E. 738; In re Metallic Specialty B. E. 125; In re Nat. Minihg Explora- Mfg. Co., 193 Fed. 300, 27 A. B. E. 408; tion Co., 193 Fed. 232, 27 A. B. E. 92. In re Groves, 2 N. B. N. E. 30, 466; In 17— In re Throckmorton, 149 Fed. 154, re 'Fallon, Fed. Cas. No. 10445; In re 17 A, B. E. 856. Thompson, 1 N. B. N. 355, 2 A. B. E. 950 Bbandenbxjeg on Bankruptcy [§ 1290 sufficient to pay all claims and expenses of administration, the property is to be returned to the purchaser.^* The fact that the objecting creditor failed to bid because of an impression received by him from the trustee that a cash deposit would be required, is no ground for setting aside a sale even though the price received was less than seventy-five per cent of the appraised value,^® nor is the fact that a claim marked "worthless" subsequently becomes valuable, groimd for setting aside a sale thereof.^" That the successful bidder has not before confirmation paid to the trustee the balance due on the purchase price, is no bar to a confirmation.^^ Neither the fact that the ultimate purchaser of the property is a syndicate organized by a former officer of the bankrupt ^^ or a committee representing creditors in pursuance of a reorgani- zation plan,^^ nor the fact that one of three trustees of the estate is a stockholder and director of the corporation to which the property is knocked down ^* will invalidate the sale. Nor will the fact that the bid of the person to whom the property was knocked down was made by a firm of lawyers which had, at various times, been employed by the bankrupt and his trustee avoid the sale where no retainer or permanent employment of the attorneys by the bankrupt or the trustee is shown.'^^ A sale will be set aside where the required notice is not given; 2® or where the trustee's solicitor bids at the sale;*^ or where the trustee purchases at his own sale;^^ or where it is made to an. appraiser prior to the appraisal of the property, though the purchase is made through a third party and an ade- quate price is paid for the property,^® or where property pur- chased from a trustee was held a few months later at a vastly 18 — ^In re Monsarfat, 25 A. B. E. 820. 25 — In re Nat. Mining Exploration Co., 19— In re Kronrot, 183 I'ed. 653, 25 ]93 Fed. 232, 27 A. B. E. 92. A. B. E. 738. 26— In re Kohl-Hepp Briek Co., 176 20— Phelps V. McDonald, 16 N. B. E. Ped. 340, 23 A. B. E. 822; In re Monsar- 217. rat, 25 A. B. E. 820 ; Ex parte Bryan, In 21— In re Nat. .Mining Exploration Co., re Major, 14 N. B. E. 71, 2 Hnghes 273, 193 Fed. 232, 27 A. B. E. 92. Fed. Cas. No. 2061. 22 — In re Pittsburg Diek Creek Min. 27— Bank v. Ober, 13 N. B. E. 328, 1 Co., 197 Fed. 106, 28 A. B. E. 613. Woods 80, Fed. Cas. No. 2731. 23— Sehuler v. Hassinger, 177 Fed. 119, 28— In re Hawley, 117 Fed. 364, 9 A. 24 A. B. E. 184. B. E. 63. 24 — In re Nat. Mining Exploration Co., 29— In re Frazin & Oppenheim, 181 193 Fed. 232, 27 A. B. E. 92. Fed. 307, 24 A. B. E. 598. §1293] Appbaisal and Sale of Pbopekty 951" increased price, where there is evidence of a lack of good faith; '" or "wliere a sale is made by order of court in which it develops the court had no authority over the property.^ ^ Where before confirmation of a trustee's sale, it is alleged in opposition thereto that competition was stifled, it is not necessary to prove that" the successful bidder was connected with the fraud.*^ § 1291. — Appeal and review. A creditor has the right to call for an investiga,tion into the conduct of the trustee in selling the property, even after the latter 's account has been filed and approved.^* A review of an order of the referee refusing to confirm a sale may be had before a resale of the property but the better practice is to defer the review until after the resale has taken place.** § 1292. Resale of property by trustee. A purchaser refusing to complete his sale is liable for the loss upon a resale.*^ Where a person petitioning for a resale who has agreed to pay a stipulated price for the property upon a resale, and to pay the purchaser at the prior sale the cost of improvements placed upon the property, pays more than the agreed amount for the property, he will not be required to pay for the improvements and the taxes upon the property in addi- tion thereto.^^ § 1293. Trustee to make conveyances. The title to bankrupt's property vesting in the trustee by virtue of the adjudication, in case of a sale by him, he should transfer the same to the purchaser by such deed of conveyance as may be necessary to pass title under the laws of the s^ate, the same as would be necessary in the case of aiiy individual.*^ Though, of .course, the trustee transfers only such title as he has,** and if it be real property, he has no authority to warrant 30— In re Mqtt, 1 N. B. R. 9, Fed. Cas. 35— Snyder v. Bougher, 214 Pa. St. No. 9879. 453, 16 A. B. E. 792. , 31— Davis V. E. E. Co., 13 N. B. E. 258, 36— In re Wylie, 153 Fed. 281,, 18 A. 1 Woods 661, Fed. Cas. No. 3648. E. E. 503, aff 'g 148 Fed. 907, 17 A. B. E. 32— In re Groves, 2 N. B. N. E. 30. 404. 33— In re Peabody, 16 N. B. E. 243, 37— Section 70c, Act of 1898. Fed. Cas. No. 108B6. 38— Bank v. Bank, 11 N. B. E. 49. 34:— In re Metallic Specialty JIfg. Co., \ 193 Fed. .300, 27 A. B. E. 408. , , 952 Bbandenbubg on Bankkuptct [§ 1293 the title, other than his title to the same and in the condition in which he received it. In the ease of securites held by any cred- itor the trustee should be ordered to execute a proper transfer to said creditors of all the rights and claims which the bank- rupt, or his creditors, may have in the same,®® provided there is no equity in it for the estate. An indorsement by the trustee is not essential to pass title to a negotiable instrument sold by him before maturity where the same, is indorsed by the original payee therein.*" If the trustee sells property but refuses to deliver possession, he is liable to an action at law, 6r if ordered by the court and declined would be guilty of contempt.*^ § 1294. Bankrupt to execute necessary papers. j The court may compel the bankrupt to execute papers neces- sary to effectuate a sale of his membership in a stock exchange.*^ § 1295. Rights, duties and liabilities of purchaser. § 1296. — Performance of contract. A purchaser refusing to carry out his contract may be com- pelled to do so by rule of attachment.*® § 1297, — Application of liens to purchase price. The amount of a purchaser's lien or securities may be applied to the purchase price,** and the holder of bonds of the bankrupt corporation secured by mortgage, may, if the mortgage so pro- vides, use the bOnds in the purchase of the mortgaged property.*^ § 1298. — Title of purchaser. A trustee can transfer only such title as he may possess.*^ If he sells property encumbered, he conveys only the bankrupt's 39--In re CofSn, 1 N. B. N. 507, 2 45— In re Saxton Turnaee Co., 136 A. B. E. 344., Fed. 697, 14 A. B. E. 483; In re Fayette- 40— Wade, V. Elliott, 11 Ga. App. 646, ville Wagon-Wood & Lumber Co., 197 28 A. B. E. 888. Fed. 180, 28 A. B. E. 307. 41 — Ives V. Tregent, 14 N. B. B. 60. 46 — Hinchman v. Con. Arizona Smelt- 42— In re Hurlbutt, Hatch & Co., 135 ing Co., 198 Fed. 907, 29 A. B. R. 893; In Fed. 504, 13 A. B. R. 50. re Frazin & Oppenheim, 201 Fed. 86, 29 43— In re Jungman, 186 Fed. 302, 26 A. fi. E. 214; Bank v. Bank, 11 N. B. E. A. B. E. 401. 49. 44— In re Eoger Brown & Co., 196 Fed. Sale of trustee's right of action to set 758, 28 A. B. R. 336; Schuler v. Hassin- aside a fraudulent transfer is to be ger, 177 Fed. 119, 24 A. B. E. 184. made without warranty or representation § 1299] Appbaisal and Sale op Pbopeety 953 interest subject to the incumbrance,*'' and with no higher or better interest than the bankrupt could have conveyed.*® A pur- chaser at a sale by the trustee stands on the same footing with a purchaser at an execution sale and takes the estate of the bank- rupt subject to all equities against it, whether he knows of theiji or not.*® Where the trustee fails to reduce a note to possession but sells merely the right, title and interest of the bankrupt therein, the purchaser obtains no better title than the bankrupt had and where the note is in the possession of a receiver in supplementary proceedings, the purchaser is entitled to posses- sion of the note or the proceeds thereof only upon payment of the judgment and expenses of the supplementary proceedings,^" The purchasers under a sale will be left to establish their title whenever the occasion inay arise.^^ , ,.i. A purchaser of all the assets of the bankrupt cannot enforce performance by third persons of contracts with the bankrupt involving elements of personal trust and confidence in him.^^ The purchaser of a claim against a third person obtains no right of action against an undisclosed principal who was not scheduled as a debtor.®* A sale of property which has been previously assigned, by the .bankrupt gives the purchaser all the rights of the trustee, and he may sue in the state courts to set aside the prior assignment;®* Where the good will of the bankrupt, a corporation, is sold, it may thereafter be enjoined from using its corporate name even though it has received a discharge.®® § 1299. — Payment of taxes and. water rents. > The purchaser, and not the estate, will ordinarily be held liable for taxes assessed after sale and before final delivery of • ,. of any kind, and the purchaser takes 52 — Contract obligating person to pur- only the trustee's interest and his right chase all his beer from the bankrupt held of action. In re Downing, 201 Fed. 93, not enforceable in the hands of ' a pur- 29 A, B. E. 228. chaser of the bankrupt's assets. Jetter 47— In re Cooper, 16 N. B. E. 178, Fed. Brewing Co. v. SeoUan, 48 Misc. (N. Y.) Gas. No. 3190. 546, 15 A. B. E. 300. ' 48— Bay v. Brigham, 12 N. B. B. 145. 53— Shesler v. Patton, 114 App. Div. 49— Stedman v. Taylor, 17 N. B. E. (N. T.) 846, 17 A. B. E. 372. 283. 54 — Bryan v. Madden, 109 App. Div. 50— Arnold v. Greene Gold-Silver Co., (N. T.) 876, 15 A. B. E. 388, aff 'g 38 68 Misc. (N. Y.) 449, 24 A. B. E. 846. Misc. (N. Y.) 638, 11 A. B. B. 763. 51— In re Alden, 16 N. B. E. 39, Fed. 55^Myers Co. v. T?uttle,.188 Fed. 532, Cas. No. 151. 26 A. B. E. 541. . . : 954 Bbandenburg on Bankruptcy [§ 1299 the deed.''* The purchaser of the property at a foreclosure sale who has full knowledge of the non-payment of taxes on the prop- erty is not entitled to reimbursement out of the bankrupt estate where the taxes are subsequently paid by a third party.®^ When the trustee transfers property subject to the payment of taxes then owing, the grantee or a purchaser from him is under obliga- tion to pay the same, and cannot be subrogated to the rights of the municipality for a preferential payment thereof out of the estate.^* A purchaser of bankrupt's stock and good will who agreed to save estate harmless from claims for rent has been held liable for taxes and water rents due under the provisions of lease which required the bankrupt to pay as "additional rent" such taxes and water rents.®^ § 1300. — Recovery for deficiency. A purchaser seeking to recover for a deficiency in the prop- erty purchased from the trustee has but one cause of action, and an allowance to him of part of his claim wiU bar any future allowances for the balance.®" § 1301. — Resale by purchaser. A bankrupt purchasing a claim from one who has purchased the same from the trustee in bankruptcy obtains no greater rights than his assignor. Hence where the trustee sells a claim against a third person which was only scheduled as a claim against such person and not against an undisclosed principal and the bankrupt after his discharge purchases the claim from the third person, he cannot sue the undisclosed principal.®^ § 1302. — Removal of fixtures — Indemnity. The court has power to cancel a bond given by a claimant to indemnify the trustee against injury to the real estate caused by the removal of claimant's machinery therefrom though the bond was given to purchasers of real estate from the trustee instead of to the trustee.®* 56— In re Crowell, 199 I'ed. 659, 29 60— In re Drumgoole, 140 Fed 208, A. B. R. 308. 15 A. B. R. 261. 57— In re Brinker, 128 Fed. 634, 12 61— Shesler v. Patton, 114 App Div A. B. R. 122. (N. Y.) 846, 17 A. B. R. 372. 58— In re Hibbler Mach. Supply Co., 62— In re Regealed Ice Co 199 Fed 192 Fed. 741, 27 A. B. R. 612. 340, 29 A. B. R. 69. 59— Ellis V. Rafferty, 199 Fed. 80, 29 A. B. R. 192. § 1306] Appraisal, and Sale of Pboperty 955 § 1303. Distribution of proceeds of sale.^^" § 1304. — As between creditors. Upon a sale of incumbered property, priority creditors witHbut liens, cannot participate in the proceeds.®^ A judgment creditor who has not perfected his lien by exe- cution and levy is not entitled to the proceeds of such sale as against a junior creditor whose lien was perfected prior to the commencement of the proceedings.®* If there are two mort- gages, and the proceeds of a sale in bankruptcy are sufficient to pay off the first as well as costs and expenses, the senior mort- gagee is entitled to be paid in full the same as he would in case of a sale by way of foreclosure.®^ The holder of a Hen upon property owned jointly by the bank- rupt and another is entitled to have his debt paid in full from the proceeds of the bankrupt's interest in the property. In such case the other creditors are subrogated to the right of the bankrupt to demand contribution from the other owner.®® '. .Although real estate stands in the name of a partner, if it be in fact firm property, the unsecured individual creditors of the partner have no claim on the proceed^.®'^ §1305. —Interest. Where the security is more than sufficient to pay the secured creditor in full he is entitled to interest to the day of sale ®* and in some cases interest has been allowed to the date of the report or final decree of distribution.®^ § 1306. — Deduction of payments by bankrupt. Where property held by the bankrupt under a conditional sale contract is sold, the right of the trustee to retain out of the pro- 62a^-Distribution of proceeds of sale 66 — In re Straub, 158 Ted. 375, 19 of exempt property, see ante, § 1036. A. B. E. 808. 63— In re Rutland Perry Co., 205 Fed. 67— In re Groetzinger, 127 Fed. 814, 200, 30 A. B. E. 383, foUowing In re 11 A. B. E. 723, afC'g 110 Fed. 366, 6 Eiehl, 200 Fed. 455, 29 A. B. E. 613; dis- A. B. E. 399. approving In re Williamsburg Knitting 68 — In re Stevens, 173 ^'ed. 842, 23 Mill, 190 Fed. 871, 27 A. B. E. 178. A. B. E. 239; In re Fabaeher, 193 Fed. 64— In re Mebane, 3 N. B. E. 91, Fed. 556, 27 A. B. E. 534. Cas. No. 9380. 69— In re Devore, 16 N. B. R. 56, Fed. 65— In re Bartenbach, 11 N. B. E. 61, Cas. No. 3847; In re AUert, 173 Fed. Fed. Cas. No. 1068; In re Ship "Edith," 691, 23 A. B. E. 101. 6 N. B. E. 449, 5 Ben. 432, Fed. Cas. No. 4282. f 956 Brandenbueg on Bankeuptcy [§ 1306 ceeds a part of the purcliase price paid is inferior to the right of the vendor to have the proceeds applied to the payment of the purchase price. ''^*' § 1307. — Expenses, fees and costs. Where property is sold upon the petition of the trustee, under a lien or mortgage, only the actual costs of sale are chargeahle upon such proceeds and not any portion of the costs in bank- ruptcy,'^* though the lienholders may waive their right to object to allowances for such costs.'^^ However, reasonable expenses, fees and costs incident to the sale and for the protection of the property prior to the sale are chargeable,'^^ though, where the mortgage stipulates for a sale without appraisement in the event of foreclosure, the fees of the appraiser and keeper put in charge of the premises should not be deducted,'^* and it is held that a lien creditor is entitled to have the property pledged to him undiminished by any expense of administration or operation of the business, unless such operation has been sought for or acquiesced in by him.'® ' Several courts have applied a very reasonable rule in this con- nection, holding that the proceeds may be applied to the costs and expenses of the sale in an amount not exceeding what the mortgagee would be required to pay had he foreclosed in the state court,'® and that the referee may be allowed for services 70— In re Goldman, 174 Fed. 579, 23 Hughes 224, Fed. Cas. No. 1570 ; contra, A. B. E. 497. In re Prank Meis, 18 A. B. E. 104. 71— In re Howard, 207 Ted. 402, 31 72— In re Torchia, 188 Fed. 207, 26 A. B. E. 251; Varney v. Harlow, 210 A. B. E. 579; In re Baughman, 163 Fed. Fed. 824, 31 A. B. E. 339; In re Stew- 669, 20 A. B. E. 811. art, 193 Fed. 791, 27 A. B. E. 529; In re 73— In re Chambersburg Silk Mfg. Co., Huggins, 179 Fed. 490, 29 L. E. A. (N. 190 Fed. 411, 26 A. B. E. 107; but see S.) 737, 24 A. B. E. 715; In re Holmes In re Vulcan Foundry & Machine Co., Lumber Co., 189 Fed. 178, 26 A. B. E. 180 Fed. 671, 24 A. B. l|L 825. 119; In re Clark Coal & Coke Co., 173 74— In re Stewart, 193 Fed. 791, 27 Fed. 658, 23 A. B. E. 273, rev'g in A. B. E. 529. part 22 A. B. E. 843; In re Allert, 173 75— In re Clark Coal & Coke Co., 173 Fed. 691, 23 A. B. E. 101; In re Wil- Fed. 658, 23 A. B. E. 273, rev'g in part liams' Estate, 156 Fed. 934, 19 A. B. 22 A. B. E. 843; but see In re Prince E. 389; Mills v. Virginia-Carolina Lum- v. Walter, 131 Fed. 546, 12 A. B. E. ber Co., 164 Fed. 168, 21 L. E. A. (N. 675. S.) 901, 20 A. B. E. 750, modf'g, 151 76— In re Zehner, 193 Fed. 787, 27 Fed. 642, 18 A. B. R. 218; In re Blue A. B. E. 536. Eidge E. E. Co., 13 N. B. E. 315, 2 § 1310] AppeaisaIi and Sale of Property 957 rendered which the mortgagor would necessarily have incurred had he foreclosed in such court.^'^ Where the mortgaged property is pursued into a foreign juris- diction and extricated by the receiver and trustee in bankruptcy from a perilous position there, the mortgagee' may be charged a reasonable amount for the expenses of the officers of the bank- ruptcy courtJ^ , The mortgagor is entitled to a reasonable attorney's fee out of the proceeds, but is not necessarily entitled to the fee stipulated for in the mortgaged® § 1308. Effect of sale. § 1309. — In case of liens. A sale of incumbered land by the trustee subject to the incum- brance does not divest the land of the incumbrance.*" It will be taken for granted that the trustee sells such subject thereto, although the lien creditor, or creditors, must be notified before the sale takes place ; *^ and the purchaser will be estopped from denying the validity of the lien.®^ § 1310. — Dower of bankrupt's wife. The sale of a bankrupt's real estate by his trustee does not bar his wife's right of dower therein,** unless she consents to a sale. . free from her right of dower,** though in some states her right to dower extends only to the proceeds remaining after the pay- ment of the incumbrances on the property.*^ It has been ques- 77— In re Stewart, 193 Fed. 791, 27 84— In re AcreteUi, 173 Fed. 121, 21 A. B. E. 529. A. B. E. 537; Savage v. Savage, 141 Fed. 78— Matter of Hicks, 27 A. B. E. 168„ 346, 3 L. E. A. (N. S.) 923, 15 A. B. 79— In re Fabacher, 193 Fed. 556, 27 E. 599. A. B. E. 534. 85— In re Hays, 181 Fed. 674, 24 A. 80— Wieks v. Perkina, 13 N. B. E. B. E. 669. 280, 1 Woods 383, Fed. Gas. No. 17615; In Ohio, upon a sale of mortgaged In re Gerry, 112 Fed. 957, 7 A. B. E. premises, the wife of the bankrupt, 459. though she has joined in the mortgage, 81 — Meeks v. Whatley, 10 N. B. E. is entitled to the value of her contingent 498; In re McGilton, 7 N. B. E. 294, right of dower, computed upon the full 3_Bias. 144, Fed. Gas. No. 8798. value of the property, to be paid out 82 — ^Bucknam v. Dunn, 16 N. B. E. of the surplus, if any, after the mort- 470, 2 Hask. 215, Fed. Caa. No. 2096. gage lien is satisfied. In re Strauch, 83— In re ShaefEer, 105 Fed. 352, 5 A. 208 Fed. 842, 31 A. B. E. 36. B. B, 248. 958 Beandenbukg on Bankbxjptcy [§1310 tioned by several courts whether the rule has not been changed^ by the amendment of 1910 to section 47a (2).** § 1311. — Leases. The sale of a lease by the lessee's trustee' is not a breach of a covenant in the lease imposing forfeiture if the lessee assigns the lease or the lessee's interest is sold under execution .or other legal process.^'' 86 — Where under the state law, a judg- ment creditor may sell real estate dis- charged of the inchoate right of dower, the trustee has by virtue of § 47a (2) . as amended in 1910 the same power, and a sale free of liens will extinguish such inchoate right of dower. In re Codori, 207 Fed. 784, 30 A. B. E. 453.. In states where a lien creditor can issue execution and by a sale of the real property divest the wife of rights of dower, the right of the trustee to real property is superior to that of wife claim- ing dower, and wife's dower is divested by sale of real property, though without her consent. In re Freedman, 29 A. B. E. 135, aff'd 31 A. B. E. 53. 87 — Gazlay v. Williams, 210 U. S. 41, 52 U ed, 950, 20 A. B. E. 18. CHAPTER XXXI Expenses of Peoceedings i 1312. Accountants. § 1313. Appraiser 's fees. § 1314. Attorney 's fees. § 1315. — In general. § 1316. — Beasouableness. § 1317. — Por services actually rendered. § 1318. — Attorney for bankrupt in voluntary cases. § 1319. — Attorney for bankrupt in involuntary cases. § 1320. — Attorney representing bankrupt and creditors. 1 1321. — Attorney for petitioning creditors. 1 1322. — Attorney for other than petitioning creditors. § 1323. —Attorney for trustee. i 1324. — Attorney for receiver. § 1325. — r Attorney for general assignee. § 1326. — Procedure to obtain allowance. § 1327. Auctioneer 's fees. § 1328. Bankrupt 's living expenses. § 1329. Brokers ' commissions. § 1330. Compensation and expenses of ofiScers of the court. § 1331. Costs of obtaining composition. § 1332. Expense of contest of claims. J 1333. Expense of continuing business. i 1334. Expense of procuring or preventing a discharge. § 1335. Costs upon dismissal of petition for adjudication. § 1336. Costs in obtaining exemptions. § 1337. Costs to petitioning creditors. 1 1338. Expenses of creditors in recovering assets. § 1339. Piling fees. § 1340. Bent. § 1341. Stenographers. § 1342. Witness fees. § 1343. Funds available for payment of expenses. § 1344. Beport and approval of expenses. — Notice. §1312. Accountajits. Expert accountants who at the instance of certain creditors make an investigation of the bankrupt's books for the purpose of ascertaining whether any assets are being concealed will not be allowed their fees.^ 1— In re Marks, 22 A. B. E. 54. 959 960 Beandenbubg on Bankkuptcy [§ 1313 § 1313. Appraiser's fees. Expenses and compensation of a receiver and his appraisers will not be allowed where it appears that they acted fraudulently and that a receivership was unnecessary.^ The receiver has been allowed an appraiser 's fee paid by him though the trustee was dissatisfied with appraisement and ordered a second one.* In some districts appraisers are not allowed more than $5 per day, and it is held that only in extraordinary cases should an allowance be made for more than two or three days.* § 1314. Attorney's fees. §1315. — In general. When services of counsel are really required they will be allowed, but should be confined to such services during the bank- ruptcy proceedings, excluding previous consultations or advice, as well as all unnecessary attendance during the proceedings,^ though they do not include services of counsel rendered in the matter of the bankrupt's application for a discharge.^ It has been held that only "one reasonable attorney's fee" is allowable, which should be divided between the attorneys of the petitioning creditors, the bankrupt, and possibly the trustee.'' While such construction is in harmony with the policy to miai- mize the expenses, the correct reading of the provision in 64b (3), would seem to refer the word "one" to the words "irrespective of the number of attorneys employed, ' ' rather than to take it to mean that only one fee absolutely is to be allowed. The result in the cases cited favors this view, since to divide the one fee will give but little to each, unless that one fee be made cor- respondingly large. The provision might reasonably be con- strued to mean that, notwithstanding the petitioning creditors may have many attorneys and the? bankrupt likewise, only one 2— In re Desroehers, 183 Fed. 991, 25 B. N. 566, 3 A. B. R. 187, 96 Fed. 816; A. B. E. 703. see generally In re Carr, 117 Fed. 572, 3— In re Kyte, 158 Fed. 121, 19 A. 9 A. B. E. 58. B. E. 768. 6— In re Brundin, 112 Fed. 306, 7 A. 4— In re Pidler & Son, 172 Fed. 632, B. E. 296; contra. In re Christianson, 175 23 A. B. E. 16. Fed. 867, 23 A. B. E. 710. 5— Etodolph V. Scriggs, 190 IT. S. 7— In re MeCraeken & McLeod, 129 533, 47 L. ed. 1165, 10 A. B. E. 1; In Fed. 621, 12 A. B. E. 95; In re Pauly, re Standard Fullers Earth Co., 186 Fed. 1 N. B. N. 405, 2 A. B.B. 333. 578, 26 A. B. E. 562; In re Kross, IN. § 1316] Expenses of Pboceedings 961 fee is to be allowed to bankrupt's attorneys, and one fee to the creditor's attorney s.® By this means the ordinary meaning of the language is preserved and the result will be more reason- able. The same rule should be applied where two or mord attor- neys are employed by the receiver.^ §1316. — Reasonableness. It will be observed that section 64b (3) provides for the allow- ance of an attorney's fee in three cases, (1) to the petitioning creditors in involuntary cases; (2) to the bankrupt in involun- tary cases while performing the duties prescribed; and (3) to the bankrupt in voluntary cases in the court's discretion, but in each it is required that the fee must be reasonable. The amount depends upon the services rendered and their value, to be determined on evidence or the court's knowledge^" of the facts in each case, the reasonableness applying to the counsel as well as to the estate." If an attorney has a choice of two courses which lead to the same result he will be allowed a reason- able sum for the least services actually necessary by the less expensive course.^^ Whether any fee at all is to be allowed the attorney of a volun- tary bankrupt rests in the sound discretion of the court, and, in determining reasonableness, the character and condition of the .estate, the orders necessary for its protection and the time and attention of the attorney required are to be considered, so that there can be no fixed fee.^® The judge will not disturb an allowance by the referee, where there is no evidence that it was unjust, excessive or exorbitant, especially if the referee gave creditors time to file such evidence; and, if distribution has been made and the attorney paid the allowance, the right to object will be waived." But if the fee 8— In re Eschwege, 8 A. B. E. 282 ; 12— In re Goodwin, 2 N. B. N. R. 445. In re Coney Island Lumber Co., 199 Fed. 13— In re Sully, 13 A. B. R. 783 ; In 197, 29 A. B. E. 91. re EUett Elec. Co., 196 Fed. 400, 28 A. 9— In re Falkenburg, 206 Fed. 835, 30 B. E. 453; In re Burrus, 97 Fed. 926, A. B. E. 718. 3 A. B. E. 296; In re Kross, 1 N. B. N. 10— In re Curtis, 100 Fed. 784, 4 A. 566, 3 A. B. E. 187, 96 Fed. 816; In re B. E. 17. Beck, 1 N. B. N. 564, 1 A. B. E. 53'5, 11— In re Carolina Cooperage Co., 2 92 Fed. 889; In re Carr, 117 Fed. 572, N. B. N. E. 23, 3 A. B. E. 154, 96 Fed. 9 A. B. E. 58. 950; In re Curtis, 100 Fed. 784, 4 A. 14— In re Tebo, 101 Fed. 419, 4 A. B, B. E. 17: In re O'ConheU, 2 N. B. N. E. 235. E. 237, 98 Fed. 83, 3 A. B. E. 422. Brandenburg — 61 962 Bbandbkbueg on Bankeuptcy [§ 1316 asked for be exorbitant, even thongli it be recommended by the referee, no fee will be allowed.'^ In involuntary cases, tbe peti- tioning creditors and the bankrupt are entitled of right to such fee, only its reasonableness is to be determined by the court; ^* such determination in neither case to be arbitrary but in the exercise of legal judgment and judicial discretion and subject to review by the appellate court.^'^ The referee has power to determine the reasonableness of attorney's fees allowed by the trustee to the bankrupt.^* § 1317. — For services actually rendered. The provision is for the professional services actually ren- dered and hence it must be shown that the services for which the allowance is asked were actually rendered, and that they were necessary and proper,^^ and unless it is so shown, no allow- ance will be made.^" § 1318. — Attorney for bankrupt in voluntary cases. The question of allowance in this case rests in the sound discretion of the court,^^ to be exercised with due regard to the spirit of the statute.^^ The amount of fee is to be determined by the character and condition of the case, the orders necessary for its protection and the time and care required of the attorney.^* It should be for services necessary to enable the bankrupt to bring his case properly before the court, secure an adjudica- tion and reference, surrender his estate and perform his duties for the benefit of creditors, and is not necessarily restricted to services beneficial to the estate, rendered primarily in its 15— In re Carr, ll6 Fed. 556, 8 A. B. Tebo, 101 Fed. 419, 4 A. B. R. 235; In E. 635. re Burrus, 97 Fed. 926, 3 A. B. E. 296. 16 — In re Curtis, 100 Fed. 784, 4 A. 22— In re Wong, 30 A. B. E. 125. B. E. 17. 23— In re Lang, 127 Fed. 755, 11 A. 17-Tln re Curtis, 100 Fed. 784, 4 B. E. 794; In re Burrus, 97 Fed. 926, 3 A. B. R. 17. A. B. E. 296. 18— In re Ferreri, 188 Fed. 675, 26 A. Twenty-five dollars held sufficient for B. R. 658. securing stay of attachment proceedings. 19— In re Terrill, 103 Fed. 781, 4 A. In re Duran Merc. Co., 199 Fed. 961, B. R. 625. 29 A. B. R. 450. 20— In re Woodard, 1 N. B. N. 430, 2 Twenty-five dollars allowed for attend- A. B. R. 692, 95 Fed. 955. ing bankrupt several days before referee 21 — In re Morris, 125 Fed. 841, 11 it appearing that attendance was largely A. B. R. 145; In re Beck, 1 N. B. N. unnecessary. In re Duran- Mere. Co., 564, 1 A. B. R. 535, 92 Fed. 889; In re 199 Fed. 961, 29 A. B. R. 450. 1319] Expenses of Peooeedings 963 interest.^* The statute presupposes the payment of fees for services rendered by counsel in the ordinary course of the pro- ceedings, and section 64b, cl. 3, contemplates the allowance of additional fees for extraordinary services.^ ^ The bankrupt is not entitled to be reimbursed money paid to his attorney before the filing of the petition as a fee for professional services and in preparing the petition and schedules,** though if the fee has not been paid, the attorney will be entitled to an allowance therefor,*'' but in so far as these services are mainly clerical no considerable compensation is allowed.^* No allowance will be made for an unsuccessful application for a discharge,*^ and in one case an attorney's fee was disallowed though the application was successful.^"* An allowance may be made for services rendered prior to and in contemplation of bankruptcy whereby taxes are reduced, since the estate benefits thereby.^^ The bankrupt's attorney may be allowed the amount of filing fees paid by him on behalf of bankrupt in voluntary proceedings though an involuntary petition has previously been filed.** § 1319. — Attorney for bankrupt in involuntary cases. A fee is allowed the attorney for services to the bankrupt in involuntary cases while performing the duties prescribed by the 24— In re Christianson, 175 Fed. 867, 23 A. B. E. 710; In re Hitchcock, 17 A. B. E. 664; In re Kross, 1 N. B. N. 566, 96 Ped. 816, 3 A. B. E. 187; In re Averill, 1 N. B. N. 544; In re Chasnoff, 3 N. B. N. E, 1; see also in re Mayer, 101 Fed. 695, 4 A. B. E. 238; In re Brundin, 112 Fed. 306,- 7 A. B. E. 296, eoutra. In re Beck, 1 N. B. N. 564; 1 A. B. E. 535, 92 Fed. 889, followed In re StottB, 1 N. B. N. 326, 93 Fed. 438, 1 A. B. E. 641; see also In re Gies, 12 N. B. E. 179, Fed. Gas. No. 5407; In re Heirsehberg, 1 N. B. E. 195, 2 Ben. 466, Fed. Cas. No. 6329, 6530; In re Han- deU, 15 N. B. E. 72, Fed. Cas. No. 6017; In re Evans, 3 N. B. E. 62, Fed. Cas. No. 4552; In re Eosenfeld, Fed. Cas. No. 12057; In re Jaycox, 7 N. B. E. 140, Fed. Cas. No. 7239; In re Bigelow, Fed. Cas. No. 1397; In re Montgomery, 3 N. B. E. 35, 3 Ben. 364, Fed. Cas. No. 9726; Lid- don & Bro. V. Smith, 135 Fed.' 43, 14 A. B. E. 204; In re Frank Meis, 18 A. B. B. 104. 25— In re Smith, 108 Fed. 39, 5 A. B. E. 559. 26— In re Matthews, 3 A. B. E. 265, 97 Fed. 772. 27— In re Terrill, 103 Fed. 781, 4 A. B. E. 625; In re Kross, 1 N. B. N. 566, 96 Fed. 816, 3 A. B. E. 187. 28— In re Wong, 30 A. B. E. 125. Fifty dollars allowed for prep 35— In re Stratemeyer, 14 A. B. E. A. B. R. 672; In re Brundin, 112 Fed. 120; In re Hart & Co. Ltd., 16 A. B. 306, 7 A. B. E. 296; but see In re Kress, E. 725. 96 Fed. 816, 3 A. B. E. 187. 36— In re Stratemeyer, 14 A. B. E. 44 — In re Martin, 152 Fed. 582, 18 120. A. B. E. 250. 37— In re Perlhefter v. Shatz, 25 A. B. E. 586. §1319] Expenses of Proceedings 965 required, there is no presumption of such need, and ordinarily attorney's fees for such services are not chargeable against the estate." The fact that the bankrupt is guilty of a contempt will not prevent an allowance for services rendered prior to such con- tempt, such services being confined, in any event, to the prepara- tion of schedules, attendance at examinations and other duties in aid of the estate and its administration, but will not include services in defending bankrupt against charges of fraud and concealment of assets and other matters involving personal lia- bility. The amount of fee will be governed by the extent of the services,*" and in matters of difficulty the allowance will be correspondingly increased.^'^ In estimating the compensation which should be allowed an attorney for assisting in the preparation of schedules, respect must be had to the nature of the work, which is largely clerical.** In case a partnership is adjudged a bankrupt but one allow- ance can be made to it for counsel fees, although each bank- rupt appears by a different attorney.*® Where the petition in an involuntary proceeding is dismissed, the alleged bankrupt is entitled to costs ; ^° but he is not entitled, in addition, to counsel fees, unless an application "to take charge of and hold" his property prior to the adjudication has been granted and bond given.^^ 45— In re Hammel, 211 Fed. 238, 31 A. B. B. 672; In re Lane Lumber Co., 206 Fed. 780, 30 A. B. E. 749. Attorney for involuntary bankrupt not allowed fee for contesting petition or for attending first meeting where it does not affirmatively appear that presence was of any aid to bankrupt in performing duties prescribed. In re Levy Outfttting Co., 29 A. B. E. 8. 46— In re Mayer, 101 Fed. 695, 4 A. B. E. 238; In re Michel, 1 N. B. N. 265, 1 A. B. E. 665, 95 Fed. 803; In re Carolina Cooperage Co., 3- N. B. N. E. 23, 3 A. B. E. 154, 96 Fed. 950; see In re Sav. Fund Soc, 11 N. B. E. 303, 2 Hughes, 239, Fed. Cas. No. 11398. Twenty dollars held ample. In re Taltou, 137 Fed. 178, 14 A. B. E. 617. 47— In re Anderson, 103 Fed. 854, 4 A. B. E. 640; In re Hitchcock, 17 A. B. E. 664. 48 — In all but extraordinary cases the allowance should not exceed $100. In re Lane Lumber Co., 206 Fed. 789, 30 A. B. E. 749. 49— In re Eschwege, 8 A. B. E. 282. . 50— G. O. XXXIV. 51— Section 3e, Act of 1898; In re Ghiglione, 1 N. B. N. 351, 1 A. B. E. 580, 93 Fed. 186; see also Dundore v. Coats, 6 N. B. ,E. 304, Fed. Cas. No. 4142; In re Sheehan, 8 N. B. E. 353, Fed. Cas. No. 12738. 966 Bbandenbtjeg on Banketjptcy [§ 1320 § 1320. — Attorney representing bankrupt and creditors. The interests of the creditors and the bankrupt can in no sense be considered compatible, and therefore, under no condition should an attorney be permitted to represent the bankrupt and at the same time any of the creditors or the trustee. Irrespective of the fact that to represent both is to represent adverse interests, and is a violation of the ethics of the profession, and is opposed to public policy, the result is bound to affect injuriously the interests of the creditors. The bankrupt is required to make a disclosure of his assets, and if his attorney, as the representa- tive of the creditors, is permitted either to have a voice in the selection of the trustee or the attorney to represent him, he may to a greater or less extent influence the efforts to obtain a dis- closure of the assets of the estate, or to set aside conveyances made or liens created against the bankrupt. Accordingly a fee should not be allowed an attorney for representing both interests.^^ § 1321. — Attorney for petitioning creditors. The attorney for petitioning creditors is entitled to a resison- able fee as of right and its allowance or disallowance is not a matter of discretion with the court, but the amount is to be determined not arbitrarily, but in the exercise of legal judgment and judicial discretion,^^ which may be reviewed by the appellate court.^* The policy of the present act being to minimize the- expense of administering estates the courts must so construe it.®® The 52 — See generally Keyes v. McKirrow, One thousand dollars for services ren- 180 Mass. 261, 9 A. B. E. 422; In re dered the petitioning creditors held not Wooten, 118 Fed. 670, 9 A. B. R. 247; excessive. Frank v. Diekey, 139 Fed. In re Kimball, 100 Fed. 777, 2 N. B. N. 744, 15 A. B. R. 155. R. 46, 4 A. B. E. 144; In re Cobb, 7 54— In re Curtis, 100 Fed. 784, 4 A. A. B. E. 104. B. R. 17; see also In re Waite, 2 N. B. 53— In re Berkowitz, 22 A. B. E. 231; E. 146; In re N. T. Mail S. S. Co., 3 N. In re Carr, 117 Fed. 572, 9 A. B. E. 58. B. R. 155, 185, 7 Blatch. 178, Fed. Cas. Fifty dollars held ample. In re Talton, No. 10208; s. e. 2 N. B. E. 170, Fed. Cas. 137 Fed. 178, 14 A. B. R. 617. No. 10211 ; In re Mitteldorp, 3 N. B. E. Two hundred dollars held adequate. 1, Chan. 288, Fed. Cas. No. 9675; In re In re Coney Island Lumber Co., 199 Andrews & Jones, 11 N. B. R. 59, Fed. Fed. 197, 29 A. B. R. 91. Cas. No. 370; In re Comstock, 9 N. B. Allowance of $25 held sufficient where E. 88, Fed. Cas. No. 3075. attorney did nothing but prepare sehed- 55 — In re Harrison Mercantile Co., 1 ules. In re Fulliek, 201 Fed. 463, 28 N. B. N. 382, 2 A. B. R. 419, 95 Fed. A. B. R. 634. 123; In re Silverman, 2 N. B. N. E. 18, §•13^1] Expenses op J^boceedings 96^ fees of attorneys for the petitioning creditors are to be deter- mined by the condition of the estate, by the results effected, and the assets saved.^^ No fees can be allowed them for services caused by their own negligence or inadvertence.®'' To entitle an attorney to an allowance for services rendered the petitioning creditors a contract of employment must exist,®® and the services must have beeii rendered prior to the appointment of a trustee.®^ The fact that an attorney calls attention to a defect in the peti- tion by demurring thereto, and thereby is instrumental in curing the defect does not render him an attorney for the petitioning creditors in the absence of a contract of employment.^" An attorney filing a second petition which is never acted upon because of the sufficiency of the first petition after being amended, is not entitled to an allowance as an attorney for peti- tioning creditors.®^ One who acts as attorney for the receiver of the bankrupt estate may on that ground be refused an allowance as attorney for the petitioning creditors,*'^ and vice versa,®* since the two positions are inconsistent.. It has been held, however, that the amount allowed an attorney for services rendered the receiver or trustee should not be considered in fixing the amount to be allowed him for services rendered the petitioning creditors.®* After the appointment of a trustee, no allowance to petitioning creditors can be made for attorney's fees on examinations of the bankrupt, such services being either for the trustee or the indi- vidual creditors.*® 3 A. B.E. 227, 97 Fed. 325; In re Wood- • 59— In re Felson, 139 Fed. 275, 15 ard, 1 N. B. N. 430, 2 A. B. E. 642, 95 A. B. E. 185. Fed. 955. 60— Frank v. Dickey, 139 Fed. 744, 15 56— In re Levy Outfitting Co., 29 A. A. B. E. 155. B. E. 8. 61— Frank v. Diekey, 139 Fed. 744, 15 57 — Claim for services in arguing in A. B. E. 155 ; contra, In re Southern Steel opposition to motion to quash, growing Co., 169 Fed. 702, 22 A. B. E. 476. out of error of the clerk of court in fix- 62 — In re Southern Steel Co., 169 Fed. ing the return day, in effecting amend- 702, 22 A. B. E. 476. ments to petition necessitated by the 63 — In re Hill Co., 159 Fed. 73, 20 oversights, and in arguing motion due A. B. E. 73. to neglect in filing replication, disal- 64 — Frank v. Dickey, 139 Fed. 744, 15 lowed. In re Levy Outfitting Co., 29 A. B. E. 155. A. B. E. 8. 65— In re Silverman, 2 N. B. N. E. 58— Frank v. Dickey, 139 Fed. 744, 18, 3 A. B. E. 227, 97 Fed. 325. 15 A. B. E. 155. 968 Beandenbueg on Bankbitptoy [§ 1322 § 1322 Attorney for other than petitioning creditors. No allowance can be made from the estate of a bankrupt in voluntary proceedings, for the fees of the creditors' attorneys.^* "Whenever it is for the interest of the estate that rights should be litigated or any steps taken to preserve or recover property belonging to it, and the trustee either arbitrarily or through caprice declines to employ counsel for such purpose, the cred- itors may apply to the referee for authority to employ counsel to conduct such litigation and his compensation will be paid out of the estate,®'^ or where a trustee refuses to move to set aside a sale because of the stifling of competition and certain attorneys successfully resist the confirmation of such sale, thereby saving a large sum to the estate, they should be paid from the estate.^* Services by the attorneys for a creditor which aid in rejecting claims, setting aside priorities,®^ securing the appointment of> a proper trustee,'^" and opposing a discharge,'^^ are not allowable. Nor can an allowance be made to a creditor whose claim is unsuc- cessfully attackedJ^ A creditor has been held entitled to an allowance of an attor- ney's fee for filing his petition for leave to foreclose his mort- gage and for representation under the trustee's- petition to sell the property free from liens/^ The allowances should be made to the creditors for their expenses in employing counsel, and not to the attorneys them- selves.'^* 66— In re Smith, 108 Fed. 39, 5 A. B. 70— In re Medina Quarry Co., 191 Pad. R. 559. 815; 27 A. B. E. 466, rev'g 182 Fed. 508, 67 — Section 64b (2) of Act of Feb- 25 A. B. E. 405. ruary 5, 1903. 71— In re KeUer, 207 Fed. 118, 31 A. 68— ^n re Groves, 2 N. B. N. E. ^86; B. E. 51; In re Kyte, 189 Fed. 531, 26 but see In re Archenbrown, 8 N. B. E. A. B. E. 507. 429, Fed. Gas. No. 503; In re Eidom, 3 72^In re Coventry Evans Furniture N. B. E. 39, Fed. Cas. No. 4315; In re Co., 171 Fed. 673, 22 A. B. E. 623. Eobinson, 3 N. B. E. 17, Fed. Cas. No. 73 — ^In re Holmes Lumber Co., 189 11943; In re Forsyth, 7 N. B. R. 174, Fed. 178, 26 A. B. E. 119; and see In Fed. Cas. No. 4948; Freelander v. Hoi- re Ferrerri, 188 Fed. 675, 26 A. B. B. loman, 9 N. B. E. 331, Fed. Cas. No. 5081. 658; but see In re AUert, 173 Fed. 691, 69 — ^In re Eoadarmour, 177 Fed. 379, 23 A. B. E. 101. 24 A. B. E. 49; In re Medina Quarry 74 — ^In re Medina Quarry Co., 191 Fed. Co., 191 Fed. 815, 27 A. B. E. 466, rev'g 815, 27 A. B. E. 466, rev'g 182 Fed. 182 Fed. 508, 25 A. B. E. 405; but see 508, 25 A. B. E. 405. In re Little Eiver Lumber Co., 101 Fed. 558, 3 A. B. E. 682. §1323] Expenses of Pboceedings 969 § 1323. — Attorney for trustee. The fee for the trustee's attorney is not embraced in the sec- tion 64b (3) allowing "one reasonable fee," etc., but, whenever it becomes necessary for an officer to have legal assistance, the cost is one of the expenses of administration.'^^ A trustee may employ legal assistance when necessary, and a court will not give him any direction in advance as to such employment, but he must decide in the first instance as to the necessity therefor.''" Fees to a reasonable amount may be allowed him as part of the costs of administration '''^ by the referee ex parte,'''* for his actual disbursements and compensation for services rendered in the necessary preservation of the estate,''® and, as a general rule, no allowance will be made for services rendered prior to his appointment.*" An attorney cannot be deprived of his right to compensation as attorney for the trustee, after the services have been performed, on the ground that he has previously acted for the bankrupt,*^ or for the petitioning creditors.*^ In the absence of a rule requiring the trustee 's selection of an attorney to be approved by the court, it is no objection to the allowance of the claim of the attorney for services that the same were rendered before his selection was approved.*^ No allowance will be made to the trustee 's attorney if he was appointed as a result of aji agreement with the trustee that if the 75— Page v. Bogers, 149 Fed. 194, 17 184 Fed. 949, 25 A. B. R. 868; In re A. B. E. 854. Byerly, 128 Ped. 637, 12 A. B. R. 186. 76 — ^In re Abram, 3 N. B. N. E. 28, Attorney for trustee allowed a fee for 4 A. B. E. 575, 103 Fed. 272; but see In collection of insurance partly due the re Smith, 1 A. B. E. 37, 1 N. B. N. 136; trustee and partly due the lienholders. In re Little Eiver Lumber Co., 101 Fed. In re Holmes Lumber Co., 189 Fed. 178, 558, 3 A. B. E. 682. 26 A. B. E. 119. 77— In re Knosher & Co., 197 Fed. 136, 80— In re N. Y. Mail 8. S. Co., 2 N. 28 A. B. E. 747; In re Stotts, 1 N. B. B. E. 137, Fed. Cas. No. 10210. N. 326, 93 Fed. 438, 1 A. B. E. 641; In 81— In re Dimm & Co., 146 Fed. 402, re Pauly, 1 N. B. N. 405, 2 A. B. E. 17 A. B. E. 119. 333; In re Davenport, 3 N. B. E. 18, 82 — Fee for trustee's attorney allowed Fed. Cas. No. 3587; In re Colwell, 15 though attorney also represented petition- N. B. E. 93 ; In re Pegues, 3 N. B. E. ing creditors where interest of such credi- 80; In re TuJly, 3 N. B. E. 19, Fed. Cas. tors was not averse to any class of credit- No. 3587; In re Noyes, 6 N. B. E. 277. ors. In re Smith, 29 A. B. E. 628. 78— In re Stotts, 1 N. B. N. 326, 93 83— In re Smith, 203 Fed. 369, 29 Fed, 438, 1 A. B; E. 641. . , . A. B. B. 628. 79"— In re Eagle Steam Laundry Co., 970 Beandbnbueg on BANKEtrpiCY [§ 1323 attorney procured tlie trustee's appointment, the attorney should be retained.** The allowance of an attorney's fee is within the sound dis- cretion of the court,*^ which should be exercised in accord with the spirit of the act, and hence, where there was no onerous duty, the referee's refusal to allow a fee to the trustee's attor- ney on the ground that he had received a fee as attorney for bankrupt will be sustained.*^ The claim of trustee's. attorney for a fee for services rendered on an examination undertaken at his suggestion in the hope of discovering concealed assets but without resulting benefit to the estate will not be allowable where there is evident lack of good faith of either attorney or trustee.*^ But an attorney selected by the creditors to represent the trustee, who traces and recovers concealed assets, will be allowed a reasonable fee by the court, where the creditors refuse to pay it.** In voluntary cases the estate should bear a fair allowance for attorney's fees incident to the trustee's opposing, though unsuccessfully, an application for a discharge.** The question as to allowance of attorney's fees, like other contested questions, may be certified by the referee to the judge for his decision at the instance of interested parties.®" The fact that an allowance to the trustee's attorney is in a lump sum, without a detail of items, is not ground for reversal thereof."^ The court of bankruptcy has jurisdiction to pass on the reason- ableness of a contingent fee retained by an attorney under an agreement with the trustee for conducting a suit, and, if found excessive, to require the excess to be refunded,®^ and, where the trustee obtained authority to employ an attorney on a contingent fee but suppressed facts, knowledge of which would have pre- vented the giving of such authority, the contract may be set aside and reasonable compensation awarded.®^ The same per- 84— In re Smith, 203 Fed. 369, 29 A. 89— In re KeUer, 207 Fed. 118, 31 A. B. E. 628. E. R. 51. 85— In re Covington, 132 Ted. 884, 13 90— In re Warshing, 5 N. B. E. 350, A. B. E. 150. Fed. Gas. No. 17209. 86 — ^In re Carolina Cooperage Co., 2 91 — ^In re Smith, 203 Fed. 369, 29 A. N. B. N. R. 23, 3 A. B. B. 154, 96 Fed. B. E. 628. 950. 92— In re Brinker, 19 N. B. E. 195, 87— In re Eozinsky, 101 Fed. 229, 2 Fed. Cas. No. 1882. N. B. N. R. 787, 3 A. B. E. 830. 93— Maybin v. Eaymond, 15 N. B, E. 88— In re Evans, 117 Fed. 574, 8 A. 353, Fed. Cas, No. 9938. B. E. 730, note. §1324] Expenses of Pboceedings 971 centage of the recovery in a case in which a very large recovery is had as in the case where the recovery is small is not always warranted. The amount recovered is only to be considered as showing the responsibility involved and the success accom- plished.^* A trustee will not be allowed an attorney's fee for the per- formance of ordinary duties which he should as trustee have performed,^^ but where he is a lawyer and performs legal serv- ices himself he may be allowed extra compensation therefor.®* A creditor whose claim is disallowed cannot be held liable for counsel fees of the attorney of the trustee.®^ § 1324. — Attorney for receiver, A receiver is entitled to the assistance of counsel, and to a reasonable allowance therefor,®* to be paid out of the estate to the extent that the attorney acted directly in behalf of the estate, or it has been benefited by what he has done,®® but he is not entitled to an allowance for services performed by counsel for the petitioning creditors.^ No claim for services as attorney for the receiver is charge- able per se against the estate, predicated alone upon the fact of employment and service rendered,^ and ex;penses and compensa- tion of the receiver and his attorneys will be disallowed where it appears that they acted fraudulently and that the receivership was unnecessary.^ The attorney for the receiver should not be allowed any fees for services rendered in obtaining the receiver's appointment, or other matters preliminary to the appointment, since, such services are rendered in the interest of the moving creditors and should be collected from the estate in the hands of the trustee.* 94— In re Fiske & Co., 209 Ted. 982, 98— In re Oppenheimer, 146 Fed. 140, 31 A. B. B. 736. 17 A. B. E. 59. 95— In re Averill, 1 N. B. N. 544; In 99— In re Ketterer Mfg. Co., 156 Fed. re Smith, 2 A. B. E. 648. 719, 19 A. B. E. 646. 96— In re Mitchell, 1 N. B. N. 264, 1— In re Oppenheimer, 146 Fed. 140, 1 A. B. E. 687, citing Perkin's Appeal, 17 A. B. E. 59. 108 Pa. St. 319; and Lowrie's Appeal, 2— In re Hill Co., 159 Fed. 73, 20 A. 1 Grant 373; In re Welge, 1 Fed. 216; B. E. 73. contra, In re Felson, 139 Fed. 275, 15 3 — In re Desroohers, 183 Fed. 991, 25 A. B. E. 185; In re McKenna, 137 Fed. A. B. E. 703. 611, 15 A. B. E. 4; and see In re Meld- 4— In re Falkenburg, 206 Fed. 835, our, 17 Fed. Cas. No. 958. 30 A. B. E. 718. 97— In re Eonje, 162 Fed. 971, 19 A. B. B. 820. 972 BrANDENBUEG ON BANKBtrPTCY [§1324 Where an order appointing a receiver is vacated because the receiver entered into an agreement with several attorneys to divide fees, actual proper disbursements made by the receiver or the attorneys will be allowed, but no compensation will be allowed to any of them.^ The allowance to a receiver is entirely within the discretion of the court, unaffected by the report of the referee.® The num- ber of attorneys should not enter into the allowance of attorney's fees/ § 1325. — Attorney for general assignee. The attorneys for an assignee under a voluntary general assignment, in possession prior to the bankruptcy proceedings, should not be allowed any compensation out of the estate,* except upon a showing of absolute necessity for such employ- ment which resulted in benefit to the estate.® Nor should a trus- tee in a chattel deed of trust executed by an insolvent for the benefit of creditors, be allowed compensation for his services in executing his trust. ^° §1326. — Procedure to, obtain allowance. A claim for an attorney's fee under section 64b (3) must be presented to the court of original jurisdiction.^^ The reason- ableness of the fee is to be determined by the court or referee and may be done ex parte.^^ Action thereon may be suspended for a reasonable time to get testimony as to the amount allow- able, but if it is then impossible to secure such testimony, the referee should decide the qiiestion on the evidence before him.^^ Proceedings to test the propriety of payments to an attorney for 5 — In re Oshwitz v. Feldstein, 183 9 — Bandolph v. Scruggs, 190 TJ. S. Fed. 990, 25 A. B. E. 594. 533, 47 L. ed. 1165, 10 A. B. E. 1; In re 6 — In re Borgeson Co., 151 Fed. 780, Busey, 6 A. B. E. 603. 18 A. B. E. 178. 10— Abbott v. Summers, 116 Fed. 687. 7— In re Falkenburg, 206 Fed. 835, 30 11— Musica v. Prentice, 211 Fed. 326, A. B. E. 718. 31 A. B. E. 687, aff'g 205 Fed. 413, 30 8— Eandolph v. Scruggs, 190 U. S. A. B. E. 555. 533, 47 L. ed. 1165, 10 A. B. E. 1; In 12— In re Stotts, 93 Fed. 438, 1 N. B. re Eogers, 116 Fed. 435; but see In re N. 326. Pauly, 1 N. B. N. 405, 2 A. B. E. 333. 13— In re Dreeben, 101 Fed. 110, 4 A. Attorney for general assignee not en- B. E. 146. titled to allowance under 63b (3) or 60d. In re Marble Products Co., 199 Fed. 668, 29 A. B. E. 384. §1328] Expenses op, Proceedings 973 all services, namely those rendered before the payment as well as those services to be rendered in the bankruptcy proceeding itself, shonld be taken in the form of a motion to fix the allow- ance, and for an order directing the return of the balance, unless an issue is raised.^* A fee to the attorney for the bankrupt or petitioning creditors should not be allowed except upon notice to the parties inter- ested, and upon petition and recommendation of the bankrupt or the petitioning creditors," but it is held that attorneys for the trustee or receiver may present their claims direct.^® Under the act as it existed prior to the amendment of 1910 no notice of the application of a receiver's attorney for compensation was necessary.^'^ The trustee is the only party who can object to the disallow- ance of attorney's fees to his attorney. The attorney has no standing to object.^® § 1327. Auctioneer's fees. Priority of auctioneer's fees, see post, section 1364. § 1328. Bankrupt's living expenses. While the law makes no provision for the expenses of the bankrupt or his livelihood between the adjudication and his discharge, under the equity powers of the court there appears no reason why a reasonable allowance might not be made out of the estate for the actual necessities of the bankrupt, and if there are exemptions to be subsequently set apart to him, why he should not be required to reimburse the estate therefrom, but this allowance would not include indulgence in vices or extrava- gant habits of living or unnecessary expenditures.^^ 14— In re Shiebler & Co., 163 Fed. 545, B. E. 628; In re MoKenna, 137 Fed. 611, 20 A. B. E. 777. 15 A. B. E. 4. 15— In re Young, 142 Fed. 891, 16 A. 17— In re Borgeson Co., 151 Fed. 780, B. E. 106. 18 A. B. E. 178. Creditors not entitled to notice of 18 — In re Byerly, 128 Fed. 637, 12 hearing of petition for allowance of at- A. B. E. 186. torney's fees in absence of rule. In re 19 — In re Tudor, 2 N. B. N. E. 168, Wong, 30 A. B. E. 125. 100 Fed. 796, 4 A. B. E. 78. 16— In re Smith, 203 Fed. 369, 29 A. 974 Beandenbubg on Bankeuptcy [§ 1329 § 1329. Broker's commissions. The allowance of a commission to a broker for negotiating a sale of tlie property is within the discretion of the court.^" § 1330. Compensation and expenses of officers of the court. The compensation of referees,^^ trustees,^^ clerks, marshals,^* receivers,^* and stenographers ^^ is fixed by law and is in full for their services, but does not include certain expenses neces- sarily incurred in the performance of their duties and allowed upon the settlement of their accounts. No additional compen- sation can be granted, though the services are valuable and worth more than the commissions fixed by the aot.*^ Fees not required to be paid before filing the petition may be ordered by the judge at any time paid out of the estate, or, after notice and proof that bankrupt can pay them, the judge may require him to do so.^'' The judge may order the commissions paid immediately after they are earned.^* Notice of an application by a receiver for compensation must specify the amount asked.^^ A notice of hearing for fixing the allowances to a receiver which as to each allowance spepifies exactly the amount asked is not insufficient in failing to request an additional allowance as provided in section 486.^" Before incurring any expense In publishing or mailing notices, or in traveling, or in procuring witnesses, or perpetuating testi- mony, the clerk, marshal or referee may require from the person desiring the service indemnity for such expense, and money advanced for such purpose must be repaid as part of the costs of administering the estate.^^ The cost of preserving the estate subsequent to filing the petition, the cost of administration, including witness fees and mileage according to the laws of 20— Gold V. South Side Trust Co., 179 26— Act of 1898, § 72, as amended Fed. 210, 24 A. B. E. 578. June 25, 1910; In re Meadows, 199 Fed. 21— Section 40, Act of 1898; see ante 304, 29 A. B. E. 165. Chapter X. 27— G. O. XXXV. 22— Section 48, Act of 1898; see ante, 28— G. O. XXXV (4) as amended, Chapter XIX. December 11, 1905. 23— Section 52, Act of 1898; see ante, 29— In re Falkenburg, 206 Fed. 835, Chapter III. 30 A. B. E. 718. 24 — Section 48 as amended June 25, 30 — In re Cash-Papworth, 210 Fed. 24, 1910; see ante, Chapter VII. 31 A. B. E. 709. 25— Section 38, Act of 1898. 31— G. 0. X. § 1332] Expenses of Proceedings 975 the United States, and one reasonable attorney's fees, are debts entitled to priority of payment.^^ § 1331. Costs of obtaining composition. Costs and disbursements in connection with an application to confirm a composition are not recoverable from the estate.^* § 1332. Expense of contest of claims. Claims must be established at the expense of claimants, and no allowance of costs to the attorney of a creditor whose claim is unsuccessfully contested will be made out of the estate.** How- ever, it is held, that a creditor who contests the validity of the claim of another is liable, upon the decision being adverse to him, for the taxable costs and disbursements of the creditor whose claim was contested, and the fees, costs and expenses of the referee.*® A creditor proving a claim is in no sense a witness nor entitled to fees.*® A party seeking re-examination of an allowed claim is required to indemnify the claimant for traveling expenses incurred by him in coming to the hearing.*'' Attorneys for creditors successfully defending claims against the estate are not entitled to compensation out of the estate where the trustee had not refused to act,** but where one of the creditors successfully objects to the allowance of a claim filed by another creditor, after the trustee declines to interfere, thereby saving a considerable sum for distribution among the creditors generally, his attorney contesting such claim may be allowed a fee to be paid out of the estate.*^ Where a contest over a claim was carried on for the sole pur- pose of controlling the election of the trustee, costs of the contest will not be allowed.** 32— Seetion 64b, Act of 1898; see post, 36— In re Paddock, 6 N. B. B. 396, Chapter XXXII. Fed. Cas. No. 10658. 33— In re Fogarty, 187 Fed. 773, 26 37— In re Elk Val. Coal,Min. Co.j^210 A. B. E. 568. Fed. 386, 31 A. B. E. 545. 34— In re Stewart, 178 Fed. 463, 24 38— In re Eoadarmour, 177 Fed. 379, A. B. R. 474; In re Coventry Evans 24 A. B. E. 49. Furniture Co., 171 Fed. 673, 22 A. B. 39— In re Little Eiver Lumber Co., E. 623. 101 Fed. 558, 3 A. B. E. 682. 35— In re Canton Iron & Steel Co., 197 40— In re Worth, 130 Fed. 927, 12 A, Fed. 767, 28 A. B. E. 791; In re Troy B. E. 566. Woolen Co., 8 N, B. E. 412, Fed. Cas. No. 14203. 976 Beandbnbxjeg on Bankeuptcy [§ 1333 § 1333. Expense of continuing business. Employees of the bankrupt wbo continue the business of the bankrupt without authority from the court will not be allowed compensation for services after the adjudication as part of the expenses of administration.*^ The continuing of the business of the bankrupt by his employees for the remainder of one day, after the filing of the petition has been held not to constitute the carrying on of the business of the bankrupt entitling them to compensation within the meaning section 2 (5).*^ The compensation of trustees, marshals, and receivers for carrying on the business of the bankrupt is treated elsewhere.*^ § 1334. Expense of procuring or preventing a discharge. The question as to whether an allowance may be made out of the estate in the matter of bankrupt's application for a dis- charge is one on which the courts do not agree, though the better opinion would seem not to favor such allowance.** How- ever, moneys advanced by the bankrupt to pay for notices of a hearing upon application for a discharge should be repaid him out of the estate.*^ The power to award costs against an objecting creditor who fails to substantiate his specifications of objections in opposition to a discharge is discretionary, and where it appears that the objections are made in good faith, the court may refuse to tax costfe against such creditor,*^ but if the objections are frivolous and vexatious, the costs may be taxed against the objecting creditor.*'^ A creditor may prosecute his objections to a dis- charge in forma pauperis,*® though, in some districts, the person interested in preventing a discharge is required to deposit with 41 — ^In re Nat. Mercantile Agency, 11 E. 710; and see In re Hatcher, 145 Fed. A. B. E. 451. 658, 16 A. B. E. 722. 42— In re Knosher & Co., 197 Fed. 136, 45— In re Hatcher, 145 Fed. 658, 16 28 A. B. E. 747. A. B. E. 722. 43 — Compensation of trustees,, see, , 46 — In re Miers, 193 Fed. 288, 27 A. ante § 707; eompensation of marshals B. E. 870; In re Gillardon, 187 Fed. 289, and receivers, see ante § 227. 26 A. B. E. 103. 44— In re. Brundin, 112 Fed. 306, 7 A. 47— In re Wolpert, 1 N. B. N. 238, 1 B. E. 296; Bragassa v. St. Louis Cycle A. B. E. 436. Co., 107 Fed. 77, 5 A. B. E. 700; contra, 48— In re Guilbert, 154 Fed. 676, 18 In re Christiansen, 175 Fed. 867, 23 A. B. A. B. E. 830. §1339] Expenses of Pboceedings 977 the referee a sum sufficient to guarantee that the expenses of the reference will be paid.*^ Creditors' expenses in opposing the bankrupt's discharge, though successful, should not be paid out of the estate,®" though it is held that such expenses should be borne by all the cred- itors who are benefited thereby, if the opposition is successful, and, if unsuccessful, may in the discretion of the court, be paid out of the estate.®^ § 1335. Costs upon dismissal of petition for adjudication. Jf a petition in involuntary bankruptcy is dismissed the debtor may recover costs against the petitioners.''^ Liability of petitioners for damages, etc., upon dismissal of petition, see Chapter IX. § 1336. Costs in obtaining exemptions. Services rendered in having the bankrupt's exemption allowed will not be fixed by the court.®* § 1337. Costs to petitioning creditors. In involuntary cases, where the debtor resists the adjudica- tion, and the court, after hearing, adjudges the debtor a bank- rupt, the petitioning creditor ^hall recover, and be paid out of the estate, similar costs as are allowed to a party recovering in a suit in equity.®* * § 1338. Expenses of creditors in recovering assets. The reasonable expenses of one or more creditors in recovering property for the benefit of the estate may be allowed.®® Priority of claims of this nature, see post, section 1359. §1339. Piling fees. ^ The subject of fees payable to the clerk upon filing the peti- tion or other papers is elsewhere treated.®^ 49— Eule 41, Eastern District of New 53— In re Castleberry, 143 Fed. 1021, York; In re Fritz, 173 Fed. S60, 23 A. 16 A. B. E. 430. B. K 84. S4r—G. 0. XKXXV. 50— In re Kyte, 189 Fed. 531, 26 A. B. 55 — See 64b (2) as amended February B. 507. 5, 1903; In re Medina Quarry Co., 191 51— In re Fritz, 173 Fed. 560, 23 A. B. Fed. 815, 27 A. B. E. 466, rev'g 182 E. 84. , Fed. 608, 25 A. B. E. 405. 52— G, O. XXXIV. - 56— See ante, § 34. Brandenburg — 62 978 Beandbnbueg on Bankbuptcy [§ 1340 § 1340. Rent. Rent after the leased property is in the hands of the court may be allowed as part of the necessary costs and expenses of administration.^^ Where the landlord has failed to make a claim for use and occupation of the premises as an expense of administration, he cannot thereafter maintain an action against the trustee for damages for such use, though it be alleged that the action sounds in tort, it being in reality an attempt to collect rent.^* A landlord's claim for use of premises used by the receiver or trustee is not for rent under his lease with the bank- rupt but for quantum meruit. The courts, however, in several instances have adopted the rent fixed by the lease as a fair meas- ure of the reasonable value of such use.^® §1341. Stenographers. Right of referee to employ stenographic help, see ante, sec- tion 366. § 1342. Witness fees. Priority of witness fees is elsewhere treated.®" § 1343. Funds available for payment of expense. Proceeds of exempt property cannot be used in payment of commissions,®^ nor can commissions be allowed out of property which comes into the possession of the trustee through the fraud of the bankrupt and is adjudged to be returned to . the real owner.®^ Commissions should not ordinarily be paid out of the proceeds of incumbered property which are insufficient to pay off the incumbrance. The bankruptcy act in so far as it author- izes payment of commissions of the referee and trustee from the proceeds of the sale of incumbered property only applies to cases in which the court rightfully exercised its jurisdiction to sell free from liens, or where the lien holder consents to such sale.®* 57— See post, % 1366. 61— In re Yeager, 182 Fed. 951, 25 A. 58 — In re Empire Const. Co., 157 Fed. B. R. 51. 495, 19 A. B. E. 704; see In re Grignard 62— GiUespie v. Piles & Co., 178 Fed. Lithographic Co., 155 Fed. 699, 19 A. 886, 24 A. B. B. 502. B. E. 101. 63— In re Holmes Lumber Co., 189 59— In re Adams Cloak, Suit & Fur Fed. 178, 26 A. B. R. 119; In re Huggins, House, 199 Fed. 337, 28 A. B. E. 923, 179 Fed. 490, 29 L. E. A. (N. S.) 737, and cases cited. See also post, § 1366. 24 A. B. R. 715. 60— See post, § 1367. § 1344] Expenses of Pbooeedings 979 Payment of costs and expenses of administration out of incum- bered property, see also, post, section 1348. In partnership cases, "the expenses shall be paid from the partnership property and the individual property in such pro- portions as the court shall determine." ®* Where there are assets of the firm and of one or more individ- ual members, the joint estate and the individual estates must each pay its proportion of the expenses of administration.^^ Except in the matter of expense, it is of no consequence whether there are two proceedings or only one by or against partners, for the rights of creditors and others are the same.^® §1344. Report and approval of expenses — Notice. Section 62a of the act provides, that "the actual and necessary expenses incurred by officers in the administration of estates shall, except where other provisions are made for their payment be reported in detail, under oath, and examined and approved or disapproved by the court. If approved, they shall be paid or allowed out of the estates in which they were" incurred."®'' This section clearly makes it the duty of the officers to render itemized accounts under oath and that the court shall examine and approve or disapprove the same ; in other words, that, upon an accounting by a trustee, while creditors have a right to exam- ine and object to such account and be heard thereon, it is the duty of the referee to examine the items in detail.®* Exceptions should be promptly filed if a receiver's account is objected to and after the questions thus raised are determined by the ref- 64 — Section 5e, Act of 1898. "Section 47. . . . The eniimera- 65 — ^In re Smith, 13 N. B. E. 500, Fed. tion of the foregoing fees shall not pre- Oas. No. 12987; Atkinson v. Kellogg, 10 vent the judges, who shall frame general N. B. E. 535, Fed. Cas. No. 613. rules and orders in accordance with the 66 — ^In re Morse, 13 N. B. E. 376, Fed. provisions of section ten, from prescrib- Oas. No. 9854. ing a tariff of fees for all other serv- 67 — Section 62, Act of 1898; Analo- ices of the officers of courts of bank- gous provision of Act of 1867. "Section ruptcy, or from reducing the fees pre- 28. . . . If at any time, there shall scribed in the section in classes of oases not be in his (assignee's) hands a suffi- to be named in their rules and orders." cient amount of money to defray the 68 — In re Baginsky, Michel & Co., 1 N. necessary expenses required for the B. N. 360, 2 A. B. E. 243; In re Carr, further execution of his trust, he shall 116 Fed. 556, 8 A. B. E. 635. not be obliged to proceed therein until the necessary funds are advanced or satisfactorily secured to him. . . . 980 Beandbnburg on Bankbuptcy [§ 1344 eree, any party in interest can bring the matter to tlie attention of the court; but, after an account has been approved by the referee without objection, and a further period of acquiescence has elapsed, good reasons should appear for permitting objec- tions to be made.^^ The marshal is required to make a verified return; '''' as is also the referee.''^ The expenses of the clerk in sending out notices should be charged as an expense, not as a fee, and should be itemizedJ^ Except in the case of receivers or marshals seeking an allow- ance for caring for or preserving the estate pending the qualifi- cation of a trustee ''* and in the case of trustees, marshals or receivers, seeking compensation for continuing the business of the bankrupt '^* no notice is required when costs of administra- tion are to be settled and allowed J^ 69 — In re Reliance Storagrf and Ware- 73 — Section 48d, Act of 1898 as house Co., 100 Fed. 619, 4 A. B. E. 49; amended June 25, 1910. In re Tebo, 101 Fed. 419, 4 A. B. E. 235. 74— Section 48e, Act of 1898 as 70— G. O. XIX. . amended June 25, 1910. 71— G. O. XXVI. 75— In re Stotts, 1 N. B. N. 326, 1 A. 72 — In re Dunn Hardware & Furniture B. E. 641, 93 Fed. 438, and see In re Co., 134 Fed. 997, 14 A. B. E. 186. Borgeson, 151 Fed. 780, 18 A. B. E. 178. CHAPTER XXXII Debts Entitled to Peiobity ) 1345. Jurisdiction to determine priorities. ) 1346. Order of priority. i 1347. — In general. \ 1348. — In case of incumbered property. 51349. Taxes. i 1350. — Eight to priority. 1 1351. — What are taxes. 1 1352. — Who may claim priority. 1 1353. — Taxes on exempt property. J 1354. — Taxes on firm property. 1 1355. Care and preservation of property. 1 1356. — In general. 1 1357. — Prior to filing petition. 1 1358. — Beceivership. § 1359. — Property recovered for estate by creditor. 1 1360. Filing fees in involuntary cases. 1 1361. Costs of administration. §1362. —In general. §1363. — Debts of assignee. g 1364. — Auctioneer 's fees. g 1365. — Operation of bankrupt 's business. 1 1366. — Bent subsequent to bankruptcy. § 1367. — Witness fees and mileage. g 1368. Attorney or counsel fees. § 1369. Wages and labor claims. ' § 1370. — In general. § 1371. — Breach of contract of employment. § 1372. — Wages subsequent to bankruptcy. § 1373. — Application of payments. § 1374. — Priority under state laws. § 1375. — Wages assigned or in judgment. § 1376. Debts entitled to priority under state or federal laws. § 1377. — In general. § 1378. — Debts assumed by bankrupt. § 1379. — Claim of cestui que trust. § 1380. — Claims on checks or orders. § 1381. — Costs and fees. g 1382. — Claims of bank depositors. g 1383. — Claims of other depositors. §1384. — Equitable liens. g 1385. — Claim of creditor making false representations. §1386. — Judgments. 981 982 Bbandenbubg on Bankeuptcy [§ 1345 § 1387. — Claims barred by limitations. § 1388. — Maritime liens. §1389. — Mechanic's liens. § 1390. -^ Miscellaneous liens. § 1391. — M:ortgages. § 1392. — Claims for rent. § 1393. — Priority between residents and non-residents. § 1394. — Debts due state or municipality or its ofSeers. § 1395. — Claims of stockholders. § 1396. — Claims based on ultra vires contracts. § 1397. — Claims of United States. § 1398. — Unrecorded liens. § 1399. — Claims of unpaid vendor. §1400. — Claims of bankrupt's wife. § 1401. — Claims against community property. § 1402. Waiver of priority. § 1408. Marshalling of assets. § 1404. Priority in proceeds of property fraudulently transferred. § 1405. Procedurp to obtain priority. § 1345. Jurisdiction to determine priorities. The court of bankruptcy, which includes the referee,^ has jurisdiction to determine claims of priority to property and money constituting part of the estate of the bankrupt, but it will not undertake to determine priorities to a fund which is not a part of the estate for distribution.^ § 1346. Order of priority. §1347. —In general. , The order of priority, (1) taxes, (2) cost of preserving the estate, (3) costs of administration, (4) wages, and (5) liens in their order, prescribed (subdivisions a and b section 64), is that usually followed in equity. That all bankrupt's property in the control of the court should be distributed according to this order is but reasonable and in accord with the course adopted in railroad receiverships, which go even farther and give priority over the mortgages to receiver's certificates issued for operating expenses and betterments. Taxes are prior in lien to all other liens except judicial costs,* which -costs usually 1— Act of 1898, § 1 (7). V. Eailroad, 3 Woods, 434; Central Trust 2— In re Girard Glazed Kid Co., 136 Co. v. E. R., 110 N. Y. 250. Fed. 511, 14 A. B. E. 485. Taxes have priority over expenses of 3 — In re Prince & Walter, 131 Fed. administration. In re Weiss, 159 Fed. 546, 12 A. B. R. 675; State of Georgia 295, 20 A. B. E. 247. § 1348] Debts Entitled to Peioeity 983 include reasonable allowance to counsel* as well as the actual and necessary cost of preserving the estate subsequent to the filing of the petition," and are paid even before exemptions are set aside. Wages are almost universally given like priority over statutory and contractual liens,^ but have been held not entitled to priority over the expenses and allowances to the receiver in bankruptcy and his a,ttorneyJ The order of distribution prescribed by the bankruptcy act should be observed though the provisions of the state law pre- scribe a different order.^ The debts entitled to priority are to be paid in full and in the order set forth in section 64 of the statute, and this is true although such payment may exhaust the fund and leave nothing for the satisfaction of subsequently enumerated priority claims. Any liens not enumerated in this section, follow in the order provided by the state law, and it has been held that although there may be specific liens on the estate sufficient in the aggre- gate to exhaust the entire assets, their payment must be postponed to the payment of wages or the cost and expenses of administration.* Furthermore, where there are only sufficient funds to pay priority claims, the trustee will not be permitted to expend the estate in litigation concerning the right of general creditors.^" § 1348. — In case of incumbered property. The first two subdivisions (a and b) of section 64 direct the order of distribution of the bankrupt's property. Notwithstand-. ing it has been held that it is applicable only after the assets have been marshaled and the liens discharged " and that it 4— In re Gardner, 2 N. B. N. E. 806, 9— In re Tebo, 101 Fed. 419, 4 A. B. 103 Fed. 922, 4 A. B. B. 420. B. 235; see also In re Byrne, 2 N. B. 5— State of New Jersey v. Lovell, 138 N. E. 246, 97 Fed. 762, 3 A. B. B. 268. App. Div. (N. T.) 513, 24 A. B. B. 562. 10— In re Sawyer, 16 N. Bi B. 460, 2 6— In re Byrne, 2 N. B. N. B. 247, 97 Low. 551, Fed. Cas. No. 12396. Fed. 762, 3 A. B. E. 268; In re Kerby- 11 — In re Vulcan Foundry & Machine Denis Co., 1 N. B. N. 399, 95 Fed. 116, Co., 180 Fed. 671, 24 A. B. E. 825; In 2 A. B. E. 402, afE'g 1 N. B. N. 337, 94 re Proudfoot, 173 Fed. 733, 23 A. B. E. Fed. 818, 2 A. B. E. 218. 106; In re Erie Lumber Co., 150 Fed. 7— In re Krause, 155 Fed. 702, 19 A. 817, 17 A. B. E. 689; In re Freeman, 190 B. E. 93. Fed. 48, 27 A. B, E. 16; In re Prince & 8— In re Lewis, 99 Fed. 935, 4 A. B. Walter, 131 Fed. 546, 12 A. B. E. 675; E. 51; In re MoDavid Lumber Co., 190 In re Anders Push Button Tel. Co., 136 Fed. 97, 27 A. B. E. 39. Fed. 995, 13 A. B. R. 643; In re Bourlier 984 Beandenbxjrg on BakkeuptCy [§ 1348 does not affect liens whicli come within other provisions of the statute,^^ the better opinion is that it applies to all of the bank- rupt's property which may come under the control of the bankruptcy court and is administered in the bankruptcy pro- ceedings.^? The law provides for a full and complete settlement of the bankrupt's affairs as of the date of the filing of the peti- tion. To do this it is not sufficient to consider only the unsecured creditors and the property which remains after the liens are satisfied, but it is necessary to see that the liens are satisfied in their proper order and that the balance of the bank- rupt's property is distributed among his other creditors in their order. That the act recognizes this fact is shown in the require- ment that all the bankrupt's property, whether encumbered or not, and all his creditors, secured as well as unsecured, must be included in his schedules; ^* that the trustee is to examine into the securities and take proper steps to save any excess over the amount secured ;^^ and that the court of bankruptcy may sell the property free of liens, transferring the liens to the proceeds, or subject to liens, or direct the trustee to appear in any proceed- ing to enforce the liens, whichever course will best subserve the interest of the bankrupt estate and also preserve the valid rights of the lienors ; ^^ at the same time the act recognizes as valid various liens.^'^ To illustrate, suppose the bankrupt owned a recently improved residence lot, worth, with improvements, $16,000, on which there were taxes due, a vendor's lien for part of the purchase money of the lot, a mortgage for money borrowed to improve the property, a judgment subsequent to said mort- gage which was a lien on the property, and labor and mechanics' Cornice & Roofing Co., 133 Fed. 958, 13 14— Section 7 (8), Act of 1898. A. B. E. 585; In re Kerby-Denis Co., 15— In re Coffin, 1 N. B. N. 507, 2 1 N. B. N. 399, 95 Fed. 116, 2 A. B. B. A. B. E. 344; Heath v. Shaffer, 1 N. B. 402, aff 'g 1 N. B. N. 337, 94 Fed. 818, N. 399, 93 Fed. 647, 2 A. B. E. 98; In re 2 A. B. E. 218. Holloway, 1 N. B. N. 264, 93 Fed. 638, 12— In re Yoke Vitrified Brick Co., 180 1 A. B. E. 659; In re N. T. Kerosene Fed. 235, 25 A. B. E. 18; In re Frick, 1 Oil Co., 3 N. B. E. 31, Fed. Cas. No. N. B. N. 214, 1 A. B. E. 719; In re Sun- 7726; In re Metzger, 2 N. B. E. 114, Fed. Beri, 3 N. B. N. R. 61. Cas. No. 9510. 13— See In re Cramond, 145 Fed. 966, 16 — In re San Gabriel Sanatorium Co., 17 A. B. E. 22 1 In re Ohambersburg Silk 2 N. B. N. E. 827, 102 Fed. 310, 4 Mfg. Co., 190 Fed. 411, 26 A. B. E. 107; A. B. E. 197. In re Allison Lumber Co., 137 Fed. 643, 17— Sieotion 67, Act of 1898. 14 A. B. E. 78; In re Prince & Walter, 131 Fed. 546, 12 A. B. Ei 675. § 1348] Debts Entitled to Pbioeity 985 liens, which by the law of the state took precedence of all other liens, while the bankrupt clainied his homestead exemption, which the state law limited in value, out of the property, and that, if sold free of liens, the property would sell for enough to pay all these claims and leave something for the other creditors. Clearly it would be the trustee's duty under the act to apply to the court to order such a sale and of the court to grant it, thus bringing the proceeds into the bankruptcy court, to be administered in the bankruptcy proceedings.^® Whether the incumbered property is brought in voluntarily or involuntarily would seem to make.no difference, as the same reasons exist in either case for subjecting the security to the prior payments. No injustice is thereby done the secured cred- itor since it would not be brought into the bankruptcy proceed- ings unless there were other claims which the state or federal laws gave priority over such lien, or it was believed that some- thing could thereby be obtained over and above the secured debt.^® Unless it forms practically all the bankrupt's property, in which case it would only bear the costs and expenses of realizing on it in the best and most economical manner, it only bears its proportion of the costs. Similarly it has been held that, where incumbered property was disposed of through the bankruptcy proceedings, the amount paid the secured creditors was a dividend.^" If there is nothing apparently in the prop- erty over the security and it is not brought into the bankruptcy proceedings, no service is rendered the secured creditor, no benefit accrues to him from the proceedings, and no reason exists for charging him with any part of the expenses. There is no inequality, or lack of uniformity, in this; the one benefits and pays; the other receives nothing and is required to give nothing.- The state insolvency or assignment laws are not to be compared with the bankrupt law in this respect, because the state consti- tutions prohibit laws impairing the obligations of contracts whiph the United States constitution does not. A law, however, is not to be construed as impairing the obligations of contracts unless susceptible of no other construction. The year allowed 18— In re Worland, 1 N. B. N. 316, bert, 2 N. B. E. 138, Fed. Cas. No. 8026. 92 Fed. 893, 1 A. B. E. 450. 20^In re Barber, 1 N. B. N. 559, 97 19— In re Pittelkow, 1 N. B, N. 234, Fed. 547, 3 A. B. E. 307. 92 Fed. 901, 1 A. B. E. 472; In re Lam- 986 Bbandenbueg on Banketiptcy [§ 1348 in many states after a sale under a mortgage for the mortgagor to redeem, during which he retains possession, receives the rents and jJrofits and may neglect and waste the property, is a prac- tical illustration of where the contract does not result according to its terms. This is sustained as relating to the remedy. This very year of redemption has been used as a reason for bringing incumbered property into bankruptcy.^ ^ In many cases claims, though subsequent in point of time, are prior liens, as a labor claim over a prior mortgage or lien ; ^^ a mechanic's lien over a mortgage; ^* or a labor claim over a land- lord 's lien.^^ If there is a fund to be distributed among creditors, and some take subordinate to a lien, and there are others not affected by the lien, those who are not affected by the lien are paid first, and the lien creditor is postponed to them.^^ §1349. Taxes. §1350. — Right to priority. Taxes legally due and owing by the bankrupt to a state, county, district or municipality, are first in order of priority, and the courts will not favor any evasion of the law by giving a too liberal construction to its words. The manifest intent of the law is that, while the estate is in the hands of the trustee, his custody will not constitute a barrier to prevent the collection of taxes which would be collectible under the law if the property had remained in the possession and control of the bankrupt himself.^® 21— In re Barber, 97 Fed. 547, 1 N. B. 445; Pacific Mutual L. I. Co. v. Fisher, N. 559, 3 A. B. R. 307. 106 Cal. 224; Carriger v. Mackey, 15 Ind. 22 — In re Erie Lumber Co., 150 Fed. App. 392. 817, 17 A. B. E. 689; In re McDavid 24 — In re Byrne, 2 N. B. N. K. 247, Lumber Co., 190 Fed. 97, 27 A. B. E. 97 Fed. 762, 3 A. B. E. 266. • 39; Seventh Nat. Bank v. Shenandoah 25 — Simmons v. Greer, 174 Fed. 654, Iron Co., 35 Fed. 436; Fidelity Ins. 23 A. B. R. 443, aff'g 164 Fed. 300, 21 Trust & T. D. Co. v. Iron Co., 81 Fed. A. B. E. 34. 439, 453 ; contra, In re Frank Meis, 18 26— In re Conhaim, 2 N. B. N. E. 521, A. B. E. 104. 100 Fed. 268, 4 A. B. E. 58; In re Frick, 23— Central Trust Co. v. Wabash E. 1 N. B. N. 214, 1 A. B. E. 719; In re E., 30 Fed. 332; Carew v. Stubbs, 155 Sims, 118 Fed. 356, 9 A. B. E. 162; In Mass. 459; Allen v. Oxnard, 152 Pa. 621; re Baker, 1 A. B. E. 526; In re Tilden, Lookout Lumber Co. v. Hotel, 109 N. C. 91 Fed. 500, 1 A. B. E. 300. 658; Erdman v. Moore & Co., 58 N. J. L. § 1350] Debts Entitled to Pbiobity 987 To be entitled to priority, the tax must be due and owing at the time the petition in bankruptcy is filed.^'^ A tax may, how- ever, be legally due and owing at the time of the filing of the petition, though not payable until after the adjudication.^** Taxes that are due and owing should be paid before the secured creditors.^* The taxes of the state where the property of a bankrupt cor- poration is situated have no priority over those of the state of its organization, as under the present act all taxes whether those of the United States, or of a state, county, district or municipal- ity are given an equal right of priority.*" The amount, as well as the legality, of the tax may be inquired into, and if the tax is found to be excessive the same is not entitled to priority, even though the time allowed by the local law for the review thereof has expired.*^ Taxes are not deprived of their right to priority by the fact that under the state law they are not debts enforceable by suit against the owner,*^ nor can laches in collecting them affect their priority.** It is imma- terial that the property upon which the tax was levied never passed into the hands of the trustee.** So, the fact that the county treasurer upon being satisfied that no one will bid in property on a tax sale strikes the same off to the county does not extinguish the debt nor deprive the county of its right to prior- ity, nor can the trustee in bankruptcy by relinquishing the property to the mortgagee, with or without the consent of the court in a proceeding to which the county was not a party, destroy such right to priority.*^ Where there are two funds, one available to general creditors, and the other to secured creditors, taxes should be paid out of 27 — First National Bank v. Aultman, 31 — ^In re Selwyn Importing Co., 18 A. MUler & Co., 14 Ohio Fed. Dee. 188, B. E. 190. 12 A. B. E. 12; but see In re Prince & 32 — Hecox v. County of Teller, 198 Walter, 131 Fed. 546, 12 A. B. E. 675; Fed. 634, 28 A. B. E. 525. In re Industrial Cold Storage & Ice Co., 33 — In re Weissman, 178 Fed. 115, 24 163 Fed. 390, 20 A. B. E. 904. A. B. E. 150. 28 — ^New Jersey v. Anderson, 203 U. 34 — City of Chattanooga v. Hill, 139 S. 483, 51 L. ed. 284, 17 A. B. E. 63, Fed. 600, 15 A. B. E. 195; City of rev'g 137 Fed. 858, 14 A. B. E. 604; In Waco v. Bryan, 127 Fed. 79, 11 A. B. re Flynn,.134 Fed. 145, 13 A. B. E. 720. E. 481. 29— In re Hilberg, 6 A. B. E. 714. 35— Hecox v. County of Teller, 198 30— New Jersey v. Anderson, 203 TJ. Fed. 634, 28 A. B. E. 525. S. 483, 51 L. ed. 284, 17 A. B. E. 63, rev'g 137 Fed. 858, 14 A. B. E. 604. 988 Beandenbukg on Bankkuptcy [§ 1350 the fund available to the general creditors.^^ It is held, how- ever, that taxes assessed against property of the estate which has been taken from the estate by a mortgage foreclosure should be postponed to the expenses of administration under the gen- eral rule of marshaling assets, since the taxes are still a lien against the mortgaged property and the remedy against such property ought to be first exhausted.^'^ A claim for taxes will not be paid as a priority claim out of bankrupt's estate, where he merely holds property under a lease in which he agreed to pay all taxes against the leased property.^^ A trustee should not pay taxes where such payment would operate to the advantage of a third party against another, they being in any event secure.^^ In the case of taxes due a state, county or municipality, the claim therefor should be proved like that of any other creditor. Penalties for non-payment of taxes are included in the amount of the tax,*" and interest may be allowed on them up to the time of payment.*^ § 1351. — What are taxes. * The supreme court has defined a tax to be a pecuniary burden laid upon individuals or property for the purpose of supporting the government.*^ The word tax is used in an unrestricted sense and includes all obligations imposed by the state and gen- eral governments, under their respective taxing and police powers, for governmental or public purposes. That a tax so imposed may not be a general property tax does not deprive it of its character as a tax.*^ The mere fact that it is called a tax is not conclusive.** Nor is the decision of a state court that a given tax is or is not a tax 36 — ^In re Barr Pumping Engine Co., 41 — In re Schuyler & Co., 21 A. B. 11 A. B. E. 312. E. 428; In re Kallak, 147 Fed. 276, 17 37— In re Oxley, 204 Fed. 826, 30 A. A. B. E. 414; contra. In re Fisher & B. E. 406. Co., 148 Fed. 907, 17 A. B. E. 404, aff'g 38— In re Siegel-Hillman Dry Goods 153 Fed. 281, 18 A. B. E. 503. Co., 2 N. B. N. E. 856. 42— New Jersey v. Anderson, 203 U. 39— In re Brinker, 128 Fed. 634, 12 8. 483, 51 L. ed. 284, 17 A. B. E. 63, A. B. E. 122; In re Veitch, 101 Fed. rev'g 137 Fed. 858, 14 A. B. E. 604. 251, 4 A. B. E. 112; Foster v. Inglee, . 43— In re Lange Co., 159 Fed. 586, 20 13 N. B. N. 239, Fed. Cas. No. 4973. A. B. E. 478. 40— In re Prince & Walter, 131 Fed. 44— In re Wyoming Valley Ice Co., 145 546, 12 A. B. B. 675; In re Scheldt Fed. 267, 16 A. B. B. 594. Bros., 177 Fed. 599, 23 A. B. E. 778. § 1352] Debts Entitled to Peioeity 989 witMn the meaning of the act; *° nor a finding of a state board as to the amount of the tax ** conclusive upon the bankruptcy court. In order to entitle a tax to priority, it should not be a mere claim clothed with the garb of a tax, but should be actually a tax, so that if it is a mere bonus exacted by the state for the privilege of increasing the capital stock of a corporation *^ or a penalty imposed upon a corporation for failure to perform certain acts *^ it is not entitled to priority. A tax imposed upon corporate bondholders which it is made the duty of the corpor- • ation to collect is not a tax upon the corporation and is not entitled to priority in the distribution of the corporation's assets," nor is the liability of the bankrupt to a municipality for taxes collected by him as an officer of the county entitled to priority."" However, a license fee or franchise tax imposed upon a corporation is a tax and entitled to priority of payment,^ ^ as is a cigarette tax imposed against dealers in cigarettes,^^ and water rents due to a municipality.®* § 1352. — Who may clajm priority. The right of priority can only be claimed by the municipality. Neither the purchaser of the property at a foreclosure sale who 45 — New Jersey v. Anderson, 203 TJ. of Pennsylvania v. York Silk Mfg. Co., S. 483, 51 L. ed. 284, 17 A. B. E. 63, 192 Fed. 81, 27 A. B. E. 525, aff'g 188 rev'g 137 Fed. 858, 14 A. B. E. 604; In Fed. 735, 26 A. B. E. 650. re Lange Co., 159 Fed. 586, 20 A. B. E. 50— In re Waller, 142 Fed. 883, 15 478. A. B. E. 753. 46 — New Jersey v. Anderson, 203 U. S. 51 — New Jersey v. Anderson, 203 U. 483, 51 L. ed. 284, 17 A. B. E. 63, rev'g S. 483, 51 L. ed. 284, 17 A. B. E. 63, 137 Fed. 858, 14 A. B. E. 604. rev'g 137 Fed; 858, 14 A. B. E. 604; 47 — Commonwealth of Pennsylvania v. In re Halsey Elee. Generator Co., 175 York Silk Mfg. Co., 192 Fed. 81, 27 Fed. 825, 23 A. B. E. 401, afC'd 179 Fed. A. B. E. 525, aff'g 188 Fed. 735, 26 A. 321, 31 L. E. A. (N. S.) 988, 24 A. B. B. E. 650. E. 562; In re Mutual Mercantile Agency, 48— In re York Silk Mfg. Co., 188 8 A. B. E. 435 ; Hancock v. Singer Mfg. Fed. 735, 26 A. B. E. 650, aff'd 192 Co., 62 N. J. L. 289; Western Union fed. 81, 27 A. B. E. 525. Telegraph Co. v. Mass., 125 U. S. 530, 49— In re Wyoming Valley Ice Co., 145 547, 31 L. ed. 790 ; but see In re Ott, Fed. 267, 16 A. B. E. 594. 1 N. B. N. 571, 95 Fed. 274, 2 A. B. Tax on corporate bonds which was E. 637. payable by the corporation only in the 52 — In re Lange Co., 159 Fed. 586, 20 event that its treasurer failed to pay it A. B. E. 478. after deducting the amount thereof 53 — In re Industrial Cold Storage & from the interest due bondholders is not Ice Co., 163 Fed. 390, 20 A. B. E. 904. entitled to priority. Commonwealth 990 Beandbnbueg on Bankeuptoy [§ 1352 has full knowledge of the non-payment of taxes, nor third parties who bid in the property at a tax sale, and hold tax cer- tificates are entitled to relief out of the assets of the estate.^* So, a grantee who pays taxes assessed against the property while owned by the bankrupt will not be subrogated to the rights of the municipality,^" and when the trustee transfers property subject to the payment of taxes then owing, the grantee or a purchaser from him are under obligation to pay the same, and cannot be subrogated to the rights of the municipality for a preferential payment thereof out of the estate.^^ Under the former law it was held that the claim of lessors of a bankrupt lessee for the amount of taxes paid by them, which the lessee had covenanted to pay, was not entitled to priority,®'^ nor was a debt due a foreign state for taxes.®* § 1353. — Taxes on exempt property. Taxes due on exempt property at the time of bankruptcy should be paid by the trustee in bankruptcy out of the fund which would otherwise go to the general creditors, although such taxes are a lien upon and enforceable against such exempted property, since they are taxes legally due and owing as provided by this section, and the bankrupt is entitled to the full amount of exemption allowed by the state law.®® § 1354. — Taxes on firm property. See post, section 1437. § 1355. Care and preservation of property. § 1356. — In general. Clause (1) of section 64, subdivision b, gives priority to the actual and necessary cost of preserving the estate subsequent to the filing of the petition, which would include any expense that might be proper for its care, preservation or protection. It 54r— In re Brinker, 128 Ped. 634, 12 57— In re Parker, Fed. Caa. No. 10719. A. B. R. 122. 58— In re Ambler, 8 Ben. 176, Fed. 55 — Cooper Grocery Co. v. Bryan, 127 Cas. No. 271. Fed. 815, 11 A. B. E. 754. 59— In re Tilden, 91 Fed. 500, 1 A. 56— In re Hibbler Maoh. Supply Co., B. R. 300, 1 N. B. N. 134; In re Baker, 192 Fed. 741, 27 A. B. R. 612, 1 A, B, E. 586. §1357] Debts Entitled to PeiobMy 991 would include the compensation of a receiver in bankruptcy,®* a claim for the services of the attorney for the trustee when necessary for the preservation of the estate and tending td benefit or preserve the estate,"^ as well as the expense of culti- vating and harvesting growing crops omitted without fraud and harvested before debtor was required to surrender them to the trustee; *^ and the care of the property pending the adjudication of the trustee's rights where a judgment creditor contested the adjudication and claimed priority.'* It is for the bankruptcy court to determine what is the actual and necessary cost regard- less of what has been paid.** § 1357. — Prior to filing petition. An assignee in a voluntary assignment or a receiver in state insolvency proceedings is not entitled under this provision to the cost of caring for the estate or compensation as custodian prior to the filing of the petition,®^ notwithstanding that such services appear to have been for the benefit of the general creditors, but is entitled to a reasonable allowance for such services rendered and disbursements niade subsequent to the filing of the petition.®* Neither the claims of a state court receiver for compensation and counsel " fees, nor the debts incurred by him in operating the business of the bankrupt cor- poration are entitled to priority over the claims of bondholders who have not assented to the receivership. The order of pay- ment in such case should be (1) non-assenting bondholders, (2) costs of bankruptcy administration, including compensation of 60— In re Alaska Pishing & Develop- 2 N. B. N. E. 1046, 103 Fed. 919, 4 A. ment Co., 167 Fed. 875, 21 A. B. E. 685. B. E. 723 ; In re MoCauley, 2 N. B. N. 61— In re Gregnard Lithographing Co., E. 1089; Hunter v. Eyng, 9 Fed. 277; In 158 Fed. 557, 19 A. B. E. 743. re Gilblom, 2 N. B. N. E. 60; see also 62— In re Barrow, 3 N. B. N. B. 95, In re Solomon, 2 N. B. N. E. 460; In re 98 Fed. 582, 3 A. B. E. 414. Kenney, 2 N. B. N. E. 143; In re Fran- 63 — In re Carolina Cooperage Co., 1 cis Valentine Co., 1 N. B. N. 529; s. o. N. B. N. 534, 96 Fed. 604; see also In 1 N. B. N. 532, 2 A. B. E. 522, 94 Fed. re Gregg, 3 N. B. E. 131, Fed. Cas. No. 793; contra, In re Klein, 116 Fed. 523, 5796; Zeiber v. Hill, 8 N. B. E. 239, Fed. 8 A. B. E. 559. Cas. No. 18206. 66— In re Pattee, 143 Fed. 994, 16 A. 64— In re Allen, 96 Fed. 512, 3 A. B. B. E. 450; In re Hays, 179 Fed. 222, 24 E. 38. - A. B.E. 691; In re Peter Paul Book Co., 65— In re AUison Lumber Co., 137 Fed. 104 Fed. 786, 5 A. B. E. 105; Abbott v. 643, 14 A. B. E. 78; Stearns v. Fliek, Summers, 116 Fed. 687. 992 Bbandenbukg on Bankeuptcy [§ 1357 receiver and reasonable counsel fees, (3) receivership debt^, (4) assenting bondholders, (5) simple contract debts.^T A plaintiff in an attachment within four months of bankruptcy is not entitled to priority of payment of the costs of caring for property prior to the petition, such claim being held "a claim for taxable costs," provable under section 63 (3) of the statute ®® unless given priority by the state law."* While costs for the care and preservation of property incurred prior to the filing of the petition are not within the express terms of this provision, when they result in benefit to the whole estate and not to any particular creditor or in the duplication of charges, they are in effect given practical priority under the equity powers of the bankrupt courts . and should be paid- in full.'''' Thus a judgment creditor, who had set aside a fraudu- lent conveyance but lost his prior right to the fund by the adjudication of the debtor bankrupt, will be allowed reasonable, indemnity for his expenses in securing such result ; ''^ and an assignee in a voluntary assignment, made in good faith and who has acted likewise, has been allowed the money actually dis- bursed by him in preserving the estate and a reasonable sum as custodian. ^^2 This was the view taken under the act of 1867, in which the provision was "costs . . . for the custody of the "property, as herein provided, " ''^^ implying clearly the custody after the commencement of the proceedings.'^* iJnder the present act, it has been held ''^ that this provision relates to 67— In re Benwood Brew. Co., 202 Fed. Ward, 9 N. B. E. 349, Fed. Cas. No. 326, 29 A. B. E. 759. 17145; In re Irons & Coon, 18 N. B. E. 68— In re Allen, 96 Fed. 512, 3 A. B. 95, Fed. Cas. No. 7067; Hastings y. E. 38; In re Lewis, 99 Fed. 935, 4 A. Spenser, 1 Curt. C. C. 504; Clark v. B. E. 51. Marks, 6 Ben. 275; Piatt v. Archer, 13 69— See post, §1381. Blatch. 351; In re Lains, 16 N. B. E. 70— In re Kurth, 17 N. B. E. 573; 165, 168, Fed. Cas. No. 7985; In re Berkholder v. Stump, 4 N. B. E. 597. Kurth, 17 N. B. E. 573, Fed. Cas. No. 71— In re Lesser, 2 N. B. N. E. 599, 7948; In re Stubbs, 4 B. E. 124, Fed. Cas. 100 Fed. 433, 3 A. B. E. 815. No. 13557; Hunter v. Byng, 9 Fed. 72— In re Pauly, 1 N. B. N. 405, 2 A. 277; In re New Hope Mining Co., 7 B. E. 334; In re Kingman, 1 N. B. N. N. B. E. 598; Webb v. Ward, 6 Fed. 518. 163; Bartlett v. Bramhall, 3 Gray, 257; 73— Section 28, Act of 1867. White v. HUl, 148 Mass. 396; Clark v. 74 — In re Cohn, 6 N. B. E. 379, Fed. Sawyer, 151 Mass. 64, contra, Catlin v. Cas. No. 2966; MacDonald v. Moore, 15 Foster, 3 B. E. 540; Bishop v. Hart, 28 N. B. E. 26, 8 Ben. 579, Fed. Cas. No. Vt. 71. 8763; Burkholder v. Stumph, 4 N. B. E. 75— In re Lewis, 99 Fed. 935, 4 A. B. 191, 597, Fed. Cas. No. 2165; In re B. 51. § 1359] Debts Entitled to Pbiobity 993 costs directly connected with the proceedings in bankruptcy and does not exclude, from the priority given them by the state law, fees and costs accruing, though prior to the petition, in legal proceedings not directly connected with the bankruptcy proceedings; and also includes expanses incurred by a receiver appointed to take charge of the property by the bankruptcy court.''' §1358, —Receivership. In bankruptcy matters litigation should not as a rule be conducted by a receiver, yet when services of an attorney or counsel are necessary to a proper care of the estate and the per- formance of his duties as receiver, he is entitled to an allowance for such services, to be charged and allowed as an expense of the receivership. In that case such expenses would be entitled to priority of payment.'''^ Claims for goods purchased by the receiver in excess of his authority are not entitled to priority over liens.'^^ Eeceiver's certificates issued to raise inoney with which to pre- vent a deterioration of the property have been held entitled to priority,''* even as against liens.*" Where the receiver does not issue certificates to the full amount to which he is authorized but creates debts for the purpose of preserving the estate for which he does not issue certificates, the creditors not holding certificates are entitled to share on an equal basis with those holding certificates.*^ Knowledge of the receivership and the receipt of payment from' the receiver may estop a mortgagee from denying the right of the holders of the certificates to priority.*^ § 1359. — Property recovered for estate by creditor. Under the amendment of 1903 to section 64b (2), whenever property of the bankrupt which is transferred or concealed by him either before or after the filing of the petition, is recovered 76— Section 2 (3), Act of 1898. 80— In re Erie Lumber Co., 150 Fed. 77— In re Kelly Dry Goods Co., 102 817, 17 A. B. E. 689. Fed. 747, 4 A. B. B. 528. 81— In re Eestein, 162 Fed. 986, 20 A. 78— In re Erie Lumber Co., 150 Fed. B. B. 832. 817, 17 A. B. E. 689. 82— In re Erie Lumber Co., 150 Fed. 79— In re Alaska Fishing & Develop- 817, 17 A. B. E. 689. ment Co., 167 Fed. 875, 21 A. B. E. 685. Brandenburg — 63 994 Bbandenbubg on Bankruptcy [§ 1359 for the benefit of the estate by the efforts and at the expense of one or more of the creditors, the reasonable expenses of such recovery is entitled to priority of payment.®* The amendment is not retroactive. The allowance may include reimbursement for the expense of employing counsel to examine the bankrupt prior to the appointment of the trustee.®* While the law does not specifically provide for the case where a fund belonging to the estate is rescued from destruction, expenses incurred therein would doubtless be entitled to a like priority.®^ It is not to be understood from this, however, that a creditor may indiscriininately institute proceedings for the recovery of property and thus burden the estate with costs or litigation, but the proper procedure is first to apply to the trus- tee, who is the logical representative of all the creditors, to bring the suit, and only if he declines would the creditors be authorized to proceed. If there be no trustee, the creditors may proceed. In any case unless there is a resulting benefit to the estate, the expenses incurred by a creditor would not be entitled to priority under this subdivision of the statute. § 1360. Filing fees in involuntary cases. The present act ®® give^ priority to the filing fees paid by cred- itors in involuntary cases,®'' and allows petitioning creditors in involuntary cases, if successful, the same costs as in an equity suit. This gives petitioning creditors practically all the former act did. Under the act of 1867, notaries taking proofs of debt in bankruptcy proceedings were held not entitled to priority in the payment of their fees.®® § 1361. Costs of administration. § 1362. — In general. This expression in section 64b (3), refers only to costs directly connected with the proceedings in bankruptcy but will not neces- sarily exclude, from the priority given them by state laws, fees and costs accruing in proceedings -not directly connected with 83— In re Telson, 139 Fed. 275, 15 85— In re Groves, 2 N. B. N. E. 466. A. B. B. 185. 86— Section 64b (2), Aet of 1898. 84 — In re Medina Quarry Co., 191 Ted. 87 — G. O. XXXIV. 815, 27 A. B. E. 466, rev'g 182 Fed. 88— In re Nebe, 11 N. B. E. 289, Fed. 508, 25 A. B. E. 405. Gas. No. 10073. §1366] Debts Entitled to Pbioeity 995 the bankruptcy proceedings.*® The assets should be charged with the payment of the costs and expenses incurred in bringing the same into the state court.®" The cost and expenses of admin- istration are to be paid out of an estate before any distribution at all is made,®^ notwithstanding that there are specific liens sufiScient to absorb all the assets of such estate,®^ and they have priority over dower.®* The proceeds of a bankrupt's property subject to liens should be charged with the costs of sale before the liens are paid.®* § laeS. — Debts of assignee. Debts contracted by a common-law a,ssignee are not payable as part of the expenses of administration. Such claims should be paid by "the assignee and a claim presented against the estate.®" §1364. — Auctioneer's fees. As unless otherwise ordered by the court,®® all sales must be by public auction, the fees of the auctioneer are allowable and entitled to priority. It is not true now, as held under the act of 1867, that, the trustee being expected to conduct the sales, the necessity of the auctioneer's employment must be affirm- atively shown before his fees will be allowed.®^ § 1365. — Operation of baaikrupt's business. Expenses of conducting the business of the bankrupt for a limited period after his adjudication are not costs of administra- tion, and have been denied priority over valid liens.®" § 1366. — Rent subsequent to bankruptcy. This provision includes rent from the time of filing the peti- tion until the premises occupied can be surrendered with due 89— In re Lewis, 99 Fed. 935, 4 A. B. 93— In re Forbes, 7 A. B. E. 42. E. 51. 94 — MoNair v. Molntyre, 113 Fed. 90— Wilson V.' Parr, 115 Ga. 629, 8 A. 113, 7 A. B. E. 638. B. E. 230. 95— In re Pattee, 143 Fed. 994, 16 A. ^ 91— In re Whitehead, 2 N. B. E. 180, B. E. 450. Fed. Cas. No. 17562; In re Lane, 2 N. 96— G. O. XVIII (1). B. E. 100, 3 Ben, 98, Fed. Gas. No. 8042; 97— In re Pegues, 3 N. B. E. 19, Fed. see In re Burke, 6 A. B. E. 502. Cas. No. 10907; In re Sweet, 9 N. B. 92— In re Tebo, 101 Fed. 419, 4 A. E. 18, Fed. Cas. No. 13688. B. E. 235; lii re Sink, 2 N. B. N. E. 98— In re Bourlier Cornice & Eoofing 645; contra. In re Frick, 1 N. B. N. 214, Co., 133 Fed. 958, 13 A. B. E. 585. 1 A. B. E. 719. 996 Beandbnbueg on Bankeuptcy [§ 1366 regard to the best interests of all. Such rent is compensation for use and occupation and hence not necessarily determined by the terms of a previously existing lease or the amount the bank- rupt had been previously paying, though such amounts may form the basis of its computation, nor is it a claim against the" estate as such, but an expense incurred for its preservation and to be paid pro rata with other costs of administration.^® The length of such occupation must be reasonable and the court will determine such fact and allow for such time only.^ It has been held that the prevention of injury to the premises by failing to remove machinery and the like is not to be considered in deter- mining such compensation.^ Eent for rooms used by the bankrupt subsequent to the bank- ruptcy cannot be allowed as an expense of administration.* Eent prior to petition, see post, section 1392. § 1367. — Witness fees and mileage. The witness fees entitled to priority are those usually paid in United States courts, $1.50 per day for actual attendance and mileage.* No extra allowance can be made to an expert witness, in the absence of a contract between him and the party sum- 99— In re Sterne & Levi, 30 A. B. E. 3 N. B. R. 63, Fed. Cas. No. 12043; In 915; In re Adams Cloak, Suit & Fur re Hufnagel, 12 N. B. R. 554, Fed. Cas. House, 199 Fed. 337, 28 A. B. R. 923; No. 6837; In re Walton, 1 N. B. E. 154, Bray v. Cobb, 100 Fed. 270, 2 N. B. N. Fed. Cas. No. 17131; In re Merrifield, R. 586, 3 A. B. R. 788; In re JefEerson, 3 N. B. E. 1, Fed. Cas. No. 9465; In re 93 Fed. 951, 2 A. B. R. 206; In re Luck- Hamburger & Frankel, 12 N. B. E. 277, enbill, 127 Fed. 984, 11 A. B. E. 455; Fed. Cas. No. 5975; In re Ives, 8 N. B. In re Sterne & Levi, 26 A. B. R. 535; In R. 28, Fed. Cas. No. 7116; Buekner v. re Ketterer Mfg. Co., 162 Fed. 345, 20 Jewell, 14 N. B. R. 286; In re Hoagland, A. B. R. 694; In re Gregnard Litho- 18 N. B. R. 530, Fed. Cas. No. 6545; graphing Co., 158 Fed. 557, 19 A. B. E. In re Hart Mfg. Co., 17 N. B. R. 459, 743; In re Kelly, 102 Fed. 747, 4 A. B. Fed. Cas. No. 8592; In re Mitchell, 8 N. R. 528; Wilson v. Pennsylvania Trust B. R. 47, Fed. Cas. No. 9657; In re Pea- Co., 114 Fed. 742, 8 A. B. E. 169; In body, 16 N. B. R. 243, Fed. Cas. No. re Luckenbill, 127 Fed. 984, 11 A. B. R. 10866. 455; In re Winfield Mfg. Co., 137 Fed. 1— In re McGrath & Hunt, 5 N. B. R. 984, 15 A. B. R. 24; In re Rubel, 166 254, 5 Ben. 183, Fed. Cas. No. 8808. Fed. 131, 21 A. B. R. 566; In re Grimes 2— In re Breck, 12 N. B. E. 215, 8 Bros., 1 N. B. N. 516, 2 A. B. E. 730, Ben. 93, Fed. Cas. No. 1822. 96 Fed. 529; In re Jefferson, 1 N. B. N. 3— In re Hersey, 171 Fed. 1001, 22 A. 288, 2 A. B. E. 206, 93 Fed. 948; In re B. R. 860. Butler, 6 N. B. E. 501, Fed. Cas. No. 4— R. S. 848; The William Branfoot, 2236; In re Webb & Co., 6 N. B. E. 302, 52 Fed. 390, 8 U. S. App. 129; In re Fed. Cas. No. 17315; In re Lyon & Co., Eein, 3 N. B. N. E. 45. §1368] Debts Entitled to Pbiobity 997 moning Mm, and agreements of counsel cannot bind the court in matters such as this, nor will they be regarded at all unless in -writing and signed by the parties to be bound.° § 1368. Attorney or counsel fees. Section 64b (3) provides for the allowance as costs of admin- istration of one reasonable attorney's fee, for professional services rendered, irrespective of the number of attorneys employed, to the petitioning creditors in involuntary cases, to the bankrupt in involuntary cases while performing the duties prescribed by the act, and to the bankrupt in voluntary cases as the court may allow.® Questions as to the reasonableness and 'propriety of such fees are fully discussed in the preceding chapter. An attorney cannot schedule his claim for services prior to the petition as an unsecured claim and then claim it as a priority under section 64,'^ but priority of payment of the fee of bank- rupt's attorney out of the funds on hand is not lost because a claim was not presented until after the declaration and payment of the first dividend; * nor because there is a claim for rent which became a lien upon the property more than four months before the filing of the petition, the order of payment as well as the priority being fixed by this subdivision; ^ nor because there are specific liens on the property." An attorney appearing for creditors in opposition of a motion to dismiss the proceedings is entitled to priority.^^ It is held that no allowance of fees to the attorney for a petitioning cred- itor should be made from the proceeds of incumbered property, where it is impossible to ascertain what sum will remain, after the payment of all valid liens, for distribution among unsecured creditors.^" Where a lien creditor's claim to priority is opposed, his 5— In re Carolina Cooperage Co., 1 9 — Section 64b, Act of 1898; In re N. B. N. 534, 96 Fed. 604. Duncan, 1 N. B. N. 340, 2 A. B. E. 321. 6— 64b refers to services of bank- 10— In re Tebo, 101 Fed. 419, 4 A. rupt's attorney after bankruptcy; § 60d B. E. 235; contra, In re Friek, 1 N. B. to services prior to bankruptcy. In re N. 214, 1 A. B. E. 719. Stolp, 199 Fed. 488, 29 A. B. E. 32. 11— In re Baxter & Co., 154 Fed. 22, 7— In re Morris, 125 Fed. 841, 11 A. 18 A. B. E. 450. E. E. 145. 12— In re Gillaspie, 190 Fed. 88, 27 8— In re Scott, 1 N. B. N. 353, 2 A. A. B. E. 59. B. E. 324, 96 Fed. 607. 998 Bbandenbubg on Bankeuptcy [§ 1368 attorney is entitled to a lien on the proceeds for Ms fee in prose- cuting such claim, and the court of bankruptcy has jurisdiction to pass on his right, fix the amount, with or without a jury, and enforce it in the distribution of the proceeds, notwithstanding that the trustee may have paid such lien creditor his distributive share, it having been paid without due authority.^* § 1369. Wages and labor claims. §1370. —In general. Wages due to workmen, clerks, traveling or city salesmen, or servants, which have been earned within three months before the date of filing the petition, not to exceed three hun- dred dollars to each claimant, are entitled to priority of payment. The words workmen, clerks or servants as here used are neither co-extensive nor limited by the word wage-earner as defined by the law," but are to be understood in their ordinary signification. Thus a clerk is one employed to keep records or accounts, an amanuensis, a scribe, accountant, and bookkeeper,^^ or a salesman in a store.^® A servant is one employed by another for menial offices, or who labors for the benefit of a mas- ter or employer and is subject to command, a subordinate helper or assistant,^'' and may include a musician employed at regular wages,^* or a salesman in a retail store,^^ but not a factor,^* or the editor of a newspaper.^^ A workman is one employed in labor, whether in tillage or manufacture, a worker, an artificer or laborer, skilled or unskilled, a mechanic or artisan, a handi- 13— In re Rude, 101 Fed. 805, 2 N. B. 16— In re Fliek, 105 Fed. 503, 5 A. N. B. 498, 4 A. B. E. 319; and see Free- B. E. 465. lander v. Holloman, 9 N. B. E. 331; 17 — ^Webster; Cent. Die; Flesh v. Fed. Cas. No. 5081; In re Devore, 16 N. Lindsay, 115 Mo. 1. B. R. 56, Fed. Cas. No. 3847; In re El- 18— In re Caldwell, 164 Fed. 515, 21 dridge, 4 N. B. R. 162, Fed. Cas. No. A. B. R. 286. 4330; Cowley v. Railroad Co., 159 U. S. 19— See In re FUek, 3 N. B. N. B. 569, 575, 40 L. ed.' 263. 71^ 105 Fed. 503, 5 A. B. R. 465. 14 — Section 1 (27), Act of 1898; con- 20 — One engaged in buying goods for tra, In re Becker & Co., 31 A. B. R. merchants from jobbers receiving his 596. pay entirely from the merchants is not 15 — Webster; Cent. Die; In re within the Act. In re Smith, 11 A. B. Baumblatt, 156 Fed. 422, 19 A. B. R. R. 646. 500; In re Roberts Co., 193 Fed. 294, 21— In re Zotti, 23 A. B. E. 607. 27 A. B. R. 437. § 1370] Debts Entitled to Pbiobity 999 craftsman.^* The method of compensation whether by the day, week, month, or by the job or piece is immaterial,^* One who is under a contract with the bankrupt by which he agrees to put out certain work for a certain price, furnishing his own men, and getting the benefit of their labor, is not a work- man.^* A teamster is entitled to priority only for such amount as his personal services are worth exclusive of the value of the use of his wagon and team.^° One engaged at a monthly price to deliver milk at the bankrupt's premises is not a workman or servant,^® nor is the claim of the proprietor of a blacksmith shop for shoeing horses and sharpening tools of ^the bankrupt entitled to priority.*'' A contractor using his plant;*® or a manager in charge of a branch of a broker's office in another state *® or the president or managing officer of a corporation *" is not entitled to priority, but a claimant will not be deprived of his or her right to priority as a wage-earner by the fact that he or she is also an officer of the bankrupt corporation,*^ or the wife, or daughter of the bankrupt.** The provision in favor of wage- earners should not be stretched, however, to cover claims of principals in disguise.** "Wages" is the agreed compensation for services rendered by the workmen, clerks or servants of the bankrupt to those 22— Webster; Cent. Die.; In re Sean- Fed. 882, 29 A. B. E. 638; In re Caro- lan, 2 N. B. N. E. 58, 97 Fed. 26, 3 lina Cooperage Co., 2 N. B. N. E. 23, A. B. E. 202; In re Greenwald, 2 N. 96 Fed. 950, 8 A. B. E. 154; In re B. N. E. 791, 99 Fed. 705, 3 A. B. E. Grubbs Wiley Grocery Co., 1 N. B. N. 696. 281, 96 Fed. 183, 2 A. B. E. 442; but 23 — Weaver v. Hugill Stone & Supply see In re Silverman Bros., 2 N. B. N. E. Co., 15 Ohio Fed. Dee. 208, 16 A. B. 760, 101 Fed. 219, 4 A. B. E. 83. E. 516; In re Thomas Deutsehle & Co., Treasurer and general manager of the 182 Fed. 430, 25 A. B, E. 343. bankrupt corporation, vrhose wife owned 24 — In re Thomas Deutsehle & Co., majority of capital stock, held not en- 182 Fed. 430, 25 A. B. E. 343. titled to priority merely because of his 25 — In re Winton Liunber & Mfg. efforts as salesman. In re Metropolitan Co., 17 A. B. E. 117. Jewelry Co., 216 Fed. 385, 31 A. B. E. 26— Spruks v. Lackawana Dairy Co., 752. 189 Fed. 287, 26 A. B. E. 554. 31— In re Swain Co., 194 Fed. 749, 28 27— Weaver v. Hugill Stone & Supply A. B. E. 66; In re Eoberts Co., 193 Co., 15 Ohio Fed. Dee. 208, 16 A. B. Fed. 294, 27 A. B. E. 437. B. 516. 32— In re Straueh, 208 Fed. 842, 31 28— In re Edse, 1 N. B. N. 212, 1 A. A. B. E. 36. B. E. 68. 33 — ^In re Metropolitan Jewelry Co., 29— In re Albert 0. Brown & Co., 171 216 Fed. 384, 31 A. B. E. 750, 751. Fed. 281, 22 A. B. E. 496. General manager of a mercantile ea- 30 — In re Crown Point Brush Co., 200 tablishment employed and paid as such 1000 Beandenbueg on Bankeuptcy [§ 1370 who served him in a subordinate or menial capacity.^* The term includes commissions or other methods of payment, the priority depending upon the character of the service rather than the particular mode of payment.*^ If a clerk permit his employer to retain a portion of his weekly wages, for a benefit fund, the clerk cannot claim priority for the sums so retained during the three months preceding bankruptcy, as wages.^® Prior to the amendment of 1906 ^'' a traveling salesman,^^ or an agent selling goods on a stipulated commission,*^ was not entitled to priority. That amendment, which is not retro- active,*" provides that the wages due a city or traveling sales- man are entitled to the same right of priority as wages due a workman, clerk or servant. The fact that his wages are in the form of commissions ^^ or that commissions are based upon all sales made in the salesman's territory rather than upon sales directly traceable to him *^ is immaterial, and the fact that by agreement with his employer the salesman is to pay his own expenses cannot lessen the latter 's right to the agreed compen- sation, where the expenses are fairly incidental to the service to be performed.** does not become entitled to priority merely because he incidentally sweeps the floor, dusts the counters, and assists in selling goods. In re Greenberger, 203 Fed. 583, 30 A. B. E. 117. 34 — ^Weaver V. HugiU Stone & Supply Co., 150 Ohio Ted. Dee. 208, 16 A. B. R. 516. 35— In re Fink, 163 Fed. 135, 20 A. B. R. 897; Weaver v. HugiU Stone & Supply Co., 15 Ohio Fed. Dee. 208, 16 A. B. R. 516; In re Deutschle & Co., 182 Fed. 430, 25 A. B. B. 343; In re New England Thread Co., 158 Fed. 788, 20 A. B. E. 47; aff'g 154 Fed. 742, 18 A. B. E. 840. The fact that one engaged to sell weather strips superintended their being placed in position and received the bal- ance of the purchase price after the workmen had been paid and the manu- facture allowed a profit of 15 per cent held not to disentitle him to priority. In re Roebuck Weather Strip & Wirb Screen Co., 180 Fed. 497, 24 A. B. R. 532. 36— In re Flick, 105 Fed. 503, 5 A. B. R. 465. 37— Act of June 15, 1906. 38— In re Scanlan, 2 N. B. N. R. 58, 97 Fed. 26, 3 A. B. E. 202; In re Green- wald, 2 N. B. N. E. 791, 99 Fed. 705, 3 A. B. E. 696. 39— In re Mayer, 101 Fed. 227, 4 A. B. R. 119, aif'g 2 N. B. N. R. 719. 40 — ^In re Photo Electrotype Engrav- ing Co., 155 Fed. 684, 19 A. B. R. 94. 41— In re Fink, 163 Fed. 135, 20 A. B. R. 897; In re Roebuck Weather Strip & Screen Co., 180 Fed. 497, 24 A. B. E. 532; In re New England Thread Co., 158 Fed. 788, 20 A. B. R. 47; aff'g 154 Fed. 742, 18 A. B. R. 840. 42 — In re New England Thread Co., 158 Fed. 788, 20 A. B. E. 47, afE'g 154 Fed. 742, 18 A. B. R. 840. 43 — In re New England Thread Co., 158 Fed. 788, 20 A. B. R. 47; aff'g 154 Fed. 742, 18 A. B. R. 840. §1372] Debts Entitled to Priority 1001 Under a contract by which a salesman becomes entitled to his commissions only upon the acceptance of the article sold and payment therefor, the date of such acceptance and payment and not the date of the sale determines whether the commission was earned within three months of bankruptcy or not.** It may be generally stated that labor claims are entitled to priority and payment in full before the discharge of liens against the estate; *^ and there appears no reason why the trus- tee might not pay the same as soon as sufficient money for that purpose comes into his hands.*® Labor claims are entitled to priority over claims of the United States or a contractor subro- gated to its rights,*'^ and a claim of a clerk for wages earned within three months of the bankruptcy of his employer has been held superior to a claim of the bankrupt for homestead exemptions out of the proceeds of the bankrupt estate, irrespec- tive of any provisions of the state law.** § 1371. — Breach of contract of employment. If an employee under a contract for services for a fixed period is discharged, and before the expiration of such contract period the employer becomes bankrupt, the employee would be entitled to priority of payment for wages due within the three months, prior to bankruptcy not to exceed $300, provided such employee would have a right of action and could recover such wages, since they would not be merged by an action that might be necessary in order to secure their liquidation or collection.*^ § 1372. — Wages subsequent to bankruptcy. Wages eariied subsequent to the filing of the petition would doubtless be entitled to priority under that subdivision provid- 44r-in re National Marble & Granite 47 — Guarantee Title & Trust Co. v. Co., 206 Fed. 185, 31 A. B. R. 80. Title Guaranty & Surety Co., 224 U. S. 45— In re BlaekstafE Eng. Co., 200 152, 56 L. ed. 706, 27 A. B. R. 873, Fed. 1019, 29 A. B. E. 663; In re Erie rev'g 174 Fed. 385, 23 A. B. R. 340. Lumber Co., 150 Fed. 817, 17 A. B. E. 48— In re Strickland, 20 A. B. E. 689; In re Tebo, 101 Fed. 419, 4 A. B. 923. See also ante, § 1025. B. 235; In re Byrne, 2 N. B. N. R. 246, 49— In re Silverman, 2 N. B. N. R. 97 Fed. 762, 3 A. B. R. 268; contra, In 760, 101 Fed. 219, 4 A. B. B. 83; In re re Proudfoot, 173 Fed. 733, 23 A. B. Anson, 2 N. B. N. R. 567, 101 Fed. 698, B- 106. 4 A. B. E. 231. Contra, In re Lewis 46— In re Sawyer, 16 N. B. E. 460, 2 Co., 12 A. B. E. 279. Low. 551, Fed. Cas. No. 12396; Ex parte Eockett, 15 N. B. E. 95, 2 Low. 522, Fed. Gas. No. 11977. 1002 Beandenbubg on Bankruptcy [ § 1372 ing for the care and preservation of the estate, if such employ- ment was necessary and to its advantage.^" :> § 1373. —Application of payments. i Payments made by the bankrupt will be applied in discharges of wages earned prior to the three-month period unless it clearly appears that the parties intended otherwise.'^ § 1374. — /Priority under state laws. Subdivision 4 of section 64 of the statute limiting the amount of wages to that earned within three months is not to be consid- ered as being affected or enlarged by any general prior or subsequent provision in the law, as subdivision 5, which accords priority of payment to "debts owing to any person who by laws of the states or United States is entitled to priority," but such latter provision is to be construed as applying to debts other and different from those specified in clause 4.*^ Priority of labor liens, see also, post, section 1389. Hence, if under the laws of the state wages for a greater period than three months are entitled to priority, allowance can be made only for such as are earned within the three months.^' § 1375. — Wages assigned or in judgment. The priority is attached to the debt and not to the person of the wage-earner, hence an assignee of wages earned within three months before the commencement of the proceedings is entitled to priority, whether the assignment is made before^* 50— In re Gerson, 1 N. B. N. 190, 1 N. B. N. 294; In re TaHs City Shirt A. B. E. 251. Mfg. Co., 1 N. B. N. 565, 98 Fed. 592, 51— In re Melntyre Bros., 21 A. B. 3 A. B. E. 437. Contra, In re Slomka, E. 588; In re Van Wert Machine Co., 117 Fed. 688, 9 A. B. R. 124; In re 186 Fed. 607, 26 A. B. E. 597; In re Lawler, 110 Fed. 135, 6 A. B. E. 184. Andrews, 19 A. B. E. 441. 54— Shropshire, Woodliff & Co. v. 52 — In re Crown Point Brush Co., Bush, 204 U. S. 186, 51 L. ed. 436, 17 200 Fed. 882, 29 A. B. E. 638; In re A. B. E. 77; United Surety Co. v. Iowa Shaw, 109 Fed. 782, 6 A. B. E. 501. • Mfg. Co., 179 Fed. 55, 24 A. B. E. 726; 53— In re Eouse, Hazard & Co., 1 N. In re Harmon, 128 Fed. 170, 11 A. B. B. N. 75, 91 Fed. 96, 1 A. B. E. 234, R. 64. Contra, In re North Carolina rev'g 91 Fed. 514, 1 A. B. E. 231; In Car Co., 127 Fed. 178, 11 A. B. R. 488; re Lewis, 99 Fed. 935, 4 A. B. E. 51; In re St. Louis Ice Mfg. & Storage Co., In re Union Planing Mill Co., 2 N. B. 147 Fed. 752, 17 A. B. R. 194- In re N. R. 384; In re Marshall Paper Co., 1 Weslund, 99 Fed. 399, 3 A. B. r! 646. §137,7] Debts Entitled to Peiobity 1003 or after "5 bankruptcy, provided he has not novated the debt or merged it with other debts by taking new obligations or securities wholly due and payable to himself.** A party's advancing money to pay labor claims does not, however, entitle him to be subrogated to the rights of the laborers, without an express assignment.^'^ There is nothing to prevent a father from proving as entitled to priority, a claim for a niinor son for labor as an operative.'® The general rule that a cause of action is merged in the judg- inent, does not apply to the case of an employee having a claim against bankrupt for wages earned within three months of the commencement of the proceedings upon which he recovers a judgment, but such claim for wages may be proved as an unse- cured debt and will be entitled to priority of payment.*® § 1376. Debts entitled to priority under state or federal laws. §1377. —In general. Fifth in the order of payment of the debts entitled to priority under section 64b of the present bankruptcy law are "debts owing to any person who by the laws of the states or of the United States is entitled to priority." As has been stated, this provision applies to debts other than and different from those specified in the previous clauses of the subdivision; and does not affect or enlarge such specific provision.*" But it has been held on the contrary that where wage claimants were entitled to liens by virtue of a state law, they are entitled to priority under sub- division 5 of this section, though the wagfes were not earned within three months before the' date of the commencement of bankruptcy proceedings,*^ but this is contrary to the weight of authority.** If both a state law and the bankruptcy act give 55— In re Campbell, 102 Fed. 686, 4 59— In re Anderson, 2 N. B. N. B. A. B. E. 535; In re Brown, 3 N. B. E. 567, 101 Fed. 698, 4 A. B. E. 231. 177, 4 Ben. 142, Fed. Cas. No. 1974. 60— In re Eiehl, 200 Fed. 455, 29 A. 56— In re Fuller & Bennett, 152 Fed. B. E. 613; In re Shaw, 109 Fed. 782, 6 538, 18 A. B. E. 443. A. B. E. 501. 57— United Surety Co, v. Iowa Mfg. 61— In re Slomka, 117 Fed. 688, 9 Co., 179 Fed. 55, 24 A. B. E. 726. Con- A. B. E. 124 ; In re Lawler, 110 Fed. tra. In re Langley and Alderson, 24 A. 135, 6 A. B. E. 184. B. R. 69. 62— See ante, § 1374. 58— In re Harthom, 4 N. B. E. 27, Fed. Cas. No. 6162. 1004 Beandenbubg on Bankbuptcy [§1377 priority to the same class of debts, the latter not alone controls the state law ii case of absolute conflict between the two, but by its express regulation of these priorities, excludes the state law; altogether.^* Provision is made elsewhere for determining the validity of liens; ®* btit, if found valid, this provision recognizes their right to priority according to the state or federal laws; "* notwith- standing that the provision of the state law giving priority forms part of its insolvency law, the insolvency laws being sus- pended only so far as they come into conflict with the bankrupt law or intrude on its province. The rule that the federal bank- ruptcy act supersedes all state insolvency or bankruptcy laws relative to persons or acts declared by congress to be subjects of bankruptcy relates merely to the administration of the state laws in proceedings in the state courts, and does not prevent the enforcement in federal bankruptcy proceedings of any gen- eral priorities recognized by the state laws, where such priorities are conferred by the state laws as substantive rights of priority not dependent upon the resort to particular remedies accessible only in proceedings in the state courts, and where such priorities are not in conflict with the express priorities declared by the bankruptcy act itself or otherwise in conflict with its provi- sions.*® A prior lien gives a prior claim, and it may be ascertained and 63— In re ^jewis, 99 Fed. 935, 4 A. B. Amendment of 1910 to section 47 (2) E. 51; In re MeDavid Lumber Co., 190 does riot alter or repeal section 64b (5). Fed. 97, 27 A. B. E. 39. • In re Lausman, 183 Fed. 647, 25 A. B. 64— Section 67, Act of 1898. E. 186. 65— Section 64b, Act of 1898; In re 66— In re Standard Oak Veneer Co., West Norfolk Lumber Co., 112 Fed. 173 Fed. 103, 22 A. B. E. 883; In re 759i 7 A. B. E. 648; In re Yoke Vitri- Jones, 151 Fed. 108, 18 A. B. E. 206; fied Brick Co., 180 Fed. 235, 25 A. B. E. In re Wright, 1 N. B. N. 428, 95 Fed. 18; In re Walker, 2 N. B. N. E. 1014; 807, 2 A. B. E. 592; but see In re Eie- In re Collins, 1 N. B. N. 290, 2 A. B. E, eer, 2 N. B. N. E. 859; In re West 1 ; In re Goldstein, 1 N. B. N. 422, 2 A. Norfolk Lumber Co., 112 Fed. 759, 7 B. E. 603; In re Falls City Shirt Mfg. A. B. E. 648; In re Oeonee Milling Co., Co., 1 N. B. N. 565, 98 Fed. 592, 3 A. 109 Fed. 866, 6 A. B. E. 475; In re B. E. 437; see also Eeed v. Bullington, Daniels, 110 Fed. 745, 6 A. B. E. 699; 11 N. B. E. 408; In re Grinnell, 9 N. B. In re Williams v. Crow, 116 Fed. Ill, 7 E. 35, 7 Ben. 42, Fed. Cas. No. 5830; A. B. E. 545; In re Hoover, 113 Fed, In re Scott, 3 N. B. E. 181, Fed. Cas. 136, 7 A. B. E. 330. No. 12517; In re Union Planing Mill Co., 2 N. B. N. E. 384. §1380] Debts Entitled to Peiokity 1005 liquidated.*'' A fraction of a day may be considered in order to determine the priority of liens or conveyances."* § 1378. — Debts assumed by bankrupt. Where the bankrupt has assumed the debts of a third party, the creditors of the latter are entitled to share equally with the bankrupt's creditors, in the distribution of the proceeds of a personal privilege of the bankrupt."* § 1379. — Claim of cestui que trust. It has been held that the question whether the owner of a trust fund is entitled to a preference over other creditors must be determined by the federal decisions.'^" Ordinarily, the owner of a trust fund can secure a preferenca out of the proceeds of the estate only where he can trace the trust property or fund, in its original or substituted form, into the haads of the trustee.''^ So, creditors who base their claims upon the misapplication of trust funds by the bankrupt, or conversion by him of property left in his possession, are not entitled to priority over general creditors unless the money or proceeds of the property can be traced to some specific fund and distin- guished.''^ The claim of a cestui que trust in proceeds of converted prop- erty has been held entitled to priority over the claim, of trustee for compensation.''* Title of trustee to property held in, trust, see ante, section 852. § 1380. — Claims on checks, or orders. Whether or not a claim founded on a check given by one, who becomes bankrupt before such check is presented for payment, is entitled to priority, depends on the construction placed on the contract evidenced by the check. In jurisdictions where it 67— In re Winn, 1 N. B. B. 131, Fed. 70— In re Dorr, 21 A. B. E. 752. Cas. No. 17876; In re Seott, 3 N. B. E. 71— Deere Plow Co. v. McDavid, 137 181, Fed. Cas. No. 12517; In re Lacy, 4 Fed. 802, 14 A. B. E. 653. N. B. E. 15, Fed. Cas. No. 7970. 72— In re Larkin & Metcalf, 202 Fed. 68— Hayden v. Buddensiek, 49 How. 572, 30 A. B. R. 903; In re Brown & Pr. (N. T.) 246; Clute v. Clute, 4 Den. Co., 183 Fed. 861, 25 A. B. E. 800. (N. T.) 244; Duke v. Clark, 58 Miss. 73— Smith v. Township of Augres, 465. 150 Fed. 257, 9 L. E. A. (N. S.) 876, 69— In re Baumblatt, 153 Fed. 485, 17 A. B. E. 745. 18 A. B. E. 720. 1006 Bkastdenbubg on Bankruptcy [§1380 is held to be an equitable assignment of so much of the fund as the check calls for, it will be entitled to priority.''* Where prior to bankruptcy the holder of a note deposited it with an attorney and subsequently drew orders requesting him to pay divers sums out of the proceeds, the holders of such orders have been held to be entitled to priority^® § 1381. — Costs and fees. While ordinarily, a claim for costs incurred by a creditor in an attachment suit commenced prior to bankruptcy is entitled to priority if accorded such by the state law,^® it is held that costs incurred in an attachment suit commenced within four months of bankruptcy are not entitled to a preference though the state law so provides.'"^ Fees of a sheriff, accruing on a writ of attachment on a provable debt, issued before the filing of the petition, and continuing in force until then, are entitled to prior- ity under the bankruptcy act, where the law of the state gives them priority. '^^ § 1382. — Claims of bank depositors. Ordinarily when funds are deposited in bank, the relation of debtor and creditor immediately arises between the banker and the depositor, and the money becomes the property of the former. He has the right to use it but must pay the debt of the depositor by cashing his checks. When the banker obtains the deposit by committing a fraud, as by receiving it after hope- lessly insolvent, the relation between the parties is different, and the money does not become the property of the bank but becomes a trust fund in the banker's hands. In such case money and checks deposited are entitled to priority of payment over the general creditors, and an equal amount may be obtained 74 — ^Fourth Nat. Bank of Chicago v. Costs of attacliment proceedings Bank, 10 N. B. E. 44. begun within four months of bank- 75 — In re Smith, 16 N. B. E. 399, ruptcy which proceedings have been Ted. Cas. No. 12992. voluntarily released by the creditor are 76 — In re Goldberg Bros., 144 Fed. not entitled to priority under 64b (5). 566, 16 A. B. E. 521; In re Amoratis, In re MoncrifE Mfg. Co., 31 A. B. E. 178 Fed. 919, 24 A. B. E. 565. 674. 77 — In re Iroquois Maeh. Co., 166 78 — ^In re Lewis, 99 Fed. 935, 4 A. Fed. 629, 22 A. B. E. 183 ; In re Copper B. E. 51 ; In re Jennings, 8 A. B. E. King, Ltd., 143 Fed. 649, 16 A. B. E. 358; In re Beaver Coal Co., 107 Fed. 148. 98, 5 A. B. E. 787. § 1383] Debts Entitled to Peioeity 1007 from the receiver of the bank. Checks and drafts delivered to a bank for collection and deposit under like conditions, which had not been collected when the .bank closed its doors, remain the property of the depositor, although indorsed to the bank without qualification and their proceeds upon collection may be recovered by him.''^ In the case of drafts purchased of a bank under like condition which are returned unpaid, the purchaser has the right in equity to reclaim the amount paid therefor.^* A savings bank would be entitled to priority of payment out of the assets of an insolvent bank created under a statute pro- viding that "upon it becoming insolvent, after paying its circulation, the assets should be first applied to paying deposits made with it by savings banks." *^ The fact that the fund arose from taxes does not alter the rela- tion of debtor and creditor^ and the depositor in such case is not ordinarily entitled to any priority, but if the funds have been received from the municipality through the fraud of the bank, the bank becomes a trustee for the municipality, and the municipality is in such case entitled to a return of its entire deposit,*^ § 1383. — Claims of other depositors. Money deposited with bankrupt, not a bank, is not, as a gen- eral rule, entitled to priority.*^ So, one who deposited money with the bankrupt as security, which money has been misappro- priated by the bankrupt, is not entitled to priority, the money not being traceable into a specific fund,** and a lessee who makes a deposit of money as security for rent is only entitled to prove his claim for the unused portion thereof as a general creditor.*'' 79— In re Silver, 208 Fed. 797, 31 A. 82— In re Salmon & Salmon, 145 Fed. B. E. 106; Eichardson v. N. O. Deben- 649, 16 A. B. E. 623. ture Co., 102 Fed. 780, 52 L. E. A. 67; 83— Eiley v. Pope, 186 Fed. 857, 26 Bant V. Blackmore, 75 Fed. 771; -Was- A. B. E. 618. son V. Hawkins, 59 Fed. 233 ; Lake Erie 84— In re See, 209 Fed. 172, 31 A. B. & W. E. Co. V. Bank, 65 Fed. 690; E. 360. Eichardson v. Denegre, 93 Fed. 572. 85— In re Banner, 149 Fed. 936, 18 80— Eichardson v. Coffee Co., 102 A. B. E. 61. Fed. 785. 81— In re Stuyvesant Bank, 9 N. B. B. 318, Fed. Cas. No. 13584. 1008 Bbandenbueg on Bankbuptcy [§ 1384 § 1384. — Equitable liens. In some states, an equitable lien is superior to tbe liens of judgment creditors and to the claims of general creditors.^* § 1385. — Claim of creditor making false representations. The claim of a creditor making false representations as to the financial condition of the bankrupt upon which another cred- itor relies will be postponed as to the part thereof which existed at the time of the misrepresentations, to the claim of the cred- itor relying on the misrepresentations.®'^ , The claim of an officer of the bankrupt corporation who has obtained property from creditors by means of fraudulent repre- sentations as to financial condition of the corporation will be postponed to the claim of the creditors so parting with their property.*® § 1386. — Judgments. The liens and priorities of judgments are to be determined as they existed under the state law at the time of the filing of the petition; ®^ hence, where an execution has been properly levied, the execution creditors are entitled to priority of payment from the proceeds of the property levied on; ^° but a judgment of a minor court, which is not a lien on personal property until levied thereon, nor on real estate until docketed in a higher court, and from which when the petition is filed an appeal is pending, is not entitled to priority.^^ A judgment or levy must be one which is a valid lien under the bankruptcy act; ^^ and it must not only be a valid lien but must be properly presented in the bankruptcy proceedings, so that attaching creditors, who have not proved their claims, cannot move that they be given priority in the proceeds of the attached goods ; ^^ and the claimant must show 86— Crosby v. Miller, 16 A. B. E. Fed. Cas. No. 6843; Swope v. Arnold, 805. 5 N. B. E. 148, Fed. Cas. No. 13702. 87— In re Paris Modes Co., 196 Fed. 91— In re Wood, 1 N. B. N. 430, 95 357, 28 A. B. E. 470; In re Ewald & Fed. 946, 2 A. B. E. 695. Braiuard, 135 Fed. 168, 14 A. B. E. , 92 — Phillips v. Bowdoin, 14 N. B. E. 267. 43; Eeed v. Melntyre, 19 N. B. E. 45, 88— In re Eoyce Dry Goods Co., 133 98 .Fed. 507; In re Steele, 16 N. B. E. Fed. 100, 13 A. B. E. 257. 105, 7 Biss. 504, Fed. Cas. No. 13345. 89— In re Walker, 2 N. B. N. E. 93— In re Ogles, 1 N. B. N. 400, 2 A. 1014. B. E. 514. 90— In re Hughes, 11 N. B. E. 452, §1389] Debts Entitled to Peiority 1009 that lie has done everything necessary to make his judgment a lien.** If a judgment creditor waives his execution as an unlaw- ful preference and files his claim in bankruptcy, he cannot there- after assert his preference.®^ A judgment for damages for deten- tion of property is not entitled to priority, where the trustees never had possession, and were not responsible for the deten- tion.»« A large judgment against a bankrupt, purchased by a national bank for much less than its face value and used to hinder and delay the debtor's creditors is not entitled to priority but should be postponed to the claims of the other creditors; ®^ so where the judgment creditor failed for many years to make a levy ** or to record his lien where the land was located.®' § 1387. — Claims barred by limitations. A creditor who holds a claim barred by the statute of limita- tions, but which has been revived by the act of the bankrupt in including it in his schedules, will be postponed to the claims of other creditors.^ § 1388. — Maritime liens, A claim for towage has been held entitled to priority over a claim of a person advancing money to the bankrupt to pay wages.^ Where a vessel is sold in admiralty with consent of the bankruptcy court to enforce a maritime lien, the costs of the administration in bankruptcy proceedings are entitled to pri- ority to the debt secured by the lien.^ § 1389. — Mechanic's liens. The statutory liens of laborers and materialmen are entitled under the bankruptcy law to the same priority as under the state ^ law; * but all the requirements of the statute to preserve or 94r-In re Wood, 1 N. B. N. 430, 95 99— In re Dunn, 11 N. B. E. 270, 2 Fed. 946, 2 A. B. R. 695. Hughes 169, Fed. Cas. No. 4172. 95— In re Bolinger, 108 Fed. 374, 6 1— In re Currier, 192 Fed. 695, 27 A. B. E. 171. A. B. E. 597. 96— In re Neely, 108 Fed. 371, 5 A. 2 — In re Alaska Fishing & Develop- B. E. 836. ment Co., 167 Fed. 875, 21 A. B. E. 97— In re Headley, 2 N. B. N. E. 250, 685. 97 Fed. 765, 3 A. B. E. 272. 3— In re Hughes, 170 Fed. 809, 22 98— In re Cozart, 3 N. B. E. 126, A. B. E. 303. Fed. Cas. No. 3313. 4— In re Hobbs & Co., 145 Fed. 211, Brandenburg — 64 1010 Bbandenbubg on "Bankkuptcy [§ 1389 render them valid, must be complied with,^ though if bankruptcy intervene the limitation as to time is governed by the bankruptcy act.® The claimant may at once appear in the bankruptcy court and be heard as to his claim without first having it established in another tribunal; '' but, if some claimants have complied with state statutes so as to give them valid liens while others have not, the former will be given priority over the latter.* So in Iowa a. labor claim is entitled to priority over the landlord's lien for rent; ^ while, in Kentucky the lien of materialmen is subject to the landlord's lien," and in New Jersey landlords and factory operators have equal Hens."^^ "Wih&re under a state law a lien for wages is given priority over all claims excepting taxes and costs of administration, and the lien has attached before the fund is turned over to the bank- ruptcy court, and it is not such an one as is avoided by the bank' ruptcy act, it will be respected.^^ § 1390. — Miscellaaeous liens. An attorney employed at a yearly salary is held to be within a statute giving employees a first and prior lien for all work and labor done for a corporation, and when the lien is filed it relates back to the date of employment but fixes no time limit therefor, it is sufficient if filed during the employment and, if bankruptcy intervenes during the six months after filing such lien within which suit may be brought, the bankruptcy limitation of one year supersedes the other.^* Tailors making up garments by the piece, to be returned in l6 A. B. E. 544; In re Bennet, 153 8— In re Kerby-Denis Co., 1 N. B. N. Fed. 673, 18 A. B. E. 320; Browder & 399, 95 Fed. 116, 2 A. B. E. 402, aff'g Co. V. HUl, 136 Fed. 821, 14 A. B. E. 1 N. B. N. 337, 94 Fed. 818, 2 A. B. E. 619. • 218. 5— In re Burton Bros. Mfg. Co., 134 9 — In re Byrne, 2 N. B. N. E. 247, Fed. 157, 14 A. B. E. 218. 97 Fed. 762, 3 A. B. E. 268. 6— In re Falls City Shirt Mfg. Co., 10— In re Falls City Shirt Mfg. Co., 1 N. B. N. 565, 98 Fed. 582, 3 A. B. E. 1 N. B. N. 565, 98 Fed. 582, 3 A. B. E. 437. 437. 7— In re Byrne, 2 N. B. N. E. 247, 11— In re MeConnell, 9 N. B. E. 387, 97 Fed. 762, 3 A. B. E. 268 ; In re Ems- Fed. Caa. No. 8712. lie, 2 N. B. N. E. 992, 102 Fed. 291, 12— In re Erie Lumber Co., 150 Fed. rev'g 2 N. B. N. E. 324, 98 Fed. 716, 817, 17 A. B. E. 689; In re Laird, 10'9 3 A. B. E. 516; s. e. 2 N. B. N. E. 171, Fed. 550, 6 A. B. E. 1. 97 Fed. 929, 3 A. B. E. 282; In re Beck 13— In re Fort Wayne Elee. Corp., 2 Provision Co., 2 N. B. N. E. 532. N. B. N. E. 891. §1392] Debts Entitled TO Peiokity 1011; whole or broken lots for examination, and to be paid for at stated intervals if approved, have a lien on all articles in their hands for the work done on them and on any portion of the same specific lot returned for examination; and though a whole lot had been returned for examination, it is not such a delivery as deprives the workmen of their lien, unless the delay in demand- ing payment amounts to a waiver.^* A truckman and cartman cannot claim priority under a state statute relating to general assignments since such statute is incompatible with the bankrupt act.^® §1391. —Mortgages. The question of priority of a mortgage is determined by the local law ^® so of two mortgages on the same property the senior will be entitled to priority of payment over the junior." Where a mortgage junior to a mechanic's lien was given in part to pay off a mortgage senior to such lien, the mortgagee may be subrogated pro tanto to the lien of the original mortgage.^* The right to priority extends only to the property against which the lien exists; so that after sale of the property, under the mortgage, a balance remaining unpaid is not entitled to priority of payment out of the balance of the estate.*^ Where first and second mortgages exist, the latter may be displaced in favor of costs incurred in selling the property, including compensation to the trustee.^" § 1392. — Claims for rent. A claim for rent accruing prior to the filing of the petition is given priority by the bankruptcy act if entitled to such priority by the state law; ^^ but rent which will accrue after the 14^In re Lowensohn, 2 N. B. N. E. 19— In re Snedaker, 4 N. B. E. 43. 871, 101 Ted. 776, 4 A. B. E. 79. 20— In re Utt, 105 Fed. 754, 5 A. B. 15— In re Eieser, 2 N. B. N. E. 859. E. 383. 16— In re Buchner, 199 Fed. 99, 29 A. 21— Martin v. Orgain, 174 Fed. 772, B. E. 179; Schulze v. Bolting, 17 N. B. 23 A. B. E. 454; In re Burns, 175 Fed* E. 167, 8 Biss. 174, Fed. Cas. No. 633, 23 A. B. E. 640; In re V. D.> L. 12489; In re Lacy, 4 N. B. E. 15, Fed. Co., 175 Fed. 635, 23 A. B. E. 643; In Cas. No. 7970. re Pittsburg Drug Co., 164 ,Fed. 482, 17— In re Bartenjaaoh, 11 N. B. E. 20 A. B. E. 227; In re Bishop, 153 Fed. 61, Fed. Cas. No. 1068. 304, 18 A. B. E. 635; In re Morris, 159 18— In re Drolesbaugh, 2 N. B. N. E. Fed. 591, 19 A. B. E. 781. 1079. 1012 Bbandenbueg on Bankeuptoy [§ 1392 filing of the petition is not a provable debt,^^ and not entitled to priority as such,^^ but may be allowed as compensation for use and occupation.^* If a claim is not entitled under the state law to priority, neither is it entitled to priority under the bankrupt law.25 Definite sums or sums capable of being made definite, charge- able on the demised premises by way of taxes, or for gas or water, or for improvements and the like, may be considered as rent or included therein when the intention so to consider them is made clear in the lease.^® A claim for rent must be proved to entitle it to the priority accorded it by the state law,^'^ The priority, if any, is only over claims not specified in section 64 as being higher in right.^* The claim of the lessee of a hotel, who had assigned the lease to the bankrupt, for rent due prior to the filing of the petition has been held not entitled to priority over a claim for the expense 22— In re Abrams, 200 Fed. 1005, 29 A. B. E. 590; Wilson v. Penn. Trust Co., 114 Fed. 742, 8 A. B. E. 169. 23— In re Abrams, 200 Fed. 1005, 29 A. B. E. 590; In re Winfield Mfg. Co., 140 Fed. 185, 15 A. B. E. 257; In re Jefferson, 1 N. B. N. 288, 93 Fed. 948, 2 A. B. E. 206; In re Gerson, 1 N. B. N. 315, 2 A. B. E. 170; In re Cronson, 1 N. B. N. 474; In re Shilladay, 1 N. B. N. 475; In re Byrne, 2 N. B. N. E. 247, 97 Fed. 762, 3 A. B. E. 268; In re Falls City Shirt Mfg. Co., 1 N. B. N. 565, 98 Fed. 592, 3 A. B. E. 437. Contra, as to after accruing rent. In re Goldstein, 1 N. B. N. 422, 2 A. B. E. 603; see also In re Euppel, 2 N. B. N. E. 88, 97 Fed. 778, 3 A. B. E. 233; In re Butler, 6 N. B. E. 501, Fed. Cas. No. 2236; In re Merrifleld, 3 N. B. E. 25, Fed. Cas. No. 9465; In re Hamburger, 12 N. B. E. 277, Fed. Cas. No. 5975; Austin v. O'Eeilly, 12 N. B. E. 329, 2 Woods 670, Fed. Cas. No. 665; s. e. 8 N. B. E. 129, Fed. Cas. No. 664; In re Hoagland, 18 N. B. E. 530, Fed. Cas. No. 6545; Longstreth v. Pennock, 12 N. B. E. 95, 20 Wall. 575, 22 L. ed. 451; In re Me- Connell, 9 N. B. E. 387, Fed. Cas. No. 8712; Barnes' Appeal, 13 N. B. E. 543; but see In re Joslyn, 3 N. B. R. 118, 2 Biss. 235, Fed. Cas. No. 7550; In re Lucius Hart Mfg. Co., 17 N. B. E. 459, Fed. Cas. No. 8592. Contra, In re Pittsburg Drug Co., 164 Fed. 482, 20 A. B. E. 227. Under a lease providing that whole rent for unexpired term becomes due upon bankruptcy, a claim for rent for unexpired term is provable and entitled to priority where landlord does not re- enter. In re Keith-Gara Co., 203 Fed. 585, 29 A. B. R. 466. 24 — ^In re Abrams, 200 Fed. 1005, 29 A. B. B. 590; WUson v. Penn. Trust Co., 114 Fed. 742, 8 A. B. E. 169. See also ante, § 1366. 25 — ^In re Chaudron & Peyton, 180 Fed. 841, 24 A. B. E. 811; In re Myers; 2 N. B. E. 860, 1049, 102 Fed. 869, 4 A. B. E. 536; In re Frankel, 2 N. B. N. E. 840. 26— McCann v. Evans, 185 Fed. 93, 26 A. B. E. 47. But see In re O'MaUey & Glynn, 191 Fed. 999, 27 A. B. E. 143. 27— In re Hayward, 130 Fed. 720, 12 A. B. E. 264. 28 — In re Consumers' Coffee Co., 151 Fed. 933, 18 A. B. E. 500; In re Sun- seri, 8 N. B. N. E. 65. §1394] Debts Entitled to Peiokity 1013 of operating the hotel after bankruptcy, where the lessee had not reserved the right of distress.^* If the landlord has a lien on the goods and chattels for rent, this will be enforced against the proceeds of the sale by the trustee,^" though it has been held that this would not extend to the proceeds of a license to sell liquors on snch premises.^^ By accepting the surrender of the premises or re-entering the premises the landlord may waive his right to priority given by the lease or by the state law.*^ § 1393. — Priority between residents and nonresidents, A statute giving claims of resident creditors priority over those of foreign corporations in the distribution of the assets of an insolvent foreign corporation is constitutional.^* Under the laws of New York, the proceeds of secJurities deposited by a bankrupt banker with the state comptroller are distributable among such of its creditors as transacted business with the bankrupt through its offices located within the state.^* § 1394. — Debts due state or municipality or its officers. The bankrupt law makes no specific provision for debta due to states, counties or municipalities, other than as taxes, but any other debts, if entitled to priority under, a state law, are entitled to like priority under the bankrupt law,^® but not other- 29— In re Bayley, 177 Fed. 522, 22 35— In re Mercer, 171 Fed. 81, 22 A. A. B. E. 249. B. B. 413, afE'g 166 Fed. 576, 22 A. B. 30— Longstret\ V. Pennook, 12 N. B. E. 167; In re Wright, 1 N. B. N. 428, E. 95; In re MiteheU, 116 Fed. 87, 8 A, 95 Fed. 807, 2 A. B. E. 592; see also B. E. 324. In re Dodge, 4 DiU. 532, Fed. Cas. No. 31— In re Myers, 2 N. B. N. E. 1049. 3949; In re Miller, 17 N. B. E. 402, 10 32— In re Winfleld Mfg. Co., 137 Fed. Ben. 58, Fed. Cas. No. 9401; In re 984, 15 A. B. E. 24. Southwestern Car Co., 19 N. B. E. 404, Landlord's claim for rent after peti- Fed. Cas. No. 13192; In re Chamber- tion not provable nor entitled to pri- lain, 17 N. B. E. 49, 9 Ben. 149, Fed. ority where landlord re-entered, and this Cas. No. 2580. Contra, In re Corn Ex. thojigh state law provided that landlord Bank, 15 N. B. E. 431, 7 Biss. 400, Fed. was entitled to preferred claim for one Cas. No. 3242, rev'g 15 N. B. E. 212, year's rent although taking possession Fed. Cas. No. 3243; Gardner v. Cook, 7 before rent is due. South Side Trust N. B. E. 346, Fed. Cas. No. 5226; In re Co. V. Watson, 200 Fed. 50, 29 A. B. E. Williams, 2 N. B. E. 79, Fed. Cas. No. 446. 17705; see In re Jenks, 15 N. B. E. 301, 33 — ^In re Standard Oak Veneer Co., Fed. Cas. No. 7276; Ex parte Holmes, 173 Fed. 103, 22 A. B. E. 883. 14 N. B. E. 493, Fed. Cas. No. 6631. 34— In re Eosett, 204 Fed. 431, 30 A. B, E. 309, aff 'g 203 Fed. 67, 29 A. B. E. 341. 1014 Beandenbueg ON Bankeuptcy [§1394 wise.^® A judgment in favor of a state against a surety on a bail bond given for the appearance of, a person indicted for a crime ; *'' is entitled to priority under the bankruptcy act, if given priority under the state law, as is the claim of a county for the labor of prisoners.** Where bonds illegally issued by a city were sold by the bankrupt and the proceeds applied to the establish- ment of a building for a factory upon which the city was given a mortgage, it was held that the city was not entitled to priority.** The claim of a public officer based on a deposit of public money with an insolvent bank is not entitled to a preference over the claims of othercreditors.*" § 1395. — Claims of stockholders. The rights of innocent general creditors of a bankrupt cor- poration are superior to those of the stockholders thereof who have been induced through fraud to subscribe to the corporate stock, and their claims are entitled to priority.*^ The holders of preferred stock are not creditors and a provision in a stock certificate which provides that in case of the distribution of the assets of the corporation a certain amount per share shall first be paid to such preferred stockholders, though valid as against holders of common stock, is not valid as to creditors, it being void as to them on ground of public policy.*^ § 1396. — Claims based on ultra vires contract. One whose claim is based on the debt of the bankrupt in excess of the amount of indebtedness which it is authorized to incur >fill not be postponed to other creditors where it appears that, after the debt was incurred, the bankrupt amended its articles of incorporation so as to increase the amount of indebtedness • it was authorized to incur to an amount in excess of its debts then existing, thereby validating its entire indebtedness.** 36— In re Devlin, 180 Tea. 170, 24 40— In re Smart, 136 Fed. 974, 14 A; A. B. B. 863 ; Six Penny Sav. Bank v. B. R. 672. See, In re Salmon & Salmon, Est. Stuyvesant Bank, 10 N. B. E. 142; 145 Fed. 649, 16 A. B. E. 623. 12 Blatch. 179, Fed. Cas. No. 12919; 41— Scott v. Abbott, 160 Fed. 573, s. c. 9 N. B. R. 318. 20 A. B. R. 335. 37— In re Chamberlain, 17 N. B. R. 42— Spencer v. Smith, 201 Fed. 647, 50, 9 Ben. 149, Fed. Cas. No. 2580. 29 A. B. R. 120. 38— In re Worcester County, 102 Fed. 43— In re Benedict Tea & Coffee Co., 808, 4 A. B. R. 497. 192 Fed. 1011, 27 A. B. R. 409. 39 — ^In re Manistee Watch Co., 197 Fed. 455, 28 A. B. B. 316. § 1397] Debts Entitled to Pbiobity ' 1015 § 1397. — Claims of United States, The present law as the act of 1867, specifically provides that taxes due the* federal, state or municipal governments shall be entitled to priority of payment, but, unlike the former, the present law so far as the government is concerned provides for priority of taxes only. The courts have generally held that this provision was not to be considered as superseding, or in anywise Hmiting, sections 3466 and 3467 of the Eevised Statutes, but was to be construed as supplementary and in pari materia, being inserted in the present law merely to recognize and reaffirm the right which those sections gave to exclude the possibility of a different conclusion.** This construction was, however, ex- pressly disapproved by the supreme court in a recent decision,*® in which a labor claim was awarded priority over a debt due the United States. It was there said, "By the statute of 1797 (now section 3466) and section 5101 of the Revised Statutes, all debts due to the United States were expressly given priority to the wages due any operative, clerk, or house servant. A different order is prescribed by the act of 1898, and something more. Labor claims are given priority, and it is provided that debts having priority shall be paid in full. The only exception is 'taxes legally due and owing by the bankrupt to the United States, state, county, district, or municipality.' These were civil obligations, not personal conventions, and preference was given to them; but as to debts, we must assume a change of purpose in the change of order. And we cannot say that it was inad- vertent. The act takes into consideration, we think, the whole range of indebtedness of the bankrupt — ^national, state, and indi- vidual — and assigns the order of payment. The policy which dictated it was beneficent and well might induce a postponement of the claims, even of the sovereign, in favor of those who neces- sarily depend upon their daily labor. And to give such claims priority could in no case seriously affect the sovereign. To deny them priority would in all cases seriously affect the claimants." The decision of the supreme court necessarily renders inopera- tive the various decisions as to the necessity of proving a claim. 44— in re Stoever, 127 Ped. 394, 11 45— Guarantee Title & Trust Co. v. A. B. R. 345; Title Guaranty & Surety Title Guaranty & Surety Co., 224 U. S., Co. V. Guarantee Title & Trust Co., 174 152, 56 L. ed. 706, 27 A. B. R. 873, Fed. 385, 23 A. B. R. 340, rev'g 22 A. rev'g 174 Fed, 385, 23 A. B. B. 340. B. B, 851. 1016 Beandbnbueg on Bankbuptcy [§ 1397 of the United States,** and as to its right to priority in pari;icular cases,*'' and the liability for ignoring its alleged priority.** Under the present law the trustee is obliged to pay all taxes due and owing, without distinction between the United States and the state, county, district or municipality.*^ § 1398. — Unrecorded liens. The validity and priority of an unrecorded lien is a question of local law.^" The creditors against whom an unrecorded lien is void are entitled to priority as against the person holding the lien and creditors as to whom the lien is valid, and the person holding such lien is in turn entitled to priority over the creditors as to whom his lien is valid.^^ It has been held that creditors whose claims arose subsequent to the date of an unrecorded conditional sale contract which has been successfully attacked by the trustee are not entitled to any priority .^^ "When the priority to which a mortgage is entitled 46— In re Stoever, 127 Fed. 394, 11 A. B. E. 345; TJ. S. v. Barnes, 31 Ted. 705; In re Huddell, 47 Fed. 206; Lewis V. United States, 92 V. S. (2 Otto) 618, 23 L. ed. 513. 47— TT. S. V. Barnes, 31 Fed. 705; Field y. IT. S., 9 Pet. 182; Howe v. Sheppard, 2 Sumner 133; XJ. S. v. Bank of N. Carolina, 6 Pet. 29; In re Rosey, 8 N. B. E. 509, 6 Ben. 507, Fed. Cas. No. 12066; Barnes v. U. S., 12 N. B. E. 526, Fed. Cas. No. 1023; In,.re Vetterlein, 20 Fed. 109; TJ. S. v. Lewis, Fed. Cas. No. 15595; see Strassburger, Fed. Cas. No. 13526; but see In re Webb, 2 N. B. E. 183, Fed. Cas. No. 17313; In re Kirk- land, 14 N. B. E. 139, 2 Hughes 208, Fed. Cas. No. 7843; but see Kerr v. Hamilton, Fed. Cas. No. 7731; In re McBride, Fed. Cas. No. 9682; but see Wilkinson v. Babbitt, Fed. Cas. 17668; Lewis V. U. S., 92 IT. S. (2 Otto) 618, 23 L. ed. 513; U. S. v. Griswold, 8 Fed. 496; Cottrell v. Pierson, 12 Fed. 805. 48— TJ. S. V. Barnes, 31 Fed. 705; V. S. V. Kirkpatriek, 9 Wheat. 720, 735, 6 L. ed. 199; Cooke v. U. S., 91 TJ. S. (1 Otto) 389, 23 L. ed. 237; Hart v. TJ. S., 95 U. S. (5 Otto) 316, 24 L. ed. 479; TJ. S. v. Murphy, 15 Fed. 589; TJ. S. V. Barnes, 31 Fed. 705; Field v. U. S., 9 Pet. 182; U. S. v. Murphy, 15 Fed. 589. 49 — New Jersey v. Anderson, 203 V. S. 483, 51 L. ed. 284, 17 A. B. B. 63, rev'g 137 Fed. 858, 14 A. B. E. 604. 50 — In re Andrae Co., 117 Fed. 561, 9 A. B. E. 135. 51— In re Dueker, 134 Fed. 43, 13 A. B. R. 760. But see In re Ottenwess & HuxoU, 193 Fed. 851, 27 A. B. E. 579. Creditor holding unrecorded lien held not to have lost priority over simple subsequent creditors by failure to promptly record deed of trust or to se- cure prompt payment of interest cou- pons attached to bonds. In re Charles Town L. & P. Co., 199 Fed. 846, 29 A. B. R. 721. Lien of unrecorded chattel mortgage of shifting stock of goods held not en- forceable as against subsequent cred- itors becoming such prior to the record- ation of the mortgage. In re Jacob- son & Perrill, 200 Fed. 812, 29 A. B. E. 603; Clayton v. Exchange Bank of Macon, 121 Fed. 630, 10 A. B. E. 173. 52 — In re Farmers Co-opera 13, Fed. 211 Fed. 88, 31 A. B. E. 612; In re Cas. No. 6806, citing In re James, 2 N. Thompaon-Breese Co., 30 A. B. E. 105; B. E. 78, Fed. Cas. No. 7175; In re In re Argonaut Shoe Co., 187 Fed. 784, Hayues, 2 N. B. E. 78, Fed. Cas. No. 26 A. B. E. 584; In re Bridgeman, 2 6269. N. B. E. 84, Fed. Cas. No. 1867. §1425] Distribution and Closing of Estate 1033 rupt in addition to his estate at the time the composition was confirmed or the adjudication was made shall be applied to the payment in full of the claims of creditors for property sold to him on credit, in good faith, while such composition or discharge was in force, and the residue, if any, shall be applied to the payment of the debts which were owing at the time of the adjudi- cation."''* Two classes of creditors arise where a confirmation of a com- position is set aside or a discharge revoked, i. e., those whose claims accrued prior and those subsequent to the confirmation or discharge. The latter class, acting in good faith on the strength of the. confirmation or discharge, give new credit to the debtor, and the purpose of this provision is to permit the applica- tion of the subsequently acquired property, together with the estate at the time the composition was confirmed or the adjudi^ cation was made, to the payment in full of such claim to the exclusion of those antedating such confirmation or discharge^ The residue of the estate, if any, after the payment of such claims, should be applied to the payment of the debts which accrued prior to the adjudication. The purpose of this provision is self-evident. It is only by placing i this sanctity upon the adjudication that it will cause full faith and credit to be given it. It permits the transaction of business with persons who hav^ been discharged or who have entered into a composition ,with creditors, without fear as to the title they may convey, and without fear of loss. § 1424. Exceptions to scheme of distribution. Exceptions to a proposed scheme of distribution should be filed before the final decree of confirmation is entered and can- not be considered without special allowance if they are filed afterwards.'^* . § 1425. Piling and settlement of accounts. The regular notice of ten days must be given of the filing and settlement of accounts, and the time when and place w;here they will be examined and passed upon.''* 72— Section 64e, Act of 1898. 74— In re Stein, 1 N. B. N. 339, 1 A. 73-— In re Heebner, 132 Ted. 1003, 13 Br B. 662, 94 Fei 124;- In re Bttshey; 3 A. B. E. 256. N. B. E. 167, Fed.Cas. No. 2227..: 1034 Beandenbueg on Bankbuptoy [§ 1426 § 1426. Payment of liens out of wrong fund. Where liens are paid out of the wrong fund the court may recharge, and fix them where they properly belong.'^^ §1427. Reopening the estate. §1428. —In general. The court or the referee/" may, in its discretion, reopen an estate whenever it appears that it was closed before being fuUy administered.'''^ This may be done upon a showing at an ex parte hearing before the referee.'^* The pendency of a petition to set aside a composition does not operate to prohibit the referee from exercising his right independently of, or in conjunction with, such application to reopen the estate, and such reopening is not an interference with the administration of the estate.''® Where a discharge has been refused upon the ground of concealment of assets, the estate may be reopened for the purpose of reaching such assets.^** Title to concealed and non-scheduled property does not revest in the bankrupt upon his discharge so as to deprive the court of jurisdiction thereof upon the reopening of the estate.^^ § 1429, — Who may petition. An application or petition to reopen the estate must be made by some party interested in the estate and who would be bene- fited by such reopening. One whose claim has become barred by laches is not a proper petitioner; *^ nor can a former trustee who has been discharged seek a reopening of the estate.*^ Under subdivision 8, of section 2, a court of 'bankruptcy has jurisdiction to entertain a supplemental petition filed by a volun- 75— In re Atlanta News Pub. Co., 160 80— In re Barton 's Estate, 144 Fed. Fed. 519, 20 A. B. E. 193. 540, 16 A. B. E. 569. 76— Seotioit 1 (7), Act of 1898. , 81— Fowler v. Jenks, 90 Minn. 74, 11 77— In re Goldman, 129 Fed. 212, 11 A. B. E. 255. A. B. E. 707; In re Paine, 127 Fed. 82— In re Meyer, 181 Fed. 904, 25 A. 246, 11 A. B. K. 351; In re Newton, 107 B. E. 44; In re Paine, 127 Fed. 246, 11 Fed. 429, 6 A. B. E. 52; section 2 (8), A. B. E. 351. Act of 1898. 83— In i© Paine, 127 Fed. 246, U A. 78— In re Eyburn, 145 Fed. 662, 16 E. E. 351. A. B. E. 514. 79— In re Sonnabend, 18 A. B. B. 117. §1431] DlSTKIBUTION AND CLOSING OF EsTATE 1035 tary bankrupt after the estate has been closed and the bankrupt discharged, setting out additional schedules of property, with the reasons for their former omission, and the court may reopen the proceedings for the purpose of administering the new assets for the benefit of creditors who proved their claims in accord- ance with the statute in the original proceedings. But such supplementary proceedings cannot affect the discharge of the bankrupt, where more than a year has elapsed since it was granted, nor has a creditor who failed to prove his claim in the original proceedings any standing in such supplementary pro- ceedings, or the right to examine the bankrupt therein.*** § 1430. — Limitations and laches. While the law is silent as to the time within which an estate may be reopened, this right would doubtless exist at any time when unadministered assets are discovered. An application to reopen is, however, addressed to the sound discretion of the court and where it is not made within a reasonable time may be refused.®* Laches on the part of a petitioning creditor will barj the right to have the estate re-opened.*^ § 1431. — Form and sufficiency of petition. While it is unnecessary that the petition therefor be of any technical or formal character, it should be either in itself or in connection with supporting affidavits of such pursuasive char- acter as to satisfy the court of the existence of assets unad- ministered.*^ A petition to reopen the proceedings after a discharge has been granted and to pertoit petitioners to prove debts on the ground of fraudulent concealment of assets which fails to show what property was surrendered by the bankrupt or what repre- sentations were made in his schedules as to property surrendered by him, and which fails to show that any creditor, at the time pf 83a— In re Shaffer, 104 Fed. 982, 3 charge denied. Vary v. Jaekson, 164 N. B. N. E. 54, 4 A. B. E. 728. Fed. 840, 21 A. B. E. 334; In re Shaf- 84— In re Paine, 127 Fed. 246, 11 A. fer, 104 Fed. 982, 3 N. P. N. E. 54. B. E. 351; Traub v. Marshall Field & 85 — To contest allowance of exemp- Cc, 182 Fed. 622, 25 A. B. E. 410. See tions. In re Eeese, 115 Fed. 993, 8 A. In re Shaffer, 104 Fed. 982, 8 N. B. N. B. E. 411. R. 54, 4 A. B. E. 728. 86— In re Newton, 107 Fed. 429, 6 Application to reopen proceedings A. B. E. 52. made seven years after granting of dis- 1036 Beandenbueg ON Bankexjptcy [§1431 the bankruptcy or within the time within which claims were provable was in any wise deceived as to the facts of the case or by the representations made in the schedules, or to show exactly when the alleged fraud was discovered, or that it was discovered within a year of the filiag of the petition is too general.®'' §1432. —Receiver. A temporary receiver may be appointed upon the reopening of the estate.*^ § 1433. Distribution of individual and firm property. §1434. — In general. Section 5f provides that "The net proceeds of the partnership property shall be appropriated to the payment of the partner- ship 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 partnership assets and be applied to the payment of the partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus shall be added to the assets of the individual partners in the proportion of their respec- tive interests in 'the partnership." This subdivision prescribes the rule for the distribution of assets between individual and firm creditors of bankrupt part- ners, and applies not only to the case of the adjudication of the partnership as such, but also where a member of the firm is adjudged bankrupt in his individual capacity.®* It is but a reafHrmance of the equity rule which remits joint creditors primarily to the joint fund and the individual creditors to the individual fund.®" 87 — ^Vaiy v. Jackson, 164 Fed. 840, 90 — ^A similar rule existed under the 21 A. B. E. 334. former acts. In re Jewett, 1 N. B. E. 88— In re Sopnabend, 18 A. B. B. 13l'; In re Byrne, 1 N. B. B. 122; Col- 117. lins V. Hood, 4 McLean 186, Fed. Cas. 89 — In re Union Bank, Whitney, GU- No. 3015; In re Williams, Fed. Cas. No. key & Co., 184 Fed. 224, 25 A. B. E. 17702; In re Warren, Fed. Cas. No. 148; In re Wilcox, 94 Fed. 84, 1 N. B. 17191; In re Lowe, 11 N. B. B. 221, N. 494, 2 A. B. E. 117; In re Denning, Fed. Cas. No. 8564; In le Ingalls, Fed. 114 Fed. 219. Cas. No. 7032; In re Smith, 13 N. B. E. 1434] DiSTBIBUTiON AND ClOSING OF EsTATE 1037 The same rule applies whether the proceeding is on behalf of a partnership or an individual, and partnership creditors can- not resort to the individual assets until the individual creditors have been paid in full, and vice versa,®^ and this rule prevails notwithstanding the fact that there are no partnership assets and is still true where a member of a copartnership is adjudged bankrupt in his individual capacity.®^ The adjudication of the firm will subject the separate estates of the partners, as well as the firm property, to administration in bankruptcy, if an act of bankruptcy has been committed by the firm, as such, although the partners or some of them individually have not committed nor participated in committing any act upon which as individuals they could be adjudged bankrupts. ^^ The only way in which the 500, Fed. Cas. No. 12987; In re Mar- ,mek, Fed. Cas. No. 9181; In re Dun- ham, 1 Hask. 495, Fed. Cas. No. 4144; In re Morse, 13 N. B. E. 376, Fed. Cas. No. 9854; In re McLean, 15 N. B. E. 333, Fed. Cas. No. 8879. See Amsinck V. Bean, 11 N. B. E. 495, 22 Wall, 395, 22 L. ed. 801; but this rule only applied where both estates -were before the court for distribution; In re Downing, 3 N. B. E. 182, 1 Dill. 33, Fed. Cas. No. 4044; tr. S. T. Lewis, 13 N. B. E. 33, Fed. Cas. No. 15595; In re Pease, 13 N. B. E. 168, Fed. Cas. No. 10881, and it held that where there was no joint estate the joint creditors could receive no dividends until the individual cred- itors were fuUy paid; In re Byrne, 1 N. B. E. 122, Fed. Cas. No. 2270, though the later cases deny this doctrine; In re Knight, 8 N. B. E. 436, Fed. Cas. No. 7880, 2 Bias. 518; In re MeEwen, 12 N. B. E. 11, 6 Biss. 294, Fed. Cas. No. ' 8783; In re Sloeum, Fed. Cas. No. 12951, aff'g 12950; In re Jewett, 1 N. B. B. 130, Fed. Cas. No. 7304. It was also held that the rule preferring part- nership property to the payment of partnership debts was for the benefit of the partners and that they might waive it. In re Kahley, 4 N. B. E. 124, 2 Biss. 383, Fed. Cas. No. 7593; and that subject to this rule, the assets of the separate estates of partners as well as that of the partnership might be re- sorted to for payment of a partnership debt; Mead v. Bank, 2 N. B. E. 65, 6 Blatch. 180, Fed. Cas. No. 9366; and even that joint creditors of partners might share equally with the partner- ship creditors in the partnership assets. In re Nims, 18 N. B. E. 91, 10 Ben. 53, Fed. Cas. No. 10268. 91 — Adams v. Deckers Valley Lumber Co., 202 Fed. 48, 29 A. B. E. 42; New York Inst, for Deaf & Dumb v. Crock- ett, 117 App. Div. (N. Y.) 269, 17 A. B. E. 233; In re Blanchard, 161 Fed. 793, 20 A. B. E. 417; In re Smith, 13 N. B. E. 500, Fed. Cas. No. 12987; In re Morse, 13 N. B. E. 376, Fed. Cas. No. 9854; In re Byrne, 1 N. B. E. 122, Fed. Cas. No. 2270; In re Williams, Fed. Cas. No. 17702; In re Ingalls, Fed. Cas. No. 7032; In re Lane, 10 N. B. B. 135, Fed. Cas. No. 8044. 92 — Euclid Nat. Bank v. Union Trust & Deposit Co., 149 Fed. 975, 17 A. B. E. 834, aff'g 142 Fed. 588, 16 A. B. E. 91; In re Wilcox, 94 Fed. 84, 1 N. B. N. 494, 2 A. B. E. 117; In re Mills, 95 Fed. 269, 2 A. B. E. 667; In re Jones, 2 N. B. N. E. 193, 100 Fed. 781, 4 A. B. E. 141. 93— In re Latimer, 174 Fed. 824, 23 A. B. E. 388 ; In re Meyer, 98 Fed. 976, 3 A. B. E. 559, afE'g 1 N. B. N. 304, 1 A. B. E. 565, 92 Fed. 896; In re Eosen- 1038 Bbandenbttkg on Bankbuptcy [§1434 assets of a firm can be administered in bankruptcy (except by consent of the solvent partners) is by putting the firm into bank- ruptcy; and if a sole surviving or liquidating partner commits an act of bankruptcy he in bis individual capacity and as sur- viving partner may be adjudged bankrupt and the partnership assets and his separate estate may be administered under the act.9* Any surplus that remains in an individual estate after pay- ment of individual debts as allowed, should be added to the assets of the partnership and applied to the payment of the ^partnership debts and not to the payment of interest on the individual debts.®^ Eeal estate held by a firm is generally held by the members as tenants in common, but when it is firm property firm cred- itors are entitled to payment from the proceeds thereof before a^ judgment of an individual partner.^® "Where the bankrupt is a partnership composed of an indi- vidual and another partnership, the creditors of the latter are entitled to priority in the distribution of the proceeds of its property as against the creditors of the adjudicated partner- ship.^'^ As joint and separate estates are considered distinct, a joint creditor having security on the separate estate may prove against the joint estate without relinquishing his security, or prove his whole claim against both estates and receive a divi- dend from each, but so as not to receive more than the full amount of his debt from both sources.^^ So, the holder of a note given by a firm and also by an individual member of the firm baum, 1 N. B. N. 541; In re Blair, 2 N. 358, 1 A. B. E. 689, 95 Fed. Cas. No. N. B. N. E. 364, 99 Fed. 76; In re WU- 263. liams, 3 N. B. E. 74, 1 LoweU 406, Fed. 95— In re Chandler, 184 Fed 887 25 Cas. No. 17703. A. B. E. 865. 94— In re Meyer, 98 Fed. 97d, 3 A. B. 96— Marrett v. Murphy 11 N B B E. 559, aff'g 1 N. B. N. 364, 92 Fed. 131, Fed. Cas. No. 9103. 896, 1 A. B. E. 565; In re Murray, 1 97— In re Knowlton & Co 196 Fed. N. B. N. 570, 96 Fed. 600, 3 A. B. E. 837, 28 A. B. E. 140 601, 1 N. B. N. 532, 8 A. B. E. 90; In 98— In re Howard, 4 N B N E 185, re Stevens, 5 N. B. E. 112, 1 Sawy. 397, Fed. Cas. No. 6750. See also In re Fed. Cas. No. 13393; In re Meyers, 1 Noyes Bros., 127 Fed 286 11 A B E N. B. N. 515, 2 A. B. E. 707, 96 Fed. 506. ' ' ' *~ " Cas. No. 408; In re Altman, 1 N. B. 1 1436] DiSTEIBUTION AND CloSINQ OF EsTATE 1039 is entitled to receive dividends from the estates of both, but not in the aggregate more than the amount of the note."* § 1435. — Absence of firm assets and solvent partner. The exception to the general rule that the individual creditors must resort to the individual assets and the joint creditors to the partnership assets, and that when there are no" firm assets ■ and no solvent living partner, the creditors of the firm might share pari passu with the individual creditors, is no longer appli- cable,^ and partnership creditors must look to the partnership assets and can only resort to the individual assets after the indi- vidual debts are paid, without regard to whether there are partnership assets or a solvent partner amenable to the court's jurisdiction.^ § 1436. — Assumption of firm assets ajad debts by partner. After a firm is actually insolvent, a partner cannot by the transfer of his interest to his copartner constitute the assets of the firm the individual property of the latter as against firm 99— Emery v. Bank, 7 N. B. E. 217, 3 aiff. 507, Fed. Cas. No. 4446. 1— In re Janes, 133 Fed. 912, 13 A. ' B. R. 341; In re Corcoran, 14 Ohio Fed. Dec. 294, 12 A. B. E. E. 283; Bucking- ham V. First Nat. Bank, 131 Fed. 192, 12 A. B. E. 465; In re Wilcox, 94 Fed. 84, 1 N. B. N. 494, 2 A. B. E. 117; In re Bates, 100 Fed. 263; In re Mills, 95 Fed. 269, 2 A. B. E. 667; In re Janes, 128 Fed. 527, ll A. B. E. 792. Contra, In re Gray, 208 Fed. 959, 31 A. B. E. 146; Conrader v. Cohen, 121 Fed. 801, 9 A. B. E. 619, aff'g 118 Fed. 676, 9 A. B. E. 85. 2— It was held under the Act of 1867 that if a partnership was dissolved and one of the partners purchased all the assets of the firm, agreeing to pay all the debts; and both partners are indi- vidually adjudged bankrupt, so that there is no solvent partner and no firm property, the firm and individual cred- itors of the partner who assumed to pay the firm debts are entitled to share pari passu in the estate of such part- ner. (In re Downing, 3 N. B. B. 182, 1 Dill. 39, Fed. Cas. No. 4044; In re Collier, 12 N. B. E. 266, Fed. Cas. No. 3002; In re Eice, 9 N. B. E. 373, Fed. Cas. No. 11750.) The individual and ]iartnership creditors share equally in the distribution of assets where both classes of debts are incurred upon the credit of the property owned by a mem- ber of the firm (In re Goedde, 6 N. B. E. • 295, Fed. Cas. No. 5500) ; where the in- dividual assets consisting of goods pur- chased by the bankrupt from the partnership on its dissolution prior to bankruptcy being the same goods in the purchase of which the partnership debts originated. (In re Jewett, 1 N. B. E. 130, Fed. Cas. No. 7309.) If all the assets of a bankrupt firm were expended in the payment of costs, and there was no fund to be divided among the firm creditors, the firm and individual cred- itors must be paid pari passu out of the separate estate of each partner. (In re MeEwen, 12 N. B. E. 11, 6 Biss. 294, Fed. Cas. No. 8783) ; but under the pres- ent Act there is no provision allowing joint and separate creditors to share pari 1040 Beandenbukg on Bankeuptcy [ § 1436 creditors,^ but a firm while solvent may in good faith dissolve, the retiring partner transferring the joint property to the remaining partner, who may assume the joint debts, and the joint creditors will share equally with individual creditors in the individual assets, upon the remaining partner becoming bankrupt.* If a firm expires by limitation and the interests of all the partners are transferred to one of them, who agrees to apply firm assets to the payment of firm debts, and he afterwards files a voluntary petition in bankruptcy, and includes the firm assets and debts in his schedule, the other members should intervene and have the firm adjudicated bankrupt, that the firm assets may be applied to the firm debts.^ § 1437. — Claims for taxes. A claim against a partner for personal taxes is not enforceable against the partnership estate as against the claims of partner- ship creditors.® If under state laws a member of a partnership is liable for the taxes due from the firm, taxes levied against a firm must be paid as a preferred claim, from the estate in bank- ruptcy of a member thereof.'' § 1438. — Claims of the United States. A claim of the United States against a firm some of whose ' members are non-residents, has been held to be entitled to priority of payment out of the individual estates of the resident partners;® and debts arising out of internal revenue bonds, • passu in the separate estates. In the 3002; In re Long, 9 N. B. R. 227 7 Ben. cases eited, if the property could not be 141, Fed. Gas. 8476; In re Downing, 3 held to be partnership assets because the N. B. E. 182, 1 Dill. 33, Fed. Gas. 4044- transfer was preferential or fraudulent, In re Wiley, 4 Biss. 214 Fed. Gas. No. or on some other ground, the partnership 17656; In re Mills, 11 N. B. R. 74 Fed. creditors could not resort to it. Gas. No. 9611; Ex parte Euffin, 6 Ves. 3— In re Damare, 28 A. B. E. 297; In 119; In re Keller, 109 Fed. 118, 6 A. B. re Terens, 175 Fed. 495, 23 A. B. E. 680; E. 334. But see In re Filmar, 177 Fed. Earle v. Library Pub. Go., 95 Fed. 544; 170, 24 A. B. E. 194; In re Worth, 130 In re Eudniek, 2 N. B. N. E. 769 ; In re Fed. 927, 12 A. B. R. 566. Cook, 3 Biss, 116, Fed. Gas. No. 3151; In 5 — In re Gorham, 18 N. B. E. 419 9 re Byrns, 1 N. B. N. 464. Biss. 23, Fed. Gas. No. 5624. 4^In re Green, 116 Fed. 118, 8 A. B. 6— In re Flatau & Stern, 21 A. B E E. 553 ; In re Keller, 109 Fed. 118, 6 A. 352. B. E. 337. See also Fitzpatripk v. Flan- , 7^-In re Green, lift Fed. 118 8 A. B. nagan, 106U..8..648,'27L, e,d,211;..Iare R, 553. ' ' \ GolIier,.12.,K B. E, 266, Feci. Gas, No. ,■8— U. g. y. LewiS; 13 N. B. E. 33' §1440] DlSTEIBXTTION AND CLOSING QP EsTATE 1041 signed by the members of a firm, as sureties, have been held entitled to priority out of the individual assets," but such hold- ings cannot be held decisive in view of the recent decision of the supreme court holding that the United States was not entitled to priority in payment of any claims but for taxes.^" § 1439. — Subrogation of creditors of partner. The creditors of an individual partner will be subrogated to the rights of a creditor of the partnership who has received payment of his debt from property belonging to the individual partner; and the trustee of one partner will be subrogated to the rights of the sreditors of another partner to the extent that their claims against the latter have been satisfied by the sale of the former's property. ^^ ^ § 1440. — Claims between estates — ^Marshalling of assets. Section 5g provides that "The court may permit the proof of the claim of the partnership estate against the individual estates, and vice versa, and may marshal the assets of the partnership estate and individual estates so as to prevent preferences and secure the equitable distribution of the property of the several estates." Where a partnership is adjudged a bankrupt, without an adjudication of the members thereof, both the partnership assets and the individual assets of the partners are administered and inarshalled.^2 Where all the partners become bankrupt, the general rule is that a separate estate shall not claim ag^nst the joint estate in competition with the joint creditors, nor shall the joint estate claim against a separate estate in competition with the separate creditors,^^ unless there be a surplus of the joint estate to be Fed. Cos., No. 15595; s. e. on appeal, 12— In re Wing Tick Company, 13 A. Lewis V. U. S., 14. N. B. E. 64, 92 U. S. B. E. 757. (2 Otto) 618, 23 L. ed. 513. 13— Martin v. Globe Bank & Trust Co^ . 9— In re Webb, 2 N. B. E. 214, 5ed. 193 Fed. 841, 27 A. B. E. 545; In re Cas. No. 17318. Weisenberg & Co., 131 Fed. 517, 12 A. B. 10— Guarantee Title & Trust Co. v. E. 417; In re Union Bank, Whitney, Gil^ Title Guaranty & Surety Co., 224 U. S. key &.Co., 184 Fed. 224, 25 A. B. E. 148; 152, 56 L. ed. 706, 27 A. B. E. 873, ies'g .Amsinek v. Bean, H N. B. E. 495, 22 174-Fed, 385, 23 A. B,.B. 340. Wall, 395, 22 L. ed, SOli In re McBwen, ■■■ 11-^In re Mason & Son,.l N; B. N >331, ,12 N- B. E^ H, 6 Bias. 29.4,.Fed. Cas, No. 2 A. B. E. 60. -:i^ /..^ .... ,.-.v. >8-78.3i ; . .-,-,. . .: . ". - ; . . .■- Brandenburg — 66 1042 Beandenbtjeg on Bankeuptcy [§1440 divided among the individual creditors and vice versa.^* It is equally clear that a solvent partner cannot prove his own sep- arate debt against the separate estate of the bankrupt partner, so as to come in competition with the joint creditors of the paii- Eership, for the reason that he is himself liable to all the joint creditors, which is sufficient to show that in equity he cannot be permitted to claim any part of the funds of the bankrupt before all the creditors to whom he is liable are fully paid.^' Neither can a solvent partner prove against the separate estate of the bankrupt partner in competition with the separate cred- itors of the bankrupt until all the joint creditors of the partner- ship are paid or fully indemnified, for if a dividend were reserved to such a party on such proof the joint creditors might be injured by such solvent partner stopping the surplus of the separate estate, which would otherwise be carried over to the joint estate, or the separate creditors might be injured by ths funds being stopped and the transmission of the same be delayed.^" The exceptions to this rule are (1) where the prop- erty of a partner has been fraudulently applied for the purpose of a partnership; (2) where a distinct trade is prosecuted by one or more of the members of the firm.^'^ Where a bankrupt is a member of two firms, the assets should be so marshalled that the creditors of each firm may have priority in the distribution of the assets of the firms of which they are creditors. If a surplus remains after paying the cred- itors of one firm, it is subject to the claims of the individual creditors and not to the creditors of the other firm. If, how- ever, there is a surplus of individual assets, it should be appor- tioned pro rata among creditors of both firms according to the partner's respective interests,*^ and where the partnership estate is indebted to another firm, one of the members of which is also 14 — In re Eice, 164 Fed. 509, 21 A. Strawbridge, 25 A. B. E. 355; Emery v. B. B. 205; Ir re Lane, 10 N. B. B. 135, Bank, 7 N. B. E. 217. 2 Lowell 333, Fed. Cas. No. 8044. 16— Ex parte Lodge, 1 Ves. Jr. 166. The claim of a partner for money lent 17 — ^Amsinck v. Bean, 11 N. B. E. 495, to the partnership in excess of the amount 22 Wall. 395, 22 L. ed. 801. he was bound to contribute as his share 18 — ^In re Leland, 5 N. B. E. 222, 5 of the capital cannot share in the dis- Ben. 168, Fed. Cas. No. 8228; In re tribution until all the firm creditors are Hinds, 3 N. B. E. 91, Fed. Cas. No. 6516; paid. In re Efang,.r, 184 Fed. 728. In re Bunkerson, 12 N. B. E. 391, 4 Ben. 15 — Ex parte Eichardson, 3 Dea. & Ch. 423, Fed. Cas. No. 4159; Ex parte Frank- 244; Ex parte Buggs, Id. 36; In re lyn, Buck, 332. §1441] Distribution and Closing of Estate 1043 a member of the bankrupt firm, the court will deduct from the payment due the creditor firm the amount to which the bankrupt member is entitled.^^ § 1441. — Claim of partner against bankrupt partner. A bankrupt creditor of his bankrupt copartner has the resi- duum of the estates, separate and joint, belonging to the latter after all the bankrupt debtor's separate creditors and the firm debts are paid, but not until then,2° and a solvent partner can- not prove against the separate estate of the bankrupt partner in competition with the bankrupt partner's separate creditors until all the partnership creditors are paid or fuUj'' indemnified,^^ nor for interest on the balances in his favor shown by the firm's books, unless by express agreement.^^ 19— In re Ellis, 5 Ben. 421, Fed. Cas. 22 Wall. 395, 22 L. ed. 801; In re Dun- No. 4399. ning, 8 A. B. E. 133. 20— In re McLean, 15 N. B. E. 333, 22— In re Stevens, 104 Fed. 323, 5 A. Fed. Cas. No. 8879. B. B. 9. 21— Amsinck v. Bean, 11 N. B. B. 495, CHAPTER XXXIV The Dischabge of the Banketjpt PAST I The Eight to a Discharge § 1442. Nature of right and congressional control thereof. § 1443. Who is entitled to discharge. § 1444. Discharge of partnership. § 1445. Discharge of partner. § 1446. Application for discharge. §1447. —Form. §1448. —Filing. § 1449. — Time for making. § 1450. — Notice to creditors. §1451. —Withdrawal. §1452. — Dismissal. § 1453. — Effect of failure to apply. § 1454. Who may oppose discharge. § 1455. Specification of objections. § 1456. — Necessity. § 1457. — Objections by partnership. § 1458. — Time of filing specifications. §1459. —With whom filed. § 1460. — Form and sufficiency. § 1461. — Plea to specifications. § 1462. — Amendment. § 1463. — Signature and verification. § 1464. Hearing on application. § 1465. — Motion for hearing. § 1466. — Powers and duties of referee or special master. § 1^67. — Attendance of bankrupt. § 1468. — Appearance of creditors. § 1469. — Jury trial. § 1470. — Reconsideration of claims. § 1471. — Presumptions and burden of proof. § 1472. — Admissibility of evideSice. § 1473. — Examination of witnesses. § 1474. — Conclusiveness of findings or report. § 1475. — Eehearing. § 1476. Adjournment of hearing — Stay of discharge. § 1477. Grounds for refusing discharge. § 1478. — In general. § 1479. — Discretion of court. § 1480. — Statute not retroactive. 1044 §1442] The Discharge op the Bankrupt 1045 § 1481. — Irregularity of proceedings. § 1482. — Laches. § 1483. — Failure to pay costs. § 1484. — Buying off opposition to discharge. § 1485. — Fraud in. preventing proof of claim. §1486. — Insanity. § 1487. — Larceny and embezzlement. § 1488. — False oath. § 1489. — Books of account and records. § 1490. — Failure to keep books after passage of act.- § 1491. — Intent to conceal financial condition. §1492. — Concealment and destruction of i books. § 1493. — Books held proper. § 1494. — Books held improper. § 1495. — Obtaining property on credit. § 1496. — Transfer, destruction or concealment of assets. § 1497. — Fraudulent conveyances. § 1498. — Preferential transfers. § 1499. — General assignments. § 1500. — Effect of advice of counsel. § 1501. — Omission of non-dischargeable debts. § 1502. — Former discharge. § 1503. — Contumacy. § 1504. — Res adjudicata. § 1505. Refusal of discharge — EfEect. § 1506. Application for rehearing. § 1507. Amendment of decree. § 1508. Revocation and impeachment of discharge. § 1509. — Jurisdiction. § 1510. — Grounds. § 1511. — Who may apply. § 1512. — Time for applying. § 1513. — The application. § 1514. — Deposit to cover fees. §1515. — Reference. §1516. —Notice. § 1517. —Burden of proof. § 1518. — Admissibility of evidence. § 1519. — Examination of bankrupt. ' § 1520. — EfEect of revocation. PART I The Eight to a Dischaegb § 1442. Nature of right and congressional control thereof. The right to a discharge is not an absolute one, but is a mere privilege granted to the bankrupt under certain conditions, 1046 Beandenbueg on Bakkbuptcy [§ 1442 whicli congress may alter from time to time.^ If an amendatory act is silent as to its effect, it aiieets all pending proceedings.^ § 1443. Who is entitled to dischaxge. This is the correlative of "Who may be a bankrupt," ^ for the law does not offer a meaningless and useless proceeding, but says that certain persons may become bankrupt through volun- tary or involuntary proceedings and to such gives the discharge provided for as of right, unless the bankrupt is guilty of one of the offenses prescribed in the act. A corporation or partnership which has been adjudged bank- rupt is entitled to a discharge in all respects as an individual would be.* The fact that a bankrupt is a non-resident of the district does not affect his right to a discharge.^ An order granting a discharge is proper, notwithstanding a creditor objected to the reference of the case to a referee to report the facts, which objection was renewed before the judge, if no legal grounds appear for opposing the discharge and the creditor had an opportunity to present such grounds.® § 1444. Discharge of a partnership. All or any number of partners may petition for a partnership discharge.^ A discharge is granted to a partnership upon the same terms and under the same conditions as to any other person, and there- fore the general discussion of discharges which is given with reference to an individual will apply equally here. The grounds of opposition to a discharge in the case of a partnership are the same as in the case of individuals and are confined to those named in the act.* 1 — National Bank v. Moyses, 186 U. 6 — In re McDuff, 101 Fed. 241 4 A. B. S. 181, 46 L. ed. 1113, 8 A. B. R. 1; In E. 110. re Neely, 134 Fed. 667, 12 A. B. E. 407. 7 — In re Pincus, 147 Fed. 621 17 A. B. 2— In re Neely, 134 Fed. 667, 12 A. R. 331. B. E. 407. 8— See In re Peacock, 101 Fed. 560, 4 3— See Section 4, Act of 1898, ante. A. B. R. 136; In re Clisdell, 101 Fed. 246 4^In re Marshall Paper Co., 2 N. B. 2 N. B. E. 638. N. E. 1053, 102 Fed. 872, 4 A. B. E. 468. 5— In re Goodale, 109 Fed. 783, 6 A. B. E. 493. §1445] The Dischaege of the Bankbupt 1047 § 1445. Discharge of partner. An individual seeking a discharge from both individual and partnership liabilities cannot obtain a discharge from the latter unless proceedings are had on behalf of the "partnership itself, or unless he makes his partners parties to the individual pro- ceedings.* "Where the firm has been adjudicated bankrupt on the voluntary petition of the partners composing the firm, either partner without reference to the other, may present his indi- vidual petition for a discharge, in which event the petition there- for should recite the adjudication of the firm and of the petitioners as a member of the firm, and should pray for a dis- charge from both firm and individual debts, and the notice to creditors should advise them of the same facts." A prayer for discharge from "provable debts" is, however, equivalent to an application for discharge from partnership debts.^^ Individual discharges cannot be granted under an adjudica- tion against the partnership only ^^ although an adjudication of partners as individuals may be entered in an involuntary pro- ceeding against the partnership entity alone, and individual discharges thereafter obtained.^^ An individual member of a firm, may on his own independent application, made in his own right, obtain a discharge from firm liabilities," regardless of the existence or nonexistence of firm assets.^* A partner is not prevented from filing his individual petition in bankruptcy after 9— In re Elliott, 2 N. B. N. E. 350; In 467, Fed. Cas. No. 5074; In re Stevens, re Freund, 1 N. B. N. 105, 1 A. B. E. 25; 5 N. B. E. 112, 1 Sawy. 397, Fed. Cas. In re Laughlin, 96 Fed. 589, 3 A. B. B. 1 ; No. 13393 ; Loomis v. Wallblom, 94 Minn. In le MeFaun, 96 Fed. 592, 3 A. B. E. 392, 13 A. B. E. 687. 66; In re Meyers, 1 N. B. N. 515, 2 A. B. 10— In re Meyers, 2 N. B. N, E. Ill, E. 707, 96 Fed. 408; In re Meyers, 2 N. 97 Fed. 757, 3 A. B. E. 260; In re Gay, B. N. E. Ill, 97Fed. 757; 3 A. B. E. 260; 98 Fed. 870, 3 A. B. E. 529; see also Amsinck v. Bean, 22 Wall. 395, 405, 22 Wilkin v. Davis, 15 N. B. E. 60, 2 Low. L. ed. 801 ; and see Hudgins v. Lane, 11 511, Fed. Cas. No. 17664. N. B. E. 462, 2 Hughes, 361, Fed. Cas. 11 — In re Pierson, 10 N. B. E. 107, No. 6827; Corey v. Perry, 17 N. B. E. Fed. Cas. No. 11153. 147^ In re Noonan, 10 N. B. E. 330, Fed. 12— In re Neyland & McKeithen, 184 Cas. No. 10292; In re Wilkins, 2 N. B. E. Fed. 144, 24 A. B. E. 879; In re Pincus, 113, Fed. Cas. No. 17875; Crompton v. 147 Fed. 621, 17 A. B. E. 331; In re Conklin, 15 N. B. E. 417, Fed. Cas. No. Hale, 107 Fed. 432, 6 A. B. E. 35. 3408; In re Brick, 19 N. B. E. 508; con- 13— In re Pincus, 147 Fed. 621, 17 A. tra, Jareoki Mfg. Co. v. McElwaine, 118 B. E. 331. Fed. 249; In re Abbe, 2 N. B. E. 26, Fed. 14— New Tork Inst, for Deaf & Dumb Cas. No. 4; In re Bidwell, Fed. Cas. No. v. Croekett, 117 App. Div. (N. Y.) 2(59, 1392; In re Frear, 1 N. B. E. 201, 2 Ben. 17 A. B. K. 233. 1048 Bbandenbijbg ON Bankbuptcy [§1445 a discharge has been denied in the partnership proceedings, although he sets forth the same debts and the same assets.^^ That one partner commits an act barring his discharge may not be ground for the refusal of a discharge to his co-partner but the burden is on the latter to show he did not participate in such act.^® A bankrupt partner who has obtained a discharge from his individual debts may thereafter amend his application for a discharge so as to render the same applicable to his liability on firm debts which were scheduled by him, even though the time for proving such firm debts has expired." For a discussion of particular acts barring a discharge, see subsequent sections. § 1446. Application for discharge. §1447. —Form. The application for a discharge should be substantially in the prescribed form.^® §1448. —Filing. It is held that the petition may be filed with the referee,^® though there is authority to the contrary.^" § 1449. — Time for making. After the expiration of one month and within the next twelve months subsequent to his adjudication, a bankrupt has an abso- lute right to apply for a discharge,^^ and after that, and within the next six months, his petition may be filed by leave of court,"* if it shall be made to appear to the judge that he was unavoid- ably prevented from making his application within the year,** but not otherwise.^* 15— In re FeigenbatiiOj 7 A. B. E. 339. 21— Section 14a, Act of 1898; In re . X6— In re SbBachter, 170 Fed. 683, 22 Glasberg, 197 Fed. 896, 28 A. B. E. 826. A. B. E. 389. 22— In re Fahy, 8 A. B. E. 354, 116 17-r-In re Kaufmaa, 136 Fed. 262, 14. Fed. 239. A. B. E. 393. . 23— Section 14a, Aet of 1898; In re . ISTT-pflacial Form 57, § 1S34, post. Harris and Algor, 15 A. B. E. 705; In 19— In re Pincus, 147 Fed. 621, 17 A., re Lewin, 135 Fed. 252, 14 A. B. E. 358. B. E.:331. :: ...... ... , 2'i—ln re Holmes, 165. Fed. 225, 21 , .; SO-^Iii .re '.Hoefonan;. 205 .Fed^ 330, 30 A- B., E. 339 ; In re Levenstein,. 180 Fed; A. B. E. 921. ' ._. .. _ .., _ 957, 24 A._B; E, 822. §1449] The Discharge of the Bankbupt 1049 In a recent well-considered case, the twelve-month period was held to date from one month after the adjudication and not from the adjudication.^^ In computing the time within which the application may be filed the day on which the bankrupt was adjudicated should be excluded. Where the last day of the period falls on Sunday or a holiday the application may be filed on the following day.^® An adjudication will not be opened after the expiration of the eighteen-month period to allow the bankrupt to apply for a discharge where there are no allegations of fraud, mistake, or error in the adjudication.^'^ Where the application is filed more than twelve months after an adjudication, but without leave and without a showing of unavoidable delay, leave will not. be granted nunc pro tunc, if prayed for after the expiratioifi of the period of eighteen months fixed by law.^* Under the act of 1867 it was held that whatever be the showing of unavoidable >delay in the filing of the application for discharge, it had to be made before the' administration of the estate was completed and the trustee discharged,^^ though in view of the clear terms oT the present statute that would not now be true. The provisions of this clause apply both to involuntary and voluntary bankrupts.^" The discretion vested in the judge in allowing a petition filed more than a year after adjudication is a judicial one, and not a discretion of an arbitrary nature.^"^ The words "unavoidably prevented" should be given a broad interpretation, so as to empower the court,, in the exercise of its discretion, to grant an ■application for an extension of time whenever it appears that his failure to file his application was due to excusable neglect, mistake, reliance upon ^dvice of counsel, and the like, andiaot merely where such failure was due to physical obstacles, or otter 25— In re Walters, 209 Fed. 133^ 31 29— In re Brightman, 15 N. B. E. 213, A. B. B. 565. 14 Blatch. 130, Fed. Gas. No. 1878; In 26— Section '31a, Act of 1898; In re re Cross, 16 N. B. E. 294, Fed. Cas. NO. Holmes, 165 Fed. 225, 21 A. B. E. 339; 3427. In re Lang, 2 N. B. E. 151, Fed. Cas. 30— In x,e Clark, 3 N. B. E. 3, 2 Bias. No. 8056. 73, Fed. Cas. No. 2800; In re Bunster, 27— In re Morse, 168 Fed. 157, 21 A. 5 N. B. E. 82, 5 Ben. 242, Fed. Cas. No. B. E. 709. 2136. 28— In re Wagner, 139 Fed, 87, 15 A. , 31— In re Lewin, 135 Fed. 252, 14 A. B. E. 100; In re Wolff, 100 Fed. 430, 4 B. B. 358. : - A. B. E, 74. : - . .; . ; ,v; .<: 1050 Beandenbxteg on Bankbuptcx [§ 1449 facts or circumstances which literally deprived the bankrupt of his will or power to exercise his right.^^ Inadv.ertance of the bankrupt's attorney^* or an erroneous notice from the referee that the time for the filing of the application expires on a certain date does not, in all cases, however, excuse a failure to file the same within the proper time. 'It is the duty of the bankrupt to take notice of the date of the adjudication and see that the application is filed within a year from such date,^* and no exten- sion should be allowed where he could have avoided default by ordinary diligence or attention.^^ While poverty of the bank- rupt and sickness in his family during the year after the adjudication may be a sufficient excuse,^® an allegation that the bankrupt deferred filing his petition for a discharge until l^te in th&year when sickness in the family prevented him from filing it has been held not to be warrant relief.^^ An application for an extension of time within which to file an application for a discharge may be entertained not only ex- parte, but in such summary and informal manner as may be proper and convenient. No notice to creditors is required.** The application may be made through an attorney,*" and requires no answer.*" It is the duty of the bankrupt to appear at the hearing of his application for an extension of time,- and the burden is upon him to show that he has been unavoidably prevented from filing the petition within the statutory time. The exparte averments of his petition are not admissible as evi- dence in support thereof.*^ A creditor waives his objection to an order extending the time within which to file an application for discharge by filing specifications of objections to the discharge,*^ or by failing to move for a vacation of the order until after the eighteen-month 32— In re ChurcUill, 197 Fed. Ill, 28 38— In re CSiurchill, 197 Fed. Ill, 28 A. B. B. 607. A. B. R. 607; In re Fritz, 173 Fed. 560, 33— In re Anderson, 134 Fed. 319, 14 23 A. B. R. 84. A. B. E. 221. 39— In re Fritz, 173 Fed. 560, 23 A. B. 34— In re Knauer, 133 Fed. 805, 13 R. 84. A. B. R. 503. 40— In re Gliekman & Pisnoff, 164 Fed. 35— In re Daly, 205 Fed. 1002, 30 A. 209, 21 A. B. E. 171. B. R. 475. 41— In re Gliekman & Pisnoff, 164 36— In re Casey, 195 Fed. 322, 28 A. Fed. 209, 21 A. B. E. 171. ^ B. E. 359. 42— In re Casey, 195 Fed. 322, 28 A. 37— In re Lewin, 135 Fed. 252, 14 A. B. E. 359. B. E. 358. An order extending the time to file the §1450] The Discharge of the Bankbtjpt 1051 period in which an application for discharge may be filed has expired.*^ Proceedings to vacate an order permitting the fil- ing of the application after the expiration of a year are of a special character, analogous to a proceeding to vacate service of process, and any error or irregularity in permitting the filing of the application within the enlarged time will be deemed waived where the objecting parties have filed an answer to the merits.** § 1450. — Notice to creditors. Prior to the amendment of 1910, a creditor was entitled merely to ten days' notice of the hearing upon the application for a discharge, and it was held that notice to creditors of the appli- cation for leave to apply for a discharge, or for an extension of time for such application was unnecessary arriple notice of the hearing upon the application being insured them.*^ Under the amendment, however, creditors are entitled to at least thirty days' notice of the application for discharge.** As they may examine the bankrupt to discover whether he has complied with the statute in order to entitle him to a discharge, to avoid extra expense and delay, the notice of application for discharge should contain a notice also of his examination, but only one such examination should be had.*'^ While the official form ** requires copies of the petition and order to accompany the notice of application for discharge, it is not to be treated as a "certified copy of the record" for the purpose of fees.*^ Where notice has been given to creditors they are regarded as "consenting if they make no opposition.^" It has been held that a court of bankruptcy has jurisdiction to grant a discharge, even though there may be creditors not regularly brought before it by the service of notice; ^^ and that it is not necessary to give application for a discharge cannot be 47 — In re Price, 1 N. B. N. 131, 1 A. reviewed on the hearing of the speeiflea- B. E. 419, 91 Fed. 635. tions of objections to the discharge. Id. 48 — Oflacial Form No. 57, § 1824, post. 43— In re Casey, 195 Fed. 322, 28 A. 49— Anon., 1 N. B. N. 239. B. K. 359. ' 50— In re Antisdel, 18 N. B. E. 289, 44— In re Churchill, 197 Fed. Ill, 28 Fed. Cas. No. 480. A. B. E. 607. 51— Thurmond v. Andrews, 13 N. B. 45— In re Fritz, 173 Fed. 560, 23 A. B. E. 157. E. 84. 46 — Section 58a as amended June 25, 1910. 1052 Beandenbueg on Bankeuptct [§ 1450 jurisdiction to sncli court that creditors have actual notice, or personal service, and that the lack of it will not vitiate a dis- charge, if the requirements of the act were honestly complied with.^^ So it is held that a discharge is conclusive in the absence of fraud, and cannot be impeached collaterally by a creditor who had no notice.^^ Creditors are bound by the proceedings in distribution on notice by publication and mail, and when juris- diction has attached and been exercised to that extent, the court has jurisdiction to make its decrees of discharge or otherwise, if sufficient opportunity to show cause to the contrary is afforded, or notice given in the same way.^* When the bankrupt furnishes a list of creditors but states th^t their addresses are unknown, before the discharge is granted, satisfactory proof should be adduced to show that the same cannot be produced after due search has been made.^^ §1451. —Withdrawal. The application for a discharge cannot be withdrawn after the opposing creditors have proceeded to a hearing thereon and practically closed their case.^® § 1452. — Dismissal. The dismissal of an application for a discharge is in effect the denial of a discharge.®'^ Hence an application for a discharge will not be dismissed because of dilatory tactics used by the bankrupt in not bringing the issues raised by the creditor's speci- fications to a trial.^® § 1453. — Effect of failure to apply. The refusal of an application for discharge on the ground that it is not made within the prescribed period is not a bar to the ^ling of a new petition in bankruptcy ,^^ and the filing of a new 52— In re Fritz, 173 Ted. 560, 23 A. 56— In re Hensohel, 12 A. B. E. 31. Br E. 84; Hanover Nat. Bank v. Moysas, 57— In re Wolff, 132 Ted. 396, 13 A. 186 U. S. 181, 46 L. ed. 1113, 8 A. B. E. B. E. 95. 1 ; Eayl v. Lapham, 15 N. B. R. 508. 58— In re Wolff, 132 Fed. 396, 13 A. 53— Williams v. Butcher, 12 N. B. R. B. E. 95. 143; Eayl y. Lapham, 15 N. B. E. 508. 59— In re Wolff, 132 Fed. 396, 13 A. 54— Hanover Nat. Bank v. Moyses, 186 B. E. 95; In re Farrell, 5 N. B. E. 125, XT. S. 181, 46 Ij. ed. 1113, 8 A. B. E 1. Fed. Cas. No. 4680; In re Eoyal, 113 Fed. 55— In re Dvorak, 1&7 Fed. 76, 6 A. 140, 7 A, 3;. E. 636.- .'- :. B. R. 66 _ : § 1454] The Disohabqb of the Bankbupx 1053 petition under such circumstances constitutes an abandonment of the first petition, so that the court will have jurisdiction, which is also conferred where the first petition is withdrawn."" In such subsequent proceedings a discharge may be granted as to new debts," ^ but not as to debts which were scheduled and provable in the former proceedings'."^ The fact that a cred- itor proves his claims in the second proceeding does not estop him to set up the fact that the bankrupt failed to apply for a discharge in a prior proceeding in which his claim was prov- able,"^ especially where in the later proceedings there are no assets and no benefit can possibly result to the creditor."* The proper proceeding in such case is to restrain the bank- rupt from applying for a discharge from the debts provable in the former proceedings. § 1454. Who may oppose discharge. "Parties in interest" which would include any person having a personal pecuniary interest, or a representative pecuniary interest in preventing the discharge,"^ and creditors scheduled by the bankrupt, without regard to whether, or not, they had proved their claims,"" or their assignee,"'^ raay oppose a dis- charge. This is unlike the act of 1867, under which it was a disputed point whether a creditor who had not proved his debt could be heard in opposition to the discharge of the bankrupt,"* 60— In re White, 18 N. B. E. 106, Fed. 711 ; Bacon v. Buffalo Cold Storage Co., Cas. No. 17533; In re Svenson, 19 N. 193 Fed. 34, 27 A. B. E. 736. B. B. 229, 9 Bias. 69, Fed. Cas. No. 63— -In re Collins, 157 Fed. 120, 19 A. 13659. B. E. 688. 61— In re PuUian, 171 Fed. 595, 22 A. 64^-Bacon v. Buffalo Cold Storage B. E. 513. Co., 193 Fed. 34, 27 A. B. E. 736. 62— In re Pullian, 171 Fed. 595, 22 A. 65— In re Levey, 133 Fed. 572, 13 A. B. E. 513; In re KufBer, 168 Fed. 1021, B. E. 312; see also In re Carton & Co., 22 A. B. E. 289, aff'g 155 Fed. 1018, 19 148 Fed. 63, 17 A. B. E. 343. A. B. E. 181; In re Blby, 157 Fed. 935, 66— In re Conroy, 134 Fed. 764, 14 19 A. B. E. 734; In re Schnable, 166 Fed. A. B. E. 249; In re Nathanson, 155 Fed. 383, 23 A. B. E. 22; In re Bramlett, 161 645, 19 A. B. E. 56; In re Frioe, 1 N. B. Fed. 588, 20 A. B. E. 402; In re Silver- N. 432, 2 A. B. E. 674, 96 F«d. 611. " man, 157 Fed. 675, 19 A. B. E. 460 ; In 67 — One to whom a claim listed in the re Kuffler, 151 Fed. 12, 18 A. B. E. 16; bankrupt's schedules has been assigned In re Stone, 172 Fed. 947, 23 A. B. E. after bankruptcy may oppose the dis- 24; In re Von Berries, 168 Fed. 718, 21 charge although the claim has not been A. B. E. 849; In re Eichter, 190 Fed. proved. Haley v. Pope, 206 Fed. 266, 30 905, 27 A. B. E. 215; Kuntz v. Young, A. B. E. 644. 131 Fed. 719, 12' A, B. R. 505; In re ...68— In re Murdock, 3 N. B. E. 36, 1 Weintraub, 133 Fed.- -1900,. 13 A. B. E. Lowell, 362, Fed. Cas. No. 9939; la re 1054 Beandenbueg on Bankeuptcy [§ 1454 but is in accord with the act of 1841, which was, in this respect, worded similarly to that of the act of 1898, since it referred to "other parties in interest," and under which it was held that creditors who had not proved their debts might oppose the dis- charge,®^ and even persons having contingent claims incapable of proof. It would seem that if such party in interest neglected to prove his objections, other creditors might do so.'^" An objec- tion that a creditor is not entitled to oppose bankrupt's discharge because of acquiescence is immaterial, if the facts sustain such ground; '^^ but a creditor who has without fraud assented in writing to the discharge of the bankrupt and thereby influenced others to assent cannot withdraw such assent, espe- cially upon the day fixed for the hearing J ^^ The fact that a person has been scheduled by the bankrupt as a creditor is prima facie evidence of his right to oppose the discharge.''^ A creditor whose claim will not be affected by the discharge is not a party in interest.'^* An attorney at law admitted to practice in the United States district court who enters his appearance and files objections to the discharge, on behalf of a creditor, must be presimied to have authority to do so without any special written power of attor- ney to take such action.^* It has been held, however, that power to attend and vote does not authorize the filing of objections to a discharge.''^ By the amendment of 1910 the trustee is expressly authorized to oppose a discharge provided he is authorized to do so at a meeting of creditors called for that purpose,''® by the court or Sheppard, 1 N. B. E. 115, Fed. Cas. No. 71 — In re Hoffman, 2 N. B. N. E. 969, 127S3; In re Boutelle, 2 N. B. E. 51, 102 Fed. 979, 4 A. B. E. 331. Fed. Cas. No. 1705; In re Stansfield, 16 71a — In re Brent, 8 N. B. E. 444, 2 N. B. E. 268, 4 Sawy. 334, Fed. Cas. No. DiU. 129, Fed. Cas. No. 1832. 13294; In re Burk, 3 N. B. E. 76, Deady, 72— In re Barrager, 191 Fed. 247, 27 425, Fed. Cas. No. 2156; In re Palmer, 3 A. B. E. 366. N. B. E. 77, Fed. Cas. No. 10682; In 73— In re Servis, 140 Fed. 222, 15 A. re Borst, 11 N. B. E. 96, Fed. Cas. No. B. E. 271. 1666. 74— In re Gasser, 104 Fed. 537, 5 A. B. 69— In re Book, 3 McLean, 317 Fed. E. 32; contra. In re Glass, 119 Fed. 509, Cas. No. 1637. > 9 A. B. E. 391. 70— In re Guilbert, 154 Fed. 676, 18 75— Creditors v. Williams, 4 N. B. E. A. B. E. 830; In re Houghton, 10 N. B. 187, Fed. Cas. No. 3379. E. 337, 2 Lowell, 328, Fed. Cas. No. 76— Section 14b, Act of 1898 as 6730; contra. In re McDonald, 14 N. B. amended June 25, 1910; In re Churchill, E. 477, Fed. Cas. No. 4753. 197 Fed. 114, 28 A, B. E. 603; See also § 1456] The Dischabge of the Bankbupt 1055 referee.'^^ Where such authority from the creditors exist, his right to oppose the discharge and to be given a reasonable oppor- tunity to be heard is absolute, and conditions annexed to his right by the referee or court are unwarranted. The referee can- not impose a condition denying to the trustee reimbursement for his costs and reasonable expenses in exercising the authority given to him by the creditors/* or a condition that the order granting to the trustee authority to oppose the discharge shall not delay the final settlement of the estate more than sixty days.'^s § 1455. Specification of objections. §1456. —Necessity. Whenever the objections to the granting of a discharge rest on facts, there must be a specification in order that the bankrupt may be advised of what he is accused, the judge or referee know to what the testimony is to be directed and a trial of the fact be had,*" but until the bankrupt has made a full and sufficient dis- closure, the trustee or creditors cannot be required to specify objections or definitely abide by objections which have been specified.*^ When proper notice has been given to creditors, they are regarded as consenting to a discharge, if they make no opposition. Similarly, where it appears that the bankrupt has committed an act that, if properly pleaded, will bar a discharge, it has been held the court will not of its own motion refuse it.®? Where a creditor with a provable debt, who has notice of the application fails to appear at the hearing, his debt will be dis- charged though the bankrupt has in a prior proceeding in which the debt was scheduled been denied a discharge upon objection of the creditor.** In re Levey, 133 Fed. 572, 13 A. B. E. 81— In re Long, 3 N. B. E. 66, Fed. 312, decided prior to the amendment. Cas. No. 8477. 77— In re Hookman, 205 Fed. 330, 30 82— In re Antisdel, 18 N. B. E. 289, A. B. E. 921; In re EeifE, 205 Fed. 399, Fed. Cas. No. 490; In re CSark, 19 N. B. 29 A. B. E. 753. E. 301, Fed. Cas. No. 2812 ; contra, In re 78— In re Churchill, 197 Fed. 114, 28 Sohoo, 3 N. B. E. 52, Fed. Cas. No. 13162. A. B. E. 603. 83— Bluthenthal v. .Tones, 208 U. S. 64, 79— In re Churchill, Id. 52 L. ed! 390, 19 A. B. E. 288, aff 'g 51 80— In re 'White, 18 N. B. E. 106, Fed. Fla. 396. Cas. No. 17533; see In re Adams, 104 Fed. 72, 2 N. B. N. E. 1034, 4 A. B. E. 1056 Beandenbueg on Bankeuptcy [§ 1456 When tlie objection to a discliarge is based on questions of law, or arising in the record., it has been held that no specifica- tion is necessary. A court will refuse a discharge wbere it appears, upon an inspection of the record, that the bankrupt is not entitled thereto, although there are no objections inter- posed by creditors,®* but if all the modal prerequisites to a discharge have been complied with, a court will not seek out of its own motion grounds to refuse it.*^ § 1457. — Objections by partnership. Where a partnership which .is the only objecting creditor becomes dissolved the discharge will be granted unless all the partners joiij in continuing the objections.*® § 1458. — Time of filing specifications. , General Order XXXII gives to the creditor the entire day upon which the creditors are required to show cause to enter his appearance in opposition to the discharge, and ten days there- after in which to file his specifications of objections.*'^ A failure of a creditor to enter an appearance on the return day of the order to show cause why the bankrupt shall not be granted a discharge precludes him from thereafter filing specifications of objections, even though they be filed within ten days,** but the court may, in its discretion and in a proper case, relieve a person from default if no laches appear,*^ ot permit amended ^^ specifi- cations to be pleaded after the expiration of that time.^^ The failure to file the specification within ten days after the return day of the order to show cause would probably be cured by filing the same nunc pro tunc, provided notice of opposition to the " 84— In re Wilkinson, 3 N. B. B..74, McVey, 2 N. B. R. 85, Fed. Cas. No. Fed. Cas. No. 17667; InreSotoo, 3K B. 8932. - • E. 52, Fed. Cas. No. 13162. 88— In re Ginsburg, 130 Fed. 627, 12 85— In re Hixon, 1 N. B. N. 556, 1 A. A. B. B. 459. B. E. 610, 93 Fed. 440 ; In re Eoyal, 113 89— In re Levin, 176 Fed. 177, 23 A. Fed. 140, 7 A B. E. 636. B. R. 845; In re Frioe, 1 N. B. N. 432, 86— In re Hendriek, 143 Fed. 647, 16 2 A. B. R. 674, 96 Fed. 611. A. B. E. 218. 90— In re Mudd, 2 N. B. N. R. 1112, 87— In re Barrager, 191 Fed, 247, 27 5 A. ,B. R. 242, 105 Fed. 348; In re A. B. R. 366; In re Marsh, 2 N. B N. Osborne, 115 Fed. 1, 8 A. B. R. 165. E. 649; In re Albrecht, 3 N. B. N. R. 91^In ie. Morgan, 2 N. B. N. R. 846, 335, 104 Fed. 974, 5 A. B. R. 223; In re 101 Fed. 982, 4 A. B. E. 402. §1460] The Dischabob of the Bankrupt 1057 discharge had been duly filed,®* or even where it has not been,®' especially in view of the power of the court to enlarge the time; and, if proceedings in opposition to discharge are adjourned, this would seem to give other creditors the right to file specifica- tions during the period of adjournment.®* Additional time in which to oppose a discheirge may be procured by creditors, when specificat^ns of another creditor have been overruled on grounds applying to him alone.®* . On motion, specifications will be stricken out, if no appearance is made on the order to show cause,®* or if filed or amended ®'^ after the prescribed time without leave of court, or nd valid excuse is given for the delay.®® § 1459. — With whom filed. It has been held that objections to the bankrupt's discharge must be filed with the court and not with the referee.®® § 1460. — Form and sufficiency. Specifications should be clear, positive and direct,^ and should distinctly allege the particular grounds relied upon to defeat the discharge, so as to advise the bankrupt of the grounds relied upon, in order that he may prepare to meet the same, and to advise the court of the issue to be tried,^ and should show how the objecting party is interested,^ and, if a creditor, that he has a provable debt affected by a discharge,* and allege freedom from laches.* They must contain a distinct, specific and unequiv- ocal allegation that the offense complained of has been 92— In re Marsh, 2 N. B. N. E. 649; 99— In re Hockman, 205 Fed. 330, 30 In re Friee, 1 N. B. N. 432, 96 Fed. 611, A. B. E. 921. 2 A. B. E. 674; In re Grefe, 2 N. B. E. 1— In re Griffin Bros., 154 Fed. 537, 19 106, Fed. Cas. No. 5794. A. B. E. 78. 93— In re Levin, 14 N. B. E. 385, 7 2— In re Sends, 140 Fed. 222, 15 A. Bisa. 231, Fed. Cas. No. 8291. B. E. 271. 94— In re Tallman, 1 N. B. E. 145, 3— In re Servis, 140 Fed. 222, 15 A. B. 2 Ben. 404, Fed. Cas. No. 13740. E. 271; In re Levey, 133 Fed. 572, 13 95— In re Antisdel, 18 N. B. E. 289, A. B. E. 312. Fed. Cas. No. 490. 4— In re Main, 205 Fed. 421, 30 A. B. 96— In re Smith, 5 N. B. E. 20, Fed. E. 547. Cas. No. 12985. 5— In re Griffin Bros., 154 Fed. 537, 19 97— In re Qothier, 108 Fed. 199, 6 A. A. B. E. 78. B. E. 203. 98— In re Albreeht, 104 Fed. 974, 5 A. B. B. 223. Brandenburg— 67 1058 Bbandenbxjeg on 'Bankruptcy [§ 1460 committed by the bankrupt knowingly and with fraudulent intent,® in or subsequent to the verification of the petition or schedtiles, and also a full statement of the essential facts, as distinguished from conclusions of law,'^ necessary to establish the commission of the offense, though not necessarily with the technical certainty required in an indictment.* While the allega- tion need not be in the phraseology or words of theitftatute, it must be in such 'equivalent language as conveys the full sense of the statute, and leaves nothing to inference or construction, for each specification must be complete in itself and independent of support from any other source.* A specification in vague, indefinite or general terms is insufficient." A substantial compliance with the form provided " is suffi- cient. ^^ .: 6— In re Griffin Bros., 154 Fed. 537, 19 A. B. B. 78; In re Levey, 133 Fed. 572, 13 A. B. E. 312; In re Taplin, 135 Fed. 861, 14 A. B. E. 360; In re Eoger Brown & Co., 196 Fed. 758, 28 A. B. E. 336; In re Beebe, 116 Fed. 48, 8 A. B. E. 597; In re Mudd, 105 Fed. 348, 5 A. B. E. 242; In re Blaloek, 118 Fed. 679; In re Crist, 9 A. B. E. 1, 116 Fed. 1007, In re Bemis, 5 A. B. E. 36, 104 Fed. 672; In re Pierce, 103 Fed. 64, 4 A. B. E. 554; but see In re Gift, 130 Fed. 230, 12 A. B. E. 244. 7— In re Main, 205 Fed. 421, 30 A. B. E. 547; In re Jacob Nathanson, 155 Fed. 645, 19 A. B. E. 56; In re Eemmers, 713 Fed. 484, 23 A. B. E. 78; In re Griffin Bros., 154 Fed. 537, 19 A. B. E. 78; In re Goodale, 109 Fed. 783, 6 A. B. E. 493. 8— In re Magen Bros. Co., 192 Fed. 883, 27 A. B. E. 729. 9— In re Mudd, 2 N. B. N. E. 1112; In re Pierce, 102 Fed. 977, 4 A. B. E. 489; In re Hunter, 2 N. B. N. E. 490; In re Marsh, 2 N. B. N. E. 649; In re Kaiser, 2 N. B. N. E. 123, 99 Fed. 689, 3 A. B. E. 767.; In re Headley, 2 N. B. N. E. 684; In re Peacock, 2 N. B. N. E. 758, 101 Fed. 560, 4 A. B. E. 136; In re Hirsch, 96 Fed. 468, 2 A. B. E. 715; In re Holman, 1 N. B. N. 552, 1 A. B. E. 600, 92 Fed. 512; In re McGurn, 2 N. B. N. E. 877, 4 A. B. E. 459, 102 Fed. 743; In re Thomas, 1 N. B. N. 329, 1 A. B. E. 515, 92 Fed. 912; In re Polakoff, 1 N. B. N. 232, 1 A. B. R. 358; In re But- terfield, 14 N. B. E. 147, 5 Biss. 120, Fed. Cas. No. 2247; In re HUl, 1 N. B. R. 42, 2 Ben. 136, Fed. Cas. No. 6482; In re Freeman, 4 N. B. N. E. 71, 4 Ben. 245, Fed. Cas. No. 5082;, In re Graves, 24 Fed. 550; In re Hixon, 1 N. B. N. 326, 566, 93 Fed. 440, 1 A. B. E. 610; In re Eath- bone, 1 N. B. E. 50, 2 Ben. 138, Fed. Cas. No. 11580; In re Eidom, 3 N. B. E. 27, Fed. Cas. No. 4314. 10— In re Troeder, 150 Fed. 710, 17 A. B. E. 723; In re Shepherd, 2 N. B. N. E. 1020; In re Holman, 1 N. B. N. 552, 1 A. B. E. 600, 92 Fed. 512; In re Hixon, 1 N. B. N. 326, 556, 1 A. B. E. 610, 93 Fed. 440; In re Tyrrel, 2 N. B. E. 73, Fed. Cas. No. 14314; In re HiU, 1 N. B. E. 42, 2 Ben. 136, Fed. Cas. No. 6482; In re Beardsley, 1 N. B. E. 52, Fed. Cas. No. 1183; In re Hansen, 2 N. B. R. 75, Fed. Cas. No. 6039; In re Dreyer, 2 N*. B. E. 76, Fed. Cas. No. 4082; In re McVey, 2 N. B. E. 85, Fed. Cas. No. 8982; In re Eosenfield, 1 N. B. E. 161, Fed. Cas. No. 12058; In re Smith, 5 N. B. E. 20, Fed. Cas. No. 12985; In re Blaloek, 118 Fed. 679; In re Crist, 116 Fed. 1007, 9 A. B. R. 1. 11— Official Form 58, § 1827, post. 12— In re Nathanson, 155 Fed. 645, 19 'A. B. E. 56. §1460] TflE DiSCHABGE OF THE Bankbupi 1059 A specification in the language of the statute and covering non-keeping, concealment or destruction of books of account without specifying whether the charge is destruction, conceal- ment, or a failure to keep books of account, is sufficient.^^ Sq, it is held that; though a specification which charges that the bankrupt has failed to keep books of account from which his true condition may be ascertained is too indefinite, it not appear- ing whether an utter failure to keep books, or merely an improper keeping thereof is intended to be charged, it will be held sufficient where the bankrupt testifies that he kept no books of account.^* A specification alleging the cancellation of checks by the bankrupt with intent to conceal his financial condition is not insufficient because not alleging the date the same were drawn.^" A specification which charges that books were kept with an intent to conceal the bankrupt's financial condition is insufficient to prevent a discharge for failure to keep any books whatever.^® A specification charging concealment, removal, alteration and destruction of books and papers without averring fraudulent intent, is insufficient.^'' A specification relying on a false oath as an objection to the discharge should show wherein the bankrupt made a false oath.^* A specification which merely alleges that he swore falsely that he was indebted to a creditor named in his schedule and did not disclose to his trustee that the claim was false and fictitious, without alleging that he knew the claim was false,^* or that the bankrupt swore that the schedules contained a full and true list of the creditors and assets and that it appears bankrupt did not know whether the schedule was complete or not,^" is insufficient. A specification alleging the obtaining of credit upon a materi- 13— Godshalk Co. v. Sterling, 129 Fed. le— In re Halsell, 132 Fed. 562, 13 A. 580, 12 A. B. E. 302; In re Patterson, B. E. 106. 121 Fed. 921,. 10 A. B. E. 371; In re 17— In re Bradin, 179 Fed. 768, 24 Ginsburg, 130 Fed. j627, 12 A. B. E. 459; A. B. E. 793; In re Cordiek, 19 N. B. E. in re Magen Bros. Co.,. 192. Fed. 883, 27 142, Fed. Cas. No. 3094, but see In re A. B. E. 729; In re Brod, 166 Fed. 1011, Eandall, 159 Fed. 298, 20 A. B. E. 305. 21 A. B. E. 426; contra. In re Milgraum 18 — In re Ginsburg, 130 Fed. 627, 12 & Ost, 129 Fed. 827, 12 A. B. R. 306. A. B. R. 459. 14r^In re Lewis, 163 Fed. 137, 20 A. 19— In re Blumenthal, 18 N. B. B. 355, B. R.. 711. Fed. Cas. No. 1576. 15— Godshalk Co. v. Sterling, 129 Fed. 20— In re White, 1 N. B. N. 202. 580, 12 A. B. E. 302. . : , . . 1060 Beandenbtteg on Bankeuptct [§1460 ally false statement in writing should contain at least the substance of the alleged false statement,^^ and the names of the persons alleged to have been defrauded.^^ A general averment that a financial statement set forth in full in the specification is false, without alleging wherein it was false, presents no issuable fact/3~ Property alleged to have been transferred, removed, destroyed and concealed should be specified.^* A specification that the bankrupt has offered to surrender all his property and that he is withholding property from his creditors; *' or that he has concealed part of his effects from the court, or has in contempla- tion of bankruptcy made payments, transfers and assignments preferring a creditor; ^® or that he has omitted property from his schedule willfully,^'' or with fraudulent intent;^® or charg- ing concealment of assets without alleging fraudulent iutent,^^ is insufficient. Although a specification shows concealment prior to the four- month period, if it is so drawn as to raise the question whether the offense is continuing, it is sufficient.^* In a case where no trustee was appointed a specification of objection that the bankrupt had concealed property "from his estate in bankruptcy" instead of "from his trustee," has been held insufficient.^^ 21r— In re Levey, 133 Fed. 572, 13 A. Hm, 1 N. B. R. 42, 2 Ben. 136, Fed. Cas. B. E. 312; Godshalk Co. v. Sterling, 129 No. 6482; In re Freeman, 4 N. B. E. 71, Fed. 580, 12 A. B. E. 302. 4 Ben. 245, Fed. Cas. No. 5082; In re 22 — In re Levey, 133 Fed. 572, 13 A. Graves, 24 Fed. 550; In re Hixon, 1 N. B. B. E. 312. N. 326, 556, 1 A. B. E. 610, 93 Fed. 440. 23— In re Main, 205 Fed. 421, 30 A. 27— In re Keefer, 4 N. B. E. 126, Fed. B. E. 547; Cas. No. 7636; In re Hummitseh, 2 N. B. 24— Godshalk Co. v. Sterling, 129 Fed. E. 3, Fed. Cas. No. 6866. 580, 12 A. B. E. 302; In re Ginsburg, 28— In re Adams, 2 N. B. N. E. 1034, 130 Fed. 627, 12 A. B. E. 459. 104 Fed. 72, 4 A. B. E. 696. Specification held sufficiently specific. 29 — In re Griffin Bros., 154 Fed. 537, In re Milgraum & Ost, 129 Fed. 827, 12 19 A. B. E. 78; In re Condict, 19 N. B. A. B. E. 306; In re Magen Bros. Co., E. 142, Fed. Cas. No. 3094; contra. In re 192 Fed. 883, 27 A. B. E. 729. Gift, 130 Fed. 230, 12 A. B. E. 244. 25— In re Hirsoh, 96 Fed. 468, 2 A. B. 30— In re McCann Bros., 171 Fed. 266, R. 715. 22 A. B. E. 557. 26— In re Butterfield, 14 N. B. E. 147, 31— In re Adams, 171 Fed. 599, 22 A. 5 Bisa. 120, Fed. Cas. No. 2247; In re B. E. 613. §1462] The Dischaege of the Bankeupt 1061 § 1461. — Plea to spediications. While no pleading by the bankrupt is necessary when speci- fications in opposition to his discharge are filed, the specifications not being confessed by failure to answer ^^ but proof thereof being necessary."* Yet, if there is reason to do so, the bankrupt may demur, seek by motion or exception the relief desired, or answer.** Where the specification affirmatively shows that the party making the same is not a party in interest and will not be affected by the discharge,*^ or fails to allege any fact barring a discharge,*® it will be disregarded though not excepted to by the bankrupt. The right to object to a defective specification is waived if the objection is not raised at the proper time.*''' If the objections to the specification be insufficient in law, they will be overruled.** § 1462. — Amendment. If the specifications be insufficient they may be amended,*® provided there be no laches,*" though not after the evidence has been taken, to include a new charge,*^ nor unless the party can specify facts, and his failure to be specific is excusable.*^ An amendment presenting a new issue will not be allowed where the time for filing original specifications has expired,** though where the amendment merely amplifies, makes more definite, 32— In re Crist, 116 Fed. 1007, 9 A. 160 Fed. 991, 20 A. B. E. 398; In re B. E. 1. Nathanson, 155 Fed. 645, 19 A. B. E. 56; 33— In re Logan, 102 Fed. 876, 2 N. In re" Mintzer, 197 Fed. 647, 28 A. B. B. N. E. 1056, 4 A. B. E. 525. E. 743; In re Hendriok, 138 Fed. 473, 14 34— In re Hendrick, 138 Fed. 473, 14 A. B. E. 795; In re Pierce, 102 Fed. 977, A. B. E. 795; In re Crist, 116 Fed. 1007, 4 A. B. E. 489; In re Quaekenbush, 2 N. 9 A. B. E. 1; In re Hendrick, 138 Fed. B. N. E. 964, 4 A. B. E. 274, 102 Fed. 473, 14 A. B. E. 795; In re Marsh, 2 N. 282; In re Hirsch, 96 Fed. 468, 2 A. B. E. B. N. E. 649; In re McNamara, 1 N. B. 715; In re Kaiser, 2 N. B. N. E. 123, N. 326, 2 A. B. E. 566. 99 Fed. 689; In re Glass, 119 Fed. 509; 35— In re Servis, 140 Fed. 222, 15 A. In re Mclntire, 1 N. B. E. 115, 2 Ben. B. E. 271. 345, Fed. Caa. No. 8823, 3 A. B. E. 767. 36— In re McCarthy, 170 Fed. 859, 22 40— Patten v. Carley, 117 Fed. 130, 8 A. B. E. 499. A. B. E. 720; In re Mudd, 105 Fed.. 348, 37— In re Osborne, 115 Fed. 1, 8 A. B. 5 A. B. E. 242. E. J 65. 41— In re Pierce, 102 Fed. 977, 4 A. 38— In re HoweU, 105 Fed. 594; In re B. E. 489. Crist, 116 Fed. 1007, 9 A. B. E. 1. 42— In re Hixon, 1 N. B. N. 326, 556, 1 39— In re Bradin, 179 Fed. 768, 24 A. B. E. 610, 93 Fed. 440. A. B. E. 793; In re Knaszak, 151 Fed. 43— In re Johnson, 192 Fed. 356, 27 A. 503, 18 A. B. E. 187; In re Wittenberg, B. E. 644. 1062 Beandenbueg on Bankbtjptcy [§ 1462 or makes specific objections which have already been filed, it may be allowed at the discretion of the court at any stage of the proceedings.** A specification fairly indicating the statutory ground upon which it rests may be amended to conform with the words of the statute,*^ but amendments will not be allowed where they amount to more than an enlargement. of the original specifica- tions,* ** nor where the original specifications contain no state- ment of fact but are merely in the language of the statute.*^ The application for leave to amend must be made to the judge and not to the referee,** and its grant rests in his sound dis- cretion.*® § 1463. — Signature and verification. It is no objection to a specification that it carries the signa- tures of more than one creditor.^" The specifications should be verified as to facts alleged,®^ but this may be done by the attorney of the creditor.^^ If signed or verified by counsel the reason should be stated.^* The afiS- dayit,need not be in the exact language of the official form,^* and is sufficient if it states that the allegations are true to the best of the affiant's knowledge, information and belief. ^^ The want of verification being a mere irregularity may be sup- 44— In re Nathanson, 152 Fed. 585, 18 50— In re Milgraum & Ost, 129 Fed. A. B. E. 252; In re Morgan, 2 N. B. N. 827, 12 A. B. E. 306. E. 846, 101 Fed. 982, 4 A. B. E. 402; In 51— In re Brown, 112 Fed. 49, 7 A. B. re Johnson, 192 Fed. 356, 27 A. B. E. E. 252; see In re Baemcopf, 117 Fed. 644; In re Knaszak, 151 Fed. 503, 18 A. 975, 9 A. B. E. 133; In re Glass, 119 Fed. B. E. 187. 509, 9 A. B. E. 391. 45— In re Weston, 206 Fed. 281, 30 A. 52— In re Milgraum & Ost, 129 Fed. B. E. 647. 827, 12 A. B. E. 306. 46— In re Gift, 130 Fed. 230, 12 A. B. 53— In re Baerneopf, 117 Fed. 975, 9 E. 244. A. B. E. 133; In ra Eandall,^ 159 Fed. 47— In re Bromley, 152 Fed. 493, 18 A. 298, 20 A. B. E. 305. B. E. 227. 54^0fficial Form 3, § 1683, post; In re 48 — In re Headley, 2 N. B. N. E. 684; Nathanson, 155 Fed. 645. 19 A. B. E. 56. In re Kaiser, 2 N. B. N. E. 123, 99 Fed. 55— In re Milgraum & Ost, 129 Fed. 689, 3 A. B. E. 767; In re Leszynsky, 2 827, 12 A. B. E. 306. N. B. N. E. 738. 49— In re Mudd, 105 Fed. 348, 5 A. B. E. 242. § 1466] The Dischabge of the Bankeupt 1063 plied nunc pro tuncj^** and cannot be objected to after the testimony has been taken."'' § 1464. Hearing an application. §1465. — Motion for hearing. The bankrupt must move for a hearing a reasonable time after his application for a, discharge is filed."® § 1466. — Powers and duties of referee or special master. In matters relating to an application for a discharge the judge only has power to determine them finally,"® but he may refer the application, or any issue thereon, on his own motion or upon the petition of the bankrupt, trustee, or creditors,®" to the referee or a special master to ascertain and report the facts, and state his conclusions of law,®^ and before doing so' should dispose of any technical objections. A referee cannot decide any questions relating to the right to a discharge until the matter has been referred to him by the judge,^^ and his report on the right to a discharge should not be made until the examination of the bank- rupt made to discover assets is formally closed,"^ though it is held that the taking of testimony by the referee before return- ing the petition for a discharge and the specifications in opposition thereto to the court is an irregularity which may be waived.^* The refferee should pass on all grounds of objection to a dis- 56— In re Hanna, 168 Fed. 238, 21 A. 59— In re Elby, 157 Fed. 935, 19 A. B. B. E. 843; In re Meurer, 144 Fed. 445, E. 734; In re Johnson, 158 Fed. 342, 19 15 A. B. E. 823; In re MUler, 192 Fed. A. B. E. 814. 730, 27 A. B. E. 606; In re Gift, 130 Fed. 60— In re Sykes, 106 Fed. 669, 6 A. B. 230, 12 A. B. E. 244; In re Wolfstein, 1 E. 264. N. B. N. 202. 61— In re Steed, 107 Fed. 682, 6 A. B. 57— In re Baerncopf, 117 Fed. 975, 9 E. 73; but see In re Brockman, 168 Fed. A. B. E. 133. 1015, 21 A. B.E. 251; In re Bookman, Whether failure to verify s.peeifications 205 Fed. 330, 30 A. B. E. 921. may be waived by failure to object 62— In re Eandall, 159 Fed. 298, 20 quaere. In re Main, 205 Fed. 421, 30 A. A. B. E. 305. B. E. 547. 63— In re Johnson, 158 Fed. 342, 19 A. 58— Lindeke V. Converse, 198 Fed. 618, B. E. 814. 28 A. B. E. 596. 64— In re Goodhile, 130 Fed. 471, 12 Delay of five months held unreasonable. A. B. E. 380. Id. 1064 Bbandenbubg on Bankbuptoy [§ 1466 charge, so as to prevent tlie necessity of sending the case back, if he is not upheld in his conclusions on particular charges.®® A referee or special master is authorizd to rule upon the suffi- ciency of the specifications of objections and will not take evidence upon such as are clearly insufficient; but the applica- tion for discharge must be heard and finally determined by the court of bankruptcy.®* It is the duty of the special master to take and report the evidence in aid of the court, and return the same, together with the rulings as to its admissibility. He may reserve his decision as to the Admissibility of testimony.®'' The referee has no authority to dismiss the proceedings upon determining that the bankrupt is not entitled to a discharge.®* The referee may call a meeting of creditors to authorize the trustee to interpose objections to a discharge, but the notice of the hearing on such objections and the fixing of the date of the hearing should be upon order of the judge.® ^ It is held that a referee cannot be granted the power to fix the date for the hear- ing of the application or to make an order requiring notice to be given to the creditors.'^" § 1467. — Attendance of bankrupt. The bankrupt may be required to attend the hearings upon his application for a discharge.'^^ § 1468. — Appearance of creditors. A creditor opposing a discharge should enter his appearance not later than on the return day on the rule to show cause,^^ but his failure to appear at the hearing of the objections cannot be urged for the first time upon appeal.''* The filing of objec- 65— In re Haskell, 164 Fed. 301, 20 A. 69— In re Hoekman, 205 Fed. 330, 30 B. B. 914. A. B. E. 921. 66— In re Kaiser, 2 N. B. N. E. 123, 70— In re Johnson, 158 Fed. 342, 19 99 Fed. 689, 3 A. B. E. 767; Fellows v. A. B. E. 814. Freudenthal, 102 Fed. 731, 4 A. B. E. 71— In re Shanker, 138 Fed. 862, 15 490; In re Liszynsky, 2 N. B. N. E. 738; A. B. E. 109. In re McDuff, 1 A. B. E. 110, 101 Fed. 72— G. O. XXXH; In re Grant, 135 241. Fed. 889, 14 A. B. E. 398. 67 — But see In re Knaszak, 151 Fed. 73— Shaffer v. The Koblegard Co., 183 503, 18 A. B. E. 187. Fed. 71, 24 A. B. E. 898, afE'g 169 Fed. 68— In re Elby, 157 Fed. 935, 19 A. 724, 22 A. B. E. 147. B. E. 734. §1471] The Dischabge of the Bankeupt 1065 tions before the return day is a sufficient appearance within the meaniag of the general order. ''* A creditor cannot, as of right, appear and oppose a discharge after the return day, though there be an adjournment for some other purpose, but the court may permit opposition at any time prior to discharge.''^ §1469. —Jury trial. Any question of fact arising on specifications in opposition to discharge''^ may be referred to a jury in the discretion of the court. However, the findings of the jury upon which the adjudi- cation in bankruptcy is based not only do not bind the special master, but should be disregarded, as it is his duty to exercise an independent judgment on the facts brought before him.''* § 1470. — Reconsideration of claims. Claims will not be reconsidered upon the hearing of an appli- cation for a discharge, where no objection was made by the bankrupt at the time they were allowed.''^ § 1471. — Presumptions ajid burden of proof. The filing of specifications in opposition to a bankrupt's appli- cation for discharge does not make out a prima facie case against the bankrupt which he is bound to disprove, but the burden of proof is upon the creditors ^° and if the specifications are not sustained by proper proof, they will be dismissed.*^ If 74— In re Magen Bros. Co., 192 Fed. 152 Fed. 489, 18 A. B. E. 419; In re 883, 27 A. B. E. 729. Garrison, 149 Fed. 178, 17 A. B. E. 831; 75— In re Houghton, 10 N. B. E. 337, In re Jacobs, 144 Fed. 868, 16 A. B. E. Fed. Cas. No. 6730; In re Olmstead, 4 482; In re Hamilton, 133 Fed. 823, 13 N. B. E. 71, Fed. Cas. No. 10505. A. B. E. 333; In re Keefer, 135 Fed. 885, 77— Morgan v. Thornhill, 5 N. B. E. 14 A. B. E. 290; In re Prager, 134 Fed. 1, 11 Wall. 65, 20 L. ed. 60. 1006, 13 A. B. E. 527; In re Dauohy, 130 78— In re Mayer, 195 Fed. 571, 28 A. Fed. 532, aflf'g 122 Fed. 688, 10 A. B. B. E. 34l E. 527; In re Cason, 27 A. B. E. 903; 79-r-In re Carton & Co., 148 Fed. 63, In re Wermuth, 179 Fed. 1009, 24 A. B. 17 A. B. E. 343. E. 785; In re Chamberlain, 125 Fed. 629, 80— In re Cohen, 206 Fed. 457, 30 A. B. 11 A. B. E. 95; In re Com, 106 Fed. 143, R. 653, rev-'g 201 Fed. 188, 29 A. B. E. 5 A. B, E. 478; In re Conn, 108 Fed. 698; In re Main, 205 Fed. 421, 30 A. B. 525, 6 A. B. E. 217. E; 547;- In re Hodge, 205 Fed. 824, 30 81— In re Prager, 134 Fed. 1006, 13 A. A. B. E. 522; In re Brown, 199 Fed. 356, B. E. 527; In re Fitehard, 103 Fed. 742, 29 A. B. E. 73; In je Griflin Bros., 154 2 N. B. N. E.,1075, 4 A. B. E. 669; In Fed. 537, 19 A. B. E. 78; In re Walder, re Penny, 2 N. B. N. K. 1001; In re Mc- 1066 Beandenbukg on Bankeuptcy [§ 1471 the evidence leaves in doubt the existence of a fraudulent intent,*^ it is not to be presumed, but must be proved, not neces- sarily by direct testimony, but it may be proved convincingly by circumstantial evidence.** If the creditors have shown the existence of assets and their disappearance or large shrinkage within a short time before the bankruptcy, the burden ** is then on the bankrupt *^ to account for the diminution of his estate; and a fraudulent concealment may be inferred, if the bankrupt does not satisfactorily explain.*® The burden of proof does not shift merely because creditors show that, as between themselves and the bankrupt, there is property not scheduled.*'^ The degree of proof required to establish objections which would prevent the granting of a dis- charge need not be beyond a reasonable doubt,** but there should Gum, 2 N. B. N. R. 877, 4 A. B. R. 459, 102 Fed. 743 ; In re Pinan, 2 N. B. N. R. 872; In 1-e Marsh, 2 N. B. N. E. 649; In te Phillips, 2 N. B. N. B. 424, 98 Fed. 844, 3 A. B. E. 542; In re Berner, 2 N. B. N. E. 268, 3 A. B. E. 425; In re Wet- more. 2 A. B. E. 700, 99 Fed. 703 ; In re Idzail, 96 Fed. 314, 2 A. B. E. 741; In re Okell, 2 N. B. E. 35, Fed. Gas. No. 10475; In re Herdio, 19 N. B. E. 385, 1 Fed. 242, Fed. Gas. No. 6403; In re May, 2 N. B. N. E. 93; In re Hohnan, 1 N. B. N. 552, 1 A. B. E. 600, 92 Fed. 512; In re Sehreek, 1 N. B. N. 334, 1 A. B. E. 366; In re Hixon, 1 N. B. N. 326, 556, 1 A. B. E. 610, 93 Fed. 440; In re Polakoff, 1 N. B. N. 232, 1 A. B. E. 358; In re Boas- he/g, 1 N. B. N. 133, 1 A. B. E. 353; In re Baerncopf, 117 Fed. 975, 9 A. B. E. 133. 82— In re Pierce, 103 Fed. 64, 4 A. B. E. 554; In re McGurn, 2 N. B. N. E. 877, 102 Fed. 743, 4 A. B. E. 493 ; In re Wetmore, 2 A. B. E. 700, 99 Fed. 703; In le Sehreek, 1 N. B. N. 334, 1 A. B. E. 366; In re Sidle, 2 N. B. E. 77, Fed Gas. No. 12844; In re Plager, 2 N. B. E. 10; In re HUl, 1 N. B. E. 42, 2 Ben. 136, Fed. Gas. No. 6482; In re Oreutt, 4 N. B. E. 176, 5 Ben. 19, Fed. Gas. No. 10550; In re Herdie, 1 Fed. 242, Fed. Gas. No. 6403. 83— In re Miller, 203 Fed. 170, 30 A. B. E. 113. 84^-In re Finkelstein, 101 Fed. 418, 2 N. B. N. E. 839, 3 A. B. E. 800; In re Leslie, 119 Fed. 406, 9 A. B. E. 561. 85— In re Slekter, 2 N. B. N. E. 951. 86— Seigel v. Gartel, 164 Fed. 691, 21 A. B. E. 140; In re Slekter, 2 N. B. N. E. 951; I^ re Gashman, 2 N. B. N. E. 980, 103 Fed. 67, 4 A. B. E. 326; In re Meyers, 1 N. B. N. 515, 2 A. B. E. 707, 96 Fed. 408; In re Wood, 98 Fed. 972, 3 A. B. E. 572; In re Mendelsohn, 102 Fed. 119; In re Morgan, 101 Fed. 982, 2 N. B. N. E. 846, 4 A. B. E. 402. 87— In re Boasberg, 1 N. B. N. 133, 1 A. B. E. 353. 88 — In re Ghamberlain, 180 Fed. 304, 25 A. B. E. 37; In re Finan, 2 N. B. N. E. 872; In re Sehreek, 1 N. B. N. 334, 1 A. B. E. 366; In re Greenberg, 114 Fed. 773, 8 A. B. E. 94; In re Marsh, 2 N. B. N. E. 593. Goneeabnent of assets need only be es- tablished by a fair preponderance of evi- dence. In re Delmour, 161 Fed. 589, 20 A. B. E. 405; In re MargoUs, 181 Fed. 591, 24 A. B. E. 934; In re Doyle, 199 Fed. 247, 29 A. B. E. 102; In re Bacon, 205 Fed. 545, 30 A. B. E. 584. Proof Of offense sufficient to bar a dis- charge must be beyond reasonable doubt. In re Hennebry, 207 Fed. 882, 31 A^ B. E. 231. § 1472] The Discharge op the Bankkupt 1067 be a fair preponderance of the credible evidence,^^ and suffi- cient to establish each element by clear and satisfying evidence to a high degree of certainty.^" The making of a false oath need not be established by the same quantum of proof that would be necessary to sustain a conviction for perjury.'* § 1472. — Admissibility of evidence. Evidence cannot be introduced by objecting creditors without first having filed a specification of objections as required by law. If filed, the special master or referee should n^t disregard a spec- ification, but should confine the evidence to the material facts alleged in them.'^ Furthermore, his authority is not limited to the taking and reporting of the testimony and ruling as to its admissibility, but he has authority to rule upon the sufficiency of specifications of objections and should not take evidence on such as are clearly insufficient.®^ The testimony of the bankrupt given in his examination under section 21 of the statute, is admissible in support of the speci- fications in opposition to the discharge, but the evidence of creditors and others taken at examinations restricted to no . issues and governed by no precise rules of evidence cannot be applied as proof to the exceedingly definite issues presented by specifications in opposition to a discharge, such examinations being largely for purpose of discovery, while the filing of speci- 89— In re Leslie, 119 Fed. 406, 9 A. B. A. B. E. 78; In re Troeder, 150 Fed. 710j B. 561. 17 A. B. R. 723; but see In re Hennebry, 90— In re Simon, 201 Fed. 1004, 29 207 Fed. 882, 31 A. B. E. 231. A. B. E. 808; In re Brookman, 168 Fed. 92— In re MeGiviin, 2 N. B. N. R. 877, 1015, 21 A. B. E. 251; In re Kolater, 146 4 A. B. E. 459, 102 Fed. 743; In re Frice, Fed. 138, 17 A. B. E. 52; In re Troeder, 96 Fed. 611; In re Adams, 2 N. B. N. 150 Fed. 710, 17 A. B. E. 723; Bardie v. E. 1034, 104 Fed. 72; In re Marsh, 2 N. Swafford Bros. Dry Goods Co., 165 Fed. B. N. E. 649; In re Hirah, 96 Fed. 468, 588, 20 L. E. A. (N. S.) 785, 21 A. B. 2 A. B. E. 715; In re Smith, 16 Fed. 465; B. 457; rev'g 143 Fed. 607, 16 A. B. E. In re Fry, 9 Fed. 376; In re Hixen, 1 N. 313; In re Chamberlain, 180 Fed. 304, B. N. 326, 556; 1 A. B. E. 610, 93 Fed. 25 A. B. E. 37; In re Berner, 2 N. B. N. 440; In re Holman, 1 N. B. N. 558, 1 A. E. 268; In re Salsbury, 113 Fed. 833, B. E. 600, 92 Fed. 512; In re Kaiser, 2 7 A. B. E. 771; In re Miner, 117 Fed. N. B. N. E. 123, 99 Fed. 689; Tenney v. 953, 8 A. B. E. 248; In re Gaylord, 112 Collins, 4 N. B. E. 156, Fed. Cas. No. Fed. 668, 7 A. B. R. 1, affirming 106 13833. Fed. 833, 5 A. B. E. 410 ; In re Wakefield, 93— In re Kaiser, 2 N. B. N. E. 123, 99 207 Fed. 180, 31 A. B. E. 42. Fed. 689, 3 A. B. E. 1767; see also In re 91— In re Eemmers, 173 Fed. 484, 23 Lyon, 1 N. B. E. Ill, Fed. Cas. No. 8643. 1068 Bbandenbueg on Bankeupicy [§ 1472 fications in opposition to a discharge is equivalent to the commencement of an action against the ' bankrupt by the objectors, and the principles of procedure must be logically applied to that fact.®* Such evidence may be admitted, however, where there is an express stipulation in writing signed by the parties.®" It has been held that testimony given by the bankrupt on a hearing under a state insolvency law cannot be offered to prove that he swore falsely though his counsel had agreed that it might be used before the referee with the same force and effect as if taken before him, on the ground that the bankrupt took no oath before the referee that his former testimony was true^ and that therefore he was not bound by his counsel's stipulation.®® Evidence tending to show a concealment of alleged exempt property is admissible on the question of knowledge and intent in the concealment of other assets.®'^ The affidavit of a former partner of the bankrupt, contradicting the recitals in an agree- ment signed by the affiant, may be used to show that the recitals are designed to cover a fraudulent concealment by the bank- rupt of an interest in his former business.®®- It is inadmissible to introduce in opposition to a discharge as evidence of fraud the dying declarations of a fraudulent grantee in a proceeding to set aside a bankrupt's discharge.®® § 1473. — Examination of witnesses. The creditors are not entitled to the production and inspec- tion of the books of a witness claimed to be a partner of the bankrupt for the sole purpose of discovering evidence.^ An application for an order for the examination of a witness before a referee in another district in support of the. creditor's 94— Shaffer v. The Koblegard Co., 183 E. 419; In re Murray, 162 Fed. 983, 20 Fed. 71, 24 A. B. E. 898, aff'g 169 Fed. A. B. E. 700. 724, 22 A. B. E. 147; In re GoodhUe, 130 95— In re Penny, 2 N. B. N. E. 1001. Fed. 471, 12 A. B. E. 380; see In re 96— In re Goldsmith, 2 N. B. N. E. Penny, 2 N. B. N. E. 1001; In re Marsh, 1013, 101 Fed. 570, 4 A. B. E. 234. 2 N. B. N. E. 649; Creditors v. Williams, 97— In re Isaacson, 175 Fed. 292, 23 A. 4 N. B. E. 187, Fed. Cas. No. 3379; In re B. E. 665. Wilcox, 109 Fed. 628, 6 A. B. E. 362; In 98— In re Plager, 2 N. B. N. E. 10. re Penny, 2 N. B. N. E. 1001; In re 99— In re Marrioneaux, 13 N. B. E. Krueger, 2 Lowell, 182; In re Gaylord, 222, 1 Woods, 37, Fed. Cas. No. 9088. 112 Fed. 668, 7 A. B. E. 1 ; In re Cooke, 1— In re Eomine, 138 Fed. 837, 14 109 Fed. 631, 5 A. B. E. 434; and see A. B. E. 785. In re Walder, 152 Fed. 489, 18 A. B. §1476] The Dischabge op the Bankbupt 1069 specifications of objections to the bankrupt's discharge should be made to the federal court in the district where the witness resides. If the creditors do not desire to proceed in that court, a commissioner may be appointed to take the testimony of the witness.'* § 1474. — Conclusiveness of findings or report. The referee's or special master's determination upon the suffi- ciency of the evidence to support specifications of objections is entitled to weight ^ and will not be set aside unless it be clearly erroneous.* If exceptions thereto be filed, the errors must be specifically pointed out.^ An order denying a discharge will be reversed where the findings of the referee recommending a dis- charge are amply supported by testimony.® § 1475. — Rehearing. If no objections are filed to the referee's finding as to facts, and the court refuses a discharge, it will not grant a rehearing,'^ but where upon motion to confirm a report of a special master recommending the denial of a discharge, the court finds the proof of the commission of an offense insufficient it may send the matter back to the special master for further inquiry, or may conduct an independent investigation of its own.* § 1476. Adjournment of hearing — Stay of discharge. The proceedings upon the order to show cause why the dis- charge shall not be granted can, on the return day of the order, be postponed by reason of the adjournment of the examination of the bankrupt, or for other good reason,^ ..but should not be adjourned to await the result of protracted litigation, a speedy hearing and decision being desirable. The hearing upon the application for a discharge may be post- 2— In re Eobinson, 179 Fed. 724, 24 A. 6 — Boyd v. Arnold, Loucheim & Co., B. E. 617. 149 Fed. 187, 17 A. B. E. 839. 3— In re Forth, 151 Fed. 951, 18 A. B. 7— la re Eoyal, 113 Fed. 140, 7 A. B. E. 186; In re Knaszak, 151 Fed. 503, 18 E. 636. A. B. E. 187. 8— In re Mayer, 195 Fed. 571, 28 A. 4-^In re Lafleehe, 109 Fed. 307, 6 A. B. E. 342. B. E. 483; In le Covington, 110 Fed. 143, 9— In re Mawson, 1 N. B. E. 41, Fed. 6 A. B. E. 373. Cas. No. 9320; In re Thompson, 1 N. B. 5— In re Covington, 110 Fed. 143, 6 A. N. 65, 2 Ben. 166, Fed. Cas. No. 13935. B. a 143. 1070 Beandenbubg on Bankbtjptcy [§ 1476 poned until creditors, who have agreed to be postponed to other creditors, and whom the bankrupt has therefore not listed as creditors, either release their claims, or consent to be scheduled nunc pro tunc so as to make the discharge effective as to them.^" The hearing should not be postponed to enable creditors to take proceedings to recover alleged assets, where the right of the creditors will be unaffected by the discharge," but may properly be postponed to enable the trustee to commence an action to recover a surplus income to which the bankrupt is entitled under a will.^^ The discharge may be postponed a reasonable time to enable a creditor holding a waiver of exemptions to assert his rights in a state court.^* A creditor having a dischargeable claim seeking to reach exempt property should apply to the bank- ruptcy court for a withholding of the discharge until he has fastened a specific lien on the property. If he fails so to do and the bankrupt secures his discharge before the fastening of such a lien, the claim is barred.^* In deciding whether a dis- charge should be withheld the district court cannot finally pass on the validity of the waiver of exemptions, but should merely decide whether a prima facie waiver exists.^^ Proceedings for a discharge will not be stayed to enable a plaintiff in an action in the state court to proceed to judgment and to subject exempt property to the satisfaction of such judg- ment where it appears that the discharge, if granted, would not be a bar to the plaintiff's action.^^ Where a creditor holding a judgment enforceable against the bankrupt's exempt property has withdrawn his claim from the bankruptcy court for the 10— In re Josephs, 205 Fed. 548, 30 A. Discharge withheld reasonable time to ■ B. E. 586. enable enforcement of a claim against 11— In re Morris, 204 Fed. 770,- 30 exempt property. Meinhard & Bro. v. A. B. R. 319. Pincus, 200 Fed. 736, 29 A. B. E. 619. 12— In re Morris, 204 Fed. 770, 30 A. 14— So held where creditor held notes B. E. 319. waiving exemptions; discharge obtained 13 — Lockwood v. Exchange Bank, 190 pending suit in equity to reach property. U. S. 294, 47 L. ed. 1061, 10 A. B. E. Bowen & Thomas v. Keller, 130 Ga. 31, 107; Bowen & Thomas v. Keller, 130 Ga. 22 A. B. R. 727. 31, 22 A.,B. E. 727; In re Allen & Co., 15— Meinhard & Bro. v. Pincus, 200 134 Fed. 620, 13 A. B. E. 518; In re Fed. 736, 29 A. B. E. 619. Mitchell, 175 Fed. 877, 23 A. B. E. 707; 16— Ex parte Butler-Kyser Mfg. Co., In re Brumbaugh, 128 Fed. 971, 12 A. B. 174 Ala. 237, 27 A. B. E. 419. E. 204; In re PulHan, 171. Fed. 595, 22 A. B. E. 513. §1478] The Discsabge op the Bankrupt 1071 express purpose of enforcing it in the state courts, the discharge will not be delayed to enable him to enforce his judgment against exempt property; " nor will a discharge be withheld pending a suit against the bankrupt for the conversion of a note contain- ing a waiver of exemptions.^® A creditor suing and acquiring a lien by garnishment before the four-month period is entitled to have the discharge stayed for a reasonable time so as to enforce his rights against the gar- nishees and sureties on the garnishment bond/^ but it is held that the granting of a discharge against the bankrupt, a con- tractor, will not be stayed to enable a lien claimant to obtain a personal judgment against the bankrupt and thereby perfect his hen against the owner of the property on which the labor and material was used.^° A decision by a bankruptcy court upon an application for discharge will not be stayed to await the result of a pending action in a state court by which creditors seek to set aside as fraudulent a transfer made before the adjudication of bank- ruptcy, although the same plaintiffs oppose the bankrupt's discharge on the same ground, since the decree of the state court would not necessarily determine the right of the bank- rupt to be discharged.^^ Where the bankrupt commits perjury in the proceedings, for his discharge, the proceedings may be stayed until the determi- nation of the contempt proceedings.^^ § 1477. Grounds for refusing discharge. §1478. — In general. The supreme court has held that congress may prescribe any regulations concerning discharges in bankruptcy that are not , so grossly unreasonable as to be incompatible with fundamental laws, and that there is nothing in the act of 1898 on that subject '■ ' * 17— Loeiwood v. Exchange Bank dis- 20 — In re Goodrich, 192 Fed. 746, 27 tinguished: In re Weaver, 144 Fed. 229, A. B. E. 619. 16 A. B. E. 265. 21— In re Tiffany, 147 Fed. 314, 17 ■ iSr-In- re- Hartsell ,& Son, 140 Fed. 30, A. B. E. 296; In re Cornell, 97 Fed. 29, 15. A. B. K. 177. 3 A. B. E. 172. ■.i9^rTjn..-re''Maheii,-i69 Fed. 997, 2-2 :A. 22^In re Kretseh, 172'Fed. 523, 22 .A. B. E. 290. ,- ' V B.,K. 284.- ..,•;• ...:,- 1072 Beandbnbtteg on Banketjptct [§ 1478 that would justify an overthrow of its action.^* By the provi- sions of the act a discharge may be refused when the bankrupt has committed an offense punishable by inaprisonment, that is, with unlawful intent,^* has knowingly and fraudulently ^^ con- cealed, while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy, or made a false oath or account in, or in relation to, any proceeding in bankruptcy; 9r if he has, with intent to conceal his true finan- cial condition, destroyed, concealed, or failed to keep books of account, or records from which his true condition might be ascertained,^® obtained property on false representations, con- cealed or removed property with intent to prefer, been granted a discharge in voluntary proceedings within six years, or refused to obey a lawful order of the court or answer a material ques- tion." The participation in an offense under the act committed by another is sufficient to bar a discharge.'* The only grounds upon which a discharge can be refused are those specified in section 14b,^^ hence a discharge cannot be refused because of the pendency of an application for discharge under the act of 1867;^" or general dishonesty, or unfair and sharp dealing with creditors,^^ or the violation of a criminal law of the state,®^ or the omission of a debtor to have himself adjudged a voluntary bankrupt, when his property is attached at the suit of a hostile creditor; ^^ or because of an adjudication of bankruptcy suffered by default ; ^* or that money is offered certain creditors to Vote for a composition; ^^ or that the original 23 — National Bank v. Moyses, 186 U. 13 A. B. E. 95; In re Peacock, 2 N. B. S. 181, 46 L. ed. 1113, 8 A. B. R. 1. N. R. 758, 101 Ted. 560, 4 A. B: E. 136; 24^Seetion 14b (1), Act of 1898; In In re aisdeU, 2 N. B. N. R. 638, 101 re Smith v. Keegan, 111 Fed. 157, 7 A. Fed. 246, 4 A. B. E. 95. B. E. 4. 30— In re Herrmann, 102 Fed. 753, 2 25— Klein v. Powell, 174 Fed. 640, 23 N. B. N. E. 905, 4 A. B. R. 139. A. B. E. 494. 31— In re Chamberlain, 180 Fed. 304, 26— Sections 14b and 29b, Act of 1898 ; 25 A. B. R. 37. Strause v. Hooper et al., 105 Fed. 590, 32— In re McLellan, 204 Fed. 482, 30 5 A. B. E. 225; In re Schaehter, 170 Fed. A. B. E. 325. 683, 22 A. B. R. 389. 33— In re Belden, 2 N. B. E. 14, Fed. 27— Section 14b, Act of 1898. Cas. No. 1240. 28— In re Luftig, 162 Fed. 322, 15 A. 34— In re Lathrop, 3 N. B. B. 1.1, Fed. B. E. 773. Cas. No. 8105. 29— In re GrifSn Bros., 154 Fed. 537, 35— In re Morris, 19 N. B. B. HI, Fed. 19 A. B. E. 78; In re WolfE, 132 Fed. 396, Cas. No. 9824. §1480] The Dischasgb op the Bankrupt 1073 adjudication resulted from collusion, in the absence of fraud; ^* or because the bankrupt has an interest in property which can neither be transferred or levied upon and which would not pass to the trustee.^'' A discharge will not be denied on the ground that the principal claim from which the debtor seeks a release is one which would not be affected by the discharge.^® Only the grounds specified in the objections can be consid- ered.3» § 1479. — Discretion of court. A refusal to grant a discharge does not rest in the discretion of the judge; but the applicant is entitled to a discharge as a matter of right, unless proved guilty of one of the prescribed offenses, the sole duty of the judge being to decide after a due hearing if he is guilty.*" The decision of a court refusing a discharge being essentially one of fact, will not be reversed on appeal unless manifest error appears.*^ § 1480. — Statute not retroactive. To constitute a valid objection to a discharge, the atfts com- plained of must have taken place after the passage of the law and within the period prescribed by it, and the same principle applies to alleged dishonest disposition of assets; ^^ or of a fraudulent conveyance or preference.** 36— In re Ordway, 19 N.. B. E. 171, 42— In re Webb, 2 N. B. N. E. 11, Ted. Cas. No. 10552. 3 A. B. E. 204, s. c. 2 N. B. N. E. 289, 37— In re Eennie, 1 N. B. N. 335, 2 3 A. B. E. 386, 98 Fed. 404; In re Lieber, A. B. E. 182. ■ 2 N. B. N. E. 21, 3 A. B. E. 217; In re 38— In re Brvunbaugh, 128 Fed. 971, 12 Moore, 1 Hask. 134, Fed. Cas. No. 9751; A. B. E. 204. In re Quaekenbush, 2 N. B. N. E. 964, 39— In re Taplin, 135 Fed. 861, 14 102 Fed. 282, 4 A. B. R. 274; In re A. B. E. 360; In re Bouck, 199 Fed. 453, Shorer, 1 N. B. N. 331, 2 A. B. E. 165, 28 A. B. E. 378; In re Adams, 104 Fed. 96 Fed. 90; In re Stark, 1 N. B. N. 72, 2 N. B. N. E. 1034, 4 A. B. E. 696. 232, 1 A. B. E. 180; In re Holtz, 1 N. B. 40— In re Marshall Paper Co., 2 N. B. N. 204. N. E. 1053, 102 Fed. 872, 4 A. B. E. 468. 43— In re House, 2 N. B. N. E. 1099, 41— Barton Bros. v. Texas Produce Co., 103 Fed. 616, 4 A. B. E. 603 ; In re Fitch- 136 Fed. 355, 14 A. B. E..502; Woods v. ard, 2 N. B. N. E. 1075, 103 Fed. 742, Little, 134 Fed. 229, 13 A. B. E. 742; 4 A. B. E. 609; In re Eosenfield, 1 N. B. Osborne v. Perkins, 112 Fed. 127, 7 A. E. 161, Fed. Cas. No. 12058. B. B. 250. Brandenburg — 6S 1074 Beandenbtjeg on Bankbuptcy [§ 1481 § 1481. — Irregularity of proceedings. The provisions of the act must be strictly complied with and a discharge will be refused the bankrupt, if, upon examination, it appears that the requirements of the law entitling him thereto have not been complied with, or he has failed to do what he was required to do.** Accordingly, a discharge will be refused where it appears that the majority of creditors have received no notice either of the bankruptcy proceedings or of the applica- tion for a discharge, and in such case it is immaterial whether the proceedings are voluntary or involuntary since in either case it is the duty of the bankrupt to see that the creditors receive proper notice.*® So a failure to hold the first meeting of cred- itors before the filing of the application for a discharge is a ground for refusing the discharge,*^ but an irregularity in the calling of the first meeting, such as a misspelling of the name of the bankrupt in the printed notice of the meeting, will not prejudice the right to a discharge.*'^ The application for a discharge is an independent proceeding incidental and subordinate to the distribution of property of the bankrupt,*^ and the validity of the adjudication, where not appealed from, reversed, or set aside, cannot be questioned, except by showing it was made by a court having no jurisdic- tion.*^ Objections going to the jurisdiction must be raised at the first or at least an early opportunity or they will be deemed to have been waived and a creditor, who appeared at the first meeting, nominated the trustee and examined the bankrupt, cannot, on application for discharge, for the first time urge that the court is without jurisdiction on the ground that the adjudi- cation was made by the referee and not by the judge.^" A discharge will not be refused because the referee has failed to file a certificate showing that the bankrupt has conformed with the provisions of section 14,^^ nor because of failure to 44— In re Levenstein, 180 Fed. 957, 24 49— In re Walrath, 175 Fed. 243, 24 A. B. E. 822; In re Palmer, 14 N. B. A. B. E. 541. E. 437, 2 Hughes, 177 Fed. Cas. No. 50— In re PolakofE, 1 N. B. N. 232, 10678. 1 A. B. E. 358; In ro Mason, 2 N. B. 45-46— In re WoUowitz, 192 Fed. 105, N. E. 425, 99 Fed. 256, 3 A. B. E. 599. 27 A. B. E. 558. 51— In re Fritz, 173 Fed. 560, 23 A. 47— In re Elkind & Schwartz, 175 Fed. B. E. 84. 64, 23 A. B. E. 166. 48 — ^In re Swofford Bros. Dry -Goods Co., 180 Fed. 549, 25 A. B. E. 282. § 1484] The DisOhaege oi" the Bankeupt 1075 publish notice of the trustee's appointment,^^ or failure of a trus- tee to act after qualifying; "^^ nor because it is alleged that the court which made the adjudication had no jurisdiction on account of the lack of residence, where the objecting creditor was a party to the proceedings at the time of adjudication.^* If the entire proceedings be irregular and defective,^* and if a prima facie case of fraud is made out, the discharge will be withheld until the prima facie case is overthrown.^® §1482. —Laches. - A discharge will not be refused because of the laches of the bankrupt in not bringing the issues raised by the creditor's objections to trial."^ Time for filing application, see ante, section 1449. § 1483. — Failure to pay costs. If a bankrupt files an affidavit of inability to make a deposit on filing his petition in voluntary bankruptcy, there is no authority for withholding the discharge until the fees of the clerk and referee have been paid.°* The law is clear and explicit as to the grounds for refusing a discharge and there is no author- ity for adding to its provisions. § 1484. — Buying off opposition to discharge. Under the act of 1867, it was held that if the opposition of a creditor to the discharge of a bankrupt was bought off through the procurement of privity of the bankrupt, it was such fraud upon the law as would warrant the setting aside of the dis- charge, the fact itself being prima facie evidence that the bank- rupt was not entitled to it,^^ though if the negotiations for the 52— In re Straehen, 3 N. B. E. 148; 56— Mahoney v. Ward, 2 N. B. N. E. In re Litchfield, 3 N. B. E. 13, 1 Low. 538, 3 A. B. E. 770, 100 Fed. 278. 331, Fed. Cas. No. 8398. 57— In re Wolff, 132 Fed. 396, 13 A. 53— In re Pierson, 10 N. B. N. E. 107, B. E. 95. Ted. Cas. No. 11153. 58— See G. O. XXXV (4) ; In re 54^In re Buck, 3 N. B. E. 76, Deady, Plimpton, 3 N. B. N. E. 14, 103 Fed. 775, 425, Fed. Cas. No. 2156; In re Ivea, 19 4 A. B. E. 614; In re Collins, 1 N. B. N. N. B. E. 97, 5 Dill. 146, Fed. Cas. No. 132; In the matter of Fees payable by 7115; In re CUsdeU, 2 N. B. N. E. 638, voluntary bankrupts, 1 N. B. N. 376, 95 4 A. B. E. 96, 101 Fed. 246; In re Wil- Fgd. 120; In re Fritz, 173 Fed. 560, 23 Kams, 99 Fed. 544, 3 A. B. E. 677. A. B. E. 84. ' 55— In re Doyle, 3 N B. E. 190, Fed. 59— In re Dietz, 2 N. B. N. E. 125, Cas. No. 4052. 3 A. B. B. 316, 97 Fed. 563; In re Guard- 1076 Beandenbtjeg on Bankbuptoy [§ 1484 withdrawal of opposition were consummated without the actual or constructive knowledge of the bankrupt, it would not vitiate the discharge,"" it being held that the suppression of such oppo- sition should be condemned as at variance with the policy of a bankruptcy law, whether expressly prohibited or not."^ Under the law now in force the buying off of opposition not being one of the grounds specifically enumerated for opposing a discharge, and not being an offense, the rule prevailing under the act of 1867 would not now be a valid objection,"^ but the purchase of a claim for the purpose of preventing or reducing opposition to a discharge may constitute such fraud as wiU justify the revocation of a discharge under section 15."^ § 1485. — Fraud in preventing proof of claim. Fraud in preventing a creditor from proving his claim in pro- ceedings against a firm of which the bankrupt was a member is no bai^to a discharge.®* §1486. —Insanity. The fact that the bankrupt becomes insane after the filing of the petition will not bar his discharge."^ § 1487. — Larceny and embezzlement. The commission of the offense of larceny, or larceny as bailee against a creditor more than a year prior to the filing of the petition is no bar to a discharge.®" § 1488. — False oath. Unless there is a specification charging the making of a false bath, that question will not be considered."'' ener, 2 N. B. N. E. 924; In re Steindler, 62— In re Luftig, 162 Fed. 322, 15 A. 3 N. B. N. R. 81, 5 A. B. R. 63 ; In re B. R. 773, but see In re Sanborn, 131 Mawson, 1 N. B. E. 115, 2 Ben. 332, Fed. 397, 12 A. B. R. 428. Fed. Cas. No. 9318; Tuzbury v. Miller, 63— In re Luftig, 162 Fed. 322, 15 A. ,19 John. 311; In re Douglass, 14 Fed. B. E. 773. 403, 406; In re Palmer, 14 N. B. E. 437; 64— In re Cason, 27 A. B. E. 903. Blasdel v. Fowle, 120 Mass. 447; Bell v. 65 — In re Miller, 133 Fed. 1017, 13 Leggett, 7 N. Y. 176. A. B. R. 345. 60— In re Dietz, 2 N. B. N. R. 125, 97 66— In re Wolf, 159 Fed. 299, 20 A. Fed. 563, 3 A. B. E. 316; Ex parte B. R. 304. ■Driggs, 2 Low. 389. 67— In re Adams, 2 N. B. N. R. 1034, 61 — Smith V. Bromley, Doug. Eep. 696. 104 Fed. 72, 4 A. B. E. 696. §1488] The Dischaege of the Bankbupt 1077 A false oath in any part of the bankruptcy proceedings is an offense and ordinarily a bar to a discharge,"^ though it is held that the bankrupt's perjury in the proceedings for his discharge is no ground for refusing same.*® The provision ""^ that no testi- mony given by bankrupt on his examination shall be offered in evidence against him in any criminal proceeding''^ does not prevent his being denied a discharge for making a false oath on such examination.'^^ The making of a false oath by a bank- rupt in a proceeding in bankruptcy, not against him, but against the corporation with which he was connected, is not ground for refusing his discharge.'^* To sustain an objection to a discharge on the ground of false oath, the test is whether or not an indictment for perjury could be sustained on the alleged facts, which requires an intentional untruth in a matter material to an issue which is itself material.^* It is not material that the bankrupt subsequently corrects a false oath by telling the truth, except in so far as it throws light upon his intention when he made his first statement,''^ and the fact that the bankrupt correctly lists the property after the discovery of his false oath will not relieve him from the conse- quences of the same.'"' It is open to the bankrupt to show from the whole testimony that his testimony upon a particular point, if actually false, was not intended to mislead on a particular point.'''' A discharge will be refused where the bankrupt falsely swears as to his inability to pay the court fees,''* or that all his property 68— In re Berger, 200 Fed. 325, 29 A. 25 A. B. R. 37; In re Troeder, 150 Fed. B. E. 712; In re Luftig, 162 Fed. 322, 710, 17 A. B. B. 723; In re Miner, 114 15 A, B. E. 773; In re Conroy, 134 Fed. Fed. 998, 8 A. B. E. 248; Bauman v. 764, 14 A. B. E. 249; In re SUnglufE, 2 Feist, 107 Fed. 83, 5 A. B. E. 703; In re N. B. N. E. 1115, 105 Fed. 502; In re Lewin, 103 Fed. 852; In re Freund, 2 N. Leslie, 119 Fed. 406; In re Gaylord, 112 B. N. E. 236, 98 Fed. 81, 3 A. B. E. 418; Fed. 668, 7 A. B. E. 1. In re Strouse, 2 N. B. N. E. 64; In re 69— In re Kretsoh, 172 Fed. 523, 22 Bullwinkle, 111 Fed. 364, 6 A. B. E. 756; A. B. B, 284. In re Wilcox, 109 Fed. 628, 6 A. B. B. 70— Section 7, Act of 1898. 362. 71— In re Marx, 102 Fed. 676, 4 A. B. 75— In re Marcus & Seherr, 192 Fed. E. 521; but see In re McGuire, 1 .N B. 743, 27 A. B. E. 164. N. 279. 76— In re Breiner, 129 Fed. 155, 11 A. 72— See "False Oath," past, § 1612. B. E. 684. 73— In re Blaloek, 118 Fed. 679, 9 A. 77— In re Marcus & Seherr, 192 Fed. B. E. 266. 743, 27 A. B. E. 164. 74— In re Chamberlain, 180 Fed. 304, 78— In re Williams, 2 N. B. N. E. 206. 1078 BeANDENBTJBG on BANKBiyPTCY [§ 1488 had gone into the possession of a state receiver, when it had not; '^^ or that he was indebted to a creditor when he was not; *" or if he submits an intentionally fraudulent "statement of expenditures,"®^ or fails to list in his schedules his equity in property standing in his wife's name.®^ A false oath as to the ownership of property is an offense and will prevent a dis- charge even though the property cannot be administered in the proceeding.*^ The verification by the bankrupt of his schedules from which he has omitted property fraudulently concealed or transferred is not such false oath as will bar his discharge,** nor will a dis- charge be denied because the bankrupt includes in his schedule property by advice of counsel which he afterwards swears was not his, and says that, though in his name, he considers it his wife's, who advanced the money for it and received the profits, he having been her agent; *^ or omits stock in his wife's name, purchased with money borrowed on their joint note,*® or omits property transferred by the bankrupt as to which a receiver was appointed by a state court before the petition was filed.*^ The failure to schedule worthless securities or invalid claims does not render bankrupt guilty of false oath.** The false oath must be wilfully and knowingly false,*^ and this fact should be established clearly and to a high degree of cer- tainty,®" but it is not necessary that it be proved beyond a 79— In re Lesser, 108 Fed. 205, 5 A. 85— In re Finan, 2 N. B. N. E. 872. B. E. 331. 86— Fellows v. Freudenthal, 102 Fed. 80— In re Blumenthal, 18 N. B. E. 555, 231, 4 A. B. E. 490. Fed. Cas. No. 1576. 87 — In re Freeman, 4 N. B. E. 17, Fed. 81— In re Dews, 2 N. B. N. E. 437, 3 Cas. No. 5082. A. B. E. 691, 101 Fed. 549. 88— In re McCrea, 161 Fed. 246, 20 L. 82— In re Guilbert, 169 Fed. 149, 22 E. A. (N. S.) 246, 20 A. B. E. 412; In A. B. E. 221. re Adams, 171 Fed. 599, 22 A. B. E. 613. 83— In re Conroy, 134 Fed. 764, 14 89— In re Hale, 206 Fed. 856, 31 A. B. A. B. E. 249. E. 88; In re Bushnell, 1 N. B. N. 528; 84— In re Hennebry, 207 Fed. 882, 31 In re Bryant, 2 N. B. N. E. 1061; Ken- A. B. E. 231; Schreiber v. Schomaker • tucky Nat. Bank of Louisville v. Carley, Piano Forte Mfg. Co., 152 App. Div. (N. 127 Fed. 686, 12 A. B. E. 119; In re Y.) 817, 28 A. B. E. 858; In re Schreck, SlinglufE, 2 N. B. N. E. 1115, 105 Fed. 1 N. B. N. 334, 1 A. B. E. 366; In re 502. Crenshaw, 2 A. B. E. 623, 95 Fed. 632; 90— In re Hamilton, 133 Fed. 823, 13 In re McCarthy, Fed. Cas. No. 8684; In A. B. E. 333; In re Salsbury, 113 Fed. re Eobertson, Fed. Gas. No. 11921; eon- 833, 7 A. B. E. 771; In re Gaylord, 106 tra. In re Gammon, 109 Fed. 812, 6 A. B. Fed. 833, 5 A. B. E. 410, aff'd 7 A. B. E. 482. E. J; In re Miner, 117 Fed. 953, 9 A. § 1489] The Dischaegb of the Bankexjpt 1079 reasonable doubt.®^ It must be shown wherein the bankrupt made a false oath, and mere proof 'of contradictory statements- at different stages of the proceedings without proof as to which was false is insufficient,*^ and where a bankrupt makes a state- ment not under oath, and afterwards contradicts that statement under oath, his statement under oath is not proved to be false by proof that he made the contradictory statement not under oath.** The condition of insolvency being a complex one, the court will hesitate to hold the bankrupt guilty of false swearing, because in the course of an extended examination he makes some misstatement of his want of knowledge of his insolvency at a particular time.®* The omission of alleged assets must be proved by the objecting creditor in the first instance.*^ Effect of advice of counsel, see post, section 1500. § 1489. — Books of account and records. Section 14b (2), prior to the amendment of February 5, 1903, provided that a discharge should be refused any bankrupt who (1) with fraudulent intent to conceal his true financial condi- tion, and (2) in contemplation of bankruptcy, destroyed, concealed, or failed to keep books of account or records from which his true condition might be ascertained.*® Prior to said B. E. 100; a. e. 114 Fed. 998, 8 A. B. E. 127 Fed. 951, 11 A. B. E. 384, rev 'g 124 243. Fed. 945, 10 A. ,B. E. 205; In re Cham- 91— In re Eemmers, 173 Fed. 484, 23 berlain, 125 Fed. 629, 11 A. B. E. 95; In A. B. E. 78, In re Troeder, 150 Fed. 710, re Shepherd, 2 N. B. N. E. 1070; In re 17 A. B. E. 723 ; In re Marcus & Scherr, Bemis, 3 N. B. N. E. 49, 104 Fed. 672, 5 192 Fed. 743, 27 A. B. E. 164; In re A. B. E. 36; In re Shertzer, 2 N. B. N. E. Marsh, 2 N. B. N. E. 593; In re Slingluff, 520, 99 Fed. 706, 3 A. B. E. 699; In re 2 N. B. N. B. 1115, 105 Fed. 502; but Idzall, 96 Fed. 314, 2 A. B. E. 741; In see In re Hennebry, 207 Fed. 882, 31 A. re Hirsch, 96 Fed. 468, 2 A. B. E. 715; B. E. 231. In re Cohn, 1 N. B. N. 330, 1 A. B. E. 92— In re Mayer, 195 Fed. 571, 28 A. 655. This provision differs from the Act B. E. 342. of 1867, which refused a discharge to (1) 93 — Bauman v. Feist, 107 Fed. 83, 5 a, merchant or tradesman who failed to A. B. E. 703. keep proper books of account, ■ regard- 94— In re Marcus, 203 Fed. 29, 30 A. less of his intent (In re Bound, 4 N. B. B. B. 176, aff'g 192 Fed. 743, 27 A. B. E. 164, Fed. Cas. No. 1697; In re Odell, B. 164. 17 N. B. E. 73, 9 Ben. 209, Fed. Cas. No. 95— In re Penny, 2 N. B. N. E. 1001. 10426; In re O'Bannon, 2 N. B. E. 6, 96— Van Ingen v. Sehophofen, 129 Fed. Fed. Cas. No. 10394; In re Tyler, 4 N. B. «52. 12 A. B. B, 24; In re Studebaker, E. 27, Fed. Cas. No. 14305; In re- Moss, 1080 Bbandenbttkg on Bankruptcy [§ 1489 amendment it was necessary to prove both the intent and con- templation of bankruptcy. 'By the amendment the words "in contemplation of bankruptcy" were omitted. The efifect of this is that the only point now to be passed upon by the court is whether the books were destroyed or concealed or were not kept "with intent to conceal his financial condition." ®^ This avoids any possible question as to whether the term "in contemplation of bankruptcy" included involuntary proceedings and generally renders this regulation more easy of construction. The omis- sion of the word "fraudulent" as qualifying the word "intent" does not vary the force of this regulation, since the destruction or concealment of books to conceal the financial condition exhib- ited by them, must of necessity be fraudulent. It is immaterial that the bankrupt is or is not a merchant or trader, but a man's occupation and condition are to be consid- ered in determining whether his failure to keep books should bar a discharge,®* as his being a farmer,®'' or a large trader,^ or a school teacher,* or a mine superintendent,^ or a mining pro- moter.* The provisions of this section do not include false and fraud- ulent reports to commercial agencies.^ § 1490. — Failure to keep after passage of act. The term "in contemplation of bankruptcy" used in this section prior to the amendment meant either in contemplation 19 N. B. E. 132, Ped. Cas. No. 9877; In 28 A. B. E. 773; In re Corn, 106 Fed. re Cote, 14 N. B. K. 503, 2 Lowell, 374, 143, 5 A. B. E. 478. Fed. Cas. No. 3267; In re Archenbrown, Ignorance and illiteracy of bankrupt 12 N. B. B. 17, Fed. Cas. No. 505 ; In re and want of training in business meth- Solomon, 2 N. B. E. 94, Fed. Caa. No. ods held to account for failure to keep 13167; In re Newman, 2 N. B. E. 99, 3 proper books. In re Brown, 199 Fed. 356, Ben. 20, Fed. Cas. No. 10175), and (2) to 29 A. B. E. 73. all debtors who destroyed, mutilated, 99 — In re Marsh, 2 N. B. N. E. 593. altered or falsified books of account with 1 — In re Newbury & Dunham, 209 Fed. intent to defraud creditors. Under this 195, 31 A. B. E. 365. first provision the lack of intent is im- 2 — In re Keefer, 135 Fed. 885, 14 A. material and under the second provision B. E. 290. the act need not have been in contempla- 3 — ^In re McCrea, 161 Fed. 246, 20 L. tion of bankruptcy. E. A. (N. S.) 246, 20 A. B. E. 412. 97— In re Newbury & Dunham, 209 4— In re Howard, 180 Fed. 399, .24 A. Fed. 195, 31 A. B. E. 365; In re Hodge, B. E. 841. 205 Fed. 824, 30 A. B. E. 522. 5— In re Steed, 107 Fed. 682, 6 A. B. 98— Baylor v. Eawlings, 200 Fed. 131, E. 73. §1491] The Dischaege op the Bankrupt 1081 of a voluntary application or of the commission of an act upon wMch an adjudication of the bankrupt in involuntary proceed- ings might be had; in other words, it meant in contemplation of proceedings in bankruptcy, and did not apply to something done long prior to the passage of a law not in existence, or to a con- dition of insolvency.^ Consequently, if prior to the passage of the act of 1898, a bankrupt, with fraudulent intent to conceal his financial condition, destroyed, concealed or failed to -keep books of account, his discharge could not be refused,'' but if continued subsequent to its passage,® and it had to be so alleged,^ it would bar a discharge, as where loans made to a bankrupt and not entered in his regular account book, were made before the bankruptcy act was passed, and were not entered after its passage." Where for a, year prior to his failure his condition was one of hopeless insolvency, his failure to keep requisite books of account will be deemed to have been in contemplation of bankruptcy.^^ In view of the amendment, whether the failure to keep books was in contemplation of bankruptcy, is imma- terial, so far as cases instituted since such amendment are concerned. § 1491. — Intent to conceal financial condition. Prior to the amendment of February 5, 1903, the bankruptcy law specified that the act in question must be done with fraud- 6— In re MeGurn, 2 N. B. N. E. 877, 102 Fed. 743, 4 A. B. E. 459; In re Marx, 102 Fed.' 676, 4 A. B. E. 521 ; In re Brice, ' 102 Fed. 114, 4 A. B. E. 355; In re Hirseh, 96 Fed. 468, 2 A. B. E. 715; In re Stark, 1 N. B. N. 232, 1 A. B. E. 180, 96 Fed. 88; In re Carmiehael, 96 Fed. 594, 2 A. B. E. 815; In re Bamberger, 2 N. B. N. E. 95; In re Shertzer, 2 N. B. N. E. 520, 99 Fed. 706, 3 A. B. E. 699; In re Kamsler, 2 N. B. N. E. 97, 97 Fed. 194; Buckingham v. McLean, 13 How. 151, 14 L. ed. 91; In re Craft, 2 N. B. E. 44, 6 Blateh. 177, Fed. Cas. No. 3317; In re Goldsehmidt, 3 N. B. E. 41, 3 Ben. 379, Fed. Cas. No. 5520; In re Lieber, 2 IT. B. N. E. 21, 3 A. B. E. 217; In re Holman, 1 N. B. N. 552, 1 A. B. E. 600, 92 Fed. 512; In re Holtz, 1 N. B. N. 204; In re Shorer, 1 N. B. N. 331, 2 A. B. E. 165, 96 Fed. 90; In re Polakofif, 1 N. B. N. 232, 1 A. B. E. 358; In re Boasberg, 1 N. B. N. 133, 1 A. B. E. 353. 7— In re Prager, 134 Fed. 1006, 13 A, B. E. 527; In re Stark, 1 N. B. N. 232, 1 A. B. E. 180, 96 Fed. 88; In re Holtz, 1 N. B. N. 204; In re Shorer, 1 N. B. N. 331, 96 Fed. 90, 2 A. B: E. 165; In re Sellers v. BeU, 94 Fed. 801, 2 A. B. E. 529. 8— In re Bragassa, 2 N. B. N. E. 837, 103 Fed. 936, 4 A. B. E. 519; In re Hol- stein, 114 Fed. 794, 8 A. B. E. 147. 9— In re Holtz, 1 N. B. N. 204. 10— In re Feldstein, 115 Fed. 259, 8 A. B. E. 160, afe'g 108 Fed. 794, 6 A. B. E. 458. 11— In re Feldstein, 115 Fed. 259, 8 A. B. E. 160, aff'g 108 Fed. 794, 6 A. B. E. 458. 1082 Beandbnbxjeg on Bankeuptcy [§ 1491 ulent intent ^^ and if this were not establislied tlie discharge would be granted.^* The fraudulent intent must have been that of the bankrupt, so that, where the business of a married woman was conducted wholly by her husband and he, without her knowledge, failed to keep true books of account, with fraudulent intent, her discharge was not barred; " nor was the discharge of a member of a firm barred, if the failure to keep true books of account be entirely the fault of his partner,^'' and, on the same principle, such an act by an agent would not bar a principal's discharge, since such act of the agent is in excess of his author- ity, though where the bankrupt created a corporation for the sole purpose of conducting his individual business, the failure of the corporation to keep proper books has been held to bar the bankrupt's discharge, on the theory that the corporation was acting only as bankrupt's agent.^® As already stated the word "fraudulent" has been omitted from before the word "intent," though the scope of the section does not seem to be thereby varied. If, therefore, the failure to keep books was with the intent to conceal his condition, the discharge will be refused." Since such books or records must be kept as will give a true condition of the bankrupt's affairs, a false entry or wilful omis- sion with intent to conceal will bar a discharge,^® but the omission of a single transaction froni books of account does not 12— In re Blaloek, 118 Fed. 679, 9 A. cntt, 4 N. B. R. 176, 5 Ben. 19, Fed. Cas. B. E. 266; In re Corn, 106 Fed. 143, 5 A. No. 10550; In re Herdie, 1 Fed. 242, Fed. B. E. 478; Bauman v. Feist, 107 Fed. 83, Cas. No. 6403; In re Lafleehe, 109 Fed. 5 A. B. E. 703. 307, 6 A. B. E. 483. 13 — In re Mackenzie, 132 Fed. 114, 12 14— In re Hyman, 97 Fed. 195, 3 A. A. B. E. 605; In re Spear, 103 Fed. 779, B. E. 169; In re Meyers, 105 Fed. 353, 4 A. B. E. 617; In re Cashman, 2 N. B. 5 A. B. E. 4. N. E. 980, 103 Fed. 67, 4 A. B. E. 326; 15— In re Schultz, 107 Fed. 264, 6 A. In re Mendelsohn, 102 Fed. 119, 4 A. B. B. E. 91. E. 103 ; In re Morgan, 101 Fed. 982, 4 16— In re Berger, 200 Fed. 325, 29 A. A. B. E. 402, 2 N. B. N. E. 846; In re B. E. 712. Brice, 102 Fed. 114; In re Marx, 102 17— In re Hanna, 168 Fed. 238, 21 A. Fed. 676, 4 A. B. E. 521, 4 A. B. E. 355; B. E. 843; In re Alvord, 135 Fed. 236, In re Wetmore, 3 A. B. E. 700, 99 Fed. 14 A. B. E. 264. 703; In re Sehreek, 1 N. B. N. 334, 1 A. Broker's failure to keep books held to B. E. 366; In re De Leeuw, 2 N. B. N. E. have been with intent to conceal his finan- 267, 3 A. B. E. 418, 98 Fed. 408; In re eial condition. In re Weston, 206 Fed. Freund, 2 N. B. N. E. 236, 3 A. B. E. 281, 30 A. B. E. 647. 418, 98 Fed. 81; In re Sidle, 2 N. B. R. 18— In re Greenberg, 114 Fed. 773, 8 77, Fed. Cas. No. 12844; In re Plager, 2 A. B. E. 94; In re MoBaohron, 116 Fed. N. B. E. 10; In re Hill, 1 N. B. E. 42, 2 783, 8 A. B. E. 732. Ben. 136, Fed. Cas. No. 6482; In re Or- § 1491] The Discharge on? the Bankrupt 1083 necessarily show an intent to conceal where a memorandum was kept of such transaction.^^ The entry of an excessive credit in favor of one purchasing goods from the bankrupt for the pur- pose of deceiving general creditors into a belief that an ordinary sale of lumber had been made to an unsecured creditor is not sufficient to bar a discharge.^^ Though the reasonable consequences of such conduct may be a concealment of one's financial condition, the mere keeping of imperfect books or the failure to keep any books will not bar a discharge unless it is shown that the bankrupt thereby intended to conceal his financial condition from his creditors,^ ^ and such intent will not be presumed, as a matter of law, from mere bad book-keeping or a failure to keep any books.^^ But where the bankrupt is in a business which ordinarily requires the keeping of accurate books, it is held that the intent may be presumed from the fact that he knew that he was insolvent and yet failed to keep books of account.^* A fraudulent failure to keep books with intent to conceal his true condition would not exist when bankrupt is not a business man and is willing to give evidence as to the unrecorded transactions ; ^* or where he had no business transactions ; ^° or as to property of his wife ; ^® or if there is a discrepancy or even a contradiction between his testimony and the facts as shown on the books where he alludes 19— In re Sabsevitz, 197 Fed. 109, 28 22— In re Brockman, 168 Fed. 1015, 21 A. B. E. 623. A. B, E. 251. 20 — ^In re Hamilton, 133 Fed. 823, 13 Failure of illiterate to keep books of A. B. E. 333. account held not conclusive on question 21— 111 re Marcus & Scherr, 203 Fed. of intent. In re Pinsker, 25 A. B. R. 494. 29, 30 A. B. R. 176, aflf'g 192 Fed. 743, 23— In re Feldstein, 108 Fed. 794, 6 27 A. B. R. 164; In -re Brown, 199 Fed. A. B. R. 458; aff'd 115 Fed. 259, 8 A. 356, 29 A. B. R. 73; In re Finan, 2 N. B. E. 160; Bragassa v. St. Louis Cycle, B. N. E. 872; In re Tanner, 192 Fed. 107 Fed. 77, 5 A. B. E. 700; In re 572, 27 A. B. R. 615; In re Napier, 23 Kenyon, 112 Fed. 658, 7 A. B. E. 527; A. B. E. 560; In re Hodge, 205 Fed. 824, and see In re Currie, 23 A. B. E. 539; 30 A. B. E. 522 ; In re Burstein, 160 Fed. McKibbon v. Haskell, 198 Fed. 639, 28 765, 20 A. B. E. 399; In re Goldich, 164 A^ B. E. 588. Fed. 882, 21 A. B. E. 249; In re Griffin 24^-In re Marsh, 2 N, B. E. 593. Bros., 154 Fed. 537, 19 A. B. E. 78; In 25— In re Penny, 2 N. B. N. E. 1001; re AUendorf, 129 Fed. 981, 12 A. B. E. Sellers v. Bell, 2 A. B. E. 529, 94 Fed. 320; In re Garrison, 149 Fed. 178, 17 801. A. B. E. 831; In re HaskeU, 164 Fed. 301, 26— In re De-sys, 1 N. B. N. 411, 2 A. 20 A. B. E. 914. B. E. 483, 96 Fed. 181. 1084 Beandbnbtjeg on Bankbuptcy [§ 1491 to them in his testimony and expresses a willingness to produce them." The section as amended is intended to prevent a discharge if the bankrupt, whether in contemplation of bankruptcy or not, for any reason, whether fraudulent or not, has kept his books with intent to conceal his financial condition from any one, irre- spective of his being a creditor. If the act be done wilfully it will bar a discharge though the purpose was to conceal a crime, and not to injure creditors,^* or to conceal the bankrupt's financial condition from his confidential manager and not to defraud creditors.*^ A bankrupt may be denied a discharge because of his part- ners failure to keep proper books of account unless he affirmatively shows his innocence or ignorance of the wrong- doing of his partner.^" § 1492. — Concealment and destruction of books. Concealment of books of account, as an objection to discharge, required three things to be proven prior to the amendment of 1903; (1) concealment of the books, (2) fraudulent intent to conceal bankrupt's condition, and (3) that the concealment was in contemplation of an act of bankruptcy or a voluntary applica- tion in bankruptcy, and not merely a state of insolvency. Since the passage of said amendment, it is not necessary to show fraudulent intent, nor that the concealment was committed in contemplation of an act of bankruptcy. The burden of proof is upon the attacking creditor, and he must make out a prima facie case before the burden shifts to the bankrupt.'^ The mere destruction of books of account, without proof of the bankrupts intent to conceal his financial condition is not sufficient to bar a discharge. ^^ An intent exists and a discharge will be refused where a bankrupt destroys vouchers while the papers in bankruptcy are being prepared, so that the disposition 27— In re Strouse, 2 N. B. N. R, 64. A. B. E. 30; In re Robert Lewin, ISSPefl. 28— In re Wolf, 156 Pad. 543, 19 A. 501, 18 A. B. R. 72; In re Boasberg, 1 B. R. 70. N. B. N. 133, 1 A. B. R. 353; In re 29— In re Hanna, 168 Fed. 238, 21 Carmiehael, 96 Fed. 594, 2 A. B. R. 815; A. B. R. 843. In re Ablowich, 2 N. B. N. R. 386, 99 .30— In re Currie, 23 A. B. R. 539. Fed. 81, 3 A. B. R. 586. 31— In re Hodge, 205 Fed. 824, 30 A. 32— In re Hodge, 205 Fed. 824, 30 A. B. E. 522; In re Eades, 143 Fed. 293, 16 B. E. 522. §1492] The Dischaege of the Bankeupt 1085 of his funds in bank cannot be shown, especially if no books of account are kept; ^^ or if he destroys cancelled checks and stubs showing the purpose for which checks were paid and to whom payable,** or if an original book be concealed and a copy is substituted from which certain entries are omitted;*^ or if slips containing a correct record of goods sold and the amount of the sales are destroyed and no other books are kept; *^ or if books were kept prior to the passage of the act, and were concealed or destroyed after its passage; ^'^ or where he swears falsely that the books are correct, or that he does not know where they are.'® A discharge will not be refused if the books were partially destroyed by fire without the bankrupt's fault or connivance; ** or if his ledger is mutilated, if not done by him or with his knowledge, and the entries on the missing pages are to be found repeated in other parts of the book.*" Placing books deemed of little account in a barrel in a cellar has been held not con- clusive on the question of intent to conceal.*^ To sustain a charge of concealment of books, it must appear that the bankrupt, at or about the time of the filing of the petition, knew or might have ascertained where the old books were, and that he was, therefore, privy to their non-production, and the burden of proof falls upon the creditors.*^ The failure of a bankrupt to deliver his books to the trustee, make return of them in his schedules, or otherwise account for them, creates 'the presumption that he has them and is guilty of concealing them.** 33— In re ScUesinger, 2 N. B. N. E. re Kamsler, 2 N. B. N. E. 97, 97 Fed. 169, 3 A. B. E. 342, 97 Fed. 930; In re 194. Salkey, 11 N. B. E. 423. 39— In re Guardineer, 2 N. B. N. E. 34— In re Hodge, 205 Fed. 824, 30 A. 924. B. E. 522. . 40— In re Brice, 102 Fed. 114, 4 A. B. 35— In re MeBachron, 116 Fed. 783, 8 E. 355. A. B. E. 732. 41— In re Murray, 162 Fed. 983, 20 36— In re Hirshowitz, 194 Fed. 562, 27 A. B. E. 700. A. B. E. 701. 42— In re Phillips, 2 N. E. N. E. 424, 37— In re Hirsch, 96 Fed. 468, 2 A. B. 98 Fed. 844, 3 A. B. E. 542. E. 715; In re Slekter, 2 N. B. N. E. 951; 43— Baylor v. Eawlings, 200 Fed. 131, Ablowich V. Stnrsburg, 105 Fed. 751, 5 28 A. B. E. 77? ; In re Beal, 2 N. B. B. A. B. E. 403. 178, Fed. Caa. No. 1156. 38— In re MoGuire, 1 N. B. N. 279; In 1086 Beandenbueg on Bankruptcy [§ 1493 § 1493. — Books held proper. Books of account must be sueli as will, at all times, exhibit the condition of the debtor, so that when placed before creditors for investigation they may at once ascertain his standing and property, and the result of his business, and whether everything has been fair and honest on his part.** Books of account need not have been kept in the most scien- tific manner,*^ but may be of any form, provided a true condition of the bankrupt's affairs can be gathered from them, that is, they must show receipts, payments, assets, liabilities and the stock on hand.*^ A discharge will not be refused merely because the books have been so kept as to make it difficult, if not impos- sible, to get an exact financial condition, without further exam- ination.*'' It is sufficient if a stock book, day book and ledger were kept,** or if the invoices were kept carefully together, without an invoice book, the other customary books being kept ; *^ or if bank books were kept showing the amount received and books showing amounts and to whom paid, but no cash book ; ^° or if a chattel mortgage or a promissory note, or a real estate transaction as entered in a blotter kept by a bankrupt as a trader, fully disclosing his indebtedness; ^^ or a detached check may be admissible, together with the stub-book; ^^ or a pass book is a necessary book of account.^' Books of account in another business need not be kept.®* Neither the accidental omission of entries in a trader's books of account,®^ nor the muti- lation of such books, if satisfactorily explained,^® nor even 44 — In re Brockway, 7 N. B. E. 575, 6 50— In re Marsh, 19 N. B. E. 297, Fed. Ben. 326, Fed. Cas. No. 1917; In re Gar- Cas. No. 9109. rison, 7 N. B. E. 287, Fed. Cas. No. 5254. 51— In re Winsor, 16 N. B. E. 152, 45 — In re Simon, 201 Fed. 1004, 29 A. Fed. Cas. No. 17885. B. E. 808. 52— In re Brockway, 7 N. B. E. 595, 46— In re Bellis, 3 N. B. E. 124, 4 Ben. 16 Ben. 326, Fed. Cas. No. 1917. 53, Fed. Cas. No. 1275; In re Solomon, 53 — In re Blumenthal, 18 N. B. E. 555, 2 N. B. E. 94, Fed. Cas. No. 13167; In re Fed. Cas. No. 1576. Newman, 2 N. B. E. 99, 3 Ben. 20, Fed. 54 — In re Friedberg, 19 N. B. E. 302, Cas. No. 10175; In re Mackay, 4 N. B. Fed. Cas. No. 5116; In re Herdie, 19 N. E. 17, Fed. Cas. No. 8837 ; In re Antisdel, B. E. 385, Fed. Cas. No. 6403. 18 N. B. E. 289, Fed. Cas. No. 490. 55— In re Burgess, 3 N. B. E. 47, Fed. 47— In re Marcus & Seherr, 203 Fed. Cas. No. 2153. 29, 30 A. B. E. 176, aff'g 192 Fed. 743, 56— In re Noonan, 3 N. B. E. 63, Fei 27 A. B. E. 164. • Cas. No. 10291. 48— In re Phinney, 2 N. B. N. E. 1001. 49— In re Eeed, 12 -N. B. E. 390, Fed. Cas. No. 11639. § 1494] The Dischabge op the Bankrupt 1087 material erasures and alterations in the books, unless made witli intent to conceal ^'' the financial condition, would be ground for withholding a discharge. The books of account need not con- tain entries of debts previously contracted and owed at the time the bankrupt went into trade.^* The fact that accounts of a stockholder are kept under num- bers instead of names of customers does not establish an intent to conceal the broker's financial condition, especially where the name of the customer can be ascertained from other records kept by the bankrupt.^^ § 1494. — Books held improper. In the following cases, it has been held that the true condition of affairs could not be determined by a competent person, and, therefore, a proper keeping of books of account did not exist: where accounts were kept on slips which are destroyed each month; ®" where neither an invoice book, cash book, blotter, day book, journal or ledger was kept, but only books containing memoranda of business transactions from which no correct esti- mate of the condition could be made; ®^ where no cash book was kept,®^ or if kept was unintelligible; ^^ or the books did not show what moneys were expended in carrying on business and what sums were taken out for family expenses; ®* where the invoices of purchases, receipts or payments, bank books and canceled checks were kept, but the cash receipts were kept on a slate and daily erased;®^ where invoice or stock books were not kept; '^ where only a small memorandum book of sales was incompletely kept ; "'' or where no record of transactions between 57— In re Antisdel, 18 N. B. E. 289, 1275; In re Littlefield, 3 N. B. E. 13, 1 Fed. Cas. No. 490. Lowell, 331, Fed. Cas. No. 8398. 58— In re Winsor, 16 N. B. E. 152, Fed. 63— In re Mackay, 4 N. B. E. 17, Fed. Cas. No. 17885. Cas. No. 8838. 59— In re Brown & Co., 204 Fed. 63, 64— In re Anketell, 19 N. B. E. 268, 30 A. B. E. 305. Fed. Cas. No. 394. 60— Hammond v. Coolidge, 3 N. B. E. 65— In re Solomon, 2 N. B. E. 94, Fed. 71, LoweU, 371, Fed. Cas. No. 5999. Cas. No. 13167. 61— In re Schumpert, 8 N. B. E. 415, 66— In re White, 2 N. B. E. 179, Fed. Fed. Cas. No. 12491. Cas. No. 17532. 62— In re Gay, 2 N. B. E. 114, 1 Haak. 67— In re Newman, 2 N. B. E. 99, 3 108, Fed. Cas. No. 5279; In re Bellis, 3 Ben. 20, Fed. Cas. No. 10175. N. B. E. 124, 4 Ben. 53, Fed. Cas. No. 1088 Bbandenbueg on Bankbtjptcy [§ 1494 partners, but only with customers was kept;®* where merely a blotter and memorandum book were kept,**® where purchases were not entered; ''" where indebtedness to relatives was not placed on the books; ^^ or where loans made to the bankrupt were kept only in personal memorandum books, concealed from every oneJ^ § 1495. — Obtaining property on credit. By the amendment of February 5, 1903, congress provided that a discharge shall be refused where the bankrupt has ' ' obtained property on credit from any person upon a materially false statement in writing made to such person for the purpose of obtaining such property on credit." The provision has no counterpart in any of the prior bankruptcy laws of this country. This provision was changed in 1910, so as to read "obtained money or property on credit upon a materially false statement in writing, made by him to any person or his representative for the purpose of obtaining credit from such person." The denial of a discharge on this ground will not be limited to the creditor from whom the credit was obtained, but any person in interest may make the objection.'^^ The fact that the person from whom the credit was obtained had ceased to be a creditor at the time of the adjudication is immaterial,'^* though it is held that a creditor who has, for a valuable consideration, released the bankrupt from any claim on account of false state- ments made by him, cannot object to a discharge on the ground of such statements.'^® The obtaining of property on a false statement before the passage of the amendatory act will bar a discharge in a proceed- ing commenced after the passage thereof.'^® While no specific 68— In re Blmnenthal, 18 N. B. E. 555, 17 A. B. E. 343; In re Harr, 143 Fed. Fed. Cas. No. 1576. 421, 16 A. B. E. 213; In re Pinsker, 25 69— In re Bamberger, 2 N. B. N. E. 95. A. B. E. 494; In re MUler, 192 Fed. 730, 70— In re Schachter, 170 Fed. 683, 22 27 A. B. E. 606; In re Shaffer, 169 Fed. A. B. E. 389. 724, 22 A. B. E. 147; Talcott v. Friend, 71— In re KoeUe, 171 Fed. 257, 22 A. 179 Fed. 676, 24 A. B. E. 708. B. E. 515. 74— In re Harr, 143 Fed. 421, 16 A. B. 72— Pomerantz v. Hopkins, 168 Fed. E. 213. 444, 21 A. B. E. 857; In re Feldstein, 115 75— In re Eussell, 176 Fed. 253, 23 A, Fed. 259, 8 A. B. E. 160, aff'g 108 Fed. B. E. 850. 794, 6 A. B. E. 458. 76— In re Seott, 126 Fed. 981, 11 A. 73— In re Carton & Co., 148 Fed. 63, B. E. 327. §1495] The Discharge of the Bankrupt 1089 time is fixed by the statute -within which the statement must have been made and the property obtained, by analogy to other provisions of the law it is evident that congress intended that the property must have been obtained within four months of the institution of the bankruptcy proceedings.'''' The fact that the statement was made prior to the four-month period makes no difference, however, if property was in fact obtained on the strength of it within the four-month period.''* The provision certainly does not apply, without limit of time, to any obtaining of credit, however long before bankruptcy, and irrespective of intervening transactions with the creditor.''® The insertion of the word "money" in the amendment does not change the law, money having been held to be property within the meaning thereof.*" Under the original amendment of 1903, the relation of debtor and creditor must have existed between the bankrupt and the party from whom the property was obtained. Accordingly the obtaining of a surety or indemnity bond was held not an obtain- ing of credit within the meaning of the aet.*^ Under the amend- ment of 1910, the bankrupt must have (1) "obtained money or property (2) on credit, (3) upon a materially false statement (4) in writing, (5) made by him (6) to any person or his repre- sentative, (7) for the purpose of obtaining credit (not money or property) from such person." Obviously the credit must be obtained from any person to whom the representations are made, and false statements made to a surety company whereby it is induced to execute an indemnity bond under the conditions of which money is advanced by a third person to the bankrupt, will be held to have been naade "for the purpose of obtaining credit. "«2 The written statement need not be delivered by the bankrupt to the person extending credit; it is sufficient that the statement be delivered to an agent of the bankrupt and its contents com- 77— litre Tewns, 172 Ted. 938, 22 A. 80 — ^Petition of Louisville National B. E. 895. Contra, In re Simon, 201 Fed. Bank, 19 A. B. E. 309, rev'g 19 A. B. E. 1004, 29 A. B. E. 808. 41. 78— In re Terens, 172 Fed. 938, 22 A. 81— In re Tanner, 192 Fed. 572, 27 A. B. E. 895. '. B. E. 615. 79— In re O'CaUaghan, 199 Fed. 662, 82— In re Dunfee, 206 Fed. 745, 30 A. 29 A. B. E. 304. B. E. 721. Brandenburg — 69 1090 Bbandehbueg on Bankbtjptcy [§ 1495 municated to the person extending credit,*^ or that the statement be prepared by an agent acting within the scope of his authority and delivered by him.®* Under the language of the section as it was prior to the amendment of 1910, the false statement had to be made with the intent of obtaining such credit as it was planned at the time to afford a basis for, and the objecting creditor was required to establish: first, that the bankrupt obtained property on credit, and, second, that he made to the person from whom he obtained it a materially false statement, in writing, for the purpose of obtaining the property.*® The false statement must have been made to the creditor from whom the property was obtained or to his agent or to some person with the intent, purpose and expectation of its communication to the creditor from whom the property was obtained and with the purpose of acquiring the same. A statement made generally where it was not expected or was not the purpose that it should be communicated to the creditor was not such as would operate as to defeat the discharge. So, a false statement made in confidence to a com- mercial agency merely for the purpose of obtaining a favorable rating could not ordinarily be used as a bar to a discharge.*' Under the language as amended, the word "such" has been omitted and the section would seem to apply to any false state- ment which had to do with the extension of credit affecting the bankruptcy proceeding.*'^ The creditor must have relied upon the statement in extend- ing credit, and the statement must have been the proximate cause of the extension of credit, and a discharge will not ordi- narily be refused where the credit was extended long after the making thereof.** The statement need not, hoVever, have been 83— In re Dresser, 146 Fed. 383, 16 A. & Co., 148 Fed. 63, 17 A. B. E. 343; In B. E. 561. re Pineus, 147 Fed. 621, 17 A. B. E. 331; 84— In re Schwartz & Co., 201 Fed. In re Augspurger, 181 Fed. 174, 25 A. B. 166, 28 A. B. E. 670. E. 83. 85— In re Shaffer, 169 Fed. 724, 22 87— In re Puschkin, 183 Fed. 882, 25 A. B. E. 147; In re AUendorf, 129 Fed. A. B. E. 742. P81, 12 A. B. R. 320. 88— In re O'Callaghan, 199 Fed. 662, 86— Noviok v. Eeed & Co., 192 Fed. 20, 29 A. B. E. 304; In re Sabsevitz, 197 27 A. B. E. 521 ; In re Eussell, 176 Fed. Fed. 109, 28 A. B. E. 623 ; In re Braver- 253, 23 A. B. E. 850; In re Foster, 186 man, 199 Fed. 863, 28 A. B. E. 513; In Fed. 254, 24 A. B. E. 368; In re Napier, re Shaffer, 169 Fed. 724, 22 A. B. E. 147; 23 A. B. E. 560. But see In re Kyte, 174 In re AUendorf, 129 Fed. 981, 12 A. B. Fed. 867, 23 A. B. E. 414; In re Carton E. 320; In re Kaplan, 141 Fed. 463, 15 §1495] The Dischabge of the Bankrupt 1091 the sole inducing cause in obtaining the goods, it being sufficient that it had a material influence in securing goods, and that the" creditor would not have made the sale but for it.^' It is imma- terial that an independent investigation to a certain extent was made with regard to the statement.^" The statement to a com- mercial agency must be regarded as a continuing one, and unless recalled, is entitled for a reasonable time to be relied upon.®^ It is immaterial that at the time of bankruptcy the amount owing the creditor was less than at the time the false statement was made, it appearing that payments were applied to purchases made before the making of the statement and that subsequent purchases were made on ctedit.^^ So, where the. bankrupt gave the creditor a statement of financial condition which by express agreement, was to remain binding unless changed by written authority of the bankrupt, the fact that some sales made subse- quently thereto had been paid in full, will not prevent the cred- itor from urging the falsity of such statement as a bar.^* The statement must have been knowingly and intentionally false, or made recklessly without an honest belief in its truth, and with a purpose to mislead or deceive, and thereby obtain prop- erty upon credit.®* It is not necessary, however, that the entire statement be false. If one item be materially false the dis- charge will be' refused.®^ The fact that the creditor desiring a A. B. R. 534; In re Cotton & Preston, A. B. B. 113; Peek Co. v. Lowenbein, 183 Fed. 181, 25 A. B. E. 517. 178 Fed. 178, 24 A. B. E. 138; Shaffer v. 89— In re Savarese, 209 Fed. 830, Sf The Koblegard Co., 183 Fed. 71, 24 A. A. B. R. 758; In re Kyte, 174 Fed. 867, B. E. 898, aff 'g 169 Fed. 724, 22 A. B. 23 A. B. E. 414. E. 147; In re Kyte, 174 Fed. 867, 23 90— In re Kyte, 174 Fed. 867, 23 A. A. B. E. 414; contra. In re Terens, 172 B. E. 414. . Fed. 938, 22 A. B. E. 895. 91 — In re Kyte, 174 Fed. 867, 23 A. B. Gross inaccuracy in valuation of prop- E. 414. erty — gross overvaluation — held sufficient 92 — In re Arenson, 195 Fed. 609, 28 to show that statement was fraudulent A. B. E. 113. and made to obtain credit. In re EUer- 93— Eagan, Malone & Co. v. Cotton & bee, 198 Fed. 952, 29 A. B. E. 87., Preston, 200 Fed. 546, 29 A. B. E. 597. 95— In re DareVski, 171 Fed. 288, 22 94— In re O'Callaghan, 199 Fed. 662, A. B. E. 571. 29 A. B. R. 304; Gilpin v. Merchants' Suppression of all indebtedness for Nat. Bank, 165 Fed. 607, 20 L. R. A. borrowed money in statement of financial (N. S.) 1023, 21 A. B. E. 429, rev'g 160 condition held to bar discharge. In re Fed. 171, 20 A. B. E. 374; Firestone v. Brener, 166 Fed. 930, 20 A. B. E. 644. Harvey, 174 Fed. 574, 23 A. B. E. 468; Failure to disclose liability for bor- In re Bravennan, 199 Fed. 863, 28 A. B. rowed money held to bar discharge. In B. 513; In re Arenson, 195 Fed. 609, 28 re Miller, 192 Fed. 730, 27 A. B. E. 606. 1092 Bbandenburg on Bankexjptcy f § 149^ statement of the bankrupt's financial condition states that it is a mere matter of form cannot absolve the bankrupt from the consequences of making a false statement,®® and if the intent in making a false statement of financial condition is fraudulent, it is immaterial that the loss occasioned to the creditor is small. It is sufficient that such creditor would not have extended the credit had he known the bankrupt's exact financial condition.®^' A statement made verbally would not suffice; it must be in writing.®* False statements by a partner by means of which property is obtained on credit will bar a discharge to the partnership as well as to the partner making the statement,®® but not to a partner who did not participate in the wrongful act and had no knowl- edge thereof.^ The bankrupt will be presumed to have had an intention to deceive where he signed and delivered, a statement of the condition of his firm.^ Where goods are delivered to a partnership in reliance upon a false statement made by one of the partners before the orgkni- zation of the partnership, the other partner may be estopped by receipt of the goods to deny that he was a copartner at the time the false statement was made.^ Where the firm of which the bankrupt was a member had been discharged more than seven years prior to the adjudication of the bankrupt member, and it, as well as its members was guilty of fraudulent representations, the failure of the creditor to set up the same as a bar to the discharge of the firm, or to institute 96 — ^In re Arenson, 195 Fed. 609, 28 son & Perrill, 200 Fed. 812, 290 A. B. E. A. B. R. 113. 603; In re Cotton & Preston, 183 Fed. 97— In re Brener, 166 Fed. 930, 20 A. 181, 25 A. B. B. 517; Frank v. Michigan B. E. 644. Paper Co., 179 Fed. 776, 30 L. E. A. 98— In re Chamberlain, 180 Fed. 304, (N. S.) 623, 24 A; B. E. 261. 25 A. B. R. 37. Partner's statement to mercantile 99— In re Jaeobson & Perrill, 200 Fed. agency made for purpose of obtaining 812, 29 A. B. E. 603 ;• Frank v. Michigan firm credit from a particular creditor Paper Co., 179 Fed. 776, 24 A. B. E. held a bar to discharge of partner. In 261 ; In re Terens, 172 Fed. 938, 22 A. B. re Simon, 201 Fed. 1004, 29 A. B. E. E. 895; contra, In re Cotton & Preston, 808. 183 Fed. 181, 25 A. B. E. 517. 2— In re Simon, 201 Fed. 1004, 29 A. 1 — Hardie v. Swafford Bros. Dry B. E. 808. Goods Co., 165 Fed. 588, 20 L. E. A. 3— In re Neyland & McKeithen, 184 (N. S.) 785, 21 A. B. E. 457, rev'g 143 Fed. 144, 24 A. B. E. 879. Ped. 607, 16 A. B. R. 313; In re Jacob- §1496] The Disohaegb of the Bankrupt 1093 suit against either of the members has been held to estop him from setting up the fraud as a bar.* The fact that the bankrupt had on prior occasions drawn drafts on a bank when there were no funds to meet them, does not constitute a draft drawn by his agent without his knowledge or direction a false statement barring a discharge.^ While the burden is upon the objecting creditor in the first instance to prove the intent to deceive, yet, when it is shown that the bankrupt made a material statement which he knew was untrue, the burden shifts to the bankrupt to show that it was not made with intent to deceive.® The bankrupt's disclaimer of any intent to deceive is, in the absence of corroborating circum- stances, entitled to little weight.'' It will be presumed that the bankrupt knew his financial condition,* and that he had know- ledge of the falsity of a statement prepared by his bookkeeper,^ and the bankrupt's failure to disclose in a financial statement, an indebtedness owing to friends or relatives will be presumed to have been made with a fraudulent intent.'^" § 1496. — Transfer, destruction or concealment of assets. By the amendment of February 5, 1903, congress has definitely enacted that a discharge will be refused if the bankrupt has "at any time subsequent to the first day of the four months immediately preceding the filing of the petition transferred, removed, destroyed, or concealed, or permitted to be removed, destroyed, or concealed, any of his property with intent to hinder, delay, or defraud his creditors." Prior to this amend- ment a e-oncealment of assets has been held to be a sufficient ground for refusing a discharge. What amounts to a conceal- ment of assets has been frequently passed upon by the courts to the following effect, and is held to include a transfer with intent to defraud creditors. The separation of some tangible thing, money or chose in action, from the body of an insolvent debtor's estate and its secretion from those "wiho have a right 4— In re Cason, 27 A. B. R. 903. 8— In re Augspurger, 181 Fed. 174, 25 5— Firestone v. Harvey, 174 Fed. 574, A. B. E. 83. 23 A. B. E. 468. 9— In re Savarese, 200 Fed. 830, 31 A. 6— In re Arenson, 19S Fed. 609, 28 A. B. E. 758. B. E. 113. 10 — In re Arenson, 195 Fed. 609, 28 A. 7— In re Arenson, 195 Fed. 609, 28 A. B. B. 113. B. E. 113. 1094 BEANDElirBUBG ON Bankeuptct [§ 1496 to seize upon it. for the payment of tHeir debts, is, within the law, a concealment and continues such as long as the secre- tion remains. In such a case the property opened to creditors is decreased by just the amount thus secreted. On every occa- sion when it is properly the bankrupt's duty to disclose his assets, a failure knowingly to do so will be a concealment of them,^^ and this would be true whether the property was con- veyed prior to the passage of the law or subsequent, if the bank- rupt still retained a beneficial interest therein at the time of filing his petition, the concealment of title to property being as much a concealment of assets under the law as would be the actual hiding of the same.^^ The amount or value of the property concealed is immaterial.^^ The transfer, destruction or concealment of assets prior to the four-month period is no bar to a discharge,^* but the fact that the act of concealment in the first instance was more than four months prior to the petition is immaterial if the concealment is continued into the four-month period. If a bankrupt has disposed of property belonging to him, prior to adjudication, and has the proceeds thereof in his possession or within his authority to use and appropriate subsequently, there is a continuing concealment for which he is amenable to the law, although the concealment by intent and purpose took place while he was not a bankrupt.^® There, must be a concealment of assets from the trustee. A mere attempt to hinder and delay creditors is not sufficient to support the objection.^^ The fact that the bankrupt schedules property after the dis- covery of its concealment will not relieve him from the conse- quences of the concealment,^'^ nor will the tender of a conditional 11— In re Wakefield, 207 Ted. 180, 31 14— In re Brnmbaugh, 128 Ped. 971, A. B. E. 42; In re Lesser, 108 Fed. 205, 12 A. B. E. 204; In re Boner, 169 Ted. 5 A. B. E. 331. 727, 22 A. B. E. 151. 12 — In re Jacobs & Verstandig, 147 15 — James v. Stone & Co., 181 Fed. Fed. 797, 17 A. B. E*470; Citizens Bank 476, 24 A. B. E. 288, afE'g 175 Fed. 894, of Salem v. De Paw Co., 3 N. B. N. R. 23 A. B. E. 703; In re Jacobs & Ver- 244; In re Berner, 2 N. B. N. E. 268; In standig, 147 Fed. 797, 17 A. B. E. 470. re Quackenbush, 2 N. B. N. E. 964, 102 16 — ^In re Jacobs, 144 Fed. 868, 16 A. Fed. 282, 4 A. B. E. 274; In re Fitehard, B. E. 482. 2 N. B. N. E. 1075, 103 Fed. 742, 4 A. B. 17— In re Breiner, 129 Fed. 155, 11 E. 609. A. B. E. 684. 13— In re Hirshowitz, 194 Fed. 562, 27 A. B. E. 701. §1496] The Disohabge op the Bankeupt 1095 assignment of property alleged to have been fraudulently con- veyed, which, will necessitate the trustee's bringing an action to determine the validity of the conveyance, relieve the bank- rupt from the consequences of his acts, or be considered to nega- tive his obvious intention to conceal his property.^^ The concealment of property may occur by leaving out of the schedule that which was conveyed in fraud of creditors, the act of concealment being committed at the time of omission.^* A fraudulent omission and concealment may consist of the failure to include as assets the stock of goods, fixtures and materials in a store, or money derived from an accident insur- ance policy, or money received from cash sales and unaccounted for, or money withdrawn from the business just previous to bankruptcy, or money in the bankrupt's possession shortly before bankruptcy, or a valuable estate in remainder under a will, or assets concealed by the mode of accounting adopted, or real and personal property transferred within four months prior to the filing of the petition, without consideration and with intent to defraud creditors, or property conveyed reserving a secret trust to bankrupt;^" or if bankrupt, after failing, organ- ized a corporation, and then filed an individual petition, the court may be justified in treating the corporation as a fiction, and the sums due to it as the assets of the bankrupt.^* 18— In re Doyle, 199 Fed. 247, 29 A. 163i In re Welch, 1 N. B. N. 533, 3 A. B. B. R. 102. E. 93, 100 Fed. 65.; In re Berner, 2 N. B. 19— In re' Wakefield, 207 Fed. 180, 31 N". E. 268; In re Connell, 3 N. B. E. 113, A. B. E. 42; In re Hirshowitz, 194 Fed. Fed. Gas. No. 3110; In re Eathbone, 1 562, 27 A. B. E. 701; In re SJeed, 107 N. B. B. 536, Fed. Gas. No. 11583; In re Fed. 682, 6 A. B. E. 73. But see In re Hussman, 2 N. B. E. 140, Fed. Gas. No. Hennebry, 207 Fed. 882, 31 A. B. E. 6951; In re Quaekenbush, 102 Fed. 282, 231. 2 N. B. N. E. 964, 4 A. B. E. 274; In re 20— In re Borg, 184 Fed. 640, 25 A. Lowenstein, 106 Fed. 51, 7 A. B. E. 193; B. E. 189; Field v. United States, 137 In re Becker, 106 Fed. 54, 5 A. B. E. Fed. 6, 14 A. B. E. 507; In re Penny, 2 438; In re Holstein, 114 Fed. 794, 8 A. N. B. N. E. 1001; In re Bernes, 3 N. B. B. E. 147; In re DeGottardi, 114 Fed. N. E. 49, 104 Fed. 672; In re Lowenstein, 328, 7 A. B. E. 723; In re Grossman, 111 1 N. B. N. 329, 2 A. B. E. 193; In re Fed. 507, 6 A. B. E. 510; In re Otto, Boy, 1 N. B. N. 526, 3 A. B. E. 37, 96 115 Fed. 860, 8 A. B. E. 305, 753; In re Fed. 400; In re O'Gara, 97 Fed. 932, 3 Bullwinkle, 111 Fed. 364, 6 A. B. E. A. B. E. 349; In re Mendelsohn, 1 N. B. 756; Osborne v. Perkins, 112 Fed. 127, N. 391; In re Woods, 98 Fed. 972, 3 A. 7 A. B. E. 250; In re Schenck, 116 Fed. B.R. 572; In re MoNamara, 1 N. B. N. 554, 8 A. B. E. 727; In re Leslie, 119 326, 1 A. B. E. 566; In re Dews, 2 N. B. Fed. 406. N. B. 437, 101 Fed. 549, 3 A. B. E. 691; 21— In re Horgan, 2 N. B. N. E. 53, 97 In re Skinner, 97 Fed. 190, 3 A. B. B. Fed. 319. 1096 Beandenbubg on Bankeuptcy [§ 1496 A discharge will be refused, if the bankrupt puts into his schedule as due a debt which is false or fictitious.^* An honest unintentional mistake of a bankrupt in failing to schedule certain creditors and debts will not preclude his dis- charge against scheduled creditors and debts/^ hut will preclude his discharge against the omitted ones,** or mere omissions and inaccuracies, which may be corrected by amendment; "^ or if the omission or inaccuracy is not caused by a fraudulent intent to conceal the property from his trustee, but is the result of a mis- take of law or of fact,*" or of an honest, though erroneous, belief that vhe had no available interest in the property; ^'' or tmless bankrupt's contention that the property omitted was not his is proven false and that he knew it was false,** and this is true of an omission to include an advance of a sum of money by a bank- rupt to his wife, when enjoying good credit, and the return of which he never exacted.** If it be doubtful whether a specific item should go to the estate, it is not for the bankrupt to con- stitute himself the judge, concealing the fact, but it is his duty to disclose the transaction, that the court may determine the right.^" It is no ground for refusing a discharge if it appear that the omission complained of is of property not belonging to the bank- rupt; ^^ or a pledge turned over to the creditor, holding it, long 22— lu re Heyman, 104 Fed. 677, 4* A. 28— In re Shepherd, 2 N. B. N. E. B. R. 735. " 1070. 23— In re Taplin, 135 Fed. 861, 14 A. 29— Sellers v. BeU, 94 Fed. 801, 2 A. B. E. 360; In re SlinglufE, 105 Fed. 502, B. E. 529. 2 N. B. N. E. 1115. 30— In re Nelson, 179 Fed. 320, 23 A. 24^In re Huber, 1 N. B. N. 431. B. E. 37; In re Galley, 127 Fed. 538, 11 25— In re Slinglufe, 105 Fed. 502, 2 A. B. E. 539; In re Breitling, 133 Fed. N. B. N. E. 1115. 146, 13 A. B. E. 126. 26— In re Griffin Bros., 154 Fed. 537, 31— In re Locks, 104 Fed. 783, 5 A. B. 19 A. B. E. 78; In re Blalock, 118 Fed. E. 136; In re Bryant, 104 Fed. 789, 2 679; In re Conn, 108 Fed. 525, 6 A. B. N. B. N. E. 1061; In re Adams, 2 N. B. E. 217; In re Lesser, 114 Fed. 83, 8 A. N. E. 1034, 104 Fed. 72, 4 A. B. E. 696; B. E. 15; In re Miner, 114 Fed. 998, 8 A. In re Fitehard, 2 N. B. N. E. 1075, 103 B. E. 248. Fed. 742, 4 A. B. E. 609; In re Freund, 27— In re Finan, 2 N. B. N. E. 872; In 2 N. B. N. ,E. 236, 98 Fed. 81, 8 A. B. re Morrow, 97 Fed. 574, 3 A. B. E. 263; E. 418; In re Hirsch, 2 N. B. N. E. 137, In re Crenshaw, 2 A. B. E. 623, 95 Fed. 97 Fed. 571, 3 A. B. E. 344. 632; In re Hirsch, 96 Fed. 468, 2 A. B. Failure of the president of a eorpora- E. 715; In re Bryant, 2 N. B. N. E. tion to schedule corporate property will 1061 ; In re Marsh, 109 Fed. 602, 6 A. B. not bar his individual discharge, though E. 537. the concealment, was with fraudijlent in- § 1496] The Dischabge of the Bankeupt 1097 before the bankruptcy in payment of his debt;^^ or a gift to one's wife made years before;^* or property purchased with money obtained by surrendering insurance policies payable to one's wife;^* or property transferred to his wife long before the act and purchased largely on credit and paid for with the proceeds of a business conducted as his wife's agent. ^^ Whether stock purchased in the wife's name with, money borrowed on the joint note of husband and wife is an asset of the bankrupt husband's estate can only be determined by a direct, proceeding between the proper parties, and its omission from the schedules will not bar a discharge; ^® nor is the omission of money bor- rowed to pay the fees and costs of filing the petition; ^'^ nor of a trust fund in which it is doubtful if, at the time of filing the petition, the bankrupt had a vested interest; ^® but the contrary would be true if it was a vested interest; ®^ nor of a lease, concern- ing which there is no evidence to show that the premises are worth more than the rent;*" nor a watch and chain of small value, omitted by attorney's advice, and worn openly during the proceedings; *^ nor of an attorney's contingent fee contract *^ (though this would seem questionable) ; or of property trans- ferred more than four months before the bankruptcy; *® nor is it tent. Vehon v. Tlllman, 147 Fed. 694, 17 Fed. 703, 3 A. B. R. 700; In re Hoadley, A. B. E. 435. 2 N. B. N. R. 704, 101 Fed. 233, 3 A. 32— In re Webb, 2 N. B. N. E. 289, B. R. 780. 98 Fed. 404, 3 A. B. E. 386; s. c. 2 N. 39— In re Wood, 98 Fed. 972, 3 N. B, B. N. E. 11, 3 A. B. R. 204. N. R. 141, 3 A. B. R. 572; In re St. John, 33— In re Toothaker Bros., 128 Fed. 3 N. B. N. R. 114. 187, 12 A. B. R. 99; In re Fitehard, 2 40— In re Hirseh, 2 N. B. N. R. 137, N. B. N. R. 1075, 103 Fed. 742, 4 A. B. 97 Fed. 571, 3 A. B. R. 344. E. 609; In re Freund, 2 N. B. N. R. 236, 41— In re Bryant, 2 N. B. N. R. 1061, 98 Fed. 81, 3 A. B. R. 418; In re House, 104 Fed. 789. 2 N. B. N. R. 1099, 103 Fed. 616, 4 A. B. 42— In re McAdam, 2 N. B. N. R. 256, E. 603. 98 Fed. 409, 3 A. B. E. 417. 34— In re Dews, 1 N, B. N. 411, 96 43— In re Hennebry, 207 Fed. 882, 31 Fed. 181, 2 A. B. E. 483. A. B. E. 231; In re Cotton & Preston, 35— In re Locks, 104 Fed. 783, 5 A. B. 23 A. B. E. 586; In re BushneU, 1 N. B. R. 136; In re Fitchard, 2 N. B. N. E. N. 528; In re Webb, 2 N. B. N. E. 11, 1075, 103 Fed. 742, 4 A. B. E. 609. 3 A. B. R. 204; Fields v. Karter, 115 36— FeUowB v. Freadenthal, 102 Fed. E'ed. 950, 8 A. B. E. 351 ; In re Goodale, 731, 4 A. B. R. 490. 109 Fed. 783, 6 A. B. R. 493 ; In re How- 37— Sellers v. Bell, 94 Fed. 801, 2 A. ell, 105 Fed. 594, 5 A. B. E. 414n. B. E. 529. The omission from the bankrupt's 38— In re Wetmore, 102 Fed. 290, 3 N. schedules of property fraudulently trans- B. N. E. 143, 4 A, B. E. 335, s. c, 99 ferred is not alone an offense under § 29b 1098 Bbandenbueg on BankeuptoI [§ 1496 a good objection that the bankrupt alleged certsdn assets sched- uled to be worthless, for such statement does not affect their real value, and bankrupt's discharge would not prevent his trustee recovering such assets.** The omission from the schedule of a complete statement of the property owned by the bankrupt is not in itself ground for refusing a discharge ; *' nor is the omission of names of creditors with their knowledge and consent; *® nor the name of a cred- itor,*'^ unless the omission is wilful and fraudulent; *® and if the grounds are false swearing, attempting to conceal property, and transferring a portion with intent to prefer, a discharge will be granted if the bankrupt had no interest therein and the transfer was without fraud.*® Where there has been conceal- ment of assets, the discharge may be made conditional upon the bankrupt using all reasonable means to discover the con- cealed assets,^" and a discharge will not be granted where bank- rupt acted as administratrix of her husband and mingled his property with hers, until she has properly accounted for hers; ^^ or where trustee accepts a homestead allotment made years before and the property has enhanced in value in excess of the amount allowed, until there is a re-allotment; ^^ but a wife will not be refused a discharge because her husband, to whom she left the entire conduct of the business, has committed one of the acts preventing his discharge.^^ The question whether the bankrupt knowingly and fraudu- lently concealed his interest in property is addressed to the sound (1) or (2) justifying the refusal of a 49— In re Penn, 5 N. B. N. R. 288, discharge. In re Hennebry, 207 Fed. 882, Fed. Cas. No. 10929; In re Smith, 13 31 A. B. R. 231. N. B. E. 256, 1 Woods, 478, Fed. Cas. No. 44r— In re Mudd, 2 N. B. N. B. 1112, 12995. 105 Fed. 348, 5 A. B. E. 242. 50— In re Hyman, 97 Fed. 195, 3 A. 45— In re Smith, 13 N. B. R. 256, 1 B. R. 169. Woods, 478, Fed. Cas. No. 12995; In re 51— In re Walther, 2 A. B. E. 702, 95 Blalock, 118 Fed. 679; In re SlinglufE, Fed. 941. 2 N. B. N. R. 1115, 105 Fed. 502; In re 52— In re McBryde, 3 A. B. E. 729, Miner, 1,14 Fed. 998, 8 A. B. R. 248, s. c,. 2 N. B. N. E. 845, 99 Fed. 686. 1.17 Fed. 953, 9 A. B. E. 100. 53— In re Hyman, 97 Fed. 195, 3 A. 46— In re Needham, 2 N. B. E. 124, 1 B. R. 169; In re Meyers, 3 N. B. N. E. liPweU, 309, Fed. Oas. No. 10081. 120; In re Meyers, 105 Fed, 353, 5 A. B. 47— In re Blaloci, 118 Fed. 679, 9 A. R. 4; see "Concealment , of B. R. 266. § 1611; see In re O'CaUaghan, 199 Fed. 48— Payne v. Able, 4 N. B, R. 67, Fed- 662, 29 A. B. E. 304. Cas. No, 10S54, §1496] The Dischabge of the Bankrupt 1099 judicial discretion of the court.^* The bankrupt's intent to hinder, delay and defraud his creditors may be inferred.^ ^ In order to establish a fraudulent concealment it must appear that the property belonged to the bankrupt and that the transfer was merely a temporary expedient to place the property beyond the reach of the trustee, the title to be resumed by the bankrupt as soon as prudence would permit.'" It is not sufficient to show merely bankrupt's former ownership of certain goods and that he is not now. able to account for them, but there must be evi- dence of his present possession or control of such property, or of a secret trust for his benefit in such property.'"' A mere discrepancy between the extent of the bankrupt's property as given in a statement of his financial condition shortly before bankruptcy and the extent thereof as shown by his sched- ules is not conclusive on the question of fraudulent concealment, but the bankrupt should be given an opportunity to account for the discrepancy,®* but if there is a disappearance of sub- stantial assets, which are unlisted and unaccounted for, the burden of proof devolves upon the bankrupt to account for their disappearance.®^ A bankrupt cannot overthrow a prima facie case of concealment of assets by his mere assertion that he acted as agent for another in dealing with the property alleged to have been concealed.®" The credibility and reasonableness of the bankrupt's explana- tion of the disappearance of assets shown to have recently been in his possession is addressed to the discretion of the judge.® ^ An admission by him that at the time of the filing of his petition he had money in his possession which he did not include in his schedules is sufficient to sustain the objections in the absence 54 — ^Rule applied to an interest under X72; In re Idzall, 96 Fed. 314, 2 A.-B. a wUl. Woods V. Little, 134 Fed. 229, E. 741; In re Crist, 116 Fed. 1007, 9 A. 13 A. B. E. 742. B. E.'l; Hudson v. Mercantile Nat. Bank 55— In re Wong, 30 A. B. B. 125. of Pueblo, Colo., 119 Fed. 346, 9 A. B. 56— In re Dauchy, 130 Fed. 532, 11 A. E. 432. B. E. 511; aff'g 122 Fed. 688, 10 A. 58— In re Boyden, 132 Fed. 991, 13 A. B. E. 527. B. E. 269. 57— In re Kolster, 146 Fed. 138, 17 59— In re Finkelstein, 101 Fed. 418, A. B. E. 52; In re Hoffman, 2 N B. N. 2 N. B. N. E. 839, 3 A. B. E. 800. E. 969, 102 Fed. 979, 4 A. B. E. 331; 60— In re Diamond, 204 Fed. 137, 30 In re Penny, 2 N. B. N. E. 1001; In re A. B. E. 363. Bemer, 2 N. B. N. E. 268, 3 A. B. E. 61— Seigel v. Cartel, 164 Fed. 691, 21 325; In re Cornell, 97 Fed. 29, 3 A. B. E. A, B. E. 140. 1100 Beandenbueg on Bankeuptcy [§ 1496 of some explanation."^ So, if a bankrupt, while insolvent, con- veys property to a near relative without consideration, and fails to disclose such property in his schedules, he is prima facie guilty of concealing assets."^ A decree dismissing a suit brought by the trustee seeking to charge property inherited by the bank- rupt 's wife with the cost of improvements made by the bankrupt has been held conclusive that the bankrupt was not guilty of concealment of assets in not scheduling a claim for such improve- n;ients.** § 1497. — Fraudulent conveyances, A fraudulent conveyance by a bankrupt is not in itself a bar to his discharge,*''' unless it amounts to a fraudulent concealment of assets;*'" nor is the fact that the bankrupt caused and per- mitted loss, waste and destruction of his estate and effects, and misspent and misused the same, prior to filing the petition.®^ To constitute a bar the transfer must have been made within four months and with intent to hinder, delay or defraud the entire body of creditors, not merely an individual creditor. So, the transfer by the bankrupt, a broker, of the stock of a cus- tomer is not a bar to a discharge though made with the intent to defraud the customer.*'^ A fraudulent conveyance made more than four months prior to the filing of the petition but recorded within four months thereof may bar a discharge.®^ A transfer may be fraudulent so as to bar a discharge, regardless of the fact that the bankrupt thinks he has a right to make if** 62— In re Friedrieh,. 199 Fed. 193, 28 E. 489; In re Berner, 2 N. B. N. E. 268, A. B. E. 656. 3 A. B. E. 325. 63— In re McCann, 179 Fed. 575, 24 67— In re Boner, 169 Fed. 727, 22 A. A. B. E. 789. B. E. 151 ; In re Eogers, 3 N. B. E. 139, 1 64^-In re Winchester, 155 Fed. 505, Lowell, 423, Fed. Cas. No. 12001. 19 A. B. E. 227. 68— In re Jacob Berry & Co., 146 65— In re Steed, 107 Fed. 682, 6 A. B. Fed. 623, 15 A. B. E. 360. E. 73; In re Crist, 116 Fed. 1007, 9 A. 69— In re MeKane, 155 Fed. 674, 19 B. E. 1, and cases cited. A. B. E. 103. Fraudulent transfer prior to four 70 — In re Julius Bros., 209 Fed. 371, month period is no bar. In re Wakefield, 31 A. B. E. 132. 207 Fed. 180, 31 A. B. E. 42; In re Hen- The sale of the bankrupts' assets to nebry, 207 Fed. 882, 31 A. B. E. 231 ; a corporation made up of their relatives. In re Shickerling, 204 Fed. 592, 30 A. B. and the giving of the purchase price to ^- 312. their attorney to distribute among eredi- 6.6 — In re Miller, 135 Fed. 591, 14 tors upon condition that they compromise A. B. E. 329 ; In re Penny, 2 N. B. N. E. their debts held a fraudulent conveyance 1001 ; In re Pierce, 102 Fed. 977, 4 A. B. a,s to those creditors refusing to com- §■1497] : The Dischaege op the Bankrupt 1101 Where a transfer of property more than four months prior to bankruptcy is charged as a concealment of assets the question of the right to a discharge should be left undetermined until the validity of the transfer is determined in the state courtJ^ A judgment in a suit by the trustee that a transfer of property by the bankrupt was bona fide or that the transfer was fraudulent is cdiiclusive on the question of the concealment of such prop- erty/^ While the right of creditors to oppose a bankrupt's dis- charge on the ground of an alleged fraudulent transaction does not depend on their having taken legal action to recover the property affected, if the evidence, on the application for dis- charge, is conflicting, the fact that no such effort has been made may be taken into consideration, and if the proof is evenly bal- anced, will warrant a decision in favor of the bankrupt/* The fraudulent nature of the conveyance must be affirmatively shown,''* but when it exists it defeats his right to a discharge/^ A transfer of property in which the bankrupt merely has a special property, in the way of a lien upon it, will not bar a dis- charge/^ While the bankrupt's placing title to his property in his wife shbrtly before bankruptcy will ordinarily be held fraudulent,'''' the retention by the bankrupt of a secret trust in property con- veyed to his wife will not be inferred alone from the fact that, since the conveyance, he has continued to live with her on the property conveyed/® An assignment by the bankrupt, acting as agent for his wife under an unrecorded power of attorney, to her of corporate stock has been held not fraudulent/* promise their claims. In re Julius Bros., A. B. E. 621 ; Inj:e Young, 140 Fed. 728, 209 Fed. 371, 31 A. B. R. 132. 15 A. B. E. 477; In re Wilcox, 109 Ted. 71— In re Clansky, 163 Fed. 428, 20 A. 62,8, 6 A. B. E. 362; In re Schenck, 116 B. B. 780. ^ed. 554, 8 A. B. E. 727. 72— In re Tiffany, 147 Fed. 314, 17 76— Eule applied to the transfer by a A. B. E. 296; In re Skinner, 8 A. B. E. broker of the stock of a customer. In re 1(63, 97 Fed. 190; In re McGurn, 2 N. B. Berry & Co.j 146 Fed. 623, 15 A. B. E. N. K. 877, 4 A. B. E. 459, 102 Fed. 743. ^^O. 73— In re Hirsch, 96 Fed. 468, 2 A. 77— In re Guilbert, 169 Fed. 149, 22 B. E. 715. A. B. E. 221. •74— In re Howard; 180 Fed. 399, 24 78— In re Wermuth, 179 Fed. 1009, 24 A. B. E. 841 ; In re Ferris, 105 Fed. 356, A. B. E. 785. 5 A.. B. E. 246. 79— In re Hedley, 156 Fed. 314, 19 A. '■75i--Pirviti.v. Pithan, 194 Fed. 403, 27 B. E. 409. 1102 Beandenbueg on Bankeuptcy [§ 1498 § 1498. — Preferential transfers. A payment of lawful debts is not a concealment of assets*" and the giving of a voidable preference by the bankrupt is no bar to his discharge.*^ § 1499. — General assignments. A general assignment made prior to proceedings in bank- ruptcy, is not a bar to a discharge.*^ § 1500. — Effect of advice of counsel. While advice of counsel may be considered in determining whether an omission from schedules was fraudulent,*^ it cannot excuse violation of law, though it may mitigate the act, accord- ing to the character of the advice and circumstances under which it was given. To absolve the bankrupt from the charge of mak- ing a false oath or of designedly concealing his property, the facts must be fully and in good faith stated to counsel, and the act charged done innocently, and believing he had been correctly advised.** If a bankrupt fairly presents a matter to his attorney relative to the scheduling of property and is advised that it is not such property as should properly be scheduled in bankruptcy, such advice, where honestly given, however erroneous, tends to deprive the false oath of its element of wilfulness and fraud, and the conviction of the bankrupt of the crime of perjury under such circumstances, could not be maintained.*^ Hence unless it 80— In re Mintzer, 197 Fed. 647, 28 A. B. E. 78; In re BreitUng, 133 Fed. A. B. E. 743. 146, 13 A. B. E. 126. 81— In re McLellan, 204 Fed. 482, 30 85— In re Kyte, 174 Fed. 867, 23 A. A. B. E. 325; In re Marcus & Scherr, 203 B. E. 414; In re AUeman, 162 Fed. 693, Fed. 29, 30 A. B. E. 176, afC'g 192 Fed. 20 A. B. E. 745; In re Headley, 2 N. B. 743, 27 A. B. E. 164; In re Doyle, 199 N. E. 684; In re Shenberger, 2 N. B. N. Fed. 247, 29 A. B. E. 102; In re Maher, E. 783, 102 Fed. 978, 4 A. B. E. 489; In 144 Fed. 649, 16 A. B. E. 340, aff'g 15 re Berner, 2 N. B. N. E. 268; U. S. v. A. B. E. 786; In re Bouck, 199 Fed. 453, Connor, 3 McLean, 573; In re Hirsch, 96 28 A. B. E. 378; In re Mintzer, 197 Fed. Fed. 468, 2 A. B. E. 715; In re Cohn, 1 647, 28 A. B. E. 743; In re Friedrich, 199 N. B. N. 330, 1 A. B. E. 655; In re De Fed. 193, 28 A. B. E. 656; In re Brown, Leeuw, 2 N. B. N. E. 267, 3 A. B. E. 418, 140 Fed. 383, 15 A. B. E. 350. 98 Fed. 408, In re Bushnell, 1 N. B. N. 82— In re Pierce, 3 N. B. E. 61, Fed. 528; In re Schreck, 1 N. B. N. 334, l.A. Cas. No. 11141. B. E. 366; In re Bryant, 2 N. B. N. E. 83— Woods V. Little, 134 Fed. 229, 13 1061; In re Hussman, 2 N. B. E. 140, A. B. E. 742. Fed. Cas. No. 6951 ; In re Eathbone, 1 N. 84— In re Eemmers, 173 Fed. 484, 23 B. E. 536, Fed. Cas. No. 11583; In re §1502] The Discharge of the Bankeupt 1103 is shown that bankrupt knowingly made a false oath, the dis- charge will not be denied. § 1501. — Omission of non-dischargeable debts. The fact that a debt which is not released by a discharge is not scheduled, would not operate as a bar to a discharge, as the right to a discharge and its effect when granted are different things.*' § 1502. — Fonner discharge. By the amendment of February 5, 1903, a discharge will bo refused if the bankrupt has in a voluntary proceeding been granted a discharge in bankruptcy within six years. The amend- ment affects all pending proceedings,®'^ and all proceedings com- menced after its enactment, and is not unconstitutional because it may affect proceedings against one who had been adjudged a bankrupt in voluntary proceedings prior to its passage.®^ The granting of a discharge in an involuntary proceeding will have no effect upon a subsequent discharge in either voluntary or involuntary proceedings.®* "While the effect of the amend- ment is to bar a discharge in either voluntary or involuntary proceedings if within six years prior thereto the bankrupt in a voluntary proceeding has been granted a discharge,®" the fact Goodfellow, 3 N. B. E. 114, 1 Lowell, Stokes, 2 N. B. E. 76, Fed. Gas. No. 510, Fed. Gas. No. 5336; In re Rainsford, 13476; In re ffraey, 2 N. B. E. 98, Fed. 5 N. B. R. 381, 1 N. B. E. 114, 2 Ben. Gas. No. 14124; In re Ehutassel, 1 N. B. 349; contra. In re Stoddard, 114 Fed. N. 572, 2 A. B. E. 697, 96 Fed. 597; In 486, 7 A. B. E. 762; In re Weisenberg & re Tinker, 2 N. B. N. E. 391, 99 Fed. 79, Co., 131 Fed. 517, 12 A. B. E. 417. 3 A. B. E. 580. 86— In re Carmichael, 96 Fed. 594, 87— In re Neely, 134 Fed. 667, 12 A. B. 2 A. B. E. 815; In re Lieber, 2 N. B. N. E. 407. B. 31, 3 A. B. E. 217; In re Thomas, 1 88— In re Carleton, 131 Fed. 146, 12 N. B. N. 329, 1 A. B. E. 515, 92 Fed. A. B. E. 475. 912; In re Black, 97 Fed. 493, 4 A. B. 89— In re Neeley, 134 Fed. 667, 12 A. E. 471 in note; In re Peacock, 2 N. B. B. E. 407. N. E. 758, 4 A. B. E. 136, 101 Fed. 560; Prior discharge held to have been en- In re Basbford, 2 N. B. E. 26, Fed. Gas. tered in voluntary proceedings where in- No. 1090; In re Eosenfield, 1 N. B. E. voluntary and voluntary petitions were 161, Fed. Gas. No. 12058 ; In re Clark, 2 filed on same day, but proceedings on the N. B. E. 44, Fed. Gas. No. 2844 ; In re involuntary petition were dropped. In re Elliott, 2 N. B. E. 44, Fed. Gas. No. 4391 ; Laohenmaier, 203 Fed. 32, 29 A. B. E. In re Wright, 2 N. B. E. 57, 2 Ben. S09, 325. Fed, Gas. No. 18065; In re Doody, 2 N. 90— In re Neely, 134 Fed. 667, 12 A. B. B. E, 74, Fed. Gas. No. 3995; In re E. 407. 1104 Bbandenbueg on Bankbuptoy [§ 1502 that the bankrupt has been adjudged a voluntary bankrupt will not prevent voluntary or involuntary proceedings from being instituted at any time.^^ The six-year period runs from the date of the discharge in the voluntary proceeding to the date o:^ judicial action upon the application for the next discharge. There must accordingly be a full period of six years between the granting of the discharge in the voluntary proceeding and the date of the second discharge, whether in a voluntary or involuntary proceeding. The fact that the petition in bankruptcy in the second proceeding has been filed prior to the expiration of the six years would not bar the granting of the discharge if six years had elapsed at the time judicial action was taken on the discharge in the subse- quent proceeding.^2 In one case, it has been held that the six- year period should be computed from the time of granting the first discharge to the filing of the application for the second dis- charge, rather than to the time of the judicial action thereon. This interpretation of the law would prevent a bankrupt from applying for a discharge within the six years, and then by delay- ing the hearing upon his second application nevertheless obtain- ing a discharge."^ Where in prior proceedings the discharge was not in form refused but the petition therefor was dismissed because of the bankrupt's failure to prosecute and appear for examination, the bankrupt may be granted a qualified discharge which is hot to apply to debts provable in the prior proceedings.®* Where a discharge is refused as to certain debts which were provable in a former proceeding in which no discharge was granted, the order of discharge may be so drawn as to except from its opera- tion such debts.®^ A partnership will not be denied a discharge because one of its 91 — ^In re Little, 137 Fed. 521, 13 A. Failure of partner to apply for dis: B. E. 640. charge in proceedings in which he as 92 — In re Smith, 155 Fed. 688, 19 A. well as the firm were adjudicated held a B. K. 64; In re Jordan, 142 Fed. 292, 15 bar to discharge in second proceeding as A. B. E. 449; In re Adolph Haase, 155 to debts existing and provable in first. Fed. 553, 17 A. B. E. 528; In re Little, In re. Springer, 199 Fed. 294, 29 A.B. 137 Fed. 521, 13 A. B. E. 640. E. 96. 93— In re Dunphy, 206 Fed. 680, 30 A. 95— Bacon v. Buffalo Cold Storage Co., B. E. 760. 193 Fed. 34, 27 A. B. E, 736. :. 94— PoUett v: Cosel-, 179 Fed. 488, 30 ■ , .. L. B. A. (N. S.) 1164, 24 A. B. E. 678." - '-/ 5 § 1503] The Dischaege op the Bankrupt 1105 members was a member of another partnership which has been adjudged within the six-year period,®* A bankrupt who was refused a discharge under the act of 1867 is not estopped from applying for a discharge under the present act for the same debts and on the same facts.®' §1503. — Contumacy. By the amendment of February 5, 1903, a discharge will be refused if "in the course of the proceedings in bankruptcy, the bankrupt refuses to obey any lawful order of or to answer any material question approved by the court." Section 7 defines the duties of the bankrupt. The purpose of this provision is intended to effect a compliance with the requirements and duties imposed upon him, and where he has been guilty of disobedience, a dis- charge will be refused. His refusal must, however, have been either to obey a direct order of the court or to answer a material question approved by the court; that is, the order must emanate from the court and the materiality of the question he refuses to answer must have been passed upon and approved by the court.®* This of course would apply to an order of the referee as well as of the court of bankruptcy itself. While it is true that the bank- rupt may decline to answer any lawful question which may have a tendency to incriminate him, without subjecting himself to punishment, congress doubtless intended by this provision to provide for such contingency. In order, therefore, to avail him- self of the privileges of a discharge as given by the statute, the bankrupt must have answered any material question propounded and if he claims his constitutional privilege to decline to answer because it might have a tendency to incriminate him, it would nevertheless operate as a bar to his discharge.®® The bankrupt may be denied a discharge because of his refusal to answer ques- tions on his examination though the referee has not certified the objections to the questions to the court,* and though at a subse- 96— In re Neyland & McKeithen, 184 99— In re Dresser, 146 Fed. 383, 16 A. Fed. 144, 24 A. B. B. 879. B. R. 561; In re Schwartz & Co., 201 . 97— In re Herrman, 2 N. B. N. E. 905, Fed. 166, 28 A. B. E. 670. 102 Fed. 753, 4 A. B. E. 139. 1— In re Weinreb, 153 Fed. 363, 18 98— In re Levin, 113 Fed. 498, 6 A. A. B. E. 387. B. E. 743. Brandenburg — 70 1106 Beandenbxjeg on Banketjptot [§ 1503 q-nent hearing tlie bankrupt signifies his willingness to answer,^ or actually answers ^ the questions. The mere fact that testimony is evasive or disingenuous or disrespectful is not a ground for barring a discharge * but it is a material consideration in determining his credibility when testi- fying as to what became of certain property." § 1504. — Res adjudicata. An order refusing to confirm a composition on the ground that it is not for the best interests of creditors is not res adjudicata as to right to a subsequent discharge." § 1505. Refusal of discharge— Effect. An order dismissing an application for a discharge is in sub- stance an order denying discharge, and cannot be questioned except by an appeal.'^ A judgment refusing discharge may award costs to the object- ing creditors.® ' After a discharge has been refused a creditor may institute and prosecute any action against the bankrupt as to after- acquired property which he might have instituted and prosecuted but for the adjudication in bankruptcy.® § 1506. Application for rehearing. In view of the provisions of the act ^^ for the revocation of a discharge, it is questionable if any other attack can be made on it, if once granted; but, in case of refusal to grant a discharge, an application to rehear may be made, but, if no new questions of fact or law be presented, and it appears the refusal was justi- fied by the showing of concealment of assets, the application will be denied.^^ A creditor's petition to reopen the case because of the discovery of additional proofs will be denied where not seasonably made.^^ 2— In re Weinreb, 153 Fed. 363, 18 7— In re Semons, 140 Fed. 989, 15 A. A. B. R. 387. B. E. 822. 3— In re Schwartz & Co., 201 Fed. 166, 8— In re Young, 140 Fed. 728, 15 A. B. 28 A. B. E. 670. E. 477. 4— In re Hamilton, 133 Fed. 823, 13 9— In re Barton's Estate, 144 Fed. 540, A. B. E. 333; In re Fanning, 155 Fed. 16 A. B. R. 569. 701, 19 A. B. E. 55; In re Cohen, 149 10— Section 15a, Act of 1898. Fed. 908, 18 A. B. E. 84. 11— In re Quackenbush, 2 N. B. N. E. 5— In re Leslie, 119 Fed. 406. 1020. 6— In re MeVoy Hardware Co., 200 12— Kentucky Nat. Bank of Louisville Fed. 949, 29 A. B. E. 322. v. Carley, 127 Fed. 686, 12 A. B. E. 119. §1510] The Disohaegb op the Bankeupt 1107 § 1507. Amendment of decree. A decree granting a discharge will not be amended where over a year has elapsed since the entry thereof and no actual fraud of the bankrupt is shown.^^ The order for a discharge may bo amended so as to discharge a bankrupt from his liabilities as a partner, as well as from his individual debts.^* § 1508. Revocation and impeachment of a discharge. § 1509. — Jurisdiction. The court of bankruptcy has power to recall a final decree granting a discharge on application,^® and its jurisdiction in this respect is exclusive.^^ The effect of this is to prevent the validity of a discharge being called into question in suits brought against the bankrupt, causing unnecessary labor and offering oppor- tunity for different decisions on the same point. A discharge cannot be revoked in a suit brought in the district court under its general equitable jurisdiction and not under the bankruptcy act.^^ §1510. —Grounds. The act of 1898 provides that a discharge may be revoked "if it shall be made to appear that it was obtained through the fraud of the bankrupt, and that the knowledge of the fraud has come to the petitioners since the granting of the discharge, and that the actual facts did not warrant the discharge. " ^^ Not- 13— In re Cuthbertson, 202 Fed. 266, 13— Section 15a, Act of 1898. 29 A. B. E. 823. Analogous provision of Act of 1867. 14^In re Diamond, 149 Fed. 407, 17 "Section 34. . . . That any creditor A. B. E. 563. or creditors of said bankrupt, whose debt 15 — In re Pfaffinger, 19 A. B. E. 309, was proved or provable against the estate rev'g 154 Fed. 528, 19 A. B. E. 41; In in bankruptcy, who shall see fit to contest re McKee, 165 Fed. 269, 21 A. B. E. 306 ; the validity of said discharge on the In re Ives, 111 Fed. 495, 7 A. B. E. 692. ground that it was fraudulently obtained, 16 — Commercial Bank of Manchester may, at any time within two years after V. Buckner, 20 How. 108, 15 L. ed. the date thereof, apply to the court which 862; Corey v. Eipley, 4 N. B. E. 163; granted it to set aside and annul the Alston V. Eobinett, 9 N. B. E. 74; Nich- same. Said application shall be in writ- olas V. Murray, 18 N. B. E. 469, 5 Sawy. ing, shall specify which, in particular, of ■!20, Fed. Cas. No. 10223 ; these eases be- the several acts mentioned in section ing equally applicable to the present twenty-nine it is intended to give evi- as to the former acta. ' dence of against the bankrupt, setting 17 — ^Atlantic Dynamite Co. v. Eeger, forth the grounds of avoidance, and no 200 Fed. 1002, 29 A. B. E. 659. evidence shall be admitted as to any other n08 BeANDENBUEG on BANKEtrPICY [§ 1510 withstanding the difference in the phraseology of the present act and that of 1867, the meaning of the two are practically the same. While fraud is the only ground for revoking a discharge under section 15,^^ courts of bankruptcy are not deprived of their usual control of their judgments by that section but may still correct their records to make them conform to the facts,^" and recall a discharge granted by accident or mistake, or obtained by a fraud in the court, though such relief should be sought promptly and before others' rights intervene.^^ If the court overlooks specifications properly filed and grants a discharge, a motion to recall the discharge and consider the specifications may be made, and, if denied, a review may be had in the appel- late court; ^^ and, if a creditor wishes to attack a discharge, because of the fraudulent omission of his claim, he must do so on the ground of fraud in the court of bankruptcy.^^ Fraud, as used in section 15, is synonymous with bad faith, and means fraud in fact, involving moral turpitude, or inten- tional wrong,^* and, under the present act, as under the act of 1867, it must have been such as would have originally prevented the discharge had it been known in time and presented in the form of objections to the allowance of a discharge.^* The fraud of the said acts; but said application in favor of the bankrupt and the valid- shall be subject to amendment at the dis- ity of his discharge shall not be affected cretion of the court. The court shall by said proceedings." cause reasonable notice of said applica- 19 — In re Cuthbertson, 202 Ted. 266, tion to be given to said bankrupt, and 29 A. B. E. 823. order him to appear and answer the same, 20 — ^In re Dupee, 6 N. B. E. 89, 2 Low- within such time as to the court shall ell, 18, Fed. Gas. No. 4183. seem fit and proper. If, upon the hear- 21 — ^In re Dupee, 6 N. B. E. 89, 2 Low- ing of said parties, the court shall find ell, 18, Fed. Gas. No. 4183; Ex parte that the fraudulent acts, or any of them, Buchstein, 17 N. B. E. 1, 9 Ben. 215, Fed. set forth as aforesaid by said creditor or Gas. No. 2076. creditors against the bankrupt, are 22 — In re Buchstein, 17 N. B. E. 1, 9 proved, and that said creditor or credi- Ben. 215, Fed. Gas. No. 2076. tors had no knowledge of the same until 23 — Lymond v. Barnes, 6 N. B. E. 377- after the granting of said discharge, In re Eoosa, 119 Fed. 542, 9 A. B. E. judgment shall be given in favor of said 531. creditor or creditors, and the discharge 24 — In re Guthbertson, 202 Fed. 266, 29 of said bankrupt shall be set aside and A. B. E. 823. annulled. But if the court shall find that 25 — In re Griffin Bros., 154 Fed. 537 said fraudulent acts and all of them, set 19 A. B. E. 78 ; In re Eainsf ord, 5 N. B. forth as aforesaid, are not proved, or that E. 381, Fed. Gas. No. 11537; In re Mey- they were known to said creditor or credi- ers, 2 N. B. N. E. 669, 100 Fed. 775 3 A. tors before the granting of said dis- B. E. 772 ; In re Dietz, 2 N. B. N. E. 125 charge, then judgment shall be rendered 3 A. B. E. 316, 97 Fed. Gas. No. 563; Ex § 1510] The Dischabgb of the Bankrupt 1109 by which the discharge was obtained must have related to fraud theretofore knowingly practiced by the bankrupt. It must have been an actual fraud, such as could have been urged against the granting of the discharge.^^ Thus in bankrupt's application for discharge "'' he is required to state that he has wholly sur- rendered all his property and rights of property and fully com- plied with all the requirements of the act, which, if not true and there are grounds for refusing him a discharge, constitute a fraud in obtaining his discharge.^* If it is made to appear to the court of bankruptcy that testi- mony of the bankrupt in subsequent proceedings tends to show that, at the time of the bankruptcy, he had considerable prop- erty, though his verified petition stated no assets and no trustee was appointed, a hearing should.be had on the qupstion whether the discharge should not be revoked; ^* or if the opposition of a creditor was bought off through the procurement or privity of the bankrupt; ^^ or, if by wilfully and fraudulently making a false schedule or affidavit, the bankrupt prevented notice to a creditor and such creditor had no actual knowledge of the pro- ceedings; ®^ or if credit was procured on the faith of bankrupt's ownership of property, deeds of which, through a third person to bankrupt's wife without consideration were alleged to have been burned, such deeds being afterwards recorded and the property omitted from the schedules.*^ Where a discharge is granted upon a hearing in which the principal creditor, who had success- fully contested the right to a discharge in a former proceeding, failed to appear, the discharge may be set aside though such creditor's attorney of record had received notice of the hearing, parte Briggs, 2 Lowell, 389, Fed. Cas. No. bury v. Miller, 19 John. 311 ; In re Doug- 1868. las, 11 Fed. 403, 406; In re Palmer, 14 26— In re Wright, 177 Fed. 578, 24 A. N. B. E. 437, 2 Hughes, 177, Fed. Cas. B. E. 437. No. 10678; Blasdel v. Fowle, 120 Mass. 27— Official Form 57, § 1824, post. 447; Bell v. Leggett, 7 N. Y. 176. 28— In re Griffin Bros., 154 Fed. 537, 31— In re Eoosa, 119 Fed. 542, 9 A. 19 A. B. E. 78. B. E. 531; Eayl v. L'apham, 15 N. B. E. 29— In re Meyers, 2 N. B. N. E. 669, 508 ; In re Herriek, 7 N. B. E. 341, Fed. 100 Fed. 775, 3 A. B. E. 772; In re Cas. No. 6419; In re Carrier, 13 N. B. B. Augenstein, 16 N. B. E. 252. 208, Fed. Cas. No. 2443. 30— In re Luftig, 162 Fed. 322, 15 A. 32— In re Eainsford, 5 N. B. E. 381, B. R. 773; In re Dietz, 2 N. B. N. E. Fed. Cas. No. 11537. 125, 3 A. B. E. 316, 97 Fed. 563; Tuz- 1110 Beandenbueg ON Bankeuptcy [§1510 it appearing that such attorney had ceased to represent the creditor.^^ A discharge will not be set aside on motion made after bank- rupt has acted on the faith of it, and after the time allowed by rule of court for such motion, on the ground that the court had overlooked certain specifications;^* or because a creditor with notice of the proceedings has failed to file his claim,^^ or ia regard to a matter not barred by the discharge; ^* or if the requirements of the act were honestly complied with by the bankrupt, though the creditors did not have actual notice.^'^ Nor will the court interfere merely because the creditors can produce new facts as to matters, heard before the discharge was granted; or where the fraud was committed years before the bankruptcy; ^® or if the evidence fails to sustain charges that the creditor had no notice, that the bankrupt fraudulently omitted assets,^® and admitted a false claim ; *° or if the trustee had knowledge of all the facts prior to the discharge, though the petitioner for revocation had not; *^ or if the only evidence offered is incompetent and inadmissible, having been known to the creditor before the discharge was granted; *^ or if the bank- rupt failed to schedule a lease which was subject to forfeiture for his failure to perform its conditions, subsequently making a new contract with reference thereto, the property proving valu- able after his discharge and being sold to third parties;*^ or because the bankrupt collected and appropriated assets which the referee erroneously decided belonged to him; ** or on general averments or after bankrupt's death to allow creditors to prove their claims.*^ 33— In re Quaekentush, 122 App. Div. 39— Tn re Hansen, 107 Fed. 252, 5 A. (N. Y.) 456, 19 A. B. E. 647. B. B. 747. 34^In re Buchstein, 17 N. B. E. 1, 9 40— In re Stetson, 3 N. B. E. 179, 4 Ben. 215, Fed. Cas. No. 2076. Ben. 147, Fed. Cas. No. 13381. 35 — In re Matthews, 132 Fed. 274, 13 41 — In re Hansen, 107 Fed. 252, 5 A. A. B. E. 91. B. E. 747. 36— In re Mansfield, 6 N. B. E. 388, 42— In re Marrionneaux, 13 N. B. E. Fed. Cas. No. 9049; In re Monroe, 114 222, 1 Woods, 37, Fed. Cas. No. 9088. Fed. 398, 7 A. B. E. 706. 43— In re Oliver, 2 N. B. N. E. 212. 37— In re Downing, 199 Fed. 329, 28 44.— In re Wright, 177 Fed. 578, 24 A. B. E. 778; Eayl v. Lapham, 15 N. B. A. B. E. 437. ^- 508. 45— In re Melntire, 1 N. B. E. 115, 2 38— In re Corwin, 19 N. B. E. 422, Fed. Ben. 345, Fed. Cas. No. 8823; Young v. Cas. No. 3259, 1 Fed. Cas. No. 847; In Bidenbaugh, 11 N. B. E. 563, 3 Dill. 239, re Hoover, 3 N. B. N. E. 327; In re Fed. Cas. No. 18173. Hoover, 105 Fed. 354, 5 A. B. E. 247. §1512] The Dischaege of the Bankrupi 1111 § 1511. — Who may apply. The expression "parties in interest" employed in this section includes all persons whose interests are affected by the dis- charge. One who acquires rights after the discharge would not be included,*" nor would one whose claim is not affected by the discharge,*'^ nor a creditor fraudulently omitted from the sched- ule, since his debt is not released by the discharge. It was held under the former law that a creditor, who neglected to file objec- tions in due time and subsequently discovered fraud, might require bankrupt to take his discharge and then apply to set it aside; the knowledge of the fraud barring the right to make such application must have been available in time to present objec- tions to the discharge.*® § 1512. — Time for applying. A discharge cannot be revoked after one year, which year begins to run from the date of the discharge and not from the discovery of the fraud upon which the revocation is sought,*® and it is immaterial that the fraud is not discovered until after the expiration of that period. Furthermore, although the year has not expired, if the creditor has been guilty of undue laches, the discharge will not be revoked.^" The court cannot set aside a' discharge, in order to permit an addition of a creditor to the bankrupt's schedule, more than a year after the adjudication,"^ and a motion to vacate a disc'harge as inadvertently granted after the time allowed by rule of court for such motion, will be denied.^^ After a year has elapsed from the date of the dis- charge, a bankrupt cannot be compelled to submit to an examina- tion for the purpose of instituting or aiding a proceeding to vacate it, nor can the application be amended to add new grounds or acts.^^ 46— In re Chandler, 138 Fed. 637, 14 52— In re Buchstein, 17 N. B. K. 1, 9 A. B. E. 512. Ben. 215, Fed. Cas. No. 2076. 47— Arrington v. Arringtou, 132 Fed. 53— In re Wright, 177 Fed. 578, 24 A. 200, 13 A. B. E. 89. B. E. 437; In re Shaffer, 3 N. B. N. E. 48— In re Fowler, 2 tiowell, 122 Fed. 54, 104 Fed. 982, 4 A. B. E. 728; Mall. Cas. No. 4999. v. Ullrich, 37 Fed. 653 ; In re Buchstein, : 49— Section 15, Act of 1898. 17 N. B. E. 1, 9 Ben. 215, Fed. Cas. No, 50— In re Mauzy, 163 Fed. 900, 21 A. 2076; In re Brown, 19 N. B. E. 312, Fed. B. E; 59. Cas. No. 1983; In re Dole, 7 N. B. E. 51— In re Hawk, 114 Fed. 916, 8 A.- B. 538, Fed. Cas. No. 3965; Pickett v. Mc- E. 71. Gaviok, 14 N. B. E. 236; Fed. Cgis. JIo. 1112 Beandenbubg ok Bankruptcy fg 1512 As to what constitiites laches depends ■upon the circumstances of each case, and it has been held in one case that one month constituted laches; ^* in another eight months,®^ and in another five months,^® where the court overlooked specifications filed in opposition to the discharge and no proceedings for a review were taken within the time prescribed, the bankrupt having in the meantime acted upon his discharge.®'' It must be made clear that there has been no laches,. and this cannot be done by general averments.®* An application to revoke a discharge, which though filed immediately after the discharge, is not brought on for hearing within a reasonable time, will not be allowed.®^ §1513. — The application. It has been held that the power to revoke a discharge is limited and that it can only be exercised upon a petition filed, complying with the provisions of section l^a.®" It would seem, however, that if the application is addressed to the court of bankruptcy in the exercise of its general powers as a court to control its own records and make them conform to the f acts^ or correct anything done through inadvertence or mistake or pro- cured through fraud practiced on the court, the application might be by motion, supported, in case facts outside of the record are relied on, by affidavits. Such motion must be made within the, time prescribed by the rules of court and otherwise conform thereto. If the application is made under section 15 of the act, it must allege all jurisdictional facts.^^ It should allege facts showing that the petitioners are parties in interest and had provable debts against the bankrupt which were affected by the dis- 11126; Gorey v. Eipley, 4 N. B. E. 503 ; 57 — In re Buchstein, 17 N. B. E. .1, 9 Way V. Howe, 4 N. B. E. 677; Alston Ben. 215, Fed. Gas. No. 2076; see also In V. Eobinett, 9 N. B. E. 74; In re Wit- re Hunter, 3 McLean, 297, Fed. Gas. No. kowski, 10 N. B. E. 209, Fed. Gas. No. 3902; In re Beck, 31 Fed. 554. 17920 ; In re Sims, 9 Fed. 440. 58— In re Oleson, 110 Fed. 796, 7 A. B. 54— In re Molntire, 1 N. B. E. 115, 2 E. 22. Ben. 345, Fed. Gas. No. 8823. 59— Drees v. Waldron, 212 Fed. 93, 31 55— In re Downing, 199 Fed. 329, 28 A. B. E. 722. A. B. E. 778. 60-61— In re Guthbertson, 202 Fed. 56— In re Murray, 14 Blatch. 43, Fed. 206, 29 A. B. E. 823. . Oas. No. 9953. ■ - § 1516] The Discharge of the Bankrupt 1113 charge,®^ and should be by a verified petition setting out in detail the facts constitiiting the alleged fraud and those sho^v^ing that the actual facts did not warrant a discharge ; that the knowl- edge of such fraud has come to the petitioners since the dis- charge was granted and that there has been no undue laches on their part in presenting the matter to the court; and such petition must be presented within one year after the granting of the discharge.®* A petition to vacate a discharge may be amended by inserting therein an allegation that the information made the basis thereof was obtained by the petitioner after the granting of the dis- charge.** § 1514. — Deposit to cover fees. A petition for revocation of a discharge will be dismissed upon the petitioner's failure to make a deposit to cover fees and costs.® ^ §1515. — Reference. If the petition makes out a prima facie case, and is filed in due time by competent parties, it should be referred to a special master, the referee usually, to ascertain and report upon the facts, alleged in the petition, on due notice to the bankrupt, and oh hearing such evidence as may be offered by the parties.®® §1516. —Notice. Notice of the hearing should be given the bankrupt and any other persons interested, and such notice should be reasonable though there is no definite time specified, unless by ans^logy the ten days' notice to creditors.®'^ If a discharge obtained by frand is set aside and the case referred to the referee before whom the bankrupt offers testimony to which the petitioner excepts and such exception is taken before the court, which, without any additional testimony, and without notice to counsel, passes an order vacating the decree and annulling the discharge, notice should be given to all persons affected.®^ 6a— In re Chandler, 138 Ted. 637, 14 65— In re Lasch, 142 Fed. 277, 15 A. B. A. B. E. 512. R. 629. 63— In re Oliver, 133 Fed. 832, 13 A. 66— In re Meyers, 2 N. B. N. E. 669, B. R. 582; In re Toothaker Bros., 128 100 Fed. 775, 3 A. B. E. 772. Fed. 187, 12 A. B. E. 99. 67— Section 58, Act of 1898. 64— In re Oliver, 133 Fed. 832, 13 A. 68— In re Augenstein, 16 N. B. E. 252. B. E. 582. 1114 Bbandbnbueg on Bankeuptcy [§ 1517 § 1517. — Burden of proof. The burden is upon the petitioner to bring his case clearly within the statute,®® and this though the petition fails to allege the jurisdictional facts and the bankrupt fails to demur thereto.''" § 1518. — Admissibility of evidence. Conveyances made by a bankrupt and alleged to be fraudu- lent, or any other acts of a bankrupt, cannot be shown in evi- dence, unless -charged in the petition to set aside the discharge, except to show the intent of certain acts specified in such petition.''^ § 1519. — Examination of bankrupt. The bankrupt may be examined after a discharge and at any time within a year of its granting for the purpose of discovering if there is reason to apply to have such discharge revoked under this section,''^ but not after the year has expired.''^ § 1520. — Effect of revocation. The object of section 15 is to secure the utmost good faith in the procuring of a discharge. Persons acting on the faith of a discharge are protected, in case of its revocation, by applying the property acquired by the bankrupt, in addition to his estate at the time of adjudication, to the payment in full of the claims of creditors for property sold to him on credit, in good faith, while such discharge was in force, and the residue, if any, to the payment of the debts owing at the time of adjudication.''* A trustee, on his appointment and qualification after a discharge is revoked, is vested with the title to all of the bankrupt's property as of the date of the final decree revoking the dis- charge.''^ 69— In re Mauzy, 163 Fed. 900, 21 A. B. R. 248; In re Heath, 7 N. B. E. 448, B. E. 59. Fed. Cas. No. 6304; 70— In re Cuthbertson, 202 Fed. 266, 73— In re Dole, 7 N. B. E. 538, Fed. 29 A. B. R. 823. Cas. No. 3965. 71— Tenny v. Collins, 4 N. B. K. 156, 74— Section 64e, Act of 1898. Fed. Cas. No. 13833. 75— Section 70d, Act of 1898. 72— In re Peters, 1 N. B. N. 165, 1 A. 'CHAPTER XXXV The Dischabge of the Bankrupt PART II The Effect op a Dischabge § 1521. In general, i 1522. Discharge is personal. § 1523. Effect upon bankruptcy proceedings. § 1524. Collateral attack. § 1525. Order granting discharge as res adjudicata. § 1526. Effect of foreign discharge. § 1527. Effect upon property or wages of bankrupt. §1528. —In general. §1529. —Contracts. § 1530. — Leases. § 1531. — Goodwill of bankrupt. §1532. —Liens. § 1533. Effect upon stockholders > or directors ' liability. § 1534. Effect upon suits against bankrupt. § 1535. Effect upon contempt proceedings. § 1536. Eelease from arrest. § 1537. Discovery of assets after discharge. § 1538. Revival of debt after discharge. § 1539. Effect of discharge upon bankrupt 's co-debtors. § 1540. — In general. § 1541. — Indorsers. § 1542. — Guarantors. § 1543. — Sureties on bonds. § 1544. Discharge of partnership or members. § 1545. Debts affected by discharge. § 1546. — In general. § 1547. —Effect of proof of claim. § 1548. — Determination of character of debt. § 1549. — Form of action. § 1550. — Debts created or judgments recovered after bankruptcy. § 1551. — Debts and taxes due the government. §1552. — Alimony and support. § 1553. — Attorney 's claim. § 1554. — Bonds and recognizances. §1555. —Costs. § 1556. — Executory contracts. — Covenants. § 1557. — Fraud, embezzlement, misappropriation and defalcation. §1558. —Pines. § 1559. — Obtaining property by false pretenses or false representations, §1560. — Wilful and malicious injury to person or property, 1115 1116 Brandenburg on Bankruptcy [§ 1521 § 1561. — Seduction and criminal conversation. § 1562. — Debts barred by limitations. , §1564. —Bent. §1565. —Stockholder's liability. § 1566. — Liability as surety. § 1567. — Liability to surety. § 1568. — Unliquidated damages. § 1569. — Unproved and unscheduled claims, § 1570. — Warehouse charges. §1571. —Wife's debts. § 1572. Waiver of discharge. § 1573. Discharge must be pleaded. § 1574. Discharge not pleadable. § 1575. Eeplication to plea of discharge. § 1576. Proof of discharge. PAST II The Efi^ct op a Dischabgb §1521, In general. The right to a discharge and the effect of a discharge on a claim are wholly distinct propositions.'^* The proper time and place for the determination of the effect of a discharge is when the same is pleaded or relied upon by the debtor as a defense to the enforcement of a particular claim. The issue upon the effect of a discharge cannot properly arise or be considered in determining the right to a discharge.'^'' A discharge when granted relates back to the time of the filing of the petition.'^* It has the same effect as the return of an execution wholly or partly unsatisfied.'^® If a discharge be refused, and a second petition be filed and a discharge thereunder be obtained, the latter will be made gen- 76 — Katzenstein v. Eeid, Murdock & White, 2 N. E. N. E. 536; In re Mussey, Co., 41 Tex. Civ. App. 106, 16 A. B. E. 99 Fed. 71, 2 N. B. N. E. 113, 3 A. B. 740; Talcott v. Friend, 179 Fed. 676, 24 E. 592; In re Tinker, 2 N. B. N. 391, 99 A. B. E. 708; Frank v. Michigan Paper Fed. 79, 3 A. B. E. 580; this distinction Co., 179 Fed. 776, 30 L. E. A. (N. S.) seems to have been overlooked by the 623, 24 A. B. E. 261. Supreme Court in the case of Audubon 77 — Katzenstein v. Eeid, Murdock & v. Shufeldt, 181 U. S. 575, 45 L. ed. 1009, Co., 41 Tex. Civ. App. 106, 16 A. B. E. 5 A. B. E. 829. 740; In re Miller, 192 Fed. 730, 27 A. 78— In re Harrington, 200 Fed. 1010, B. E. 606; In re McCarthy, 111 Fed. 151, 29 A. B. E. 666; In re Lineberry, 183 7 A. B. E. 40; In re Marshall Paper Co., Fed. 338, 25 A. B. E. 164; In re Karns, 2 N. B. N. E. 1053, 102 Fed. 872, 4 A. 148 Fed. 143, 16 A. B. E. 841. B. E. 468; In re Ehutassel, 1 N. B. N. 79— In re Martin, 105 Fed. 753, 5 k. 572, 96 Fed. 597, 2 A. B. E. 697; In re B. E. 423; Shellington v. Howland, 53 N. Thomas, 92 Fed. 912, 1 A. B. E. 515; Y. 374, and cases cited; People v. Bart- In re Shepherd, 2 N.B.N. E. 1070; In re lett, 3 Hill 570. §1523] The Discharge of the Bankeupt 1117 eral, leaving its effect as to debts proved under the first petition, but not under the second, to be determined as occasion may arise.** A discharge protects the bankrupt from the imposition of fines and penalties, or deprivation of office, place or position, by tribunals of a state, for nonpayment of debts which have laeen. discharged.*^ § 1522. Discharge is personal. A discharge is a personal privilege given the bankrupt in con- sideration of his surrendering his property; a bankruptcy pro- ceeding is a proceeding in rem and all persons interested are regarded as parties to the proceedings, including the bankrupt and trustee, as well as the creditors, secured and unsecured, and an injunction may issue after discharge.*^ The discharge does not release the fraudulent grantees of the bankrupt from lia- bility for the fraud committed by them,** but it is held that a widow of a bankrupt to whom his property has been transferred may avail herself of his discharge and plead it in her own defense.** § 1523. Effect upon baJikruptcy proceedings. The summary jurisdiction of the bankruptcy court over the bankrupt continues during the pendency of the proceedings, and during the year in which a discharge may be revoked, and he may be examined, notwithstanding the discharge.*^ The grant- ing of the discharge does not oust the referee of his jurisdiction of the cause, it being a mere incident in the proceedings; and the cause proceeds before him until the court finally discharges the trustee.*® Although a discharge is a complete bar to a suit on a claim 80— In re ClafE, 111 Fed. 506, 7 A. B. Otto) 301, 26 L. edi. 394, Stephenson v. E. 128. Bird, 168 Ala. 363, 25 A. B. E. 909. 81— In re Hieks, 133 Fed. 739, 13 A. 84r— Upshur v. Briscoe, 138 U. S. 365, B. B. 654. 34 L. ed. 931. 82— Carter v. Hobbs, 1 N. B. N. 191, 85— In re Price, 1 N. B. N. 131, 91 1 A. B. E. 215, 92 Fed. 594; Southern Fed. 635, 1 A. B. E. 419; In re Peters, Loan & Trust Company v. Benbow, IN. 2 N. B. N. 165, 1 A. B. E. 248; In re B. N. 499, 96 Fed. 514, 3 A. B. E. 9; In Heath, 7 N. B. E. 448, Fed. Cas. No. re Marshall Paper Co., 102 Fed. 872, 2 N. 6304. B. N. E. 1053, 4 A. B. E. 468. 86— In re Dole, 7 N. B. E. 538, Fed. 83— Moyer v. Dewey, 103 TJ. S. (13 Cas. No. 3965. 1118 Beandenbxjeg on Bankexjptcy [§ 1523 provable in bankruptcy, the dismissal of tbe suit does not preju- dice proceedings on it under the' bankruptcy law.®'' § 1524. Co'llateral attack. The judgment of a court of competent jurisdiction cannot be collaterally attacked, but is conclusive between the parties; so a discharge in bankruptcy, until set aside or reversed, in a direct proceeding, is conclusive upon all parties to the proceeding, and cannot be attacked collaterally; ®* and cannot therefore be impeached, if pleaded in bar in an action for a dischargeable debt in a state court.®® Opportunity is offered to contest the discharge, and, if not availed of in the mode and within the time allowed, all remedy to annul it is cut off; ^° but the distinc- tion between attacking the discharge and showing that it does not affect the debt sued on, or other matter, in bar of which it is pleaded, must be kept in mind, as the latter can always be done.*^ § 1525. Order granting discharge as res adjudicata. An order confirming a composition or granting a discharge which recites that the bankrupt has not been guilty of any of the acts which would be a bar to his discharge, is not res adjudi- cata in an action by a creditor who has opposed such order, seeking to enforce a claim for damages based on the acts of the bankrupt which such creditor urged as a bar to the confirmation of the composition or the discharge. So a discharge granted against the objection of a creditor urging as an objection thereto that the bankrupt obtained property by means of a materially false statement in writing is not a bar tb an action of deceit based upon such false statement.'"' 87 — HumHe v. Carson, 6 N. B. E. 84. 91— In re Mussey, 99 Fed. 71, 2 N. 88— Custard v. Wigderson, 130 Wis. B. N. E. 113, 3 A. B. E. 592; In re White, 412, 17 A. B. E. 337; Eayl v. Lapham, 15 2 N. B. N. E. 536; In re Tinker, 2 N. B. N. B. E. 508. N. E. 391, 99 Fed. 79, 3 A. B. E. 580; In 89— In re Witkowski, 10 N. B. E. 209, re Ehutassel, 1 N. B. E. 572, 2 A. B. E. Fed. Gas. No. 17920; Alston v. Eobinett, 697, 97 Fed. 597. 9 N. B. E. 74; Corey v. Eipley, 4 N. B. 92— Friend v. Talcott, 228 U. S. 27, 57 E. 163; Howland v. Carson, 16 N. B. E. L. ed. 718, 30 A. B. E. 31, aff'g 179 Fed. 372. 676, 24 A. B. E. 708. 90— Stevens v. Brown, 11 N. B. B. 568. §1528] The Dischaege of the Bankbupt 1119 § 1526. Effect of foreign discharge. While a discharge is as much a release of a debt due an alien as of one due a citizen of the United States whether the alien was a party to the proceedings or not,®" a bankrupt's discharge in a foreign country under a foreign bankruptcy law does not discharge a debt made in, and with reference to the laws of this country, nor bar an action on a contract made in this country."* § 1527. Effect upon property or wages of bankrupt. § 1528. — In general. The discharge when granted relates back to the date of the filing of the petition, and property acquired by the bankrupt, intervening the filing thereof and the granting of the discharge, cannot be appropriated to the payment of his debts.®® So, an assignment of future wages executed prior to bankruptcy can- not be enforced after a discharge of the debtor, against wages earned subsequent to the filing of the petition, notwithstanding the assignment may so provide,®^ and where an assignment of future wages is void because in violation of statute, the fact that the bankrupt obtained the loan upon which it was based by false pretenses, will not affect his right to wages earned after the adjudication.®'' An employer of the bankrupt may urge the latter 's discharge in an action to enforce an assignment of wages.®* The fact that under a state law a judgment for a debt which is dischargeable in bankruptcy cannot be cancelled of reeord until a period of one year has expired from the granting of the discharge does not entitle the creditor to enforce his judgihent against property acquired or wages earned by the bankrupt sub- 93— Pattison v. Wilbur, 12 N. B. E. 538, 17 A. E. E. 168; In re West, 128 193; Moore v. Horton, 32 Hun 393. Fed. 205, 11 A. B. E. 782; contra, Citi- 94 — In re Sheppard, 1 N. B. E. 116, zenS' Loan Ass'n v. Boston & M. Eail- Ped. Cas. No. 12753; M'MiUan v. road, 196 Mass. 528, 14 L. E. A. (N. S.) M'Neil, 4 Wheat. 209, 4 L. ed. 552; 1025, 124 Am. St. 584, 19 A'. B. E. 650; Green v. Sarmiento, Pet. C. C. 74, 3 Wash. Mallin v. Wenham, 209 111. 252, 13 A. B. C. C. 17, Fed. Cas. No. 5760; Zarega's E. 210; In re Lineberry, 183 Fed. 338, Case, Fed. Cas. No. 18204. 25. A. B. E. 164. 95— In re Lineberry, 183 Fed. 338, 25 97 — In re Home Discount Co., 147 Fed. A.«B. K. 164; In re Ludeke, 171 Fed. 292, . 538, 17 A. B. E. 168. 22 A. B. E. 467. 98— Leitch v. Northern Pae. Ey. Co., 95 96— In re Home Discount Co., 147 Fed. Minn. 35, 14 A. B. E. 409. 1120 Bbandenbubg on Bankruptcy [§ 1528 sequent to his adjudication, though the judgment has not been cancelled of record.®' The discharge of a debtor in bankruptcy in no w^y precludes the trustee from recovering property of the bankrupt's estate which has been fraudulently conveyed.^ Title to concealed and non-scheduled property does not revest in the bankrupt upon his discharge so as to deprive the court of jurisdiction thereof upon the reopening of the estate.^ § 1529. — Contracts. The bankrupt law discharges the contract, as distinguished from insolvent laws, which only liberate the person; but, while it discharges him from certain pecuniary liabilities, it does not assume to relieve him of contractual relations as such. There is nothing in the letter or policy of the law which gives to an adjudication in bankruptcy the effect of discharging executory contracts, which have not resulted in the creation of any present pecuniary liability on the part of the bankrupt.® § 1530. — Leases. An adjudication or discharge in bankruptcy does not termi- nate a lease nor change the legal relation of landlord and tenant, unless the landlord re-enters or the trustee assumes the lease, in which case the adjudication or discharge acts like any other assignment and all liability of the tenant ceases.* § 1531. — Good will of bankrupt. Where the good will of the bankrupt, a corporation, is sold, it may thereafter be enjoined from using its corporate name even though it has received a discharge.^ §1532. —Liens. The bankruptcy act does not continue a dischargeable debt for the purpose of permitting a lien to be created after the adjudica- 99— In re Harrington, 200 Fed. 1010, 118; In re Hufnagel, 12 N. B. B. 554, 29 A. B. E. 666. Fed. Cas. No. 6837; Deford v. Hewlet, 18 1— Stephenson v. Bird, 168 Ala. 363, N. B. R. 518. 25 A. B. R. 909. 4— In re Koester, 15 Ohio Fed. Dec. 2— Fowler v. Jenks, 90 Minn. 74, 11 A. 257, 17 A. B. E. 391. • B. E. 255. 5— Myers Co. v. Tuttle, 188 Fed. 532, 3— In re Sehiermann, 2 N. B. N. E. 26 A. B. E. 541. § 1532] The Dischabge of the Baistkextpt 1121 tion, but only to preserve and enforce a lien in existence at the date of the adjudication. As against dischargeable debts, the bankrupt is to be protected in the enjoyment of property acquired after the adjudication unless it is affected with a lien at the time of the adjudication. Valid and existing liens on specific property or trusts therein securing a debt are not impaired by the discharge.^ A discharge in bankruptcy releases the bankrupt from a prov- able debt not within the excepted classes and takes away the creditor's right to proceed against him in personam, but it does not affect a lien on his property acquired more than four months before the filing of the petition provided it is otherwise valid; ^ or liens excepted from the operation of the act,® as a lien for wages created and preserved according to statute;® or where bank stock is delivered as security for a loan, the only thing remaining to be done being the transfer of the stock on the books of the bank issuing the stock; " or a vendor's lien where such lien is recognized by state laws; ^^ or a mortgage lien, if the trustee fails to redeem the property, or agree with the creditors as to its value, or have it ascertained by a sale under direction of the court of bankruptcy; ^^ or if the incumbered property does not form part of the assets in bankmiptcy, though, if it afterwards comes into the possession of bankrupt, the court of bankruptcy may enforce the lien.^* However, the lien of a mort- gage given his wife for money forming part of her paraphernal estate, which mortgage was recorded prior to the husband's dis- charge as a bankrupt, is released by the discharge as far as concerns his after-acquired property and the discharge can be 6— Evans v. EounsaviUe, 115 Ga. 684, 8 N. 259, 1 A. B. E. 633, 94 Fed. 476; A. B. E. 236; Stoddart v. Locke, 9 N. Evans v. EounsaviUe, 115 Ga. 684, 8 A. B. B. E. 71; Eeed v. BuUington, 11 N. B. E. 236. E. 408; Eealty Co. v. Gioshio, (Pa.) Ct. 8— Section 67 of Act of 1898. Com. PI., 27 A. B. E. 58; Leitch v. North- 9— In re Kerby-Denis Co., 1 N. B. N. em Pac. Ey. Co., 95 Minn. 35, 14 A. B. 399, 2 A. B. E. 402, 95 Ted. 116, aff'g E. 409; Newberry Shoe Co. v. Collier, 111 1 N. B. N. 337, 2 A. B. E. 218, 94 Fed. Va. 288, 25 A. B. E. 130. 818. 7-MSregory Co. v. Cale, 115 Minn. 508, 10— Bank v. Bank, 11 N. B. E. 49. 27A.B.E. 131; Philmon V.Marshall, 116 11— Lewis v. Hawkins, 23 WalL 119, Ga. 811, 11 A. B. E. 780; Mallin v. Wen- 23 L. ed. 113. ham, 209 111. 252, 13 A. B. E. 210 ; Evans 12— Eeed v. Bullington, 11 N. B. E. V. Staalle, 88 Minn. 253, 11 A. B. E. 182 ; 408 ; Brown v. Gibbons, 13 N. B. E. 407. Bassett v. Thackara, 72 N. J. L. 81, 16 13 — Dixon v. Barnum, 3 Hughes 207, A. B. E. 786; In re Blumberg, 1 N. B. Fed. Cas. No. 3928. Brandenburg — 71 1122 Bbandenbubg on Bankruptcy [§ 1532 urged by a mortgagee of such property; " and the same is true where the lien is acquired within the prohibited four monthsj^/ A creditor, who brought an action and issued an attachment more than four months before the bankruptcy may have a special judgment against the property notwithstanding the discharge." § 1533. Effect upon stockholders' or directors' liability. By the amendatory act of February 5, 1903, it is provided that the bankruptcy of a corporation does not release its officers, directors or stockholders, as such, from any liability under the laws of a state or territory of the United States." The dis- charge in bankruptcy of a corporation renders compliance with a statute requiring a judgment, against the corporation and an execution returned unsatisfied before the stockholders' liability can be enforced, unnecessary.^® Notwithstanding the discharge of the corporation, a creditor may take judgment in a state court against it, in such limited form as will enable him to reap the benefit of the directors' liability, the rendering of such a judg- ment depending upon the authority of the state court under the local law. In such case the judgment will not be against the person or property of the bankrupt and has no other effect than to enable the plaintiff to charge the directors in accordance with the state statute.^* A stock subscriber's liability to calls on the bankruptcy of a corporation becomes a contingent liability of undetermined amount, payable when a call is made, and if such subscriber subsequently becomes bankrupt and receives a discharge he is released from such liability though the call is not made until after the discharge; ^^ and so a shareholder in a national bank is released from his statutory individual liability to the bank's creditors, if, at the time of his discharge, their claims were prov- able and not merely contingent.^ ^ l^^-I'leitas V. Eiehardson, 147 TJ. S. Fed. 872, 4 A. B. E. 468- s. e. 1 N. B. 550, 37 L. ed. 276, aff'g same v. Mellen, N. 407, 2 A. B. R. 653, 95 Fed. 419; Els- 39 Ted. 129. bree v. Burt, 24 E. I. 322, 9 A. B. e! 87. 15 — Ex parte Foster, 2 Story 131, Fed. 18 — Firestone Tire & Eubber Co. v. Cas. No. 4960. Agnew, 194 N. T. 165, 21 A. B. E. 292. 16— Eay v. Wright, 14 N. B. E. 563; 19— In re MarshaU Paper Co., supra; Stoddard v. Locke, 9 N. B. E. 73; Deigh- HiU v. Harding, 130 U. S. 699 32 L ed. ton V. Kelsey, 4 N. B. E. 155. 1083. ' 17 — Section 4b; see also In re Mar- 20 — Carey v. Mayer 79 Fed. 926 shall Paper Co., 2 N. B. N. K. 1058,, 102 .21— Eiehmond v. Irons, 121 U. S. 27 11534] The Dischabge op the Baitkbtjpt 1123 § 1534. Effect upon suits against bankrupt. A suit to collect a debt, claim or liability from a bankrupt may be restrained until the application for a discharge has been determined, if made and prosecuted with reasonable diligence, and where the discharge would be a bar to such a suit, the cred- itor must go into the bankruptcy court and oppose the dis- charge,** and, on the application for stay, based upon the discharge, jurisdiction wiU be presumed, though the record is silent in this respect.** A bankrupt defendant may file a bond to dissolve an attachment, though issued more than four months before bankruptcy, and have the case continued to await his discharge.*^ It is obvious, however, that where a judgment is not such an one as is affected by discharge in bankruptcy, no satisfaction of the judgment will be entered on the production of the discharge, an instance of this being an attachment upon exempt property.*® In New York, a judgment against a bankrupt entered within a year after his discharge in bankruptcy upon a debt scheduled ia the bankruptcy proceedings may be cancelled and discharged of record,*'^ and this though leave to set up the discharge as a defense to the action was granted the defendant.*^ Proceedings to remove a city fireman for nonpayment of debts from which he had been discharged, have been restrained.** The disqualification of the bankrupt to testify in a suit to which he is a party as to a transaction with a deceased party is removed upon his discharge, where the debt which is the basis of the suit has been discharged thereby.*" 30 L. ed. 864, rev'g Irons v. Bk., 27 Fed. N. B. E. 491; Dingee v. Becker, 9 N. B. 591. E. 508, Fed. Cas. No. 3919. 23— In re Camelo, 195 Fed. 632, 28 A. 26 — Eobinson v. WUson, 14 N. B. E. B. E. 353; In re Archenbrown, 11 N. B. 565. E. 149, Fed. Cas. No. 504; In re Eosen- 27— Walker v. Mnir, 194 N. Y. 420, 21 berg, 2 N. B. E. 81, 3 Ben. 14, Fed. Cas. A. B. E. 593, aff'g 127 App. Div. (N. Y.) No; 12054. 163, 21 A. B. E. 278. 24— Hayes v. Ford, 15 N. E. E. 569; 28— Hussey v. Judson, 43 Misc. (N. Prostman v. Hicks, 15 N. B. E. 41; Todd Y.) 370, 11 A. B. E. 521. V. Barton, 13 N. B. E. 197. 29— In re Hicks, 133 Fed. 739, 3 A. 25— Braley v. Boomer, 12 N. B. E. 803 ; B. E. 654. In re Belden, 6 N. B. E. 443, 5 Ben. 476, 30— Anthony V. Sturdivant, 174 Ala. Fed. Cas. No. 1239; Wood v. Ha^en, 15 521, 27 A. B. E. 356. 1124 Beandenbtteg on Bastkexjptcy [§ 1535 § 1535. Effect upon contempt proceedings. Contempt proceedings may be taken to punisli the willful dis- obedience of a lawful order of the court or to secure the result that obedience of the order would have brought but for the bank- rupt's disobedience, or both; ^^ and, if they are for the failure to obey an order requiring the payment of money and the dis- charge will release the liability to pay the money, the bankrupt is entitled to be released.^^ The same rule applies in the case of fines and costs inuring to the benefit of the prosecutor; ^* but, if for the enforcement of an order requiring the performance of some act or duty, not affected by the discharge, he is not entitled to release; ^* and, of course, not, if it is to punish him, a pardon being the only relief in that case, unless release is secured under the provision as to poor debtors, the state laws relating thereto being adopted by the United States.^' § 1536. Release from a,rrest. A debtor arrested in a civil action prior to commencement of proceedings in bankruptcy is not entitled to be released from such arrest, upon being adjudged a bankrupt, but if the debt for which he is arrested is one affected by a discharge, he is entitled to a release from eirrest.^" § 1537. Discovery of assets after discharge. Where, after his discharge and after the period when a peti- tion to reopen or revoke the discharge had elapsed, the bank- rupt discovered assets that should have been scheduled and petitions to be allowed to schedule them, only creditors who proved their claims according to the act can participate in such assets.*^ §1538. Revival of debt after discharge. The only effect of a discharge is to suspend the right of action for a debt against the debtor personally. It does not annul the 31 — McCann v. Kandall, 146 Mass. 181. 34 — Spalding v. New York, 4 Hun 21. 32— See Wagner v. TJ. S., 104 Fed. 133, 35— Section 991, U. S. Eev. Stat. 4 A. B. E. 596. 36— Brandon Nat. Bank v. Hatch, 16 33— Hendryx v. Fitzpatrick, 19 Fed. N. B. E. 468. 810, and cases; Jackson v. Billings, 1 37 — ^In re Shaffer, 3 N. B. N. E. 54, Caines 252; Buffum 's Ca?e, 13 N. H. 14; 104 Fed. 982, 4 A. B. E. 728. People V. Craft, 7 Paige 325. §1538] The Disohaege of the Bankrupt 1125 original debt or liability of the debtor. The remedy upon the debt, and the legal, but not the naoral, obligation to pay is at an end. The obligation itself is not cancelled.^* Since the discharge is personal to the bankrupt he may waive it and, since it does not destroy the debt but merely releases him from liability, that is, removes the legal obligation to pay the debt, leaving the moral obligation unaffected, such moral obliga- tion is a sufficient consideration to support a new promise ^® and, if the debtor maltes such promise, it may be made the founda- tion of a suit. The plaintiff should declare on the original promise, or debt, the new promise being a defense to a plea of discharge; otherwise, there would be no consideration to sup- port the new promise, if the original debt was destroyed by the discharge.*" A new promise is said to revive the debt,*^ though judgments confessed by bankrupt subsequent to his discharge for debts owing prior to the discharge have been held sufficiently supported by the old debts not to revive them but to create new ones.*^ The sufficiency of a new promise to revive the debt must be determined by the local laws.*^ The new promise need not be in writing unless required by state law,** but it must be clear, dis- tinct, express and unequivocal; *^ and not in consideration of the creditor's withdrawing his oppposition to the discharge.*" If the promise is based "upon a condition it must be shown that the condition has been complied with.*'' It may be made any time after bankruptcy before or after discharge.** Unlike debts 38— Mallin v. Wenham, 209 HI. 252, 13 42— Dewey v. Moyer, 18 N. B, E. 114. A. B. E. 210; Citizens' Loan Ass'n v. 43 — Mandell & Co. v. Levy, 47 Mise. Boston & M. Ey., 196 Mass. 528, 14 L. (N. T.). 147, 14 A. B. E. 549. B. A. (N. S.) 1025, 124 Am. St. 584, 44 — Mutual Ees. Life Ass'n v. Beatty, 19 A. B. E. 650. 93 Fed. 747, 2 A. B. E. 244; Henley v. 39— Gruenberg v. Treanor, 40 Misc. Lanier, 15 N. B. E. 280, 281; Tompkins (N. T.) 232, 11 A. B. E. 776; Anthony v. Hazen, 5 A. B. E. 62. V. Sturdivant, 174 Ala. 521, 27 A. B. R. 45— Coe v. Eosene, 66 Wash. 73, 27 A 356. B. E. 175; St. John v. Stephenson, 19 40— Gruenberg v. Treanox, 40 Misc. N. B. E. 227; Smith v. Stanchfield, 84 (N. Y.) 232, 11 A. B. E. 776; In re Minn. 343, 7 A. B. E. 498. Shaffer, 3 N. B. N. E. 54; Mutual Res. 46-:rAustin v. Markham, 10 N. B. R. Life Ass'n v. Beatty, 93 Fed. 747, 2 A, 548. B. E. 244; Dusenbury v. Hoyt, 10 N. 47 — Smith v. Stanchfield, 84 Minn. B. E. 313; In re Merriman, 18 N. B. R. 343, 7 A. B. R. 498, and eases cited. 411, Fed. Cas. No. 9479. 48— Old Town Bank v. Parker, 30 A. 41— Clausen v. Sehoeneman, 16 N. B. B. R. 602; Zavelo v. Reeves, 227 tJ. S. E. 98. 625, 57 L. ed. 676, 29 A. B. B. 1126 Bbandbnbtjeg on Bankkuptcy [§ 1538 barred by the statute of limitations, debts discharged in bank- ruptcy are not revived by a new promise which amounts merely to an acknowledgment, but it must be an express statement of intention to pay;*® thought it may be conditional;^" and the following have been held sufficient: "I will pay;" "I will settle;" "I will see that you are no loser by me;" "She shall have her pay ; " " I am able and willing to pay. " ^^ Though the new promise be void, a judgment submitted to pursuant thereto will not be set aside nor a voluntary payment be recoverable; ^^ and as the new promise revives the debt it enures to the benefit of an indorsee as well as the payee or holder, to whom it was made.®* § 1539. Effect of discharge upon bankrupt's co-debtors. § 1540. — In general. Section 16a of the act provides that: "The liability of a per- son who is a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt." This section is merely declaratory of existing law, it being a general rule that, while a voluntary release of one co-debtor releases the other, a release by operation of law does not do so.^* A discharge in bankruptcy releases the bankrupt but does not release, discharge or affect any person liable for the same debt, or with the bankrupt, as partner, joint contractor, indorser, surety or otherwise; ®® but the bankrupt continues to be a neces- 493; Knapp v. Hoyt, 57 Iowa 591; but 54 — ^But see In re Benedict, 18 A. B. see Thornton v. Nichols & Leiaon, 119 E. 604. Ga. 50, 11 A. B. E. 304; Ogden v. Eedd, 55— Easton Furniture Mfg. Co. v. Ca- 18 N. B. E, 318. minez, 146 App. Div. (N. Y.) 436, 27 49— Mandell & Co: v. Levy, 47 Misc. A. B. E. 29; In re DeLong, 1 N. B. N. (N. Y.) 147, 14 A. B. E. 549; Allen v. 26, 1 A. B. E. 66; The Home, 18 N. B. Ferguson, 18 Wall. 1, 21 L. ed. 854; and E. 557, Fed. Cas. No. 6657; In re 8te- see, Coe v. Eosene, 66 Wash. 73, 27 A. B. vens, 5 N. B. E. 112, 1 Sawy. 397, Fed. B. 175. Cas. No. 13393 ; In re Levy, 1 N. B. N. 50— Eandidge v. Lyman, 124 Mass. 66, 2 Ben. 169, Fed. Cas. No. 8297; 361 ; Yates, Adm 'r, v. HoUingsworth, 5 Abendroth v. Van Dolsen, 131 TJ. S. 66, 33 Har. & J. 216. L. ed. 57; In re Albreoht, 17 N. B. E. 5i— Cook V. Shearman, 103 Mass. 21; 287, Fed. Cas. No. 145; Knapp v. Ander- Stillwell V. Coope, 4 Denio, 225; Evans v. son, 15 N. B. E. 316; but see In re Per- Carey, 29 Ala. 99. king, 10 N. B. E. 529, Fed. Cas. No. 52— Sweenie v. Sharp, 4 Bing. 37. 10983. 53— Way v. Sperry, 6 Cush. 238. § 1542] The Dischabge op the Bankb'^jpi • 1127 sary party in legal proceedings to enforce the liability of such others, because, unless he pleads the discharge, judgment can be taken against him.^® A creditor is not required to collect what he can from bankrupt's estate, nor urge objections to dis- charge, although he may not assent to it,®'' The liability of such co-debtor, surety or guarantor, while it is not released by the discharge of the principal, will be released in proceed- ings in bankruptcy instituted by such co-debtor, surety or guarantor. The discharge of a joint debtor does not prevent judgment for the full amount being taken against his co-debtor ; ^® nor does the discharge of a joint judgment debtor prevent execu- tion against the other judgment debtor; ®^ nor interfere with the prosecution of proceedings supplementary to execution against such other.®" §1541. — Indorsers. An indorser is not affected by the discharge, even if the holder of the note has proved his debt in bankruptcy against the maker for the full amount as an unsecured claim, though the holder, by so doing, releases all his right to a mortgage indemnifying the indorser; *^ or if the holder of an accommoda- tion note, knowing it to be such, signs a composition; ^^ or if the holder fails to prove the note of his own motion;®^ but the indorser is released if the holder of a note gives an extension of time to the principal for a valuable consideration without the indorser 's assent;®* or if a demand note is not presented for payment for several years.*® §1542. — GruaraxLtors. The liability of one who has guaranteed the payment of the bankrupt -of rent accruing after the adjudication^ is not released 56— Fellows v. Hall, 3 McLean, 281, 60— In re DeLong, 1 N. B. N. 26, 1 Fed. Cas. No. 4722; Doggett v. Emerson, A. B. E. 66. 1 Woodb. & M. 195, Fed. Cas. No. 3962; 61— Merchants ' Nat. Bk. of Syracuse Goodrich v. Hunton, 2 Woods, 137, Fed. v. Comstock, 11 N. B. E. 235. Cas. No. 5544; In re Ferguson, 16 N. B. 62— Guild v. Butler, 16 N. B. E. 347. B. 530, 2 Hughs. 286, Fed. Cas. No. 4738. 63 — Nat. Bank of So. Beading v. Saw- 57— In re McDonald, 14 N. B. B. 477, yer, 3 N. B. N. E. 266; Watertown Bank Fed. Cas. No. 8753. v. Simmons, 131 Mass. 85. 58— Lewis Tr. v. IT. S., 14 N. B. E. 64, 64— Valley Nat. Bk. v. Meyers Ass^ 92 U. S. (2 Otto) 618, 23 L. ed. 513. 17 N. B. E. 257, Fed. Cas. No. 5549. 59— Penny v. Taylor, 10 N. B. E. 200, 65— In re Crawford, 5 N. B. E. 301, Ted. Cas. No. 10957. Fed. Cas. No. 3364. 1128 Beandenbueg on Bankeuptcy [§ 1542 by a discharge of tlie lessee, where the premises were not sur- rendered to the landlord upon the adjudication.^® §1543. — Sureties on bonds. A surety who discharges the principal's debt, does not thereby relieve the principal from liability to pay it, but he thereby becomes subrogated to the rights of the former owner of the claim.®'^ A discharge in bankruptcy of the principal does not release, discharge or affect a surety,®® unless it prevents the happening of the event on which the surety's liability depends, in which case he would never become liable rather than be released; as in bonds in attachment suits begun within four months of the bankruptcy;®'' but if the attachment was begun more than four months prior to bankruptcy, suit may be prose- cuted to a special judgment to charge the sureties.'" A surety on an appeal bond will be released if the bankrupt's discharge can be brought to the attention of the appellate court and prevent judgment,'^^ but not after the judgment,''^ or if only what was before the lower court is cognizable above.'^^ 66 — Witthaus v. Zimmerman, 91 App. Div. (N. Y.) 202, 11 A. B. E. 314. 67— Swarts v. Siegel, 117 Fed. 13, 8 A. B. E. 689. 68— In re Stevens, 5 N. B. E. 112, 1 Sawy. 397, Fed. Cas. No. 13893; In re Levy. 1 N. B. E. 66, 2 Ben. 169, Fed. Cas. No. 8297 ; Abendroth v. Van Dolsen, 131 TJ. 8. 66, 33 L. ed. 57; The "Home," 18 N. B. E. 557, Fed. Cas. No. 6657; In re DeLong, 1 N. B. N. 26, 1 A. B. E. 66; but see II. S. v. Throckmorton, 8 N. B. E. 309, Fed. Cas. No. 16516. Eule applied to surety on bond of de- fendant in trover action. Birmingham Fertilizer Co. v. Cox & Son, 10 6a. App. 699, 28 A. B. E. 934. 69 — ^Wise Coal Co. v. Columbia Zinc & Lead Co., 157 Mo. App. 315, 27 A. B. E. 445; Crook-Homer Co. v. Gilpin, 112 Md. 1, 23 A. B. E. 350; Klipstein & Co. V. Allen-Miles Co., 136 Fed. 385, 14 A. B. E. 15; Smith v. Steinberg, 1 N. B. N. 240; Johnson v. Collins, 12 N. B. E. 70; Braley v. Boomer, 12 N. B. E. 303; Wolf v. Stix, 99 IT. S. (9 Otto) 1, 25 L. ed. 309; Hamilton v. Bryant, 14 N. B. E. 479; Bryant v. Kinyon, 127 Mich. 152, 6 A. B. E. 237; but see King V. Block Amusement Co., 126 App. Div. (N. Y.) 48, 20 A. B. E. 784. 70 — National Surety Co. of New York V. Medlock, 2 Ga. App. 665, 19 A. B. E. 654; Kendriok & Eoberts v. Warren Bros., 110 Md. 47; Hill v. Harding, 107 U. S. (17 Otto) 631, 27 L. ed. 493; Id. 130 U. S. 699, 32 L. ed. 1033; In re Albrecht, 17 N. B. E. 287, Fed. Cas. No. 145; Holyoke v. Adams, 10 N. B. E. 270; see In re Eosenthal, 108 Fed. 368, 5 A. B. E. 799; In re Eastern Commission & Importing Co., 129 Fed. 847, 12 A. B. E. 305. 71 — ^Brown & Brown Coal Co. v. Ante- zak, 164 Mich. 110, 25 A. B. E. 898; Goyer Co. v. Jones, 79 Misc. 253, 8 A. B. E. 437; Wolf v. StLx, 99 V. S. 1, 25 L. ed. 309; see Haggerty v. Morrison, 59 Mo. 324; Jones v. Coper,- 16 N. B. E. 343; Odell v. Wootten, 4 N. B. E. 46. 72— Bailey v. Eeeves, 59 So. 802, 28 A. B. E. 850. 73— Knapp v. Anderson, 15 N. B. E. 316. § 1544] The Dischabge of the Bankbupt 1129 A surety on a bond conditioned on a surrender of ihe principal before a breach, will be released if no breach has occurred, though not after breach;'''* or on bonds in replevin when the trustee has the replevied articles, judgment being still obtainable to fix the sureties' liability.''^ If prior to the adjudication in bankruptcy a judgment ha^ been rendered against a garnishee, a subsequent discharge of the principal debtor does not operate to discharge the garnishee/^ A discharge in bankruptcy releases a surety on a guardian's bond from liability for defaults of the guardian which occurred prior to the commencement of proceedings against the surety ; '''' and the discharge of a co-surety releases him from the liability to contribute to his co-sureties. In the absence of specific provision to the contrary, it has been uniformly held that debts due the sovereign are not released by a discharge in bankruptcy ; ''* nor are they in any wise affected by a bankruptcy law ; ''^ consequently sureties on the bonds of public officers or other bonds to the United States are not released.*" § 1544. Discharge of partnership or members. Section 16 of the act evidently contemplates the discharge of one partner without the others, in other words, the separate discharge of one partner from partnership debts. But notwith- standing this, it seems that a partner may proceed on his indi- vidual petition for his own adjudication and discharge without reference to the other partners only in case all are insolvent and there are no partnership assets whatever; *^ otherwise the peti- 74— Eichardson v. Mclntyre, 4 Wash. E. 18; IT. S. v. Knight, 14 Pet. 301, 315, C. C. 412; Bennett v. Alexander, 1 10 L. ed. 465; Bank v. U. S., 19 Wall. Cranch, C. C. 90. 227, 239, 22 L. ed. 80; U. S. v. Hoar, 2 75 — See Clemmons v. Brinn, 36 Mise. Mason, 311. (N. T.) 157, 7 A. B. E. 714. 79— Lewis v. V. S., 92 TJ. S. (2 Otto) 76— Marx v. Hart, 166 Mo. 503, 66 S. 618, 23 L. ed. 513. W. 260, 8 A. B. E. 438, note. 80— U. S, v. Herron, 20 Wall. 251, 21 77— Jones v. Knox, 8 N. B. E. 559; L. ed. 275; but see U. S. v. Throekmor- Eeitz V. People, 16 N. B. E. 96; Ex parte ' ton, 8 N. B. E. 309, Fed. Cas. No. 16516. Taylor, 16 N. B. E. 40, 1 Hughes, 617, 81— Dodge v. Kaufman, 46 Misc. (N. Ped. Cas. No. 13773; Halliburton v. Y.) 248, 15 A. B. E. 542; In re Hirsch, Carter, 10 N. B. E. 359. 2 N. B. N. E. 137, 3 A. B. E. 344, 97 78— U. S. V. Herron, 20 Wall. 251, 21 Ted. 571; In re Meyers, 1 N. B. N. 515, L. ed. 275; Attorney-General v. Alston, 96 Fed. 408, 2 A. B. E. 707; In re Alt- 2 Mod. 248; TT. S. v. BHng, Wall. C. C. man, 1 N. B. N. 358, 1 A. B. E. 689; In 1130 BEANDENBtTEG ON BaNKEUPTCY [§ 1544 tion should aver individual indebtedness,' if any, and also firm indebtedness, naming the firm and the several partners, and specifically pray for discharge from firm as w.ell as individual debts; and be accompanied by schedules setting forth the firm debts, firm property and all other matters, required in partner- ship proceedings, as well as schedules of the individual property and debts. The notices of the first meeting in such ease should state that firm, as well as individual creditors are notified because a discharge is sought from both classes of claims. Notice of the filing of the petition and of the creditors ' meetings should be given the nonjoining partners.®* The adjudication of a partnership and the administration of partnfership property in bankruptcy in no way aif ects the remedy which partnership creditors have against the individual part- ners for so much, of the partnership indebtedness as exceeds partnership assets.** The discharge of a partner discharges his liability for part- nership debts, where the partnership of which he was a member has been dissolved and there are no firm assets.®* In New York a judgment obtained against a partnership will not be discharged upon the ground of a discharge in bankruptcy of a member of the partnership within a year of the entry of the judgment.®^ re Abbe, 2 N. B. E. 26, Fed. Cas. No. 589, 3 A. B. R. 1; In re Freund, 1 N. B. 4; In re Marts, Fed. Cas. No. 9094; N. 105, 1 A. B. R. 25; In re Elliott, 2 Crompton v. ConMing, 15 N. B. E. 417, N. B. N. R. 350; Hudgins v. Lane, 11 N. Fed. Cas. No. 3408, s. c. Fed. Gas. No. B. E. 462, 2 Hughes, 361, Fed. Cas. No. 3407; In re Winkens, 2 N. B. R. 113, 6827; In re Little, 1 N. B. R. 74, 2 Ben. Fed. Cas. No. 17875; In re Downing, 3 136, Fed. Cas. No. 8390; Corey v. Perry, N. B. R. 182, 1 Dill. 33, Fed. Cas. No. 17 N. B. R. 147; In re Noonan, 10 N. B. 4044; In re Laughlin, 96 FeS. 589, 3 A. R. 330, 3 Biss. 491, Fed. Cas. No. 10292; B. R. 1; Wilkins v. Davis, 15 N.,B. R. In re Brick, 19 N. B. R. 508. 60, 2 Lowell, 511, Fed. Cas. No. 17664; 83— In re Everybody's Grocery & West Phil. Bk. v. Gerry, 106 !N. T. 467; Meat Market, 173 Fed. 492, 21 A. B. R. In re Bidwell, 2 N. B. R. 7») Fed. Cas. 925; In re Bertenshaw, 157 Fed. 363, 17 No. 1392; In re Leland, 5 N. B. R. 222, L. R. A. (N. S.) 886, 19 A. B..R. 577. 5 Ben. 168, Fed. Cas. No. 8228; In re 84— West Philadelphia Bank v. Gerry, Frear, 1 N. B. B. 201, 2 Ben. 467, Fed. 106 N. Y. 467; Berry Bros. v. Sheehan, Cas. No. 5074j but see Jerecki Mfg. Co. 115 App. Div. (N. Y.) 488, 17 A. B. B. V. McElwaine, 107 Fed. 249, 5 A^ B, R. 322. 751. t ."^jv 85— In re Gruber, 129 App. Div. (N. 82— In re Morrison, 127 Fed. 186-,' H Y.) 297, 21 A. B. R. 467. A. B. R. 498; In re Laughlin, 96 Fed. §1546] The Dischaege of the Bankbupt 1131 § 1545. Debts affected by discharge. §1546. — In general. A state coui;t has jurisdiction to decide whether or not the debt is released by the discharge.®® Debts which by their nature are provable, with the exceptions noted in section 17, are released by a discharge in bankruptcy,*'^ without regard to whether they could in fact be proved or not,** or whether by reason of . the inadvertent giving of wrong addresses, the creditors received no notice and had no knowl- edge of the proceedings;*^ and a discharge is a complete bar to suit thereon, though the dismissal of such suit will not preju- dice proof of the claim under the bankrupt law.®" The opera- tion of a discharge cannot be avoided on the ground that the debt due the creditor was not proved in the bankruptcy pro- ceedings, but was proved in previous insolvency proceedings, where a discharge was refused.®^ There is a distinction between provable and allowable debts. A debt may be provable without being allowable, since allow- ability implies both provability and validity. If for any reason the claim is improper or if there be a good defense to it, it is not allowable, although it may be provable. ^^ Debts not prov- able are in no wise affected by the discharge.®* Debts which may be proved are discussed in another chapter ®* to which refer- ence should be made. All liabilities other than those expressly excepted by the act are released.®® Hence, after it is determined whether the debt is provable, it should be ascertained if it comes within either 86-LStevens v. Brown, 11 N. B. E. 568. 92— Williams & Co. v. U. S. Fidelity 87— Euhl-Koblegard Co. v. Gillespie, 61 & Guaranty Co., 11 Ga. App. 635, 28 A. W. Va. 584, 22 A. B. E. 643; Bowen & B. E. 802. Thomas v. Keller, 130 Ga. 31, 22 A. B. 93— Matter of New York Tunnel Co., H. 727. 159 Fed. 688, 20 A. B. E. 25; see Qem- 88— In re Kuffler, 153 Fed. 667, 18 mons v. Brinn, 36 Mise. (N. Y.) 157, 7 A. B. E. 587; Cohen v. Pecharsky, 67 A. B. E. 714. Mise. (N. Y.) 72, 23 A. B. E. 754. 94— Chapter XVI. 89— In re Kingsley, 1 N. B. E. 66, 1 95— Drake v. Vernon, 26 S, D. 354, 25 Lowell 216, Fed. Gas. No. 7819; Pattison A. B. E. 69; Katzenstein v. Eeid, Mur- V. Wilbur, 12 N. B. E. 193. dock & Co., 413 Tex. Civ. App. 106, 16 A. 90— Humble v. Carson, 6 N. B. E. 84; B. E. 740. Dusenbury v. Hoyt, 10 N. B. E. 313. 91— Dean v. Justices, 1 N. B. N. 336, 172 Mass. 453, 2 A. B. E. 163. 1132 Bbandenbukg on Bankbuptcy [§ 1546 of the exceptions mentioned in this section; and, if it does not, it is released. The exceptions are therefore to be carefully examined and their scope noted. Debts existing under the act of 1867 and kept alive by subse- quent judgments, or in fact any existing judgment, are not excepted from the operation of the present act, but will be dis- charged.®* State statutes providing for the cancellation of released judgments on the records do not affect the operation of the discharge as a release. Failure to comply with same does not revive the judgments.®'^ § 1547. — Effect of proof of claim. Until a discharge is granted, the fact that a claim is provable, or has been proved, does not prevent its enforcement by other means and a suit may be brought on a provable claim, or prose- cuted to judgment, notwithstanding the pendency of bankruptcy proceedings, in which a discharge may be granted which will release it, unless stayed by the court of bankruptcy, or the court in which it is brought; and, if no discharge is granted, a suit may be brought for the balance after the distribution of the bankrupt's estate pro rata.®^ A creditor is not estopped from prosecuting an action on a claim not discharged in bankruptcy, by electing to prove his claim in bankruptcy, but may receive a dividend and then sue for so much as remains unsatisfied.®^ A creditor whose claim is such that he may enforce it as an obligation arising on contract, or as one in tort, is not estopped, by proving his claim in the bankruptcy proceedings as one founded on contract, from recovering damages for the tort sub- 96— In re Hennan, 102 Fed. 753, 2 N. N. T. 501, 8 A. B. E. 196; see In re B. N. E. 905, 4 A. B. E. 139. Eundle, 2 N. B. E. 49, Fed. Cas. No. 97— New York Code Cml Proc. § 1268 12138. considered. In re Peterson, 64 Misc. Proving a claim does not waive right (N. Y.) 217, 22 A. B. E. 549. to recover on ground that it was cre- 98 — Holland v. Martin, 18 N. B. R. ated by fraud and not released. Stand- 359; Frey v. Torrey, 175 N. Y. 501, 8 A. ard Sewing Machine Co. v. Kattell, 132 B. E. 196; Whitney v. Crafts, 10 Mass. App. Div. (N. Y.) 539, 22 A. B. E. 376. 23 ; Dingee v. Becker, Fed. Cas. No. 3919 ; Vendor 's filing a claim in bankruptcy Lewensohn, 2 N. B. N. E. 381, 99 Fed. court held not an aflSrmance of the sale 73; Eobinson, 2 N. B. E. 341, Fed. Cas. so as to preclude an action of deceit No. 11939. after the bankrupt's discharge based on 99 — Katzenstein v. Eeid, Murdock & fraudulent representations inducing the Co., 41 Tex. Civ. App. 106, 16 A. B. E. sale. Talcott v. Friend, 179 Fed. 676, 24 740; Brown v. Hannagan, 210 Mass. 246, A. B. E. 708. 27 A. B. E. 294; Frey v. Torrey, 175 § 1548] The Dischabge of the Bankeupt 1133 sequent to the discharge in bankruptcy or the confirmation of a composition.^ By proving his claim a creditor waives any personal exemp- tion he may have, as being out of the jurisdiction, omitted from the proceedings and without knowledge thereof or the Uke." § 1548. — Determination of character of debt. Prior to the amendment of 1903 the question frequently ai'ose as to the nature of the debt as evidenced by the judgment, and while it was frequently held that the nature of the action whether for fraud or not was determined by, the record, and not by any allegation or proof outside of it,'' and would be conclusive as to matters before the state court for decision,* yet if it did not appear from the judgment itself, it would be sufficient if it appeared from the record of the case, and it has been held that a judgment may always be examined into to see if the fraud is such as is mentioned." The character of the liability as that word is used in section 17a (2) is not changed by the fact that the liability is reduced to judgment,® and for the purpose of showing that a debt upon which a judgment is based was not discharged by the bank- ruptcy, the plaintiff in an action on the judgment may go behind it and show the record upon which it was based.'^ The cause of action does not become merged in the judgment thereon, to the extent of precluding the plaintiff from showing the nature of the original debt.* l—Priend v. Talcott, 22S V. S. 27, 57 A. B. E. 737; Knott v. Putnam, 107 Fed. L. ei. 718, 30 A. B. E. 31; aff'g 179 907, 6 A. B. E. 80.' Fed. 676, 24 A. B. E. 708. 5— Bullia v. O'Beirae, 195 XJ. S. 606, 49 2— Clay V. Smith, 3 Pet. 411; Jones L. ed. 340, 13 A. B. E. 108; In re Ehn- V. Horsey, 4 Md. 306; Murray v. Eob- tassel, 96 Fed. 597, 2 A. B. E. 697; Flan- erts, 150 Mass. 599. agan v. Pearson, 14 N. B. E. 37; Palmer 3— Louisville & N. E. Co. v. Bryant, v. Hussey, 87 N. Y. 303. 149 Ky. 359, 28 A. B. E. 867 ; Burnham 6 — Peters v. United States, 177 Fed. V. Pidcock, 58 App. Div. (N. Y.) 273, 5 885, 24 A. B. E. 206, rev'g 166 Fed. 613, A. B. R. 590; In re Whitney, 18 N. B. 22 A. B. E. 177; Thompson v. Judy, 169 E. 563, Fed. Cas. No. 17581; In re Pat- Fed. 553, 22 A. B. E. 154. terson, 1 N. B. E. 307, Fed. Cas. No. 7— Hallagan v. Bowell, 139 N. W. 883, 10817; but see Forsyth v. Vehmeyer, 177 31 A. B. E. 848. U. S. 177, 44 L. ed. 723, 3 A. B. E. 807; 8— Maier v. Maier, 77 Misc. (N. Y.) In re Bullis, 68 App. Div. (N. Y.) 508, 145, 28 A. B. E. 856; Wetmore v. Markbe, 7 A. B. E. 238. 196 U. S. 68, 49 L. ed. 390, 13 A. B. E. 4— Nichols V. Doak, 48 Wash. 457, 22 1; Packer v. Whittier, 91 Fed. 511; In re 1134 Bkandenbueg on BANKEtrpiCY [§ 1549 § 1549^ — Form of action. The form of action, tort or contract, is now immaterial and the court will look behind the form to the substance anaif the debt is not within the exceptions a discharge will bar the actiom® It is not necessary that an action of tort be brought on a debt cre- ated by fraud, for an action of assumpsit may be brought on the debt and if the discharge be pleaded the plaintiff may reply that the debt mentioned in the judgment was created by fraud, mis- representation, false pretenses or the like and was therefore not released, and thus show the existence of the fraud.^" The bur- den of proving that the debt was created by false pretenses or false representations, would be on the plaintiff in such case." Where one by an election of remedies abandons his claim of fraud, a debt created by fraud is released.^* A discharge in bankruptcy cannot be set up as a defense in an action in trover, since the issue is one of title, and not of debt. This is true, although the defendant elects to take a money verdict for dam- ages alleged to have been sustained.^* §1550. — Debts created or judgments recovered after bank- ruptcy. The discharge relates back to the date of the filing of the petition, and debts contracted thereafter are not released.^* A judgment recovered between the adjudication and the dis- charge, in a suit begun before the bankruptcy, is released by the discharge and bankrupt i^ entitled, on filing a certified copy Pettis, 2 N. B. R. 17, Fed. Cas. No. In re Thomas, 92 Fed. 912, 1 A. B. B. 11046; Warner v. Cronkhite, 13 N. B. 515; Stokes v. Mason, 12 N. B. E. 498; E. 52, Fed. Cas. No. 17180. but see Hagardine-MeKitrick Dry Goods 9— Maekel v. Eochester, 135 Fed. 904, Co. v. Hudson, 111 Fed. 361, 6 A. B. E. 14 A. B. E. 429; In re Kimball, 1 N. B. 657; In re Ehutassel, 96 Fed. 597, 2 A. B. E. 193, 2 Ben. 38, Fed. Cas. No. 776; E. 697; Burnham v. Pideock, 5 A. B. E. Hayes v. Nash, 129 Mass. 62; Brown v. 42, afC'd 58 App. Div. (N. T.) 273, 5 Treat, 1 Hill 225; Biekford v. Barnard, A. B. E. 590. 8 Allen 314; Merrill v. Schwartz, 68 Me. 11 — Sherwood v. Mitchell, 4 Den. 435. 514; In re Lewensohn, 99 Fed. 73, 2 12 — Suing in conversion instead of to N. B. N. E. 381. rescind for fraud. In re Ennis & Stop- 10— Maekel v. Eochester, 135 Fed. 904, pani, 171 Fed. 755, 22 A. B. E. 679. 14 A. B. E. 429 ; Stewart v. Emerson, 8 13 — Birmingham Fertilizer Co. v. John N. B. E. 462; Forsyth v. Vehmeyer, 177 A. Cox & Son, 10 Ga. App. 699, 28 A. B. U. S. 177, 44 L. ed. 723, 3 A. B. E. 807; R. 934. / In re Patterson, 1 N. B. E. 307, Fed. Cas. 14 — ^In re Karns, 148 Fed. 143, 16 A. No. 10817; In re Bullis, 7 A. B. E. 238; B. E. 841. § 1551] The Discharge op the Bankeupt 1135 of the discharge, to a perpetual stay of execution; ^^ and a suit brought after bankruptcy by an execution creditor to establish a lien on equitable assets of bankrupt is founded on the judg- ment which is a claim released by discharge and hence the suit is properly stayed." § 1551. — Debts and taxes due the govenmient. In the absence of specific provision to the contrary, it has been uniformly held that debts due the sovereign are not released by a discharge in bankruptcy; ^'' nor is it anywise bound by a bankruptcy law.^* It is a general rule of interpretation that if the legislature intends to divest the sovereign power of any right, privilege, title or interest, it should so appear in express words, and where an act contains no words to express such an intent, it will be presumed that the intent does not exist. ^® Under the act of 1867, a claimant who gave bond for the delivery to him of property seized by the government and, on a decree in favor of the government, set up a discharge in bankruptcy, was held out released; ^° but under the act of 1841 a discharge was held to release a debt due the United States for customs dues.^^ While there is some dissimilarity between the act of 1867 and the pres- ent one with reference to the debts not affected by a discharge, and it might be argued under this general rule of interpretation, and following the decisions under the act of 1867, that debts due the United States are not released by the discharge, although the same may only be a liability as surety for the faithful per- formance of duty by a public officer,^^ yet under that equally well known maxim expressio unius est exclusio alterius, the fact that congress specifically provided that debts due the United States as a tax only, would not be discharged, would indicate that debts of of all other character are released by the dis- - 15— Boynton v. BaU, 121 IT. S. 457, 30 19— TTnited States v. Herron, 20 Wall. L. ed. 985; Braman v. Snider, 21 Fed. 251, 22 L. ed. 275; United States v. 871; In re Stansfleld, 16 N. B. E. 268, 4 Knight, 14 Pet. 301, 315, 10 L. ed. 465; Sawy. 334, Fed. Cas. No. 13294. Bank v. United States, 19 Wall. 227, 239, 16— In re McNamara, 2 N. B. N. R. 22 L. ed. 80; United States v. Hoar, 2 341. , Mason 311. 17— U. S. V. Herron, 20 Wall. 251, 22 20— United States v. Bob Eoy, 13 N. B. L. ed. 275; Attorney General v. Alston, R. 235, 1 Woods 42, Fed. Cas. No. 2 Modern 248; U. S. v. King, Wall., C. 16179. Ci E;. 18, Fed. Gas. No. 15536. ' 21— Zaugas Case, Fed. Cas. No. 16786. 18— Lewis V. United States, 92 U. S. 22— United States v.,Berron, 20 Wall. (2 Otto) 618, 23 L. ed. 513. 251, 22 L. ed.: 275. 1136 Bbau-denbtjbg on Banketjptcy [§:1551 charge.-' Taxes due the United States, state, county, district or municipality in which the bankrupt resides are not released, but must be paid in advance of dividends to creditors.^* This accords with the general rule that governmental revenues are not allowed to be tampered with lest it interfere with the per- formance of the important public duties with which such governing body is charged; but it should be noted that the taxes included within the exception of this section are confined to the state, county, district and municipality in which bank- rupt resides. This is not to be considered, however, as limiting the general lien for taxes on property wherever situated, and which is borne out by section 64a, which makes all taxes payable in advance of dividends. Whether or not any tax or assessment in the nature of a tax is within the meaning of the word "taxes" aa used in this section is to be determined by the laws imposing the same, and where, for instance, the highest court in a state has held that the "mulct tax" is not a tax though the legisla- ture called it so in the statute, such decision must be followed.*' §1552. — Alimony and support. Prior to the amendment of February 5, 1903, much diversity of opinion existed with relation to the dischargeability of alimony which had accrued prior to the filing of the petition. Some courts held that where the liability might be modified by the court which decreed the alimony, it was not released,^® while others took the position that where it was fixed, certain and determined and in the nature of a judgment, it would be released.^'' The supreme court has held, hobwever, that the amendment of 1903 excepting all liabilities for alimony due or 23 — In re Alderson, 3 A. B. E. 544, R. 289; Young v. Young, 35 Misc. (N. 98 Fed. 588. Y.) 335, 7 A. B. E. 171; In re Lache- 24— Section 64a, Act of 1898. meyer, 18 N. B. E. 270, Fed. Cas. No. 25— In re Ott, 1 N. B. N. 571, 2 A. 7966; In re Garrett, 11 N. B. E. 483, 2 B. E. 637, 95 Fed. 274. Hughes 235, Fed. Cas. No. 5252; Barclay 26— In re Nowell, 3 A. B. E. 837, 99 v. Barclay, 2 N. B. N. E. 552; but see In Fed. 931 ; In re Smith, 1 N. B. N. 471, re Challoner, 2 N. B. N. E. 105, 3 A. B. E. 3 A. B. E. 67; In re Shepard, 97 Fed. 442, 98 Fed. 82. 187, 5 A. B. E. 857; In re Anderson, 97 27— In re Houston, 1 N. B. N. 305, 2 Fed. 321, 5 A. B. E. 858; Audubon v. A. B. E. 107, 94 Fed. 119; In re Van Shufeldt, 181 U. S. 575, 45 L. ed. 1009, Orden, 1 N. B. N. 475, 2 A. B. E. 801, 5 A. B. E. 829; Maisner v. Maisner, 62 96 Fed. 86; Fite v. Hte, 110 Ky. 197, App. Div. (N. Y.) 286, 6 A. B. E. 295; 5 A. B. E. 461. Turner v. Turner, 108 Fed. 785, 6 A. B. §1554] The Discharge of the Bankrupt 1137 to become due, or for maintenance or support of wife or child from the operation of a discharge was merely declaratory of the law as it existed theretofore, and that a liability for arrears for alimony or support was not discharged although the decree granting it could not be modified by the court rendering it.^* The amendment settles all doubt and provides that alimony whether due or to become due is not released by the discharge.^" A judgment based upon a foreign judgment of divorce under which alimony is due is more than a mere money judgment, and is to be treated as an ordinary judgment for alimony,^" The provision exempting liabilities for maintenance or sup- port of wife or child refers only to the common-law liability and liability under bonds given for such support. It does not refer to liabilities for goods purchased by the bankrupt and used by his wife or child,'^ or to a debt incurred for services rendered by a physician to the bankrupt's wife or children while the normal relation of husband and wife existed.^* §1553. — Attorney's claim. A claim for legal services is discharged though such services were obtained by false and fraudulent representations,** or were rendered in contemplation of bankruptcy.** Counsel employed by the bankrupt prior to the bankruptcy to carry on a suit at their own expense for a contingent fee of one-half are entitled to such one-half though the recovery is after the bankrupt's discharge.*® § 1554. — Bonds and recognizances. A bond given by bankrupt to secure the release of a lien which is valid under the bankrupt act, takes the place of such 28— Wetmore v. Markoe, 196 U. S. 68, 31 — Schellenberg v. Mullaney, 112 App. 49 L. ed. 390, 13 A. B. B. 1; Dunbar v. Div. (N. Y.) 384, 16 A. B. E. 542. Dunbar, 190 TJ. 8. 340, 47 L. ed. 1084, 32— In re Ostrander, 139 Fed. 592, 15 10 A. B. B. 139 decided under original A. B. B. 96. act. 33— Gleason v. Thaw, 196 Fed. 359, 28 29— Maier v. Maier, 77 Misc. (N. T.) A. B. E. 473; s. c, 185 Fed. 345, 34 L. 145, 28 A. B. E. 856; Craine v. Craine, B. A. (N. 8.) 894, 25 A. B. E. 782, aff'g 19 A. B. E. 76; In re Hubbard, 98 Fed. 180 Fed. 419, 24 A. B. B. 759; Gleason 710, 3 A. B. E. 528; In re Baker, 1 N. v. O'Mara, 180 Fed. 417, 24 A. B. E. B. N. 547, 3 A. B. B. 101, 96 Fed. 954; 832. In re Cotton, Fed. Cas. No. 3269; Hawes 34 — In re Blum, 193 Fed. 304, 28 A. B. V. Cooksey, 13 Ohio 242. E. 60. 30— In re Williams, 31 A. B. R. 717; 35— Maybin v. Raymond, 15 N. B. B. contra. In re Williams Estate, 118 N. T. 353j Fed. Cas. No. 9338. S. 562, 23 A. B. B. 394. Brandenburg— 72 1138 Beandenbueg on Bankruptcy [.§1554: lien and is not released by the discharge, as where to dissolve an attachment against him, issued more than four months before the bankruptcy proceedings, the bankrupt gives a bond; *® nor if the bankrupt's liability on such bond does not become fixed by the happening of the contingency named until after the filing of the petition.*'^ Nor does a discharge release the bank- rupt from liability as surety on a bond for the faithful per- formance of duty by a public officer; ** nor on a bond given to secure the delivery of goods seized by the government ; *^ but where a principal is released from a debt by his discharge in bankruptcy, he will also be released from his contingent liability to his surety for the same debt.*" A discharge released the bankrupt's liability on a bond given on his arrest, gind conditioned that he will apply for the benefit of the state insolvent laws,*^ or on a recognizance given by him upon his arrest upon an execution issued on a judgment, unless the debt is non-dischargeable.*^ § 1555. — Costs. Costs taxable against an involuntary bankrupt who was at the time the petition was filed against him plaintiff in an action which passes to the trustee and which, after notice, he declines to prosecute, and taxable costs incurred in good faith by a cred- itor before the filing of the petition in an action to recover a provable debt,*^ are provable claims and released by a discharge; as must be any costs or expenses connected with a provable debt since the incident falls with the principal. Costs incurred by a 36 — Holyoke v. Adams, 10 N. B. E. A surety bond, executed by a surety 270; In re Albrecht, 17 N. B. E. 287, company, to be delivered to another to Ted. Cas. No. 145; Hill v. Harding, 130 enable the bankrupt, the principal there- tr. S. 699, 32 L. ed. 1083, 9 S. Ct. 725; in, to obtain money from such other, is contra, Hamilton v. Bryant, 14 N. B. E. not property within the meaning of § 17 479. (2) and the claim of the surety is dis- 37 — Eastman v. Hibbard, 13 N. B. chargeable though it was induced to ex- E. 360. ecute the bond through fraudulent rep- 38 — ^TJ. 8. V. Herron, 9 N. B. E. 535, resentationa of the bankrupt. In re Dim- 20 Wall. 251, 22 L. ed. 275; but see XT. fee, 206 Fed. 745, 30 A. B. E. 721. S. V. Throckmorton, 8 N. B. E. 309, Fed. 41— Hubert v. Horter, 14 N. B. E. 430. Cas. No. 16516. 42— In re Colaluca, 133 Fed. 255, 13 39— TJ. S. V. Bob Eoy, 13 N. fi. E. 235, A. B. E. 292. 1 Woods 42, Fed. Cas. No. 16179. 43 — Section 63a, Act of 1898. 40 — Halliburton V. Carter, 10 N. B. E. 359. § 1556] The Disohaege of the Bankrupt 1139 surety for bankrupt in attempting to resist payment cannot be recovered against the discharged principal though the surety could only prove for the original amount in the creditor's name.** In an action which was commenced prior to the filing of the petition in bankruptcy, the costs taxed against a bankrupt after the filing of the petition, not being provable are not dis- charged.*^ A judgment for costs awarded a defendant in an action for slander has been held not released.*® § 1556. — Executory contracts. — Covenants. A discharge in bankruptcy does not affect the bankrupt's contractual liabilities beyond releasing him from personal liabil- ity for such as had accrued prior to the bankruptcy, or if the trustee deems such contract to be beneficial to the estate and assumes it, in which case he assumes liability and the bankrupt is released, but otherwise not.*'' The bankrupt is released by his discharge from the breach of a covenant which occurred prior to his discharge, if the same result in a provable liability,** but if he sells land prior to his bankruptcy with a covenant of title, he remains liable therein after the discharge,*^ but in the case where there is an unrelinquished dower right, and the hus- band of the person having the inchoate right of dower is living, there is no provable claim and it is not released.^" Liability under an agreement to purchase stock at a date sub- sequent to the adjudication is not provable and hence not discharged,^^ and a claim against bankrupt for refusing to deliver a certificate of its stock has been held not dischargeable, the claimant having delivered a certificate of stock to it with a request that it issue a new one.' , 62 44— Section 57i, Act of 1898; I'isher 48— Williams v. Harkins, 15 N. B. R. V. TifEt, 127 Mass. 313; see Aiken, Lam- 34. bert V. Haskins, 48 App. Div. (N. Y.) 49— In re Burton, 29 Fed. 637. 638, 6 A. B. E. 46. 50— Biggin v. Magwire, 8 N. B. E. 484, • 45— In re Marcus, 104 Ted. 331, 5 A. 15 Wall. 549, 21 L. ed. 232. B. E. 19; Aiken, Lambert v. Haskins, 48 51 — Phenix Nat. Park Bank v. Water- App. Div. (N. Y.) 638, 6 A. B. E. 46. bury, 197 N. Y. 161, 23 A. B. E. 250, 46— Drake v. Vernon, 26 S. Dak. 354, aff'g 123 App. Div. (N. Y.) 453, 20 A. 25 A. B. E. 69. B. E. 140. 47— In re Schiermann, 2 N. B. N. E. 52— In re Clipper Mfg. Co., 179 Fed. 188; contra, Jn re Jefferson, 1 N. B. N. 843, 24 A. B. E. 683. 288, 2 A. B. E. 206, 93 Fed. 948. 1140 Bbandenbueg on Bankbx:ptct [§ 1557 § 1557. — Fraud, embezzlement, misappropriation, and defalca- tion. By the act of 1898 judgments in actions for fraud or obtaining property by false pretenses or false representations were not released by the discharge. By the amendment of 1903 both the terms "judgment" and "fraud" are omitted so that unless the fraudulently contracted liability grows out of a fraud committed by the bankrupt while acting as an officer or as a fiduciary, or is a liability for obtaining property by false pretenses or false representation, it is discharged whether reduced to judgment or not.^* To bring a debt within the exception as to debts created by the bankrupt's fraud, embezzlement or defalcation while acting as an officer or in any fiduciary capacity, the fraud must be posi- tive fraud, or fraud in fact, involving moral turpitude or intentional wrong, and not implied fraud, or fraud in law, which may exist without bad faith or immorality;^* and must occur against the party toward whom the bankrupt held the fiduciary relation,^^ and must exist in the creation of the debt, as subsequent fraudulent conduct is insufficient.^® If the debt be created in fraud, it is immaterial, for instance, that the fraud consists in false statements by only one member of a firm, espe- cially if the firm reaps the benefit"'" If the original debt arose in contract and the fraud was but an incident of the debt and not its creative power, the debt is merged in the judgment and the bankrupt released thereafter.^* The exemption of debts created by bankrupt's fraud, embezzle- ment, misappropriation or defalcation while acting as an officer or in any fiduciary capacity applies only to a person who was already an officer or a fiduciary when the debt was created, and not to one created under circumstances in whioh trust or confi- 53— Crawford v. Burke, 195 U. S. 176, 138 U. S. 306, 34 L. ed. 951; Torsytli v. 49 L. ed. 147, 12 A. B. E. 659, rev'g 201 Vehmeyer, 177 U. S. 177, 44 L. ed. 723, Jll. 581 ; Smith & Wallace Co. v. Lambert, 3 A. B. E. 807. 69 N. J. L. 487, 11 A. B. E. 252. 55— Inge v. StillweU, 88 Kan. 33, 28 54— In re Tloyd, Crawford & Co., 15 A. B. E. 892. A. B. R. 277; Louisville & N. R. Co. v. 56— U. S. v. Rob Roy, 13 N. B. R. 235, Bryant, 149 Ky. 359, 28 A. B. R. 867; 1 Woods 42, Fed. Cas. No. 16179. Strang v. Bradner, 114 U. S. 555, 29 L. 57— Strang v. Bradner, 114 TJ. S. 555, ed. 248; Noble v. Hammond, 129 U. S. 29 L. ed. 248. 65, 32 L. ed. 621 ; Upshur v. Briscoe, 138 58— Sherman v. Straus, 10 N. B. B. U. S. 365, 34 L. ed. 931; Ames v. Moir, 300. 1557] The Discharge of the Bankrupt 1141 dence is reposed in the debtor in the popular sense of those terms ; '*" that is, only technical or special trusts, as contradis- tinguished from those which the law implies from the contract, are within the exception.'" The terms "fraud," "embezzle- ment," "misappropriation," or "defalcation," relate and are limited to one acting as an officer or holding a fiduciary position, and it is not the defalcation only of such a person that is referred to, but it is any act of fraud, embezzlement or misappropriation as well as defalcation on his part that is not released.^* The good of the community and public policy forbid the discharge of the bankrupt from a debt incurred through fraud while acting as an officer or in a fiduciary capacity, and a debt so created, whether reduced to judgment or not, is not to be dis- charged in bankruptcy;®'' but it may be proved and dividends received on it.®^ 59— Cra^ord v. Burke, 195 U. S. 176, 49 L. ed. 147, 12 A. B. R. 659, rev'g 201 111. 581; Feehter v. Postel, 114 App. Div. (N. Y.) 776, 17 A. B. E. 316; In re Ennis 6 Stoppani, 171 Fed. 755, 22 A. B. R. 679; In re Rogers, 1 N. B. N. 211, 1 A. B. E. 541; Claflin v. Eason, 1 N. B. N. 360, 2 A. B. E. 263; Upshur v. Briscoe, 138 U. S. 365, 34 L. ed. 931 ; Bryant v. Kinyon, 127 Mich. 152, 6 A. B. R. 237. 60 — American Agricultural Chemical Co. V. Berry, 110 Me. 528, 31 A. B. E. 142; Maxwell v. Martin, 130 App. Div. (N. T.) 80, 22 A. B. E. 93; Lewis v. Shaw, 122 App. Div. (N. Y.) 96, 19 A. B. E. 866; Karger v. Orth, 116 Minn. 124, 27 A. B. E. 212; Eeeves v. Mc- Craeken, 69 N. J. Eq. 203, 13 A. B. E. 680; Bracken v. Milner, 104 Fed. 522, 5 A. B. E. 23; Gee v. Gee, 84 Minn. 384, 7 A. B. E. 500; Neal v. Clark, 95 U. 8. 704, 24 L. ed. 586; Hennequin v. Clews, 111 U. S. 676, 28 L. ed. 565; In re Bene- dict, 37 Misc. (N. Y.) 230, 8 A. B. E. 463; Noble v. Hammond, 129 U. S. 65, 32 L. ed. 621; Keim v. Graff, 17 N. B. B. 319, Fed. Cas. No. 7650. 61— Tindle v. Birkett, 205 U. S. 183, 51 L. ed. 762, 18 A. B. E. 121, aff'g 183 N. Y. 267, 15 A. B. E. 179; Barrett v. Prince, 143 Fed. 302, 16 A. B. E. 64; In re Bullis, 68 App. Div. (N. Y.) 508, 7 A. B. B. 238; Morse v. Kaufman, 100 Va. 218, 7 A. B. E. 549; but see West- ern Union Cold Storage Co. v. Kurd, 116 Fed. 442, 8 A. B. R. 633; contra, Frey v. Torrey, 36 Misc. (N. Y.) 216, 8 A. B. R. 196. 62— In re Thomas, 1 N. B. N. 329, 1 A. B. E. 515, 92 Fed. 912 ; In re Lieber, 2 N. B. N. E. 21, 3 A. B. E. 217; In re Bradford, 2 N. B. E. 26, Fed. Cas. No. 1090; In re Clarke, 2 N. B. E. 44, Fed. Cas. No. 2844; In re Doody, 2 N. B. E. 74, Fed. Cas. No. 3995; In re Eathbone, Fed. Cas. No. 11580; In re Eosenfield, 1 N. B. E. 161, Fed. Cas. No. 12058; In re Stokes, 2 N. B. R. 76, Fed. Cas. No. 13476; In re Talman, 1 N. B. E. 122, 2 Ben. 348, Fed. Cas. No. 13739; Neal V. Clark, 95 U. S. (5 Otto) 704, 24 L. ed. 586; Howland v. Carson, 16 N. B. E. 372; In re Patterson, 1 N. B. E. 58, 2 Ben. 155, Fed. Cas. No. 10817; In re Pettis, 2 N. B. E. 16, Fed. Cas. No. 11046; In re Robinson, 2 N. B. R. 108, 6 Blatch. 253, Fed. Cas. No. 11939; In re Stokes, 2 N. B. R. 76, Fed. Cas. No. 13476; In re Wright, 2 N. B. B. 14, Fed. Cas. No. 18070; Libbey v. Stras- burger, 17 N. B. R. 468; Brown v. Han- nagan, 210 Mass. 246, 27 A. B. R. 294. 63 — Brown v. Hannagan, 210 Mass. 246, 27 A. B. E. 294; Strang v. Brad- 1142 Bbandenbueg on Bankeuptcy [§ 1557 A naked bailee under an express agreement to keep safely the money bailed and pay it over on request,®* or a pledgor hold- ing goods as a bailee,"^ is not acting in a fiduciary capacity. So a creditor who holds collateral for his own security, is not a trustee, and, a failure to deliver it up being a breach of contract and not a breach of trust, a discharge releases the claim arising from his appropriation to his own use of such securities.*" The implied trust relation existing between partners, under which their liabilities to each other must be determined^ does not bring their affairs within the definition of the excepted term "fiduciary," ^"^ but a surviving partner, with whomi his deceased partner has deposited his share of the capital of the partnership, holds such sum as a fiduciary within the meaning of the act;** The relation betweeu a stock broker and a customer on an open account, is not fiduciary and the former's liability for conversion of the latter 's stock is released,"^ unless the conversion is delib- erate and intentional under circumstances amounting to larceny. ''* A debt is within the exception where the bankrupt while act- ing as agent for the creditor converted to his own use money of the creditor received as agent ;^^ but is a debt created by an agent's failure to pay over moneys entrusted to him to loan and ner, 114 U. 8. 555, 29 L. ed. 248; Wil- 49 L. ed. 147, 12 A. B. E. 659, rev'g mot V. Mudge, 103 U. S. (13 Otto) 217, 201 111. 581; In re Ennis & Stoppani, 26 L. ed. 536; In re Wright, 2 N. B. E. 171 Fed. 755, 22 A. B. R. 679; Clark v. 14, Fed. Cas. No. 18070; In re Eobinsou, Milliken, 70 Misc. (N. T.) 492 25 A. B. 2 N. B. E. 108, 6 Blatch. 253, Fed. Cas. E. 680; In re Floyd, Crawford'& Co., 15 No. 11939; In re Eoseuberg, 2 N. B. R; A. B. E. 277; In re Gaylord, 113 Fed. 81, 3 Ben. 14, Fed. Cas. No. 12054; In re 131, 7 A. B. E. 577; Wood v. Fisk, 141 Nigel, 2 N. B. E. 481, Fed. Cas. No. N. Y. 8. 342, 31 A. B. E. 824. 9536. 70 — Kavanaugh v. Melntyre, 74 Misc. 64— Lewis v. Shaw, 122 App. Div. (N. (N. Y.) 222, 27 A. B. E. 279. Y.) 96, 19 A. B. E. 866. 71— Williams v. Virginia-Carolina 65— In re Toklas Bros., 201 Fed. 377, Chemical Co., 62 So. 755, 31 A. B. E. 29 A. B. E. 709. 64; In re Adler, 152 Fed. 422, 18 A. B. 66— Hennequiu v. Clews, 111 U. 8. 676, E. 240 ; In re Hale, 161 Fed. 387, 20 28 L. ed. 565; Palmer v. Hussey, 119 A. B. E. 633; Fulton v. Hammond, 11 U. 8. 96, 30 L. ed. 362. Fed. 291. 67— Inge v. Stillwell, 88 Kan. 33, 28 Agent intrusted by his principal with A. B. E. 892 ; Karger v. Orth, 116 Minn. beer to deliver to laborers under his 124, 27 A. B. E. 212; Gee v. Gee, 84 supervision and collect pay therefor and Minn. 384, 7 A. B. E. 500. turn the same over to his principal held 68— Haggerty v. Badkin, 72 N. J. Eq. not to have been acting in, a fiduciary 473, 18 A. B. E. 302. capacity. In. re Camelo, 195 Fed. 632, 69— Crawford v. Butke, 195 U. S. 176, 28 A. B. E. .353. §1557] The Dischaege op the Bankbupt 1143 to receive the interest and principal of such loans and remit the same to the lender is not; '^ though if he takes mortgages to himself or his partner, in which latter case he caused foreclosure proceedings and purchases the property himself, it would be.''* The fiduciary relation does not exist where the agent is to share in the profits, acting with the knowledge of the principal and more as a partner than an agent; or where a limited partnership is formed and one member becomes indebted to another^* A ticket agent of a railroad company is not a fiduciary and his liability for conversion of the company's money is released.'^^ A debt due by a bankrupt in the character of a factor or com- mission merchant, arising out of his failure to account for the value of goods consigned to him for sale on commission and sold by him before a demand for their return is not within the excep- tion but will be released by a discharge; '^^ and if such debtor is arrested under a state statute he will be released on application to the court of bankruptcy,''^ but a factor's liability for goods unsold at the time of a demand for their return or for the pro- ceeds thereof if they are sold subsequent to such demand is not dischargeable.''* Where a produce dealer, as an accommodation, collects moneys and without fraudulent intent deposits the pro- ceeds with his own funds and before payment is thrown into bankruptcy, such debt is not within the exception.''^ The liability of an officer of a national bank for conversion 72— Bracken v. Milner, 104 Fed. 522, E. 319, Fed. Cas. No. 7650; Owsley v. 5 A. B. E. 23; Upshur v. Briscoe, 138 Cobin, 15 N. B. E. 489, 2 Hughes 433, U. S. 365, 34 L. ed. 931; and see In re Fed. Cas. No. 10636; Chapman v. For- Shepherd, 2 N. B. N. E. 1070'. syth, 2 How. 202; Knott v. Putnam, 107 73— Bracken v. Milner, 104 Fed. 522, Fed. 907, 6 A. B. E. 80; In re Bene- 5 A. B. E. 23. diet, 37 Misc. (N. Y.) 230, 8 A .B. E. 74— Pierce v. Shipper, 19 N. B. E. 463; contra, Lenke v. Booth, 5 N. B. E. 221. 351; Meador v. Sharpe, 4 N. B. 492; 75— In re Wenman, 153 Fed. 910, 16 Treadwell v. Holloway, 12 N. B. E. 61; A. B. E. 690. In re Seymour, 1 N. B. E. 29, 1 Ben. 348, 76— American Agricultural Chemical Fed. Cas. No. 12684. Co. V. Berry, 110 Me. 528, 31 A. B. E. 77— In re Smith, 18 N. B. E. 24, Fed. 142; Mathieu v. Goldberg, 156 Fed. 541, Cas. No. 12976; Grover v. Clinton, 8 N. 19 A. B. E. 191; In re Adler, 152 Fed. B. E. 312, 5 Biss. 324, Fed. Cas. No. 422, 18 A. B. E. 240; In re Basoh, 2 5845. N. B. N. E. 122, 3 A. B. E. 235, 97 78— Mathieu v. Goldberg, 156 Fed. 541, Fed. 761, 3 A. B. E. 235; Zeperink v. 19 A. B. E. 191. Card, 11 Fed. 295; Woolsey v. Cade, 15 79— Noble v. Hammond, 129 U. S. 65, N. B. E. 238; Keime v. Graff, 17 N. B. 32 L. ed. 621. 1144 Bbandenbtjeg on BANKEtrpioY [§ 1557 of its funds ^° or debts of the bankrupt, while register of a land office, in converting to his own use money deposited by private parties to purchase public lands,** or a defalcation by a guar- dian,*^ executor or administrator would not be released; *^ while the obligation of the surety on a guardian's bond would be. It has been held that a city auctioneer acts in a fiduciary capacity, though in this case it should be observed that he is an oflScer.** An attorney who professionally collects a debt for his client is undoubtedly acting in a fiduciary capacity; *® but, if he does not act in his professional capacity, it is otherwise.*® A husband's liability to his wife for her paraphernal property under the law of Louisiana, is discharged.*^ The fact that the bankrupt is a grantee in a conveyance made to defraud creditors does not make him the trustee of the grantor within the meaning of the act.** A judgment rendered against the bankrupt by a court of competent jurisdiction in a suit ia which recovery is sought on the ground of his embezzlement and misappropriation of funds is conclusive upon such questions and cannot be collaterally attacked.*^ §1558. —Fines. Whether a fine is dischargeable depends upon whether it is provable.^" § 1559. — Obtaining property by false pretenses or false repre- sentations. A liability growing out of the obtaining of property by false representations or false pretenses is not released by a dis- 80— Harper v. Rankin, 141 Fed. 626, 85— Flanagan v. Pearson, 14 N. B. 15 A. B. R. 608, certiorari denied 200 R. 37. V. S. 621, 50 L. ed. 624, afE'g 133 Fed. 86— McAdoo v. Loomis, 43 Tex. 227. 970, 13 A. B. E. 430. 87— Fleitas v. Richardson, 147 U. S. 81 — Ex parte Wright, Fed. Cas. No. 550, 37 L. ed. 276. 18064. 88— Reeves v. McCracken, 69 N. J.Eq. 82— Halliburton v. Carter, 10 N. B. R. 203, 13 A. B. R. 680; In re Adler, 144 359 ; In re Maybin, 15 N. B. R. 458, Fed. Fed. 659, 16 A. B. R. 414. Cas. No. 9337. 89— Harper v. Rankin, 141 Fed. 626, 83— Brown v. Hannagan, 210 Mass. 15 A. B. R. 608, certiorari denied 200 246, 27 A. B. R. 294; Ex parte Taylor, U. S. 621, 50 L. ed. 624, aff'g 133 Fed. 16 N. B. R. 40, 1 Hughes 617, Fed. Cas. 970, 13 A. B. R. 430. No. 13773. 90— In re Anderson, 3 A. B. E. 544, 84— Mayor v. Walker, 11 N. B. E. 98 Fed. 588; but see In re O'Donnell, 478; Comp. In re Lord, Fed. Cas. No. 1 N. B. N. 59. See ante §§ 533 1535. 8501. §1559] The Dischabge of the Bankrupt 1145 charge,^^ though prior to the amendment of 1903 this was only true when such liability had been reduced to judgment.®^ The representation need not be in writing,®^' but must have been as to a fact made knowingly, falsely and fraudulently, for the purpose of obtaining money or property from another and by means of which such money or property is obtained; in which event the debt is created by means of a fraud involving moral turpitude and intentional wrong,®* Thus, where one obtains goods, money or property from another with a preconceived intent of not pay- ing for them according to the terms of the agreement, and ships them at once beyond the state or transfers them beyond his control, with the intent to defraud, the liability is one which will not be discharged,®® and the same is true where one obtains advances of money or goods by false and fraudulent representa- tions, such representations not being the sole consideration, but being material and the credit not otherwise obtained.®* To bring the statute into operation it should be made to appear that property of some kind tangible or intangible was obtained by the bankrupt. The mere fact that the liability arose in con- sequence of his fraud is not alone sufficient; the fraud must be followed and result in a loss of property to the creditor.®'' Merely obtaining goods with intent not to pay for them without any representations as to ability to pay, or representations of a fact tending to induce the sale, does not constitute fraud, and in the absence of any acts or conduct tending to avoid inquiry into financial condition, does not create a liability for obtaining property by false pretenses.®* A false representation by one 91_Section 17 (2), Aet of 1898; Orr 95— Amea v. Moir, 138 TJ. S. 306, 34 Shoe Co. V. Upshaw & Powledge, 13 Ga. L. ed. 951; In re Alsberg, 16 N. B. E. App. 501, 30 A. B. K. 534; Atlanta 116, Fed. Cas. No. 261; Classen v. Skirt Mfg. Co. v. Jacobs, 8 6a. App. Schoenemaw, 16 N. B. E. 98. 299, 25 A. B. E. 895. 96— Eowell v. Eieker, 79 Vt. 552, 18 92— Tindle v. Birkett, 205 U. S. 183, A. B. E. 651; In re Gany, 103 Fe^. 930, 51 L. ed. 762, 18 A. B. E. 121, aff'g 2 N. B. N. R. 1082, 4 A. B. E. 576; 183 N. Y. 267, 15 A. B. E. 179; Mackel In re Wright, 2 N. B. E. 14, Fed. Cas. V. Eochester, 135 Fed. 904, 14 A. B. E. No. 18070; Forsyth v. Vehmeyer, 177 U. 429; In re Cason, 27 A. B. E. 903; In S. 177, 44 L. ed. 723. re Lawrence, 163 Fed. 131, 20 A. B. E. 97 — Eudstrom v. Sheridan, ,122 Minn. 698. 262, 31 A. B. E. 862; In re Dunfee, 206 93— Katzenstein v. Eeid, Murdock & Fed. 745, 30 A. B. E. 721. Co., 41 Tex. Civ. App. 106, 16 A. B. E. 98— In re Nuttall, 201 Fed. 557, 29 740. , A. B. E. 800. 94— Cooper Grocery Co. v. Gaddy, 141 S. V. 825, 27 A. B. E. 422. 1146 Beandbnburg on Bankruptcy [§ 1559 partner by means of whieli property was obtained by the part- nership will be imputed to the other parthers to the extent of preventing a discharge of their liability as to such debt.^® Where the representation or statement is made direct to the creditor or his agent, with the purpose and intent of influencing the creditor in extending credit, which representation or state- ment proves to be false, the debt is not released, though it is a doubtful question whether a statement made to a commercial agency for use of its subscribers, which is acted upon by the creditor as a basis for extending credit, would be such a repre- sentation if proven false as would warrant the court in holding that the debt was not released. While congress may have intended this to be the case, in the absence of an express state- ment to that effect, it is not believed that the debt would come within the exception, if the false representation consists merely that made to the agency, unless it be shown that the Represen- tation was with the purpose of obtaining the property out of which the liability grows. ^ The liability of the bankrupt to a guarantor or surety whose signature to a note or bond was obtained through fraudulent representations, has been held not to be affected by the dis- charge.^ Services rendered by an attorney are not property within the meaning of the section and a debt for such services is released by a discharge though fraudulently obtained.^ The question of the existence of false pretenses or representa- tion is ordinarily for the jury.* § 1560. — Wilful and malicious injury to person or property. Under the adt of 1898, judgments in actions for willful and malicious injuries to the person or property of another wete not released by a discharge,^ but in such cases the ground of the 99— Frank v. Michigan Paper Co., 179 A. B. R. 457. See In re Dunfee, 206 Fed. 776, 30 L. E. A. (N. S.) 623, 24 Fed. 745, 30 A. B. B. 721. A. B. R. 261. See also Strang v. Brad- 3— Gleason v. O'Mara, 180 Fed. 417, ner, 114 U. S. 555, 29 L. ed. 248; Tindle 24 A. B. R. 832; Gleason v. Thaw, 185 V. Birkett, 205 U. S. 183, 51 L. ed. 762, Fed. 345, 25 A. B. R. 782, afE'g 180 18 A. B. R. 121, aff'g 183 N. Y. 267, Fed. 419, 24 A. B. R. 759; s. o. 196 15 A. B. R. 179. Fed. 359, 28 A. B. R. 473. 1 — Katzenstein v. Raid, Murdook & 4 — Maxwell v. Martin, 130 App. Biv. Co., 41 Tex. Civ. App. 106, 16 A. B. E. (N. Y.) 80, 22 A. B. R. 93. 740. 5— In re Carmichael, 2 A. B. E. 815, 2— Gaddy v. Witt, 142 S. W. 926, 27 96 Fed. 594. § 1560] The Dischabge op the Bankrupt 1147 action and basis of the recovery was the willful and malicious injury to the person or property of the creditor. By the amend- ment of 1903, the mere liability for such injuries, whether reduced to judgment or not, are excepted. "Willful and mali- cious injury" does not necessarily involve hatred or ill will as a state of mind, but arises when the act producing the injury to person or property was wrongful, intentional, and done without just cause or excuse, under circumstances from which the law will imply malice.* The exception relates to torts and not to breaches of contract. '^ A judgment of damages for negligence,® assault and battery, false imprisonment, or malicious prosecution, or the like,* is ordinarily released, but a judgment for forcible entry and detainer,^" or a judgment or liability for false and malicious libel " is not. A judgment against the bankrupt for personal injuries inflicted by a dog owned by his tenant is released.^^ A claim against a physician for malpractice is released unless the injury was willful. If willful in the sense of being inten- tional, the claim is not released.^^ A judgment for personal injury resulting from negligence of a druggist in selling a cus- tomer pure instead of diluted carbolic acid has been held not affected by the discharge.^* On the other hand, a judgment in an action for death by wrongful act, has been held discharged where the death was caused either by the administration of 6— In re Halper, 31 A. B. E. 283; 649, 22 A. B. E. 242, rev'g 63 Mise. MeChristal v. Clisbee, 190 Mass. 120, 16 (N. Y.) 248, 22 A. B. E. 88. A. B. E. 838; Peters v. XTnited States, Judgment against school teacher for 177 Fed. 885, 24 A. B. E. 206, rev 'g 166 assault in whipping pupil held wilful or Fed. 613, 22 A. B. E. 177; Kavanaugh malicious and not discharged. Peters v. V. Melntyre, 128 App. Div. (N. Y.) TJnited States, 177 Fed. 885, 24 A. B. E. 722, 21 A. B. E. 327; In re Munro, 195 206, rgv'g 166 Fed. 613, 22 A. B. E. Fed. 817, 28 A. B. E. 369; Hiteshue v. 177. Jones (Pa. Ct. Com. PI.), 28 A. B. E. 10— In re Munro, 195 Fed. 817, 28 854; and see Flanders v. MuUin, 80 Vt. A. B. E. 369, on rehearing 197 Fed. 124, 18 A. B. E. .708. 450, 28 A. B. E. 664. 7— Bond V. Milliken, 134 Iowa 447, 17 11 — ^National Surety Co. of New York A. B. R. 811, V. Medlock, 2 Ga. App. 665, 19 A. B. E. 8— In re Wakefield, 207 Fed. 180, 31 654; Thompson v; Judy, 169 Fed. 55,3, A. B. E. 42. 22 A. B. E. 154. 9— MeChristal v. Clisbee, 190 Mass. 12— In re Lorde, 144 Fed. 820, 16 A. 120, 16 A. B. E. 838. B. E. 201. Judgment in action for false imprison- 13 — ^Flanders v. MuUin, 80 Vt. 124, ment, the complaint containing no alle- 18 A. B. E. 708. gation of malice, held released. Johnson 14 — In re Halper, 31 A. B. E. 283. V. Bruckheimer, 133 App. Div. (N. Y.) 1148 Bbandenbueg on Bankeuptct [§ 1560 cliloral to the deceased while intoxicated, for the purpose of quieting him, or by negligence in failing to care for him.^» A deliberate and intentional conversion of stock or its pro- ceeds under circumstances amounting to larceny thereof is a wilful injury to property^* as is the wrongful and fraudulent appropriation of the money of another," and a liability therefor is not discharged. A liability growing out of a breach of contract to marry does not come within the excepted class of "willful and malicious injuries to the person or property of another," but is released by the discharge, even though seduction be pleaded and proven.^* It has been held that a judgment for alienation of affections would not be released.^® A partner is not released by a discharge from the consequence of a willful and malicious injury to the property of another by his firm, though he did not participate in the acts causing the injury.^" § 1561. — Seduction and criminal conversation. Under the act of 1898, considerable question arose as to whether claims of this character came within the excepted class, but in no case was it excepted unless reduced to judgment. Thus it was held that a judgment recovered by an unmarried woman for her own seduction,^^ or by a father for the seduction of his child,^^ was one for a willful and malicious injury and not discharged, and a judgment for criminal conversation was held not to be discharged.^* 15 — Tompkins v. Williams, 137 A^p. 19 — Leicester v. Hoadley, 66 Kan. 172, Div. (N. Y.) 521, 23 A. B. R. 886. 9 A. B. E. 318. 16 — Kavanaugh v. Mclutyre, — N. T. 20 — Kavenaugh v. Melntyre, 31 A. B. App. — , 31 A. B. E. 712, aff'g 74 Misc. E. 712, aff'g 74 Misc. (N. T.) 222, 27 (N. Y.) 222, 27 A. B. E. 279. A. B. E. 279. 17— Hallagan v. Dowell, 139 N. W. 21— In re Maples, 105 Fed. 919, 5 A. 883, 31 A. B. E. 848. B. E. 426. 18— Bond V. MilUken, 134 Iowa 447, 22— In re Freehe, 109 Fed. 620, 6 A. ]7 A. B. E. 811; Disler v. McCauley, 66 B. E. 479; contra. In re Sullivan, 1 N.B. App. Div. (N. Y.) 42, 7 A. B. E. 138, N. 380, 2 A. B. E. 30. rev'g 6 A. B. E. 491; Finnegan v. Hall, 23— Tinker v. Colwell, 193 U. S. 473, 6 A. B. E. 648; In re Fife, 109 Fed. 48 L. ed. 754, 11 A. B. E. 568, aff'g 62 880, 6 A. B. E. 258; In re McCauley, 101 N. B. 668, 7 A. B. E. 334; s. c, 169 Fed. 223, 4 A. B. E. 122; In re Sidle, 2 N. Y. 531, aff'g 65 App. Div. (N. Y.) N. B. E. 77, Fed. Cas. No. 12844; con- 201, which aff'd 35 Misc. (N. Y.) 330, tra, In re Warth, 200 Fed. 408, 29 A. B. 6 A. B. E. 434; contra. In re Tinker, E. 210. 2 N. B. N. E. 391, 3 A. B. E. 580, 99 §1564] The Dischaege of the Bankrupt 1149 By the amendment of February 5, 1903, all liabilities for maintenance or support of wife or child, or for the seduction of an unmarried female or for criminal conversation, whether reduced to judgment or not, are now excepted from the effects of the discharge.'** Substantial damages awarded in an action for breach of promise and seduction will be presumed to have been awarded for the seduction in the absence of a contrary showing.^* § 1562. — Debts barred by limitations. Since all debts provable by nature, not within the excepted classes, are released by a discharge in bankruptcy, the fact that such a debt cannot in fact be proved because barred by the statutes of limitation does not affect the question of its release.^* Eevival of debt after discharge, see ante, section 1538. §1564. —Rent. Each sum of rent is a distinct debt, there being no provision in the present act for the -apportionment of rent, so that, no matter how large a portion of the installment period has trans- pired when the petition in bankruptcy is filed, only those install- ments which have become due and payable at the time of such filing are provable and released by the discharge.^^ The obligation to pay rent is not discharged as to the future unless the trustee elects to retain the lease as an asset,^* and a landlord is entitled to collect rent from the bankrupt accruing after the adjudication.^® Eent as such is an incident to and grows out of Fed. 79, citing In re Haensell, 1 N. B. A. B. E. 250; Bray v. Cobb, 2 N. B. N. 240, 1 A. B. B. 286, 91 Fed. 355; N. E. 586, 100 Fed. 270, 3 A. B. E. 788; Livergood v. Greer, 43 111. 213; Ander- In re Ells, 2 N. B. N. E. 360, 3 A. B. E. son V. How, 116 N. Y. 342; Com. v. 564, 98 Fed. 967; In re Shilladay, 1 Williams, 110 Mass. 401. N. B. N. 475; In re Cronson, 1 N. B. N. 24— In re Hubbard, 98 Fed. 710, 3 A. 474; In re Goldstein, 1 N. B. N. 422, 2 B. B. 528; In re Baker, 96 Fed. 954, A. B. E. 603; In re Gerson, 1 N. B. N. 3 A. B. B. 101; In re Coton, Fed. Cas. 315, 2 A. B. E. 170; In re JeiSferson, No. 3269; In re Warth, 200 Fed. 408, 1 N. B. N. 288, 2 A. B. E. 206, 93 Fed. 29 A. B. E. 210. 948. 25— In re Warth, 200 Fed. 408, 29 28— In re Both & Appel, 181 Fed. 667, A. B. B. 210. 31 L. E. A. (N. S.) 270, 24 A. B. E. 26— In re Kingsley, 1 N. B. E. 66, 1 588, afl'g 174 Fed. 64, 22 A. B. E. Lowell 216, Fed. Cas. No. 7819. 504. 27— Seed v. Phinney, 2 N. B. N. E. 29— In re Sapinsky & Sons, 206 Fed. 1009; In re Frankel, 2 N. B. N. E. 840; 523, 30 A. B. E. 416; In re Ells, 2 N. B. In re Collignon, 2 N. B. N. E. 660, 4 N. E. 360, 3 A. B. E. 564, 98 Fed. 967; 1150 Bbandenbueg on Bankeuptcy [§ 1564 the use and occupation, and is the 6onsideration thereof, and unaccrued rent cannot be said to be a fixed liability absolutely owing when the petition is filed, payable in the future, or indeed a debt of any kind, as the word is used in the act, being only an unmatured obligation to pay in the future (a consideration for future enjoyment and occupancy), and therefore not prov- able or released by a discharge.*" § 1565. — Stockholder's liability. See ante, section 1533. § 1566. — Liability as surety. A discharge will not release a bankrupt from liability as surety where no cause of action arose until after such dis- charge;^^ nor as surety for the faithful performance of a duty as a public officer; *^ but, where a surety on a guardian's bond receives a discharge in bankruptcy, he is released from liability for defaults of the guardian prior to his bankruptcy;^* or if one enters an appeal and becomes a bankrupt and is discharged prior to the affirmance of the judgment, his surety on the appeal is discharged in those states where the discharge can be called to the attention of the appellate court.** § 1567. — Liability to surety. The liability of a bankrupt to the surety on his note or boiid is ordinarily discharged.*^ It has been held, however, that the In re Frankel, 2 N. B. N. E. 840; In re 2 A. B. R. 603; Bray v. Cobb, 2 N. B. Mahler, 3 N. B. N. R. 39, afE'g 2 N. B. N. R. 586, 100 Fed. 270, 3 A. B. R. N. E. 70; Bray v. Cobb, 2 N. B. N. R. 788. 586, 100 Fed. 270, 3 A. B. R. 788; In re 31— Eastman v. Hibbard, 13 N. B. R. Arnstein, 101 Fed. 706, 4 A. B. R. 246, 360. aff'g' 2 N. B. N. R. 106; contra. In re 32— U. S. v. Herron, 9 N. B. R. 535, Jefferson, supra; see In re Webb, 6 N. 20 Wall. 251, 22 L. ed. 275- but see B. R. 302, Fed. Cas. No. 17315; Bailey v. V. S. v. Throckmorton, 8 N. B. R. 309, Lock, 11 N. B. R. 271, 2 Woods 578, Fed. Cas. No. 16516. Fed. Cas. No. 739; In re Bleek, 12 N. B. 33 — Jones v. Knox, 8 N. B. R. 559; R. 215, 8 Ben. 93, Fed. Cas. No. 1822. Reitz v. People, 16 N. B. R. 96; Ex 30 — Shapiro v. Thompson, 160 Ala. parte Taylor, 16 N. B. R. 40 1 Hughes 363, 24 A. B. R. 91 ; In re Frankel, and 617, Fed. Cas. No. 13773. cases above cited; In re Arnstein, 101 34 — Odell v. Wooten, 4 N. B. R. 46. Fed. 706, 4 A. B. R. 246, aff'g 2 N. B. N. 35— In re Dunfee, 206 Fed. 745, 30 R. 106; In re Mahler, 2 N. B. N. R. 70; A. B. R. 721; Halliburton v. Carter, 10 Treadwell v. Marden, 18 N. B. R. 353; N. B. R. 359; but see TJaddy v. Witt, contra. In re Goldstein, 1 N. B. N. 422, 142 S. W. 926, 27 A. B. R. 457. § 1569] The Dischakge of the Bankeupt 1151 discharge in bankruptcy will not affect tlie liability of the bank- rupt to Ms surety who, after the discharge, makes a payment to the obligee in the bond, even though there was a default, where the default occurred prior to bankruptcy.^® § 1568. — Unliquidated damages. The act expressly p#ovid.es that unliquidated claims against the bankrupt may, pursuant to application to the court, be liqui- dated in s^ch manner as it shall direct, and may thereafter be proved and allowed against his estate,^'' and accordingly would be released by a discharge. It is held, however, that a claim for unliquidated damages founded in tort, unaccompanied with contractual liability is not provable and therefore not dis- charged.^^ § 1569. — Unproved and unscheduled claims. Under the act of 1867, if the court of bankruptcy had juris- diction of the bankrupt and the subject matter, in the absence of fraud, the omission of a claim from the schedule, if not willful, and the consequent lack of notice to the creditor would not pre- vent the discharge barring such claim.^^ The present act expressly excepts from the discharge debts which have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such creditor had notice or actual knowledge of the proceedings in bankruptcy, whether the omission be fraudulent or otherwise.** If the cred- itor had knowledge of the proceedings although not scheduled or scheduled under the wrong name or address, the debt will be discharged,*^ though if such knowledge did not come to the cred- 36— Williams & Co. v. TJ. 8. Fidelity 40— Section 17 (3), Act of 1898; & Guaranty Co., 11 Ga. App. 635, 28 Schiller v. Weinstein, 47 Misc. (N. Y.) A. B. E. 802. 622, 15 A. B. E. 183; Haack v. Theise, 37— Section 63b of Act of 1898. 51 Misc. (N. Y.) 3, 16 A. B. E. 699; 38— Eule applied to action for wrong- Westheimer v. Howard, 47 Misc. (N. Y.) ful death. In re New York Tunnel Co., 145, 14 A. B. E. 547; Broadway Trust 159 Fed. 688, 20 A. B. E. 25. Co. v. Manheim, 47 Miac. (N. Y.) 415, 14 39— Lamb v. Brown, 12 N. B. E. 522, A. B. E. 122; Sutherland v. Lasher, 41 Fed. Cas. No. 8011; Pattison v. Wilbur, Misc. (N. Y.) 349, 11 A. B. E. 780; Kreit- 12 N. B. E. 193; Heard v. Arnold, 15 lein v. Ferger, 97 N. E. 819, 28 A. B. R. N. B. E. 543; Thurmond v. Andrews, 908; Tyrrel v. Hammerstein, 33 Misc. 13 N. B. E. 157; Piatt v. Parker, 13 (N. Y.) 505, 6 A. B. E. 430; In re Beer- K- B. E. 14; Symonds v. Barnes, 6 N. B. man, 112 Fed. 662, 7 A. B. E. 434. E. 377; Barnes v. Moore, 2 N. B. E. - 41 — Kaufman v. Schreier, 108 App. 174; Batchelder v. Low, 8 N. B. E. 571. Div. (N. Y.) 298, 17 A. B. E. 314; 1152 Beandenbubg on Bankeupicy [§ 1569 itor until too late to prove his claim and thus receive a dividend equal to other creditors of a like class, he need take no part in the proceedings but may make the amount of his claim out^of any property acquired by the bankrupt subsequent to the filing of the petition. *2 Actual notice to an agent of the creditor is sufficient,*^ and the knowledge of the receiver of an insolvent corporation obtained while he was cashier of a bank which was a creditor of the corporation has been held imputable to the creditors thereof seeking to enforce the bankrupt's liability as a stockholder of the corporation.** Extreme exactness must be used in scheduling claims accord- ing to the official forms. To warrant a release the name and address of the creditor must have been stated with sufficient exactness to reasonably insure to him notice of the proceedings.*^ A statement of the creditor's residence in the schedules is neces- sary,*^ the giving of his office or business address being insufficient.*'^ Where he resides in a populous city, the name of the city and street, as well as the street number, should be given.*^ The want of knowledge which will excuse a bankrupt from putting the residence of his creditor in his schedules is not that which may exist without attempt to gain the information, but that which arises after reasonable effort has been made to find Cohen v. Pinkus, 126 App. Div. (N. Y.) 45 — ^Eeed v. Dippel, 16 Pa. Dist^p. 792, 20 A. B. E. 787; Zimmerman v. 126, 17 A. B. E. 371 ; In re Quaekenbush, Ketchum, 66 Kan. 98, 11 A. B. E. 190; 122 App. Div. (N. Y.) 456, 19 A. B. Morrison v. Vaughan, 119 App. Div. E. 647; Murphy v. Blumenreieh, 123 App. (N. Y.) 184, 18 A. B. E. 704. Div. (N. Y.) 645, 19 A. B. E. 910; 42— In re Monroe, 114 Fed. 398, 7 A. Hazard Mfg. Co. v. Brown, (Pa. a. B. E. 706. Com. PI.) 25 A. B. E. 903. Where the scheduling of the debt or 46 — Steele v. Thabneier, 74 Ark. 518; the receipt of actual notice of the bank- contra, Columbia Bank v. Birkett, 174 ruptcy proceedings comes to the creditor N. Y. 112, 9 A. B. E. 481, afE'd Birkett after the estate has been practically v. Columbia Bank, 195 TT. S. 345, 49 wound up and within a few days before L. ed. 231, 12 A. B. E. 691; and see the expiration of the year allowed for Kreitlein v. Perger, 97 N. E. 819, 28 A. the proving of claims, the debt is not B. E. 908. released. McCreery & Co. v. Brown, (Pa. 47 — ^McKee v. Preble, 138 N. Y. Supp. Ct. Com. PI.) 29 A. B. E. 238. 915, 31 A. B. E. 852; Weidenfeld v. 43 — New England Advertising Co. v. Tillinghast, 54 Misc. (N. Y.) 90, 18 A. Leibson, (Pa. Ct. Com. PI.) 29 A. B. B. E. 531. E. 62. 48— Cagliostro v. Indelle, 53 Misc. (N. 44— Dight V. Chapman, 44 Ore. 265, Y.) 44, 17 A. B. E. 685. 12 A. B. E. 743. §1569] The Disohaegb op the Bankbupt 1153 out.** A debt will not be discharged where the creditor's ad- dress is stated as unknown, though actually known, if the creditor is without actual notice of the proceedings.^" The erroneous spelling of a creditor's name is sufficient to prevent a release of the creditor's claim.^^ An assigned claim will be discharged though scheduled in the name of the assignor, the bankrupt having no actual notice of the assignment,^^ but a bankrupt who schedules the name of the original payee of a note, but fails to list the name of the . transferee notwithstanding he had knowledge of the fact after transfer and knew the name of the holder, would still be liable on the note, if such transferee had no knowledge of the proceed- ings.'* Where the creditor is a partnership and the same is dissolved by the death of one of the partners, the surviving partner may be described in the schedules as the creditor.^* A judgment recovered on a partnership obligation is property scheduled as a debt against an individual bankrupt partner. ^^ The liability of a stockholder of an insolvent corporation is ■ discharged though it is scheduled in the name of the creditoi:s suing to enforce the liability rather than in the name of the receiver appointed to collect and enforce the liability in their behalf.^" It will be presumed that provable debts were properly scheduled, and that the claimants had notice of the bankruptcy proceedings,®'' and an objection that a debt was not properly scheduled must be raised in the trial court, and is unavailable if raised for the first time upon appeal.® ® Of course, evidence 49— Parker V. Murphy, 215 Mass. 72, 54 — Kaufman v. Schreier, 108 App. 31 A. B. E. 646. Div. (N. Y.) 298, 17 A. B. E. 314. 50— Miller v. Guasti, 226 TJ. S. 170, 55— New York Inst, for Deaf & Dumb 57 L. ed. 173, 29 A. B. E. 201. v. Crockett, 117 App. Div. (N. Y.) 269, 51— Debt of creditor by name of Cus- 17 A. B. B. 233. tard, not discharged where debt was 56 — Longfield v. Minnesota Sav. Bank, scheduled as that of Castard, and cred- 95 Minn. 54, 14 A. B. E. 413. itor had no notice of proceedings. In 57 — In re Peterson, 137 App. Div. re Carton & Co., 148 Fed. 63, 17 A. B. (N. Y.) 435, 24 A. B. E. 270; New York E. 343. Inst, for Deaf & Dumb v. Crockett, 117 52— Mueller v. Goerlitz, 53 Misc. (N. App. Div. (N. Y.) 269, 17 A. B. E. T.) 53, 17 A. B. E. 687. 233; contra, Parker v. Murphy, 215 53— Birkett v. Columbia Bank, 195 Mass. 72, 31 A. B. E. 646; Weidenfeld U. 8. 345, 49 L. ed. 231, 12 A. B. E. 691, v. TiUinghast, 54 Misc. (N. Y.) 90, 18 aff'g Columbia Bank v. Birkett, 174 A. B. E. 531. N. Y. 112,-9 A. B. K. 481; Columbia 58— Bond v. Milliken, 134 Iowa 447, Bank V. teirkett, 36 Misc. (N. Y.) 391, 17 A. B. E. 811. 7 A. B. E. 222f Brandenburg — 73 1154 Bbandeiibueg ON Bankeuptcy [§1569 of publication where publication is made is still required. Notice by publication alone is insufficient where the bankrupt states the addresses of the creditors are unknown, unless it be shown by satisfactory proof that the same cannot be ascertained after due search.** After a discharge has been granted, the proceedings cannot be re-opened, after expiration of a year from the adjudication, to allow the bankrupt to schedule a claim which has not been discharged, and to permit the creditor to prove his claim and so obtain a discharge therefrom.^" § 1570. — Warehouse charges. Warehouse charges accruing after the filing of- the petition, are not released by the discharge.®^ § 1571. —Wife's debts. The question of the effect of the husband's discharge on the wife's debts is an interesting one and turns on the point whether he is liable for them individually, or jointly with her, or whether she alone is liable. This is a question of local law. At com- mon law the husband, at marriage, became liable for the wife's ante-nuptial debts ,and such as she might contract for neces- saries, etc., and in such case his discharge would release such debts,®^ but the question was raised if they were not merely suspended and would revive on her surviving him.®* Where the wife has been made responsible for her debts, she remains equally so after his discharge;** and, if they can contract directly with each other, a discharge of the husband releases debts due from him to his wife, and vice versa,** The husband's discharge will not affect the wife's liability, to have her separ- ate estate charged in equity;** and, if the wife have separate property, a court will not release her if charged in execution because of the husband's discharge.*'' The bankrupt's wife 59— In re Dvoirak, 107 Fed. 76, 6 A. 63— Vanderheyden v. Mallory, 1 N.T. B. E. 66. 452. 60— In re Spicer, 145 Fed. 431, 16 A. 64— Mobley v. Cureton, 6 So. Car. 49. B. E. 802. 65— Ailing v. Eagan, 11 Bob. (La.) 61— Eobinson v. Pesant, 8 N. B. B. 244. 426. 66 — Hamlin v. Bridge, 24 Me. 145. 62 — Lockwood v. Salter, 5 B. & Ad. 67 — ^Bonner v. Bonner, 17 Beav. 86. 303. §1573] The Dischaege of the Bankbupt 1155 cannot plead his discharge in an action for her half of com- munity debts, where she hag accepted the community.*® § 1572. Waiver of discharge. The discharge, as stated, merely releases the bankrupt from personal liability and must be pleaded and consequently may be waived and, if waived, cannot afterwards be relied on.®^ § 1573. Discharge must be pleaded. A discharge must be pleaded,'^" and a failure so to do operates as a waiver of its benefits and renders any property in the bank- rupt's possession liable to a judgment, since a court will not take judicial knowledge of a discharge, whether in a proceeding by scire facias to revive a judgment, or in an original suit.'^^ The question whether a judgment against one who is there- after adjudged a bankrupt is thereby discharged is properly raised by pleading the discharge in a proceeding to enforce the judgment.'^^ An allegation that plaintiff's claim is not one of those excepted from the effect of a discharge is a conclusion of law.''* While a discharge may be pleaded after the filing of an answer,''* a delay of a year in asking for leave to plead a dis- charge in bar of an action commenced prior to the adjudication is sufficient cause to refuse the request, since the plea is a legal and not an equitable one.'^^ A widow of a bankrupt to whom his property has been transferred may avail herself of his discharge and plead it in her own defense.'^* A plea in abatement setting up a discharge must be sworn to, 68— Lndeling v. Felton, 17 N. B. E. Wesson, 88 Fed. 855; Cutter v. Evans, 310. 11 N. B. E. 448. 69 — ^Howe V. Noyes, 47 Mise. (N. Y.) 72 — Injunction restraining creditor 338, 15 A. B. E. 103; Dewey v. Meyer, from proceeding to enforce judgment is 16 N. B. E. 1. not proper remedy. Helhnan v. Gold- 70— Friedman v. Zweifler, 74 Mise. stone, 161 Fed. 913, 20. A. B. E. 539. (N. T.) 448, 27 A. B. E. 412; Broad- 73— Standard Sewing Machine Co. v. way Trust Co. v. Manheim, 47 Misc. (N. Kattell, 132 App. Div. (N. Y.) 539, 22 Y.) 415, 14 A. B. E. 122; In re Ehutas- A. B. E. 37p. sel, 1 N. B. N. 572, 2 A. B. E. 697, 96 74— Eeeves v. MeCraeken, 69 N. J. Eq. Fed. 597; In re Shaffer, 3 N. B. N. E. 203, 13 A. B. E. 680. 54. 75— Medberg v. Swan, 8 N. B. E. 537. 71— Severe Copper Co. v. Dimock, 19 76 — ^Upshur v. Briscoe, 138 U. S. 365, N. B. E. 372; Dewey, 16 N. B. E. 1; 34 L. ed. 931. Jenks V. Opp, 12 N. B. B. 19; In re 1156 Beandenburg on Baneeuptcy [§ 1573 and must .set forth a copy, but, if defective, may be amended; and, if the plea is in bar, it is insufficient when the notes and bonds sued upon were given after bankruptcy.'^^ § 1574. Discharge not pleadable. Contrasted with those cases, wherein a failure to plead a discharge waives the benefits, are those where the discharge can- not be pleaded, as where it is obtained pending an appeal, and the appellate court will consider nothing but the record; ''* neither can it be set up by supplemental answer where an attach- ment issued more than four months prior to the institution of bankruptcy proceedings was dissolved by filing a bond,'''® noi* in a creditor's suit commenced more than four months prior to the institution of the bankruptcy proceedings, and which per- tains to land never brought within the jurisdiction of the bank- ruptcy court.*" A complaint which alleges that the defendant did wrongfully and fraudulently embezzle and misappropriate the plaintiff's money, but does not allege that the defendant became possessed thereof in a fiduciary capacity, is sufficient to state a cause of aotion though the answer sets up a discharge in bankruptcy.*^ § 1575. Replication to plea of discharge. A special provision having been made for the revocation of a discharge, the form, the mode of attack, and the ground of fraud coming to petitioner's knowledge after the discharge was granted and that the discharge was not warranted, are exclu- sive; and, on a plea of a discharge in bankruptcy in bar of an action, the replication can only deny the existence of such dis- charge, or the identity of the person, or one of the other grounds pleadable against the judgment of a court of record.** One suing on a contract without alleging false pretenses can- not plead that fact in reply.** 77— Beeson V. Howard, 11 N. B. R. 80— Mint v. Chalonpka, 78 Neb. 594, 486; StoU v. *Wilsoii, 14 N. B. E. 571; 18 A. B. E. 293. contra, see Hayes v. Ford, 15 N. B. E. 81— Watertown Carriage Cq. v. Hall, 569. 176 N. T. 313, 11 A. B. E. 15, aff'g 78— Karger v. Orth, 116 Minn. 124, 75 App. Div. (N. Y.) 201, 10 A. B. E. 27 A. B. E. 212; Serra e Hijo v. Hoff- %3n. man, 17 N. B. R. 124; Knapp y. Ander- 82— Section 15, Act of 1898. son, 15 N. B. R. 316; Treadwell v. Hoi- 83— Straueh v. Flynn, 108 Minn. 313, loway, 12 N. B. R. 61. 22 A. B. E. 246. 79— Holyoke v. Adams, 13 N. B. R. 413. §1576] The Dischakgb of the Bankeupt 1157 § 1576v Proof of discharge., A certificate of discharge in bankruptcy, sigiied by the judge, and attested by the clerk under the seal of the court, is the means by which the bankrupt is to prove and have the benefit of his discharge; and is conclusive evidence of the jurisdiction of the court, the regularity of the proceedings, and of the fact that the order was made, biit, being personal to the bankrupt, is not conclusive evidence in favor of other parties seeking to use it.^* Since it is conclusive of the regularity, of the proceed- ings, it can only be attacked in the court granting it upon proper proceedings.®^ Such certified copy will not be issued until the time granted for appeal has expired.^" The court will assume that a defendant setting up his adjudi- cation in bankruptcy was released of all his dischargeable debts in the proceeding,®'' and the burden is upon the plaintiff to show his claim was not released.®® 84— Section 21f, Act of 1898 ; New 86— In re Hirseh, 96 Fed. 468, 2 A. B. Tork Inst, for Deaf & Dumb v. Crockett, R. 715. 117 App. Div. (N. Y.) 269, 17 A. B. E. 87— Craine v. CraJie, 19 A. B. E. 76. 233; Kreitlein v. Ferger, 97 N. E. 819, 88— In re Peterson, 64 Mise. (N. T.) 28 A. B. E. 908; Palmer v. Hussy, 119 217, 22 A. B. R. 549. U. S. 96, 30 L. ed. 362; In re Dole, 9 In an action on a judgment in which N. B. E. 193, 11 Blatchf. 499, Fed. Cas. a discharge in tankruptcy is pleaded as No. 3964; Miller v. Chandler, 17 N. B. R. a defense, the burden is on the plaintiff 251; Dewey v. Moyer, 18 N. B. E. 114; to show the ground of liability, and In re Jones, 6 N. B. E. 386, Fed. Cas. that it was not discharged. Hallagan No. 7449; In re Dean, 3 N. B. E, 188, v. Dowell, 139 N. W. 883, 31 A. B. E- Fed. Cas. No. 3701; contra. In re Heath, 848. 7 N. B. E. 448, Fed. Cas. No. 6304. 85— In re Witkowski, 10 N. B. E. 209, Fed. Cas. No. 17920. CHAPTER XXXVI Contempts i 1577. Nature and classes of contempt. § 1578. Jurisdiction over contempts. § 1579. Lawful order necessary. § 1580. Violation of referee 's orders. § 1581. Failure to turn over property. § 1582. — In general. §1583. — Ability to comply. § 1584. Interference with the estate. § 1585. Disobedience of injunction. § 1586. Failure to file schedules. § 1587. Failure to produce books and records. § 1588. Failure to aid trustee. § 1589. Assault upon of^cer. § 1590. Failure of bankrupt to appear for examination. § 1591. Contempt of trustee. § 1592. Contempt of receivers. § 1593. Contempt of purchaser at sale. § 1594. Contempt of attorneys. § 1595. Contempt of witnesses. § 1596. Insanity as a defense. § 1597. Advice of counsel. § 1598. Right to purge contempt. § 1599. Practice in contempt proceedings. § 1600. — Powers and duties of referee and judge. § 1601. — Proceedings against several bankrupts. § 1602. — The application. § 1603. — The hearing. § 1604. — The order of the court. ?1605. — Eeview of order of commitment. § 1606. Punishment for contempt. § 1607. Discharge from imprisonment. § 1608. Pardon of contempts. § 1577. Nature and classes of contempt. It has been uniformly held that a contempt of court or its orders is an offense against the United States ^ within no limited 1— Tn re Mulee, 7 Blatehf. 24; Ex 579; Ex parte Fisk, 113 TT. S. 713, 718, parte Kearney, 7 Wheat. 38, 5 L. ed. 28 L. ed. 1117; Goodrich v. TJ. S., 42 391; Dixon's Case, 3 Op. Atty. Genl. Fed. 392. See Boyd v. Glucklieh, 116 623; Rowan's Case, 4 Op. Atty. Genl. 58; Fed. 131, 8 A. B. R. 393. Drayton & Sear's Case, 5 Op. Atty. Genl. 1158 § 1577] Contempts 1159 or restricted sense, but in the general sense of a crime,^ Even when a charge of contempt of court does not involve facts con- stituting another criminal offense, it is, nevertheless, criminal rather than civil in its nature.* Contempt may be said to be of two classes — civil and criminal. Civil contempts are those quasi contempts which consist in fail- ing to do that which the contemnor is ordered by the court to do for the advantage or benefit of another party to the proceeding before the court; while criminal contempts are all those acts in disrespect of the court, or of its process, or which disturb the administration of justice, or tend to bring the court in disrepute, such as disorderly conduct, insulting behavior in the presence, or immediate vicinity, of the court, or acts of violence which interrupt its proceedings, also disobedience or resistance of the process of the court, the interference with property in the cus- tody of the law, misconduct of officers of the court, and the like.* As was said in the case of Indianapolis Water Company v. American Strawboard Company,^ that broadly considered, con- tempts may be classified as "direct" and "constructive." Those which are committed within the presence of the court, while sitting judicially, or so near as to interfere with or inter- rupt its orderly course of procedure, are direct contempts, which are usually punished in a summary manner, without evidence, upon view and personal knowledge of the deciding judge.® Con- tempts are constructive when they are committed not in the presence of the court, but tend by their operation to interrupt, obstruct, embarrass, or prevent the due and orderly adminis- tration of justice. Constructive contempts may be distributed into two general classes, namely : First, those wherein the con- temptuous acts primarily affect public rights or the due administration of public justice; and, second, those which 2— United States v. Jacpbi, 4 Amer. 4 — Eapalje on Contetapt, §21; Ex Law T. E. U. S. Cts. 148, 4 Blackstone parte Edwards, 11 Pla. 184; In re Wat- 124, 279; In re Brass Crosby, 3 Wilson son, 3 Lans. (N. Y.) 408; Pliillips v. 188; In re Williamson, 26 Pa. St. 18; Welch, 11 Nev. 187, 190. New Orleans v. Steamship Co., 20 Wall. 5—75 Fed. 972, 975. 387, 22 L. ed. 354; Worden v. Searls, 121 6— Whitten v. State, 36 Ind. 196; Ex V. S. 14, 30 L. ed. 853; In re Swan, 150 parte Wright, 65 Ind. 504; People v. v. S. 637, 37 L. ed. 1207; In re Aeker, Wilson, 64 III. 195; Stuart v. Reynolds, 66 Fed. 290. 204 Fed. 709, 29 A. B. E. 412 3— Stuart v. Reynolds, 204 Fed. 709, (Shelby, J.). 29 A. B. R. 412. 1160 Beandenbueg on Bankruptcy [§ 1577 primarily affect private rights, and only remotely and inciden- tally affect public rights or public justice. When the contempt consists in the failure or refusal of the party to do or refrain from doing something which he is ordered to do, or refrain from doing for the benefit or advantage of the opposite party, the proceeding is hot criminal, but is civil and remedial in its nature. And in this sort of contempt th'e intention with which the act is coriimitted is immaterial, except in fixing the proper nature of the punishment. The injury suffered by the complaining party is neither increased nor diminished, nor in anywise affected by the state of mind towards the couri; of the party doing the for- bidden act. The breach consists in doing or failing to do the .thing commanded, and not in the intention with which the act was done.'^ The exercise, therefore, of this power to punish for contempt, has a two-fold aspect, namely: First, the proper punishment of the guilty party for his disrespect to the court or its order ; and second, to compel his performance of some act or duty required of him by the court which he refuses to per- form.* § 1578. Jurisdiction over contempts. The power to punish for- contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders and writs of the courts, and consequently to the due administra- tion of justice.' The monient the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power.® The author- ity, however, to inflict summary punishment for contempts was subsequently limited " to the cases of misbehavior in the pres- ence of the courts, or so near thereto as to obstruct the adminis- tration of justice, the misbehavior of any of the officers of the court in their official transactions and the disobedience or resist- ance by any such officer or by any party, juror, witness or other 7— Eefrigerating Co. v. Gillett, 30 Fed. 8— In re Chiles, 22 Wall. 157, 168, 22 683; Toledo, A. A. & N. M. Ey. Co. v. ii. ed. 819. Pa. Co., 54 Fed. 746, 19 L. E. A. 395; ' 9— Judiciary Act of 1789, 1 Stat. People V. Court of Oyer and Terminer, L. 83. 101 N. Y. 245, 4 N. E. 259; Thompson 10— Act March 2, 1831, 4 Stat. L. V. Eailroad' Co., (N. J. Ch.) 21 Atl. 182; 487. Railroad Co. v. Thompson, (N. J. Err. and App.) 24 Atl. 544. §1580] „ Contempts 1161 person to any lawful writ, process, rule, decree or commatid of the courts." The provisions in the present law specifically empowering courts of bankruptcy to "enforce obedience by the bankrupts, officers and other persons to all lawful orders, by a fine or imprisonment, or fine and, imprisonment," and to punish per- sons for contempts before referees,^^ may be regarded as merely declaratory of the necessarily inherent powers already possessed by them,^^ and do not create a new or enlarged jurisdiction over contempts, nor confer a power to impose a, punishment, which might not rightly and lawfully be imposed on a similar state of facts by any other United States court.^* ,. < ;>;:.; The power to punish contempts against the bankruptcy court, is vested solely in the judge. The, referee has no jurisdictjon.^® Unless regularly made parties to the proceedings and given proper notice, persons are not subject to the jurisdiction of the; bankruptcy court, and will not .therefore be deemed guilty of contempt of its orders unless it be shown that, they have notice, of such proceedings.^® This is particularly true of parties in. proceedings in a state court, § 1579. Lawful order necessary. A bankrupt cannot be adjudged in contempt where the order, writ, or process whicli is disobeyed is unlawful." § 1580. Violation of referee's orders. It is not to be inferred that for a -vvilful disobedience of a lawful order of a referee, there is no power of ptinishment, and that the only course is to obtain a re-enactment of the order from the judge, for a violation of which second order, a punish- ment may be inflicted. The statute, which places so large, a part of the details of settlement of estates in the referee's hands, evi- ^ dently intended his lawful orders to ihave the force of orders of 11— B. S. §725; Bx parte Eojjmson, 16— In re Ogles, 1 N., B. N. 326, 93 19 Wall. 505, 22 L. ed. 205. Fed. 426, 1 A. B. E. 671. 12— Section 2 (13) (16); section 41a, '17— Section 41a, Act of 1898; In re Act of 1898. ^ Solpway & Katz, 195 Fed. 100, 28 A. B. 13— TJ! S.v. Hudson, 7 Clraueh. 32, E. 225; Louisville Trust Co. vi Qomin- . 14— Boyd V. Glucklich, 116 ,Fed. 131, ger, 184 V. S. 18, 46 L. ed. .413, 7 A. B. 8 A. B. E. 393. , E. 421. , 15— In re Haring, 29 A. B, E. .387, sff'g 193 Ped. 168, 27 A. B. E. 285. 1162 Bbandenbueg on Bankbuptcy [§1580 the judge; and the courts will enforce sijch orders by contempt proceedings instituted directly on failure to obey them.^® The referee is included within the meaning of the word "court" as used in the aet^® and exercises the same power in a case before him as a court of bankruptcy except in matters relating to compositions and discharges ^^ as to which he has authority to do only what the order referring the matter to him prescribes.^^ As has been well said, referees, within the scope of their authority, act in lieu of the court of bankruptcy and their orders are in effect the orders of the court and a violation of such orders will subject the offender to punishment as for a violation of an order of the court of bankruptcy.^^ § 1581. Failure to turn over property, § 1582. — In general. A court of bankruptcy has powef to order the bankrupt to pay over to his trustee money or other property belonging to his estate and found in his possession or control,^* or in the posses- sion of a third person holding as a mere bailee, or agent, of bank- rupt,^* while the amendment to the law extends this power even to the case of a third party holding property under an adverse claim. If he fails to obey such order, the court will punish him as for a contempt, but since the failure to obey may be followed by imprisonment, the power should be exercised with 18— In re Allen, 13 Blateh. 271; In re 153; In re McConniek, 2 F. B. N. E. Gettleston, 1 N. B. K. 604; In re Speyer, 104, 8 A. B. R. 340, 97 Fed. 566; In re 6 N. B. R. 255, Fed. Cas. No. 13289. TiacMer, 2 N. B. N. E. 549; In re An- 19— Section 1 (7), Act of 1898. deraon, 103 Ped. 854, 4 A. B. E. 640; 20— Section 38a (4), Act of 1898; In In re WUaon, 116 Fed. 419, 8 A. B. E. re Muasey, 2 N. B. N. E. 113, 99 Fed. 612; In re Levin, 113 Fed. 498, 6 A. B. 71, 3 A. B. E. 592. E. 743; In re Greenberg, 106 Fed. 496, 21— G. O. XII (3). 5 A. B. E. 840; In re Hempner^ 6 N. B. 22— In re Allen, 13 Blateh. 272; Muel- E. 521, Fed. Cas. No. 7689; In re ler V. Nugent, 184 U. S. 1, 46 L. ed. 405, Salkey, 11 N. B. E. 423, 6 Bias. 269, Fed. 7 A. B. E. 224; In re Gettleston, 1 N.B. Cas. No. 12253; In re Dresser, 3 N. B. E. 604; In re Speyer, 6 N. B. E. 255^ E. 138, Fed. Cas. No. 4077. Fed. Cas. No. 13239. 24— MueUer v. Nugent, 184 U. S. 1, 23— In i;e ScWesLnger, 102 Fed. 117, 46 L. ed. 405, 7 A. B. E. 224, rev'g 4 A. B. E. 361; Eipon Knitting Works 5 A. B. E. 176, whieh rev'd 3 N. B. V. Schreiber, 2 N. B. N. E. 899, 101 Fed. N. E. 32, 104 Fed. 530, 4 A. B. E. 747; 810, 4 A. B. E. 299; In re Deuell, 100 In re Macon Sash, Door & Lumber Co., Fed. 633, 2 N, B. E. 597, 4 A. B. E. 60; 112 Fed. 323, 7 A. B. E. 66. In re Eosser, 101 Fed. 562, 4 A. B. R. 1582] Contempts 1163 great caution, and before an order is made evidence should be required such as would convince an unprejudiced mind beyond a reasonable doubt that the bankrupt is able to comply there- with, if made.^" A delivery of property in the bankrupt's possession at the time of the filing of the petition to a person whom he asserts is his bailor, renders the bankrupt guilty ,2^ but the failure to deliver property to an agent of the' receiver who fails to show his authority does not establish such wilful defiance of the authority of the court as will justify a commitment for con- tempt.^'^ A bankrupt may be punished for contempt for wilfully concealing assets,^* or for neglecting to pay the trustee a sum described in his inventory as "cash on hand." ^' An agent or bailee of the bankrupt who fails to deliver prop- erty of the bankrupt in his possession to the trustee may be adjudged guilty of contempt.®" The power to punish for con- tempt will not, however,*be used to punish for frauds committed by bankrupt against the law nor to coerce him or transferees to make restitution of money or property previously transferred in fraud of the law,*^ though the bankrupt's failure to turn over to the trustee property which was delivered to his wife on the eve of bankruptcy has been held to constitute contempt.*^ 25— Kirsner v. Taliaferro, 202, Fed. 51, 29 A. B. R. 832; Stuart v. Reynolds, £04 Fed. 709, 29 A. B. R. 412; In re Eeynolds, 190 Fed. 967, 27 A. B. B. 200; In re Adler, 170 Fed. 634, 21 A. B. R. 371; In re Anderson, 103 Fed. 854, 4 A. B. R. 640; In re Tischler, 2 N. B. N. R. 549; In re Mayer, 2 N. B. N. B. 257, 98 Fed. 839, 3 A. B. R. 533; In re Friedman, 1 N. B. N. 332, 2 A. B. R. 301; In re De Gottardi, 114 Fed. 328, 7 A. B. R. 723. See also In re Purvine, 1 N. B. N. 326, 96 Fed. 192, 2 A. B. R. 787; In re Kuntz, 1 N. B. N. 256; In re Tudor, 1 N. B. N. 476, 96 Fed. 942, 2 N. B. B. 808; In re Oliver, 2 N. B. R. 329, 96 Fed. 85, 2 A. B. R. 783; In re Ogles, 2 N. B. R. 400; In re Pearson, 2 N. B. B. 474; In re Mooney, 15 N. B. E. 456; In re Grassier & Reichwald, 154 Fed. 478, 18 A. B. R. 694; Boyd v. GlucHich, 116 Fed. 131, 8 A. B. R. 393; Ex parte Robinson, 19 Wall. 505, 22 L. ed. 205; Wayne Knitting Mills v. Nugent, 2 N. B. N. E. 714; but see In re Speyer, 6 N. B. E. 255, Fed. Gas. No. 13239. 26— In re Potteiger, 181 Fed. 640, 24 A. B. R. 648. 27 — Skubinsky v. Bodek, 172 Fed. 332, 24 L. E. A. (N. S.) 985, 22 A. B. E. 689. 28— In re Fogelman, 204 Fed. 351, 30 A. B. E. 348. 29— In re Dresser, 3 N. B. R. 138, Fed. Cas. No. 4077. 30— In re Peaeock, 178 Fed. 851, 24 A. B. E. 159. Rule applied to failure of bankrupt's son to turn over assets of bankrupt upon order of the court. In re Holland, 176 Fed. 624, 23 A. B. E. 835. 31— In re Mayer, 2 N. B. N. E. 257, 98 Fed. 839, 3 A. B. E. 533. 32— In re Eddleman, 154 Fed. 160, 19 A. B. E. 45. 1164 Bkandenbubg on . Bankruptcy [ § 1582 The misappropriation and dissipation by tlie bankrupt of funds properly belonging to the estate, but which he has not been ordered to tilm over, is not a contempt of court, within the meaning of Eevised Statutes, section 725.^^ §1583. — Ability to comply. The bankrupt cannot be committed for contempt where he is unable to comply with the order requiring him to turn over assets to the trustee.^* So, it has been held that irrespective of a con- stitutional prohibition against imprisonment for debt and of the fact that statutory methods for enforcing decrees' for the pay- ment of money have been provided, a failure to pay through absolute inability lacks the essential element of a contempt.^^ But the fact that; the party is disabled from obeying the order is no defense, where such disability is the result of some voluntary act of his Own.^® The ability to comply with the order to turn over assets should be clearly and affirfliatively established^'' by evidence removing all reasonable doubt.^* Notwithstanding the fact that the bankrupt was in possession of a large amount of property shortly before bankruptcy and at the time of the adjudication is found with but a small amount, contempt pro- ceedings are not justified unless the particular property claimed to be concealed is specifically pointed out.^^ The property of the bankrupt estate,, traced to the recent con- trol or possession of the bankrupt, is presumed to remain there 33— In re Probst, 205 Fed. 512, 30 A. Salomon, 54 HI. 40; Snowman v. Har- B. E. 600. ' ' ford, 57 Me. 397; contra. In re Marks, 34— Stuart v. Reynolds, 204 Fed. 709, 176 Fed. 1018, 23 A. B. K. 911. 29 A. B. R. 412'; Boyd v. Glucilich, 116 ' 37— In re Cole, 163 Fed. 180, 23 L. E. Fed. 131, 8 A. B. E. 393; In re Davison, A. (N. S.) 255, 20 A. B. E. 761. 143 Fed. 673, 16 A. B. E. 337; In re 38— Kirsner v; Taliaferro, 202 Fed. Eeynolds, 190 Fed. 967, 27 A. B. E. 51, 29 A. B. E. 832; Stuart v. Eeynolds, 200; Samuel v. Dodd, 142 Fed. 68, 16 204 Fed. 709, 29 A. B. E. 412; In re A. B. R. 163; In re Oummings, 186 Fed. Dickens, 175 Fed. 808, 23 A. B.E. 660; 1020, 26 A. B. E. 130 ; In re Marks, 176 Samel v. Dodd, 142 Fed. 68, 16 A. B. E. Fed. 1018, 23 A. B. E. 911; In re llich- 163; In re Mize, 172 Fed. 945, 22 A. B. ards, 183 Fed. 501, 25 A. B. E. 176; In E. 577; In re Switzer, 140 Fed. 976, re Adler, 170 Fed. 634, 21 A. B. E. 15 A. B. E. 468 ; Moody v. Cole, 148 Fed. 371; American Trust Co. v. Wallis, 126 295, 17 A. B. R. 818; In re Goldfarb Fed. 464, 11 A. B. E. 360. Bros., 131 Fed. 643, 12 A. B. E. 386. 35 — In re Ockershausen, 59 Hun 200; See also In re Eogowski, 166 Fed. 165, Walton V. Walton, 54 N. J. Eq. 607; 21 A. B. E. 553. Register v. State, 8 Minn. 214. 39 — In re Eogowski, 166 Fed. 165, 21 36^-Eapalje on Contempts, §18; Gal- A. B. E. 553. land V. Galland, 44 Cal. 475; People v. § 1583] Contempts 1165 until he satisfactorily accounts for its disposition or disap- pearance. He cannot escape punishment for contempt by merely denying under oath that he has possession of the property.*" The presumption arising from recent possession does not, how- ever, dispense with the necessity of showing affirmatively the ability to comply.*^ Admissions of the receipt of property shortly before bankruptcy is admissible as a basis of calculating what should have been on hand at the commencement of the bankruptcy proceedings.*^ Testimony upon which the order to turn over was granted may also be considered in contempt pro- ceedings.** Upon the question whether the finding and order of the referee is conclusive as to ability to comply with the order at the time of its issuance, the decisions are at variance. In one line are the courts which hold that upon a motion to punish the bank- rupt for contempt in failing to comply with an order to turn over assets the only questions are whether the order was made, whether the bankrupt has disobeyed same, and whether he has the present ability to comply with it and that the order itself, the time for review having expired, estops the bankrupt from denying his possession of the assets at the time the same was made.** In the other line are the courts which hold in sub- stance that in proceedings against the bankrupt for contempt for failure to obey an order of the referee to turn over money or property, such order may be referred to and given the weight it is entitled to under all the circumstances, but the court should make a new and independent investigation, and should consider all material evidence relating to what preceded as well as what followed the referee's report, and, from such investigation and such evidence, determine whether the order of the referee was justified, whether tlie bankrupt's disobedience thereof was wil- 40— In re Kramer, 210 Fed. 977, 31 ease that he had assets in his posses- A. B. K. 525; Kirsner v. Taliaferro, 202 sion. In re Weber Co., 200 Fed. 404, Ped. 51, 29 A. B. R. 832; In re Lasky, 29 A. B. E. 217. 163 Fed. 99, 20 A. B. E. 729; Schweer 41— Stuart v. Eeynolds, 204 Fed. 709, V. Brown, 130 Fed. 328, 12 A. B. E. 29 A. B. E. 421 (Shelby, J.). 178; but see Samel v. Dodd, 142 Fed. 42— In re Goldfarb Bros., 131 Fed. 68, 16 A. B. E. 163 (opinion of Shelby, 643, 12 A. B. E. 386. J.) ; Boyd v. Glueklich, 116 Fed. 131, 8 43— In re Kramer, 210 Fed. 977, 31 A. B. E. 393; but see In re Haring, 193 A. B. R. 525. Fed. 168, 27 A. B. E. 285. 44— In re Eiehards, 183 Fed. 501, 25 Bare denial by director of bankrupt A. B. E. 176; In re Frankel, 184 Fed. held insufficient to overcome prima facie 539, 25 A. B. E. 920. 1166 Beandenbukg on Bankbtjptcy [§ 1583 ful and contumacious and whether he has the present ability to comply therewith.*" In a recent well-considered opinion of Circuit Judge McPher- son,*® he outlines the method of inquiring into a bankrupt's failure to account for assets, and of punishing such failure, in the third circuit, as follows: "When the charge is made that assets have apparently not been accounted for, the referee hears and decides the dispute in the first instande. The point of time to which the inquiry is directed is the date of bankruptcy, and the precise question is whether the bankrupt was then in possession or control of money or of goods that apparently should have come into the hands of the trustee. Being fundamental, this question needs to be examined first of all, but it neither involves the bankrupt's present ability to turn over, nor raises the question whether he should be punished for contempt — except of course as the com- plexity of human affairs may compel an occasional approach to these allied subjects. The two questions last referred to, there- fore, do not need consideration at the first stage of the investi- gation. If the assets that presumably should have been in the bankrupt's possession or control at the time of bankruptcy have not been accounted for, the referee may, and probably will, draw the natural inference, and direct the bankrupt to pay the money or deliver the goods, as the case may be. If this order becomes final, either by failure to have it reviewed or by affirmance in the district court, a definite step has been taken; the proper tribunal has settled beyond future controversy that the assets described were in the bankrupt's possession or control at the time of bank- ruptcy. "Then next comes the question — ^Are they still there? Or what has become of them? This is evidently a distinct subject, which should not be confused with the order, but should be sep- arately treated. It will need no attention unless the bankrupt should fail to comply with the order to hand over, but failure to comply makes him presumptively liable to punishment for contempt. But only presumptively, he may have a complete answer to any attempt to punish, and in any event he cannot be 45— In re Haring, 29 A. B. E. 387, A. B. R. 787; and see In re Cole, 144 aff'g 193 Ted. 168, 27 A. B. E. 285; Fed. 392, 16 A. B. R. 302. Moody V. Cole, 148 Fed. 295, 17 A. B. 46— In re Epstein, 206 Fed. 568, 30 E. 818; In re Goodrich, 184 Fed. 5, 25 A. B. E. 387. § 1584] Contempts 1167 punished until he has been heard. In such a hearing the inquiry is directed to the bankrupt's present ability to pay the money or dehver the goods, and unquestionably he makes a sufficient answer if he shows that he is physically unable to obey the order. If it be true that he does not now possess or control the assets, he may still be liable to the criminal law, but, except for wilful disobedience of the court's command, he cannot be confined by civil process. "The evidence produced must therefore satisfy the judge that the bankrupt is really unable to obey, and is not merely defying the order. This presents a mere question of evidence, and if the bankrupt fails to prove that he cannot coinply, he is simply in the ordinary position of a suitor that has not offered enough evidence to prove a fact, and is obliged to take the consequences of such failure. " § 1584. Interference with the estate. The filing of the petition in bankruptcy constitutes a caveat and an injunction against any interference with the property of the bankrupt by persons having no liens thereon, title or claim thereto, and any wilful interference with the bankrupt estate, or attempt to injure it, to withdraw it from the custody of the court, or to conceal it constitutes a contempt.*'^ So a seizure of the property under writs of replevin with knowledge of the bank- ruptcy proceedings,** or the taking of possession by attach- ment,*® is a contempt. The fact that the petitioning creditor's claims are paid will not justify the taking possession of prop- erty of the bankrupt estate.®" Where there was simply a threat but no levy under a judgment of a state court nor other inter- ference with the property, the sheriff would not be guilty of contempt."^ A landlord claiming title and preventing the removal of prop- erty from his property by the receiver in bankruptcy has been held not punishable for contempt in a summary proceeding. ^^ 47— Clay v. Waters, 178 Fed. 385, 24 50— In re Lnfty, 156 Fed. 873, 19 A. A. B. E. 293. B. E. 614. 48— In re Walsh Bros., 159 Fed. 560, 51— In re McBride, 2 N. B. E. 345. 20 A. B. K. 472; In re Wilk, 155 Fed. 52— In re Darjington, 163 Fed. 385, 943, 19 A. B. E. 178. 20 A. B. E. 805. 49— In re Lufty, 156 Fed. 873, 19 A. B. B. 614. 1168 Beandenbtjeg qn Bankeuptcy [§ 1585. § 1585. Disobedience of injunction. A restraining order becomes operative upon the defendant from the time of his having notice of its issuance, regardless of the time of the formal service of notice upon him, and a viola- tion thereof at any time thereafter is a contempt.^ ^ A creditor's failure to obey an order conunanding him to stay proceedings in a state court upon his claim may be punished as a contempt."* § 1586. Failure to file schedules. The bankrupt's neglect to file schedules may be punished as a contempt.^" § 1587. Failure to produce books and records. The court also has power to compel the production of the bankrupt's books,^® or those of third parties where there is reason to believe that they will show the disposition of the bankrupt's property and affect the right of the bankrupt to a discharge which involves the exercise of a wide discretion and should not be interfered with by the appellate court unless manifestly abused, and to punish failure to obey as a con- tempt.^ '^ However, a lawful order to produce is a condition precedent to action committing for contempt, and an order adjudging bankrupt in contempt cannot be predicated upon an order to produce books and papers which is made without giving the bankrupt the opportunity to be heard. ^* An officer of a bankrupt corporation who ijpon being ordered to produce papers in his possession belonging to it, is guilty of punitive contempt.^® A bankrupt has been adjudged in con- tempt for failure to turn over checks which were returned to him upon the balancing of his bank account."" 53— Blake v. Nesbet, 144 Fed. 279, 16 Fed. 831, 20 A. B. R. 637; In re Alper, A. B. E. 269. 162 Fed. 207, 19 A. B. E. 612; In re 54— In re Mustin, 165 Fed. 506, 21 A. Fellerman, 149 Fed. 244, 17 A. B. E. B. E. 147. 785. 55 — In re Schulman & Goldstein, 164 58 — In re Soloway & Katz, 195 Fed. Fed. 440, 20 A. B. E. 707. 100, 28 A. B. R. 225. 56— In re WUson, 116 Fed. 419, 8 A. 59 — In re Star Spring Bed Co., 203 B. E. 612. Fed. 640, 30 A. B. E. 208. 57— Section 41a (3), Act of 1898; 60 — In re Herr, 182 Fed. 715, 25 A. In re Morgan, 2 N. B. N. E. 233, 3 A: B. E. 141. B. E. 253, 98 Fed. 414; In re Sorkin, 166 §1593] CoNiEMPTS . 1169 § 1588. Failure to aid trustee. The bankrupt may be punished as in contempt for his failure to obey all lawful orders requiring him to aid the trustee in recovering unscheduled property.®^ §1589. Assault upon officer. An assault upon an officer of the court is contempt.®^ § 1590. Failure of bankrupt to appear for exainination. The failure to appear for examination may be punished as a contempt,"* but where the bankrupt is prevented by sickness from attending as required by the referee, he is not in con- tempt.«* § 1591. Contempt of trustee. Failure of the trustee to file his final account in compliance with an order of th^ referee may render him liable for con- tempt.** § 1592. Contempt of receivers. A receiver in bankruptcy may be punished for contempt for failure to obey orders of the court as where he purchases goods in excess of his authority,®" or fails to pay a sum with which his account is surcharged."'' The ability of the receiver to comply with the order to pay such latter sum is measured by the funds he can apply thereto, and is not limited to property or funds of the bankrupt estate."^ A receiver of a state court refusing, upon advice of counsel, to turn over the property of the bankrupt to the receiver in bank- ruptcy is not guilty of contempt."^ § 1593. Contempt of purchaser at sale. Inability of the receiver in bankruptcy to convey good title to property covered by a contract to purchase is a complete 61— In re Nisenson, 182 Fed. 912, 24 65—0 'Connor v. . Sunseri, 184 Fed. A. B. E. 915. 712, 26 A. B. E. 1. 62— Ex parte O'Neal, 125 Fed. 967, 66— In re Erie Lumber Co., 150 Fed. 11 A. B. E. 196. 817, 17 A. B. B. 689. 63— Section 41a (4), Act of 1898; 67— In re Carlile, 199 Fed. 612, 29 A. In re Sorkin, 166 Fed. 831, 20 A. B. E. B. E. 373. 637; In re Smith, 185 Fed. 983, 26 A. 68— In re Carlils, 199 Fed. 612, 29 B. B. 399.. , A. B. E. 373. . 64— In re Carpenter^ 1 N.'..E..B, 51, , 69— In re Zeigler Co., 189 Fed. 259, Fed. Gas. isro..-2427. ■" '■ ■■- 26 A. B.' E.. 761. Brandenburg — 74 1170 Bbandenbueg ON Banketjptcy [§1593 defense to the charge of contempt for failure to obey an order requiring the purchaser to carry out his contract.'^'' § 1594. Contempt of attorneys. While an attorney may under certain circumstances be punished for contempt/^ yet in the ordinary case of advice to clients, if an attorney acts in good faith and in the honest belief that his advice is well founded and in the just interests of his client, he cannot be held for error in judgment.''* Nor can he be held for contempt for inducing judicial action on the part of a state court directing the receiver in bankruptcy to surrender property which has come into his possession.''^ An attorney who mailed a document to his client upon being ordered to produce the same has been held not guilty of contempt where he did not intend to place the same beyond the jurisdic- tion of the court.''* § 1595. Contempt of witnesses. The refusal of a witness ordered to appear and be examined concerning the acts, conduct and property of the bankrupt is a contempt and may be punished; ''^ so where bankrupt was sum- moned to appear in supplementary proceedings and filed his petition and was adjudged a bankrupt between the service of the summons and the day fixed for his examination, he was held in contempt and fined, the bankruptcy proceedings not ousting the state court.''® Witnesses cannot, however, be required to attend before a referee outside the state of their residence, nor more than a hundred miles from their residence, nor until their lawful mileage and fee for one day's attendance have been paid.'"^ The power conferred by the bankruptcy act to compel the attend- 70— In re Jungman, Inc., 186 Fed. 75— Section 41a (4), Act of 1898; 302, 26 A. B. B. 401. In re Howard, 1 N. B. N. 488, 2 A. B. 71 — Attorneys lielS equally responsible R. 582, 95 Fed. 415, citing In re Fein- with tlieir clients for seizure of prop- berg, 2 N. B. R. 425; In re Fay 3 B. B. erty. In re Walsli Bros., 159 Fed. 560, 860; In re Pioneer Paper Co., 7 N. B. 20 A. B. B. 472. B. 250; Garrison v. Markley, 7 N. B. E. 72— In re Watts, 190 TJ. S. 1, 47 L. 246; In re Comstock, 13 N. B. B. 193; ed. 933, 10 A. B. R. 113. In re Fredenberg, 1 N. B. R. 268. 73— In re Watts, 190 IT. S. 1, 47 L. 76— Bank v. Graham, 1 N. B. N. 59. ed. 933, 10 A. B. R. 113. 77— Section 41a (4), Act of 1898; In 74 — ^In re Johnson & Knox Lumber re Johnson & Bjiox Limiber Co. 151 Co., 151 Fed. 207, 18 A. B. B. 50. Fed. 207, 18 A. B. R. 50. § 1595] ■ Contempts 1171 auce of witnesses is not to be considered as changing or enlarg- ing the power of the federal courts to compel their attendance as defined in section 876 of the Revised Statutes of the United States, but is a limitation upon pre-existing rights, so that one cannot be compelled to attend a reference in bankruptcy within the state of his residence, if at a distance of more than one hundred miles therefrom. If the testimony of such witnesses is desired it must be pursuant to section 21 of the law J^ A witness is entitled''* for each day's attendance in court, or before any oflScer pursuant to law, to one dollar and fifty cents, and five cents a mile for going from his place of resi- dence to the place of trial or hearing, and five cents a mile for returning. By the act of August 3, 1892,*° witnesses in courts in Wyoming, Montana, Washington, Oregon, California, Nevada, Idaho, Colorado, New Mexico, Arizona and Utah are entitled to receive fifteen cents for each mile necessarily traveled over any stage line or by private conveyance and five cents for each mile over any railroad in going to and returning from said court. But no officer of a United States court is entitled to witness fees for attending before any court or commissioner where he is ofiBciating.** No extra allowance can be made to an expert witness, but it is a matter for private contract between the witness and the party summoning him, and such contract will not bind the court nor will it be regarded under any circumstances unless in writing and signed by ihe parties.*^ If the referee is in the state of witness' residence within a hundred miles thereof and witness has been paid his mileage and fee as stated, he will be guilty of contempt if he wilfully disobeys any lawful order, misbehaves so as to obstruct the hearing, fails to produce any pertinent document which he has been ordered to produce or refuses to appear after being subpoenaed or to take the oath after appearing or to testify after being sworn. The examina- tions** are for the purpose of furnishing creditors and the officers administering the estate full information as to bankrupt's assets. A witness is guilty of contempt if he refuses to attend 78— In re Cole, 133 Fed. 414, 13 A. B. 81— Section 849, U. S. Eev. Stat. E. 300; In re Hemstreet, 117 Fed. 568, 82 — In re Carolina Cooperage Co., 1 8 A. B. B. 760. N. B. N. 534, 3 A. B. R. 154, 96 Fed. 79— Section 848, TJ. S. Eev. Stat. 604. 80—1 Supp. Eev. Stat. 165. 83— Section 7ag, and 21a, Act of 1898. 1172 Bbandenbueg gn Banketjptct [§ 1595 or obey an order made on the application of a receiver, for his examination or to produce books or documents tending to show the disposition of property purchased from the bankrupt when fraud against the purchaser is alleged; ** or to attend a hearing in one city in opposition to a discharge when summoned from another; *^ or, on being examined as to where he obtained the money with which he purchased claims against the bankrupt and answering on cross-examination that he did not get it from the bankrupt, if he does not state where he did get it; ^* but he has been held not in contempt where he did not appear but filed objections declining to submit to examination until the question raised had been decided.*''^ Contempt may be predicated upon false swearing, or upon vague, contradictory and evasive answers,** or upon a refusal to answer,*^ by the bankrupt or any other witness,^" whether before the court or before a special commissioner.^^ The bank- rupt cannot, however, be held in contempt for refusal to answer questions which may tend to incriminate him, regardless of whether the proceeding is voluntary or involuntary. The filing of a voluntary petition does not amount to a waiver of the bank- rupt's constitutional privilege.^^ If the question is of such a description that the answer may or may not incriminate the bankrupt, he can refuse to answer, but if the court is convinced that the answer to the question cannot by any possibility incrim- 84 — ^In re Fixen & Co., 1 N. B. N. 568, beyond any doubt that he is refusing to 2 A. B. E. 822, 96 Fed. 748. tell what he knows he is in contempt of 85— In re Woodward, 12 N. B. K. 297, court. United States v. Appel, 211 Fed. 8 Ben. 112. 495, 31 A. B. E. 154. 86— In re Lathrop, 4 N. B. E. 93, Fed. 89— In re Gitkin, 164 Fed. 71, 21 A. Gas. No. 8106. B. E. 113; In re Fellerman, 149 Fed. 87— In re Dole, 7 N. B. E. 538, Fed. 244, 17 A. B. E. 785. Gas. No. 3965. 90 — In re Bronstein, 182 Fed. 349, 24 88— In re Fogelman, 204 Fed. 351, A. B. E. 524. 30 A. B. E. 348; In re Schulman, 167 91— In re Biek, 155 Fed. 908, 19 A. Fed. 237, 21 A. B. E. 288, aff'd 177 B. E. 68. Fed. 191, 23 A. B. E. 809; In re Singer, A witness may be punished for con- 174 Fed. 208, 23 A. B. E. 28; In re tempt for refusing to answer proper Bronstein, 182 Fed. 349, 24 A. B. E. 524; questions in a hearing before a referee In re Bick, 155 Fed. 908, 19 A. B. B. or special master. In re Automatic 68; In re Fellerman, 149 Fed. 244, 17 Musical Co., 204 Fed. 334, 30 A. B. E. 'A. B. E. 785. 328. Persistent perjury which blocks the 92— United States v. Goldstein, 132 inquiry may be treated as criminal con- Fed. 789, 12 A. B. B. 755. tempt, and if a witness' conduct shows § 1598] Contempts 1173 inate him, and especially if the witness does not swear that he believes that it would, it is the duty of the court to compel him to answer.*^ The referee cannot compel a witness to answer if he refuses,** but he can certify the matter to the judge for punishment as for a contempt.*^ - § 1596. Insanity as a defense. Where it is sought to escape the consequences of contempt by a plea in confession and avoidance, such as an allegation of insanity, the burden is upon the defendant.*^ § 1597. Advice of counsel. Reliance upon the advice of counsel cannot shield a party from the consequences of his deliberate disobedience of an order of the referee, but may be considered in mitigation of the penalty for disobedience.®'^ False testimony and concealment of assets, practiced deliber- ately and even by advice of attorneys, but without giving infor- mation as to this advice or the ones furnishing it, constitutes criminal contempt necessitating a definite punishment.®^ § 1598. Right to purge contempt. s While a bankrupt or witness may, ordinarily, purge himself of contempt by correcting his testimony before it is acted upon,®' an offer to testify made after the adjournment of the examina- tion will not purge the contempt.^ While it is generally true that one accused of constructive contempt, by fully answering all the charges on his oath, is purged thereof, such answers can- not be considered conclusive evidence in case of disobedience of orders in bankruptcy, but they may be contradicted or supported 93— In re Levin, 131 Fed. 388, 11 A. 98— In re Fogelman, 204 Fed. 351, 30 B. E. 382. A. B. B. 348. 94— In re Koeh, 1 N. B. E. 153. 99— In re Bronstein, 182 Fed. 349, 24 95— In re Eosenfield, 1 N. B. E. 60, A. B. R. 524; In re Wiesebrook, 188 Fed. Cas. No. 12059. Fed. 757, 26 A. B. E. 745; In re Gor- 96— In re Cashraan, 168 Fed. 1008, 21 don, 167 Fed. 239, 21 A. B. R. 290. A. B. E. 284. 1— United States v. Goldstein, 132 97— In re Home Discount Co., 147 Fed. 789, 12 A. B. R. 755; In re Farkas, Fed. 538, 17 A. B. E. 168; United States 204 Fed. 343, 30 A. B. E. 337. V. Goldstein, 132 Fed. 789, 12 A. B. E. 755; but see In re Zeigler Co., 189 Fed. 259, 26 A. B. E. 761. 1174 Bbandenbueg on Bankbuptcy [§ 1598 by other testimony, in which event the question whether the party has purged himself is to be decided upon a careful con- sideration of all the evidence.^ Punishment for contempt should not be used in such a way as to prevent or delay the administration of the estate, but should include means to secure a proper carrying out of the steps in the bankruptcy proceedings as speedily as possible. So, if a person is in contempt for failure to do what the act requires him to do, he should first be allowed to purge himself of the civil contempt by doing what he ought and by putting the creditors in the posi- tion they would have been in if no contempt had occurred.* A bankrupt may purge himself of his contempt by filing his schedules even after he is fined for contempt for failure to file them.* A defendant who has disobeyed an injunction cannot purge himself of the contempt by going into the merits of the case to determine whether the injunction was properly granted.^ § 1599. Practice in contempt proceedings. § 1600. — Powers and duties of referee and judge. Section 41b of the act provides that ' ' 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 sum- mary manner, hear the evidence as to the acts complained of, and, if it is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed before the court of bankruptcy, or commit such person upon the same conditions as if the doing of the for- bidden act had occurred with reference to the process of, or in the presence of, the court." ® The statutory procedure must be strictly followed, and any deviation therefrom may be taken 2 — See Boyd v. Glueklich, 116 Fed. 131, 6 — Analogous provision of Act of S A. B. E. 393, opinion of Sanborn, J.; 1867. "Sec. 4. . . . Provided, how- In re Be Gottardi, 114 Fed. 328, 7 A. ever, That nothing in this section con- B. E. 723. tained shall empower a register to com- 3— In re Farkas, 204 Fed. 343, 30 A. mit for contempt, or to hear a disputed B. p. 337. adjudication, or any question of the al- 4 — In re Sohulman & Goldstein, 164 lowance or suspension of an order of Fed. 440, 20 A. B. E. 707. discharge." 5— Blake v. Nesbet, 144 Fed. 279, 16 A. B. B. 269. § 1600] Contempts 1175 advantage of on a motion to dismiss the proceedings J The court of bankruptcy has no authority to refer the question of the com- mitment of a person guilty of contempt to the discretion of the referee, since the court alone is authorized to exercise the power of commitment.® The referee cannot punish for contempt, but when committed before him, he should enter" the fact on the record and then certify the facts to the judge, who is authorized to impose punish- ment as for similar offenses committed before a court of bank- ruptcy.® The referee has the right and it is his duty to determine judicially in the first place whether a contempt has been com- mitted, and, if he thinks not, to refuse to certify the matter for contempt proceedings before the judge. The only recourse the aggrieved party has is by petition for revision, or exceptions to the referee's report." For a direct contempt, that is one occurring in the presence of the court, the court may act on its own knowledge. Where a constructive contempt, not occurring in the presence of the court, but arising out of the bankrupt's failure to comply with an order of the court, it is proper to adhere substantially to the method of criminal procedure, except in the matter of a jury trial, and the attachment or rule should be like an indictment, to the extent of giving the bankrupt an opportunity to defend by informing him of the nature of the offense charged.^^ In contempt cases, and especially in those which involve the charge of another criminal charge besides the contempt, the rules of evidence applicable to civil case in reference to pre- sumptions and the shifting of the burden of proof, do not apply; but the proceedings and the rules of evidence and presumptions of law applied in criminal cases should be observed.^^ 7— In re Gitkin, 164 Fed. 71, 21 A. B. Romine, 138 Fed. 837, 14 A. B. E. E. 113; contra, United States v. Henkel, 785; In re Haring, 193 Fed. 168, 27 185 Fed. 553, 26 A. B. R. 199. A. B. E. 285; Bank of Ravenswood v. 8— Smith V. Belford, 106 Fed. 658, 5 Johnson, 143 Fed. 463, 16 A. B. E. 206. A. B. E. 291. 10— In re Eomine, 138 Fed. 837, 14 A. 9— Sections 2 (13) and 2 (16), Act B. E. 785. of- 1898; In re Miller, .105 Fed. 57, .5 11— Stuart v. Eeynolds, 204 Fed. 709, A. B. E. 154; Boyd v. Gluoklich, 116 29 A. B. E. 412. . Fed. 131, 8 A. B. E. 393; In re Taylor, 12— Stuart v. Eeynolds, 204 Fed. 709, 6 A. B. E. 184, 105 Fed. 509; In re 29 A. B. E. 412. 1176 Beandenbukg ok Bankruptcy [§ 1601 § 1601. — Proceedings against several bankrupts. Two bankrupts may be proceeded against together.^* § 1602. — The application. A petition to punish the bankrupt as for contempt for diso- bedience of an order to turn over assets need not allege the bankrupt's present ability to comply with the order,^* although it is held that a petition which contains no allegation that the bankrupt's failure to turn over property was wilful, nor any- thing to show that it was not caused by mere inability is insuffi- cient.^^ A petition charging that the bankrupt was guilty of perjury will not support a conviction under section 41a for refusal to be examined.^® §1603. —The hearing. While proceedings in bankruptcy may be summary, they should not be so summary as to deprive the bankrupt of those fundamental rights and privileges that belong to every citizen, among which are the right to be advised of the demand made upon him, and the right after being so advised to have a reason- able time to prepare his defense and produce his witnesses; a failure to give such notice and opportunity, cannot be cured by subsequently permitting the bankrupt to introduce evidence.^'' A certified copy of the petition and rule to show cause should be served upon the alleged contemnor in person, and proof of service be filed with the case.^* The contempt proceedings may be commenced before the cross- examination of the bankrupt.^® The constitutional guaranty of the right to a trial by jury in all common law actions is not applicable to statutory proceedings 13— In re Fellerman, 149 Fed. 244, 1 N. B. N. 474, 2 A. B. E. 819; In re 17 A. B. E. 785. Banzai Mfg. Co., 183 Fed. 298, 25 A. B. 14— In re Stavrahn, 174 Fed. 330, 23 E. 497; In re Cole, 144 Fed. 392, 16 A. B. E. 168. A. B. E. 302; In re Baum, 169 Fed. 15— In re Cole, 163 Fed. 180, 23 L. E. 410, 22 A. B. E. 295. A. (N. S.) 255, 20 A. B. E. 761. 18— In re Hooks Smelting Co., 140 16— Magen v. Campbell, 186 Fed. 675, Fed. 991, 15 A. B. E. 834. 26 A. B. E. 594. 19— In re Sohulman, 177 Fed. 191, 17— In re Rosser, 101 Fed. 562, 4 A. 23 A. B. E. 809, aff'g 167 Fed. 237, 21 B. E. 153; Boydv. Glucklich, 116 Fed. A. B. E. 288;. 131, 8 A. B E. 393. ■ See In re Pearson,. § 1604] Contempts 1177 in which the court exercises the powers of a special tribunal, as when acting as a court of bankruptcy, and such court has power and jurisdiction, on the petition of the trustee without a jury trial, to punish a bankrupt or others for failure to obey an order requiring him to surrender property in his possession belonging to his estate in bankruptcy ,2" and the like. Punish- ment for contempt is a summary proceeding to be dealt with by the court in the first instance without the intervention of a jury.^^ The proceedings in contempt being criminal in their nature, the commission thereof must be proved beyond a reasonable doubt.^^ Proof may, however, be supplied by bankrupt's admis- sions.^* The hearing cannot be converted into an appellate proceeding to determine the correctness of orders made by the referee after a hearing on the merits,^* and where the ownership and value of the property which the party has failed to turn over has been determined in another proceeding before a special master, such questions cannot be relitigated upon a motion to punish for contempt.2^ The sworn answer of the alleged contemner is controvertible.^® § 1604. — The order of the court. . There can be no commitment for contempt before judgment of contempt. An order requiring a trustee to file his account on or before a certain date, or in the alternative to be committed for contempt ^'' or an order to turn over property to the trustee 20 — Eipon Knitting Works v. Sehrei- 24 — In re Home Discount Co., 147 ber, 2 N. B. N. E. 899, 101 Fed. 810, 4 Fed. 538, 17 A. B. E. 168; In re Eioh- A. B. E. 299. ards, 183 Fed. 501, 25 A. B. E. 176; 21— Hendryx v. Fitzpatrick, 19 Fed. In re Frankel, 184 Fed. 539, 25 A. B. 810; Cooley's Const. Lim. 6th Ed. 389; E. 920. But see In re Earing, 193 Fed. In re Fellerman, 149 Fed. 244, 17 A. B. 168, 27 A. B. E. 285, and cases cited; E. 785; In re Biek, 155 Fed. 908, 19 Moody v. Cole, 148 Fed. 295, 17 A. B.E. A. B. E. 68. 818. 22— In re Cashman, 168 Fed. 1008, 25— In re Strobel, 163 Fed. 380, 20 21 A. B. E. 284; In re Switzor, 140 A. B. E. 754. Fed. 976, 15 A. B. E. 468; In re Gold- 26— In re Fellerman, 149 Fed. 244, 17 farb Bros., 131 Fed. 643, 12 A. B. E. A. B. E. 785; In re Lasky, 163 Fed. 386; Samel v. Dodd, 142 Fed. 68, 16 99, 20 A. B. E. 729;,8ehweer v. Brown, A. B. E. 163; In re Dickens, 175 Fed. 130 Fed. 328, 12 A. B. E. 178. See 808, 23 A. B. E. 660; In re Mize, 172 Boyd v. Glucklich, 116 Fed. 131, 8 A. Fed. 945, 22 A. B. E 577. B. E. 393, opinion of Sanborn, J.; In re 23— In re Goldfarb Bros., 131 Fed. 643, Gottardi, 114 Fed. 328, 7 A. B. E. 723. 12 A. B. E. 386; In re Cashman, 168 Fed. 27— O'Connor v. Sunseri, 184 Fed. 712, 1008, 21 A. B. E. 284. 26 A. B. B. 1. 1178 Beandenbtjeg on Bankruptcy [§ 1604 which leaves the question of the bankrupt's default and Ms con- sequent contempt to be determined without further action by the court ^* is not a judgment of contempt upon which a commit- ment can be based. Where the bankrupt is under indictment in the local courts, the bankruptcy court may postpone the making of any order in the contempt proceeding until the trial of the bankrupt in the state court.^^ An order allowing the bankrupt additional time to comply with an order of the referee to turn over assets is in effect an affirmance of the order of the referee, and the court by striking out the provision in the referee's order, "that in default thereof let the iabove-named bankrupt be committed for contempt" does not adjudicate that the bankrupt should not be punished for contempt, but leaves such a motion to be brought on at a subse- quent period, if the bankrupt does not avail himself of the oppor- tunity to pay within the extended time.*" § 1605. — Review of order of commitment. While the exercise of the power of punishment for contempt of their orders, by courts of general jurisdiction, was formerly not subject to review,^^ in some jurisdictions the power to punish has been much restricted and the right of review and appeal from such proceedings is allowed. Nor was there, in the system of federal jurisprudence, any relief against such orders, when the court had authority to make them, except through the court making the order, or by the exercise of the pardoning power. When, however, a court undertakes by its process of contempt, to impose punishment for refusal to comply with an order which it had no authority to make, the order itself, being with- out jurisdiction, is void, and the order of punishment is equally void. When the proceeding for contempt in such a case results in imprisonment, the proper course is to sue out a writ of habeas corpus for the discharge of the prisoner.^^ The inquiiy cannot, however, be extended upon a writ of habeas corpus so as to 28— In re Baum, 169 Fed. 410, 22 A. 31— Hays v. Fisher, 102 V. S. (12 B. E. 295. Otto) 121, 26 L. ed. 95; Ex parte Kear- 29— In re Hooks Smelting Co., 146 ney, 7 Wheat. 38, 5 L. ed. 211. Fed. 336, 17 A. B. R. 141. 32— Ex parte Fisk, 113 U. S. 713, 718, 30— In re Herskowitz, 136 Fed. 950, 28 L. ed. 1117; Ex parte Rowland, 104 14 A. B. E. 86. U. S. (14 Otto) 604, 26 L. ed. 861. §1606] Contempts 1179 review, as upon writ of error, any irregularities of the district court in the proceedings, or to determine, as upon appeal, the real merits of the case.^' A judgment for criminal contempt is not reviewable by appeal, and a judgment against a party for a civil contempt committed before the final decree is reviewable by appeal from the final decree only. If the contempt is committed after the final decree, the judgment is reviewable by appeal or petition to revise.^* An order adjudging the bankrupt in contempt based upon the findings of the referee will not be reversed by the appellate court in the absence of clear proof of error.®^ § 1606. Punishment for contempt. The constitutions of most of the states contain limitations for- bidding imprisonment for debt. While the federal constitution contains no such provision, section 990 of the Eevised Statutes provides that there shall be no imprisonment for debt in any state on process issuing from a court of the United States, where, by the laws of such state imprisonment for debt has been or shall be abolished. Imprisonment for the violation of an order of a court to turn over money to a trustee, or to dis- close the whereabouts of concealed property, cannot be con- sidered as imprisonment for debt.*^ The power of the bankruptcy courts to punish for contempt must be exercised according to the general principles governing contempt proceedings.^'^ The rules governing the administra- tion of the law of contempt laid down in Gompers v. Buck Stove Co.,^* apply in bankruptcy cases. ^^ In that decision it is said that the character and purpose of the punishment distinguish civil and criminal contempts. The punishment for a civil con- 33-^Ex parte O'Neal, 125 Fed. 967, 184 TT. S. 1, 46 L. ed. 405, 7 A. B. R. 11 A. B. R. J96. 224; In re Schlesinger, 102 Fed. 117, 34— Caay v. Waters, 178 Fed. 385, 24 4 A. B. R. 361; Ripon Knitting Works A. B. R. 293 ; Mueller v. Nugent, 184 v. Schreiber, 101 Fed. 810, 2 N. B. N. R. U. S. 1, 46 L. ed. 405, 7 A. B. R. 224; 899, 4 A. B. R. 299. See Boyd v. Gluck- Boyd V. Glueklieh, 116 Fed. 131, 8 A. B. lich, 116 Fed. 131, 8 A. B. R. 393. But R. 393; In re Cole, 163 Fed. 180, 23 see Stuart v. Reynolds, 204 Fed. 709, L. R. A. (N. S.) 255, 20 A. B. R. 29 A. B. R. 412 (Shelby, J.). 761. 37— In re Kahn, 204 Fed. 581, 30 35— In re Levy & Co., 142 Fed. 442, A. B. B. 322. 15 A. B. B. 166. 38—224 TJ. S. 418, 55 L. ed. 797. 36— Sehweer v. Brown, 130 Fed. 328, 39— In re Kahn, 204 Fed. 581, 30 A. 12 A. B. R. 178; Mueller v. Nugent, B. R. 323. 1180 Beandenbubg on Bankeuptcy [§ 1606 tempt is remedial and for the benefit of the complainant in the contempt proceedings. The punishment for a criminal contempt. is punitive — to vindicate the authority of the court. If imprison- ment he imposed in a civil proceeding it must be coercive in -its nature. The committal must stand only unless and until the defendant performs the affirmative act, required by the court's order. When inflicted in a criminal proceeding it is fixed and certain as a punishment for completed disobedience of orders or for other past wrongdoing. When the contempt consists of a violation of the order of the court, and is not committed in its presence, and the statute does not prescribe the form of the order of commitment, the defendant may be imprisoned until he be discharged by order of court, or until further order of court,*" the defendant being com- mitted to the custody of the marshal until the fine has been paid, or the order obeyed.*^ Where it appears that the bankrupt is unable to respond to an order to turn over assets, his commitment should not be con- tinued indefinitely, regardless of the grossness of his fraud in disposing of his property, but his imprisonment should be limited according to circumstances.*^ Where the refusal of a third person to answer a question is not a wilful contempt, a nominal fine only will be imposed.** Upon a motion to punish the bankrupt for contempt for failure to file his schedules, the bankrupt should be fined a sufficient amount to compensate the attorneys for their trouble in making the motion, and if such fines do not prove sufficient to put a stop in the delay in filing the schedules, punishment by imprisonment may be imposed.** The bankrupt cannot be sentenced to a fixed term of imprison- ment as a punishment for contempt, in proceedings instituted by an attorney of the receiver in bankruptcy and not by the public prosecutor.*^ The certified copy of the proceedings of 40— In re Allen, 13 Blatehf. 271; 43— In re Lathrop, HasHns & Co., Green v. Elgie, 8 Jurist, Part I, 187; 184 Fed. 534, 24 A. B. R. 911. In re Yates, 4 Johns. 317, 9 Johns. 44 — In re Sehulman & Goldstein, 164 395. Fed. 440, 20 A. B. R. 707. 41— In re Chiles, 22 Wall. 157, 169, 45— In re Kahn, 204 Fed. 581, 30 A. 22 L. ed. 819. B. R. 322. 42— In re Karp, 196 Fed. 998, 28 A. B. R. 559; In re Taylor, 114 Fed. 607, 7 A. B. E. 410. §1608} Contempts 1181 contempt and of the attachment is sufficient to justify not only the United States attorney in making the necessary complaint, but to authorize the issuance of a warrant of arrest by the proper officer, precisely as a certified copy of an indictment would be in any other case of crime.*® § 1607. Discharge from imprisonment. The bankrupt may be discharged from imprisonment for failure to turn over assets to the trustee upon showing his ina- bility to comply with the court order.*'^ § 1608. Pardon of contempts. "When a court commits a party for a contempt, its adjudica- tion is a conviction and the commitment in consequence is execution. After a conviction and a commitment for a contempt, the court has no more power to discharge or remit the sentence than it has in the case of a conviction and commitment for any other crime or offense against the United States. ' ' ** Under the constitution the President is invested with power "to grant reprieves and pardons for offenses against the United States," and the exercise of this prerogative extends as well to cases of punishment of contempt for disobedience of lawful process of a federal court as to misbehavior in its presence.*^ It has been held further that a "contempt of court is an offense against the state, and not an offense against the judge personally. In such a case the state is the offended party, and it belongs to the state, acting through another department of its govern- ment, to pardon or not to pardon at its discretion the offender. ' ' ^^ These observations apply only where the term at which the con- viction was had has expired and by reason thereof the case has passed beyond the jurisdiction of the court. The term of the court of bankruptcy being considered as continuous from the commencement of a proceeding to the closing of an estate,^^ the 46— U. S. V. Jacobi, 4 Amer. Law T. 211; 3 Op. Atty. Genl. 622, 4 Id. 458, 5 Eep., IT. S. Cts., 148, 151. Id. 579; Ex parte Pisk, 113 U. S. 713, 47— In re Cummings, 188 Fed. 767, 718, 28 L. ed. 1117. 26 A. B. E. 477. 50— State v. Sauvinct, 24 La. Ann. 48— Ex parte Kearney, 7 Wheat. 38, 119. 43, 5 L. ed' 211. See Fisher t„ Hayes, 51— In re Ivea, 113 Fed. 911, 7 A. B. 6 Fed. 63. E. 692; Jemison Mercantile Co., 112 49— In re Mulee, 7 Blatehf. 23; Ex Fed. 966, 7 A. B. E. 588. parte Kearney, 7 Wheat. 38, 42, 5 L. ed. 1182 Beandenbukg on Banketjptcy [§ 1608 court would have power and control over such matters duping the pendency of the proceeding, the rule being that during the existence of the term, the court has general and full power over this as over any other kind of judgment, order or decree in either civil or criminal eases.®^ The fact that a fine has been imposed as a punishment for a contempt, does not remove the case beyond the pardoning power of the President, because the amount of the fine is directed in the order imposing it to be paid to the plaintiff in the suit, towards the reimbursement of his expenses in the attachment proceedings in respect of such contempt.^* If the right to the fine could be regarded as a vested private right of the plaintiff in the suit, existing in the shape of a judgment, the President might still pardon the offense and imprisonment, with the excep- tion or saving as to the fine, in which case the fine would remain as a debt recoverable according to the appropriate legal remedies.^* 52— Fischer v. Hayes, 6 Fed. 63 ; Ex 53— In re Mulee, 7 Blatchf . 23. parte Langs, 18 Wall. 163, 167, 21 L. 54 — Drayton and Sear's Case, 5 Op. ed. 872; Bank of TJ. 8. v. Moss, 6 How. Atty. Genl. 579. 31, 12 L. ed. 331. CHAPTER XXXVII Ckimes and Offenses § 1609. Jurisdiction over offenses. ! 1610. Exemption from prosecution. § 1611. Concealment of assets. § 1612. False oath or account. § 1613. Subornation of perjury. § 1614. Advice of counsel as a defense. § 1615. Presentment of false claim. § 1616. Beceiving property from banlcrupt. §1617. Buying off opposition to discharge. 1 1618. Extortion. § 1619. Conspiracy. 1 1620. Offenses by referees. § 1621. Offenses by trustee. § 1622. Limitations upon prosecutions. § 1623. Evidence before grand jury. 1 1624. Indictment or information. § 1625. Disqualification of judge. § 1626. Jury trials. § 1627. Presumptions and burden of proof, § 1628. Evidence at the trial. §1629. Penalties. §1630. Habeas Corpus. § 1609. Jurisdiction over offenses. Courts of bankruptcy with which the circuit courts had con- current jurisdiction prior to their abolishment,^ within their respective territorial limits, have jurisdiction to 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 procedure of the United States now in force, or such as may hereafter be enacted, regulating trials for the alleged violation of the laws of the United States.^ If the bankruptcy court obtains jurisdiction over violators of the act, it may enforce the provisions against them though they may be aliens.* 1— Section 23c, Act of 1898. 3— Olcott v. McLean, 14 N. B. R. 2— Section 2 (4), Act of 1898. 379. 1183 1184 Bbandbnbueg on Bankruptcy [§ 1610 § 1610. Exemption from prosecution. Section 7 of the act does not exempt the bankrupt from prose- cution for crimes which are disclosed by his testimony. It merely protects him from the use of his testimony in such criminal proceedings.* — § 1611. Concealment of assets. A person who has, while a bankrupt, or after his discharge, concealed from his trustee any of the property belonging to his estate in bankruptcy is guilty of concealment of assets.® While the act does not make it a criminal offense for a person other than the bankrupt, unconnected with him in any way, to conceal the bankrupt's property from the trustee,^ it is held that an officer of a bankrupt corporation may be guilty thereof if he partici- pated in the concealment.'' -The offense may be committed by a corporation.* This offense would occur where assets are secreted, falsified or mutilated.^ The provision is a penal one and cannot therefore be given a retroactive effect so that to create an offense under it the act must have been committed since July, 1, 1898, the date of the passage of the law.^" A conviction cannot be upheld without adjudication as a bank- rupt " but where there has been an adjudication, the same can- not be attacked collaterally.^^ The offense is concealing from the trustee so that, if no trustee has been appointed, there can be no offense; ^^ but if property is afterwards discovered, the proper course is to have a tiTistee appointed,^* and then, if the 4— Burrell v. State, 194 U. S. 572, 10— In re Quaekenbush, 2 N. B. N; 48 L. ed. 1122, 12 A. B. E. 132, afE'g R. 964, 4 A. B. E. 274, 102 Fed. 282; 27 Mont. 282. . In re Webb, 2 N. B. N. E. 289, 3 A. B. , 5— Section 29b, Act of 1898. E. 386, 98 Fed. 404, below 2 N. B. N. 6— United States -v. Grodson, 164 Fed.- ~ K. 11, 3 A. B. E. 204. 157, 21 A. B. E. 68; United States v. . . . 11— (Jjlbertsou v. United States, 168 Waldman, 188 Fed. 524, 26 A. B. E. Fed. 672, 22 A. B. E. 32. 677. 12— United States v. Freed, 17§ Fed. 7— United States v. Freed, 179 Fed. 236, 25 A. B. E. 89. 236, 25 A. B. E. 89; contra, United 13— In re Adams, 171 Fed. 599, 22 States V. Lake, 129 Fed. 499, 12 A. B. A. B. E. 613; In re Leszynsky, 2 N. B. R. 270. N. E. 738. But see United States v. 8— United States v. Freed, 179 Fed. Goldstein, 132 Fed. 789, 12 A. B. E. 236, 25 A. B. E. 89; Cohen v. United 755. 157 Fed. 651, 19, A. B. ,.B.- 8, 14— In re Smith,, 1 N. B. ,N. 532, 2 a^'g 142 Fed. 983, 15 A. B. E. 357.: • A. B. E. 19,0, 93 Fed. 791. 9— Section 1 (22), Act of 1898. ,!., . ^ ^ ■ §1611] Crimes and Offenses 1185 concealment continues, the offense will be committed. Demand by the trustee is not necessary, but the offense is complete when the schedule is filed." It must be knowingly and fraudulently done; " and, if due to a mistake either in law or fact, it does not constitute the offense,^^ nor where property is omitted because deemed worthless or because after acquired,^* or because it was not known at the time that a substantial interest existed in the property concealed; ^® or where the property was incumbered for more than it was worth.^" The mere omission through ignorance or otherwise, to turn over property, or put it in the schedules is not an offense,^^ and it is not sufficient to constitute the offense that the bankrupt collects money due him at the time of the filing of the petition and applies- the same to the payment of a debt, if such payment is honestly made, even though the result of such payment is to advantage a creditor. ^^ But it is no defense that the bankrupt at the time of concealing his property did not know of the appointment of the trustee or the latter 's identity.*' To constitute the offense the bankrupt must have a present interest in the property, and, if previously to the bankruptcy proceedings he has actually conveyed it away so that between 15— TI. S. V. Smith, 13 N. B. E. 6, 17— la re Morrow, 3 A. B. E. 263, 97 Ted. Caa, No. 16339; U. S. v. Clark, 4 Ted. 574; In re Schreck, 1 N. B. N. 334, N. B. E. 14. 1 A. B. E. 366, 370; Huber v. Huber, 16— United States v. Lowenstein, 126 1 N. B. N. 431; In re Wilson, Ted. Cas. Fed. 884, 11 A. B. E. 134; In re Taplin, No. 17783; In re Boynton, 10 Fed. 277; 135 Ted. 861, 14 A. B. E. 360; In re In re Warre, 10 Ted. 377; In re Free- Lowenstein, 1 N. B. N. 329, 2 A. B. E. man, 4 N. B. E. 17, 4 Ben. 245, Fed. 193; In re Cohn, 1 N. B. N. 330, 1 A. B. Cas. No. 5082. B. 655; In re Schreek, 1 N. B. N. 334, 18— In rePearoe, Fed. Cas. No. 10783; 1 A. B. E. 366, 370; In re Mendelsohn, In re Winsor, 16 N. B. E. 152, Fed. Cas. 1 N. B. N. 391; In. re Eoy, 1 N. B. N. No. 17885; In re PolakofE, 1 N. B. N. 526, 3 A. B. E. 37, 96 Fed. 400; In re 232, 1 A. B. E. 358; In re Todd, 112 Skinner, 97 Fed. 190, 3 A. B. E. 163; Fed. 315, 7 A. B. E. 770. In re Hyman, 3 A. B. E. 169, 171, 97 19— In re Hirsch, 2 N. B. N. E. 137, Fed. 195; In re Freund, 2 N. B. N. E. 3 A. B. E. 344, 97 Fed. 571; In re Par- 236, 3 A. B. E. 418, 98 Fed. 81; In re ker. Fed. Cas. No. 10720; In re Shoe- •Adamg; 104 Fed. 72, 2 N. B. N. E. maker, Fed. Cas. No. 12799. 1034. See also In re Hussman, 2 N. B. 20 — In re Townsend, 3 Fed. 559. E. 437; In re Eathbone, 1 N. B. E. 536, 21— United States v. Levinson & Korn- Fed. Cas. No. 11583; In re Goodfellow, blut, 13 A. B. E. 29. 3 N. B. E. 114, Fed. Cas. No. 5536; In 22 — United States v. Lowenstein, 126 re Eainsford, 5 N. B. E. 381, Fed. Cas. Fed. 884, 11 A. B. E. 134. No. 11537; In re Hill, 1 N. B. E. 42, 2 23— United States v. Comstock, 161 Ben. 136, Fed. Cas. No. 6482. Fed. 644, 20 A. B. E. 520. Brandenburg — 75 1186 Bbandenbueg on- Bastkeuptcy [§ 1611 him and the grantee the title has actually passed, though the conveyance might be set aside by creditors or a trustee in bank- ruptcy, such transfer not being merely colorable or on a secret trust for bankrupt's benefit, his failure to include it would not constitute the offense.^* A concealment prior to filing of petition continuing thereafter is sufficient to constitute the offense.^^ So, the intentional and fraudulent omission of property previously conveyed in fraud of creditors, whether such conveyance was prior or subsequent to the bankruptcy act, where there is a secret trust for bankrupt?s b&.efit, is a violation of the act, because the concealment is a continuing act and is perpetuated whenever the bankrupt's duty to reveal such assets exists and is knowingly disregarded and concealment may be effected by concealment of the title as well as by hiding the property, and it is not necessary that bankrupt himself should be able to recover it, if his creditors or trustee can do so.^® Also where property was concealed from the receiver of a state court and was not subsequently turned over to the trustee in bankruptcy; ^'^ or where there is a large shortage in the bankrupt's assets, or a disappearance of some, which bankrupt fa;ils to satisfactorily explain; ^^ but mere inability to 24— In re Cornell, 3 A. B: E. 172, 97 566, 579; In re Hussman, 2 N. B. E. Fed. 29; In re Quaekenbush, 2 N. B. 437; In re Eathbone, 1 N.. B. E. 536, 2 N. E. 964, 4 A. B. E. 274, 102 Ted. 282; N. B. E. 260, Fed. Cas. No. 11583; In In re Crenshaw, 2 A. B. E. 623, 625, 95 re Hill, 1 N. B. E.. 431, Fed. Cas. No. Fed. 632; In re Hirsch, 2 A. B. E. 715, 6483; In re Goodridge, 2. N. B. B. 726, 96 Fed. 468; In re Headley, 3 A. 324. B. E. 272, 1 N. B. N. 250, 97 Fed. 765, 27— In re Lesser, 108 Fed. 205, 5 A. ref. dee. 2 N. B. N. E. 684; In re Webb, B. E. 331. 2 N. B. N. E. 289, 3 A. B. E. 386, 98 28— In re Finkelstein, 2 N. B., N. E. Fed. 404, ref. dee. 2 N. B. N. E. 11, 3 839, 101 Fed. 418, 3 A. B. E. 800; In A. B. E. 204; In re Freund, 2 N. B. re Ablowich, 2 N. B. N. E. 386, 3 A. B. N. E. 236, 3 A. B. E. 418, 98 Fed. 81. E. 586, 98 Fed. 81; In re O 'ffara, 3 25 — United States v. Levinson & Korn- A. B. E. 349, 97 Fed 952; In re Schlesin- blut, 13 A. B. E. 29; Cohen v. United ger, 2 N. B. N. E. 169, 3 A. B. E. 342, States, 157 Fed. 651, 19 A. B. E. 8, 97 Fed. 930; In re Meyers, 2 A. B. E. aff'g 142 Fed. 983, 15 A. B. E. 357; 707, 1 N. B. N. 515, 96 Fed. 408; In re Warren v. United States, 199 Fed. 753, Friedman, 1 N. B. N. 332, 2 A. B. B. 43 L. E. A. (N. B.) 278, 29 A. B; E. 301; In re Purvine, 1 N. B. N. 326, 2 555. ■ A. B. E. 787, 96 Fed. 192; In re Eosser, 26— In re Earner, 2 N. B. N. E. 268; 1 N. B. N. 469, 2 A. B. E. 746, 96 FeB. In re Quackenbush, 2 N. B. N. E. 964, 308; In re Tudor, 1 N. B. N. 476, 2 A. 4 A. B. E. 274, 102 Fed. 282; Citizens B. E. 808, 96 Fed. 942, Eipon Knitting Bank of Salem v. De Paw Co., 3 N. B. N. Works v. Sehreiber, 2 N. B. N. E. 545, E. 244; In re McNamara, 2 A. B. E. 101 Fed. 810, 4 A. B. E. 299; In re- §1611] ■'GEiMES AND" OFFENSES . 1187 give a satisfactoiy explanation will not make it so.*^ The omis- sion of prqperty conveyed by bankrupt to his wife for the pur- pose of covering it up is an offense und6r this provision; *" but it is not for an attorney at law to omit listing contracts for con- tingent fees unearned; *^ and whether or not failure to list an interest in remainder under a will constitutes the offense depends upon whether the interest can be subjected to the claims of creditors in any way.*^ It is no excuse for the bankrupt to say that he omitted property from his schedules on the ground that he would be entitled to such property as an exemption.^* The amount or value of the property concealed is iinmaterial.** The bankrupt is none the less guilty of concealing assets because the facts and circumstances relating to the fraudulent transfer were made known to the trustee on bankrupt's examination, the essence of the offense being the placing of the property out of the trustee's reach by the bankrupt with intent to retain it for himself. ^^ f The .filing of amended schedules giving a full statement of property including that which was originally omitted, or assist- mg the trustee in obtaining possession of property not originally scheduled, while evidence 'tending to show the absence of an unlawful intent, is not a conclusive answer to a charge of con- cealment, and should not be considered as avoiding the conse- quences of the unlawful act.*" The wilful and fraudulent omis- sion by bankrupt of part of his assets from his schedules may be cause for prosecution under the act, but it is not an infamous crime as the term is used at common law and in the fifth amend- ment to the constitution.^'' Kuntz, 1 N. B. N. 256; In re Mendelsohn, B. N. 506, 3 A. B. E. 55, 06 Fed. 536; i N. B. N. 391. In re Hoadlej, 2 N. B. N. E. 704, 101 29— In re IdzaU, 2 A. B. E. 741, 96 Ted. 233, 3 A. B. E. 780; In re St. John, Fed. 314. 3 N. B. N. E. 114. 30— In re Skinner, 3 A. B. E. 163, 33— In re Eoyal, 112 Fed. 135, 7 A. 97 Fed. 190; In re Welch, 1 N. B. N. B. E. 106; see In re Lemmel, 118 Fed. 533, 3 A. B. R. 93, 100 Fed. 65; but 487. see In re De Leeuw, 2 N. B. N. E. 267, 34^-In re Hirshowitz, 194 Fed. 562, 3 A. B. E. 418, 98 Fed. 408; In re 27 A. B. R. 701. Freund; 2 N. B. N. E. 236, 3 A. B. E. 35— In re Quackenbush, 2 N. B. N. E. flS', 98 Fed. 81. 964, 102 Fed. 282, 4 A. B. E. 274. 31— In re McAdam, 2 N. B. N. E. 256, 36— Kern v. United States, 169 Fed. 3 A. B. E. 417, 98 Fed. 409. 617, 22 A. B. B. 223; In re Eaton, 110 32— In re Wetmore, 99 Fed. 703, 3 Fed. 731, 6 A. B. E. 531. A. B. B. 700; In re Wood, 98 Fed. 972, .37— IT. S. v. Block, 15 N. B. E. 325, 4 5 A. B. B. 572; In re Baudoine, 1 N. Sawy. 211, Fed. Cas; No. 14609. 1188 Beandenbtirg on Bankettptct [§ 1611 A charge of fraud in the concealment of a bankrupt's estate from wMcli the badges and indicia of fraud are deducible must be overcome by positive testimony.^* § 1612. False oath or account. The act expressly makes it an offense to make a false oath or account in, or in relation to any proceeding in bankruptcy.^' The offense may be committed by persons other than the bank- rupt.*" The same rule as to the time of making the oath applies as was stated in the preceding section of this chapter as to the con- cealing of assets, that is, it must have been after the passage of the act of July 1, 1898. A false oath is a wilful, deliberate, inten- tional falsehood; or statement of something that the person making it knows or should know is untrue, or recklessly makes, without knowing whether it is true or not,*^ or without having reasonable grounds for believing it to be true, in regard to a material matter; ^^ and may be in any part of the bankruptcy proceedings,*^ but it must be all material to the proceedings in bankruptcy, and have some relation to the bankrupt's estate or his acts affecting his estate and be knowingly and fraudulently made.** Thus the offense is committed in making a pauper affi- davit when bankrupt lives in affluence and the entire circum- stance shows that he has the control of money; *^ or where he 38 — In re Goodridge, 2 N. B. B. 105, judication. United States v. Liberman, Fed. Cas. No. 5547. 176 Fed. 161, 23 A. B. E. 734. 39 — Section 29b (2), Act of 1898. An indictment for perjury may bo 40 — United States v. Waldman, 188 predicated upon false swearing by the Fed. 524, 26 A. B. R. 677. bankrupt in an examination to determine 41 — In re White, 1 N. B. N. 202. the validity of a creditor's claim. United 42 — In re Huber, 1 N. B. N. 431; In States v. Simon, 146 Fed. 89, 17 A. B. re Strouse, 2 N. B. N. E. 64; In re E. 41. Bushnell, 1 N. B. N. 528; In re Lem- False oath in proceedings for a dis- mel, 118 Fed. 487. cliarge is an offense. ' Edelstein v. 43— In re Conroy, 134 Fed. 764, 14 United States, 149 Fed. 636, 9 L. E. A. A. B. E. 249. (N. S.) 236, 17 A. B. E. 649; In re False oath includes the commission Kretsch, 172 Fed. 523, 22 A. B. E. 284. of perjury in the making of schedules, 44 — ^Bauman v. Feist, 107 Fed. 83, 5 or on an examination. In re Adams, A.. B. E. 703. 171 Fed. 599, 22 A. B. E. 613. 45— In re Williams, 2 N. B. N. E. Indictment may be predicated upon 206, but see Sellers v. Bell, 94 Fed. 801, false swearing at an examination before 2 A. B. E. 529. a special commissioner prior to the ad- § 1612] Ckimes and Offenses 1189 states in his schedule that all of his property was turned over to a state receiver, which was not true.** The verification of schedules from which valuable property is knowingly omitted or which contains a false statement con- stitutes a false oath, if the omission was with fraudulent intent; " thus it would constitute a false oath for the bankrupt to state in his schedules that he has paid nothing to his attorneys for their services and had assigned no property, when he had given them an order for money due for services, but not yet payable, in payment of a past indebtedness to such attorneys; ** or when he states that an indebtedness is a bona fide loan when the facts and circumstances fail to carry it out; *® or where he is called upon to explain the disposition of money drawn by him from his business and adopted a method of accounting which enabled him to avoid an explanation of what he did with a large smn;^" or where he produces a false and inaccurate statement of expenditures for the purpose of making a good showing as to the disposition of a sum of money.^^ A false oath as to the ownership of property is an offense and will prevent a discharge even though the property cannot be administered in the pro- ceeding.''^ Wherever the offense of concealing property from the trustee is committed by its omission from the schedules, or failure to disclose it on examination, there will also be a false oath; but there may be omission from the schedules which will make the oath to them false but will not constitute knowingly and fraudu- lently concealing property from the tmstee.^^ A bankrupt is not guilty of making a false oath when he omits from his sworn schedule securities which are absolutely worthless,^* and the omission from bankrupt's schedules of stock held by his wife which was purchased with money borrowed by her would not 46— In re Lesser, 108 Fed. 205, 5 A. 50— In re Dews, 2 N. B. N. E. 437, 3 B. R. 331. . A. B. B. 691, 101 Fed. 549. 47— In re Adams, 171 Fed. 599, 22 51— In re Dews, 2 N. B. N. E. 437, A, B. E. 613; In re Eaton, 110 Fed. 101 Fed. 549, 3 A. B. E. 691. 731, 6 A. B. E. 531; In re Becker, 106 52— In re Conroy, 134 Fed. 764, 14 A. Fed. 54, 5 A. B. E. 438; In re Leimnel, B. E. 249. 118 Fed. 487; Osborne v. Perkins, 112 53— In re Hirsoh, 96 Fed. 468, 2 A. Fed. 127, 7 A. B. E. 250. B. E. 715. 48— In re Lewin, 103 Fed. 852. 54— In re MeCrea, 161 Fed. 246, 20 L. 49— In re Kamsler, 2 N. B. N. E. 97, E< A. (N. S.) 246, 20 A. B. E. 412. 97 Fed. 194. 1190 Bkandenbukg on Bankruptcy [§ 1612 make the oath a false one, merely because he was employed as manager of the corporation whose stock she held; ^* and, where by agreement between counsel certain testimony given by bank- rupt in another proceeding and claimed to be partly false was made part of the record, but bankrupt was not sworn, there is no false oath in relation to any proceeding in bankruptcy,^® The finding of a special master that the bankrupt did not commit perjury has been sustained even though the testimony was exceedingly suspicious.^'^ Evidence that books which the bankrupt swore were destroyed by fire on a given date were in his possession several weeks after the date of the fire is sufficient to show the commission of the offense.^* The immunity afforded by section 7 subdivision 9, is no bar to a prosecution for perjury in giving testimony under the cominand of that section.^** The failure of the petition in bankruptcy to allege that the bankrupts were not excepted from the provisions of the act,®" or the filing of an amended schedule or assisting the trustee in obtaining possession of property not originally scheduled,®^ can- not be set up as a defense to a prosecution for false oath. § 1613. Subornation of perjury. One who suborns another to make a false oath in bankruptcy proceedings may be punished under section 5393 of the Revised Statutes.®^ § 1614. Advice of counsel as a defense. To constitute the offense both in the case of "concealment of assets" and the "making of a false oath," it must be done knowingly and fraudulently. Hence where a bankrupt has fully and fairly laid all the facts in relation to scheduling certain 55 — Fellows v. Frendenthal, 102 Fed. E. 493 ; In re Dow, 105 Fed. 889, 5 A. B. 731, 4 A. B. E. 490. E. 405; In re Leslie, 119 Fed. 406; con- 56— In re Goldsmith, 101 Fed. 570, tra, In re Marx, 102 Fed. 676, 4 A. B. E. 4 A. B. E. 234, 2 N. B. N. E. 1013. 521; In re Logan, 102 Fed. 876, 4 A. B. 57 — In re Schwartz, 179 Fed. 767, 23 K. 525. A. B. E. 37. 60— Edelstein v. United States, 149 58 — KovolofE V. United States, 202 Fed. 636, 9 L. E. A. (N. S.) 236, 17 A. Fed. 475, 28 A. B. E. 767. B. E. 649. 59 — Glicksteiu v. United States, 222 61 — Kern v. United States, 169 Fed. U. S. 139, 56 L. ed. 128, 27 A. B. E. 786; 617, 22 A. B. E. 223. In re Gaylord, 112 Fed. 668, 7 A. B. E. 62— Epstein v. United States, 196 Fed. 1; In re Goodale, 109 Fed. 783, 6 A. B. 354, 28 A. B. E. 561. § 1618] Crimes and Offenses 1191 property before Ms attorney, and received advice that it is not such an asset as should properly be scheduled in bankruptcy, such advice, however erroneous, tends to deprive a " concealment of assets" or a "false oath" of the elements of "wilfulness and fraud," and, in case of a false oath, a conviction, of perjury could not be maintained, and the offense under this provision wotild not be committed; but such advice must have been given in good faith.«* , i,,M ;■; § 1615. Presentment of false claim. The presentment under oath of a false claim for "proof against the estate of a bankrupt, or the use of such claim in composition personally or by agent, proxy, or attorney, or as agent, projcy, or attorney is expressly made an offense.®* § 1616. Receiving property from bankrupt. The act expressly defines the offense to be "receiving any material amount of property from a bankrupt after the filing of the petition, with intent to defeat this act;" and hence the receipt of money from a bankrupt prior to the filing of the peti- tion, no matter what the amount or how clear the intent to defeat the act, is not an offense under the act; though the trustee may recover it by proper proceedings.®' Where a bankrupt transfers mortgaged property to a mortgagee after the filing of a petition and before control is taken for the benefit of the estate, both the bankrupt and the mortgagee would be liable to punish- ment.®* § 1617. Buying off opposition to discharge. , The purchase of a claim for the purpose of preventing or reducing opposition to a discharge is not an offense,®'' §1618. Extortion. ' Any person who extorts or attempts to extort any money or property from another as a consideration for acting or forbear- 63— In re Shenberger, 2 N. B. N. B. Wyatt, ^2 N. B. R. 84, Fed. Cas. No. 783, 102 Fed. 978, 4 A. B. E. 487; In re 18106. Headley, 2 N. B. N. E. 684; s. e. 3 A. 64— Section 29b (3), Act of 1898j B. B. 272, 2 N. B. N. E. 250, 97 Fed. 765; 65— Wayne Knitting Mills v. Nugent, In re Schreok, 3 McLean 573, Fed. Cas. 3 N. B. N. E. 32, 104 Fed. 530. . ., No. 14847; In re Eainsford, 5 N. B. R. 66— In re Arnett, 112 Fed. 770, 7 A. 381, Fed. Cas. No. 11537; Hall v. Buy- B. B. 522. dam, 6 Barb. (N. T.) 63; Sherman v. 67— In re Luftig, 162 Fed. 322, 15 A. Kortright, 52 Barb. (N. T.) 261; In re B. E. 773. 1192 Brandenburg on Bankruptcy [§ 1618 ing to act in bankruptcy proceedings is guilty of an offense by the express provisions of the act.^^ The provisions of the act do not apply to a creditor who loans money to the bankrupt with which to perform a composition agreement under an agree- ment whereby the bankrupt is to pay such creditor's claim in full.«9 §1619. Conspiracy. Although section 29b requires as a principal offender a bank- rupt, it is applicable not only to the bankrupt, but also to all persons who unite with the bankinipt as participants in the act which is made an offense.'"' A conspiracy to conceal property from the trustee may exist prior to the appointment of the trustee or the filing of the petition in bankruptcy, in which case it is punishable under section 5440 of the Eevised Statutes which makes it an offense for two or more persons to conspire to com- mit an offense against the United States.'^^ A corporation may be guilty of conspiring to conceal assets.'* The fact that the bankrupt is not indicted is no defense to a prosecution for con- spiracy.''* § 1620. Offenses by referees. Section 29c of the act provides that, "A person shall be pun- ished by fine, not to exceed five hundred dollars, and forfeit his office, and the same shall thereupon become vacant, upon convic- tion of the offense of having knowingly (1) Acted as a referee in a case in which he is directly or indirectly interested; or (2) Purchased, while a referee, directly or indirectly, any property of the estate in bankruptcy of which he is referee; or (3) Eefused, while a referee or trustee, to permit a reason- able opportunity for the inspection of the accounts relating to 68— Section 29b (5), Act of 1898. 810, 2# A. B. E. 489; United States v. 69— Zabelo v. Eeeves, 227 U. S. 625, Young & Holland Co., 170 Ped. 110, 22 57 L. ed. 676, 29 A. B. R. 493. A. B. E. 484; Radin v. United States, 189 70 — United States v. Young & Hoi- Fed. 568, 25 A. B. E. 640. land Co., 170 Fed. 110, 22 A. B. E. 484; 72— United States v. Young & Holland Cohen v. United States, 157 Fed. 651, 19 Co., 170 Fed. 110, 22 A. B. E. 484. A. B. E. 8, aff'g 142 Fed. 983, 15 A. B. 73— Cohen v. United States, 157 Fed. E. 357. But see United States v. Grod- 651, 19 A. B. E. 8, aff'g 142 Fed. 983, son, 164 Fed. 157, 21 A. B. E. 68. 15 A. B. E. 357. 71— Alkon V. United States, 163 Fed. § 1621] Cbimbs and Offenses 1193 • the affairs of, and the papers and records of, estates in his charge by parties in interest when directed by the court so to do. ' ' Section 39b of the act provides that, "Eeferees shall not (1) act in cases in which they are directly or indirectly interested; (2) practice as attorneys and counselors at law in any ^ bank- ruptcy proceedings; or (3) purchase, directly or indirectly, any- property of ain estate in bankruptcy." ''* Violations of any of these provisions, or a refusal to permit a reasonable opportunity for an inspection of the accounts and papers relating to estates by parties in interest may be tried by district courts,'^® and, upon conviction, the referee becomes liable to a fine and the forfeiture of his office.'^^ §1621. Offenses by trustee. Section 29a of the act provides that "A person shall be pun- ished, by imprisonment for a period not to exceed five years, upon conviction of the offense of having knowingly and fraudu- lently appropriated to his own use, embezzled, spent, or unlaw- fully transferred any property or secreted or destroyed any docu- ment belonging to a bankrupt estate which came into his charge as trustee." This provision is. for the punishment of the trustee if he knowingly and fraudulently appropriates to his own use, embezzles, spends or unlawfully transfers any property or secretes or destroys any document belonging to a bankrupt estate which comes into his charge as such trustee, and has no reference to the bankrupt nor to anyone else.'''' In the event the trustee misappropriates funds, he cannot be compelled to testify, if he refuses to answer upon the ground that his answer may incriminate him.''® 74 — Analogous provision of act of tor, administrator, guardian, commis- 1867. "See. 3. . . . That he will sioner, appraiser, divider, or assignee of not, during his continuance in office, be, or upon any estate within the jurisdie- directly or indirectly, interested in or tion of either of said • courts of bank- benefited by the fees or emoluments aris- ruptcy, nor be interested in the fees or ing from any suit or matter pending in emoluments arising from either of said bankruptcy, in either the district or cir- trusts." cuit court in his district. "" 75 — Section 23e, Act of 1898. "Sec. 4. ... No register shall be 76— Section 29c, Act of 1898. of counsel or attorney, either in or out 77 — See In re Webb, 2 N. B. N. R. of court, in aay suit or matter pending 11, 3 A. B. E. 204. in bankruptcy in either the circuit or 78— In re Smith, 112 Fed. 509, 7 A. B. district court of Ms district, nor In an R. 213. appeal therefrom, nor shaJl he be execu- 1194 Beandenbueg on Bankbuptcy [§ 1622 § 1622. Limitations upon prosecutions. Section 29d is absolutely prohibitive to the prosecution for an offense arising under the law, unless the indictment is found or the information is filed within one year after its commission, and such time can under no condition be extended.'^* The section is, however, inapplicable to a prosecution for conspiring to commit an offense under the bankruptcy act.^" In case of concealment of assets the limitations commence to run from the time that a demand is made for the property thought to be concealed,*^ though it is held that the statute begins to run from the time of the commission of the overt acts amounting to concealment, and that mere silence and passivity on the part of the bankrupt after the alleged concealment does not make the offense a con- tinuing one so as to stay the running of the statute.*^ § 1623. Evidence before grand jury. The use in evidence before the grand jury of the pleadings in the bankruptcy proceedings ®^ or the taking of the bankrupt's books by the receiver and their use before the grand jury in procuring an indictment against him®* or the production of books of the bankrupt, transferred to the trustee in accordance with section 70 of the act, before the grand jury,®^ is not improper and is no bar to a prosecution. The use of the schedules of the bankrupt by the grand jury in determining whether to indict or not has been held a violation of section 7a (9) and to constitute grounds for the dismissal of the indictment.*® § 1624. Indictment or information. Offenses under the act may be prosecuted on information or indictment.*'^ The indictment should aver scienter and all essen- ?9— See In re Webb, 2 N. B. N. E. 11, 83— TTnited States v. Brod, 176 Fed. 3 A. B. E. 204; United States v. Phillips, 165, 23 A. B. E. 740. 196 Fed. 574, 27 A. B. E. 625. 84— United States v. Halstead, 38 App. 30— United States v. Comstock, 161 Cas. (D. C.) 69, 27 A. B. E. 302. Fed. 644, 20 A. B. E. 526. 85 — Johnson v. United States, 228 U. 81— United States v. f»hillips, 196 Fed. S. 457, 57 L. ed. 919, 30 A. B. E. 14. 674, 27 A. B. E. 625. 86— United States v. Chambers, 135 82— Warren v. United States, 199' Fed. Fed. 1023, 13 A. B. E. 708. 753, 43 L, E. A, (N. S.) 278, 29 A. B. 87— U. S. v. Block, 15 N. B. E. 325, E. 555. 4 Sawy. 211, Fed. Cas. No. 14609. § 1624] Crimes and Offenses ' 1195 tial facts necessary to constitute the offense as defined in ijhe act,^* clearly and explicitly.^*' The indictment is not insuflScient because it fails to state, ;what tribunal appointed the trustee named in it, or that the person appointed accepted the appointment, or gave bond, or ever qualified.^" The particular mode of concealment need not be alleged ^^ and where the evidence is wholly circumstantial it has been held unnecessary to aver the precise details of the' act of conceal- ment.®^ A concealment from the trustee after his appointment and a failure to deliver over to him upon demand any property which the bankrupt may have in his possession is an offense as of any date the concealment continues and may be charged as such in the indictment.** No allegations of ownership save that the property belonged to the estate in bankruptcy is necessary.** A charge that the accused did unlawfully, knowingly, wilfully and fraudulently conceal certain property from his trustee is suffi- cient without a further averment that the accused knew the property belonged to the estate.®^ While the omission of the words "knowingly and fraudu- lently" in an indictment charging a conspiracy to coiiceal assets is fatal on demurrer,*® the words "unlawfully, knowingly and fraudulently" sufficiently charge wrongful intent, and the omis- sion of the word "wilful" is not fatal.*'' A conspiracy to' con- ceal property from the trustee may exist prior to the appoint- ment of the trustee. Hence it is not necessary that, an indict- 88— r. S. V. Presoott, 4 N. B. N. E. 29, 92— In re BeUah, 116 Pei 69, 8 A. B. 2 Biss. 325, Fed. Cas. No. 16084; but see E. 310. . ' " United States v. Comstock, 161 Fed. 644, 93— United States v. Stern, 186 Fed. 20 A. B. E. 520, holding that it is suffl- 854, 26 A. B. E. 110. cient to charge the offense in the 94 — United States v. Comstock, 161 language of the statute. Fed. 644, 20 A. B. E. 520. 89— KovolofE V. United States, 202 95— McNiel v. United States, 150 Fed. Fed. 475, 28 A. B. E. 767. 82, 18 A. B. E. 18. ' 90— Allegation that the person named 96 — United States y. Comstqok, 162 as trustee, was "duly appointed trustee" Fed. 415, 20 A. B. E. 525. held sufttcient. Kerrch v. United States, 97 — United States v. Comstoek, 161 171 Fed. 366, 22 A. B. E. 544. Fed. 644, 20 A. B. E. 520. 91— United States v. Comstock, 161 Fed. 644, 20 A. B. K. 520. 1196 Beandenbueg on Bankbtjptcy [§ 1624 ment charging such conspiracy should allege the appointment of a trustee.®* An indictment against the president of a corporation for caus- ing it to conceal assets need not allege that the corporation was one capable of being adjudged a bankrupt under section 4b, in order to show the jurisdiction of the bankruptcy court.®® An indictment charging the bankrupt with perjury under sec- tion 29b for having falsely omitted fi:om his schedule certain of his property, must not alone allege that his deposition in tha,t regard was false, but also that he had other property which was omitted, and which should be described, since the indict- ment should not alone set forth the substance of the offense, but there should be proper averments to falsify the matter wherein the perjury is assigned.^ When the allegations of the indictment show the materiality of the alleged false statements, an allegation that such statements were material is superfluous.^ An indictment for perjury under section 5392 of the Eevised Statutes must allege that the alleged false oath was taken wil- fully.^ An indictment charging a conspiracy to give false oaths which fails to state what false oaths were to be given or what the subject of the false oaths was with reasonable particularity' is insufficient.* § 1625. Disqualification of judge. The fact that the judge, conducting a hearing to discover assets, upon the conclusion thereof, states he is convinced that the estate has been looted by some one and directs a prosecuting officer to investigate the matter thoroughly does not disqualify 98 — Badin v. United States, 189 Fed. Assets charged to have been fraudu- 568, 25 A. B. E. 640; Alkon v. United lently and knowingly omitted from the States, 163 Fed. 810, 22 A. B. E. 489. schedules held to have been described 99— United States v. Freed, 179 Fed. with sufficient particularity. United 236, 25 A. B. E. 89. ' States v. Lake, 129 Fed. 499, 12 A. B. 1— Bartlett v. U. S., 106 Fed. 884, 5 A. E. 270. B. E. 678; Markham v. U. S., 160 U. S. 2— United States v. Lake, 129 Fed. 499, 319, 40 L. ed. 441; U. S. v. Mann, 95 U. 12 A. B. E. 270. S. (5 Otto) 580, 24 L. ed. 531; contra, 3— United States v. Lake, 129 Fed. 499, United States v. Freed, 179 Fed. 236, 12 A. B. E. 270. 25 A. B. E. 89. 4— United States v. Waldman, 188 Fed. Indictment held sufficient. Daniels v. 524, 26 A. B. E. 677. United States, 196 Fed. 459, 27 A. B. E. 791. §1628] Cbimbs and Offenses 1197 liim from presiding at a subsequent prosecution of an alleged offense.* § 1626. Jury trials. ' The act provides that alleged offenses may be submitted to a jury according to the laws of the United States at the time of its passage, or such as might thereafter be enacted in relation to trials by jury.* § 1627. Presumptions and burden of proof. The burden is upon the prosecution to show the concealment of assets beyond a reasonable doubt.'' Proof of the concealment of any part of the property charged to have been concealed will warrant a conviction.* "Where the property alleged to have been concealed was conveyed by the bankrupt by warranty deed the presumption is that the bankrupt acted legally and in good faith .in making the conveyance.* § 1628. Evidence at the trial. The judge may exclude evidence of facts which, though rele- vant to the issue, are too remote to be material.^" The conceal- ment of assets or the existence of a conspiracy to conceal assets may be proved by circumstantial evidence.^^ Statements of an alleged perjurer other than those claimed to have been false as are necessary to make the charge intelligible may be introduced in evidence.^^ 5— Epstein v. United States, 196 Fed. v. United States, 170 Fed. 581, 22 A. B. 354, 28 A. B. E. 561. E*359. 6 — Section 19e, Act of 1898; Boyd v. Rule applied to evidence that attorney Glucklich, 116 Fed. 131, 8 A. B. E. 393. told bankrupt to keep open his place of 7 — Chodowski v. United States, 194 business until the evening of the day on Fed. 858, 28 A. B. R. 62; but see In re -which the petition was filed. McNiel v. Leslie, 119 Fed. 406, 9 A. B. R. 561. United States, 150 Fed. 82, 18 A. B. E. 8— United States v. Stern, 186 Fed. 18. 854, 26 A. B. R. 110. 11— Stem v. United States, 193 Fed. 9— Chodkowski v. United States, 194 888, 28 A. B. R. 101; Radin v. United Fed. 858, 28 A. B. E. 62. States, 189 Fed. 568, 25 A. B. E. 640; 10— Bean v. United States, 192 Fed. Stern v. United States, 193 Fed. 888, 22 859, 27 A. B. E. 759; Daniels v. United A. B. E. 101; United States v. Stern, 186 StsLtes, 196 Fed. 459, 27 A. B. E. 790. Fed. 854, 26 A. B. E. 110 ; United States Hule applied to testimony of the bank- v. Levinson & Kornblut, 13 A. B. E. 29. rupt's wife that up to the time of the 12 — Cameron v. United States, 192 Fed. bankruptcy the bankrupt was paying all 548, 27 A. B. E. 657. his creditors in the usual way. Johnson 1198 Beandenbusg ON Bankkuptcy [§1628 Section 7, clause 9, of the act provides that no testimony given by the bankrupt shall be offered in evidence against him in any criminal proceeding. The examination before the referee can- hot be used by the prosecuting attorney in his cross examina- tion of the bankrupt for the purpose of itnpeaching him.^* Testi- mony of the trustee that he had never learned from the bankrupt that there was property-belonging to him at a certain place is not objectionable as an attempt, by indirect method, to disclose, the bankrupt's testimohy before the referee.^* It is held, however, that testimony of the bankrupt in parts of his examination other than that made the basis of the charge may be' given in evi- dence.^^ The immunity found in section "7 (9) does not prevent the use of the defendant's testimony in the bankruptcy proceed- ings from being used against him in a prosecution for false swearing,^® but testimony given in one bankruptcy proceeding, not tending to establish perjury in that proceeding, cannot be used to establish perjury in subsequent bankruptcy pro.- ceedings.^'' Books of the bankrupt in possession of the receiver,^® as well as books transferred to the trustee in accordance with section 70 of the act,^* are admissible in a prosecution for concealment of assets or for conspiring to conceal assets. Testimony of an expert accountant based upon an examination of books which the bankrupt has delivered to his trustee is not inadmissible against him under section 7 (9).^^ Prior to the act of May 7, 1910, expressly repealing section 860 of the Eevised Statutes the schedules filed by the bankrupt, whether in voluntary or involuntary proceedings were inadmis- sible in a prosecution for concealing assets.^^ The repeal of that 13 — Jacobs V. United States, 161 Fed. 16 A. B. R. 1; contra, United States v. 694, 20 A. B. E. 550. Simon, 146 Fed. 89,-17. A. B. B. 41. 14 — Johnson v. United States, 170 Fed. 17 — Cameron v. United States, 231 U. 581, 22 A. B. E. 359. S. 710, 58 L. ed. 448, 31 A. B. E. 604, 15— Daniels v. United States, 196 Fed. rev'g 192 Fed. 548, 27 A. B. E. 657. 459, 27 A. B. E. 790. 18— Kerrch v. United States, 171 Fed. 16— Cameron v. United States, 231 U. 366, 22 A. B. E. 544. S. 710, 58 L. ed. 448, 31 A. B. E. 604, 19— Johnson v. United States, 228 U. rev'g 192 Fed. 548, 27 A. B. E. 657; 8. 457, 57 L. ed. 919, 47 L. E. A. (N. S.) United States v. Brod, 176 Fed. 165, 23 263, 30 A. B. E. 14. A. B. E. 740; Bdelstein v. United States, 20 — Ensign v. Commonwealth of Penn- 149 Fed. 636, 9 L. E. A. (N. S.) 236, eylvania, 227 U. S. 592, 57 L. ed. 658, 17 A. B. E. 649; Wechsler v. United 30 A. B. E; 408. States, 158 Fed. 579, 19 A. B. E. 1, rev'g 21— Johnson v. U, S., 163 Fed. 30, 18 §1630] Obimes and Offenses 1199 section cannot be given a retroactive effect.^^ Schedules filed by the bankrupt and testimony of an accountant based upon books turned over by the bankrupt to the trustee have been held ad- missible in a criminal proceeding in a. state court against the bankrupt.^* Creditor's proofs of claim are inadmissible to show the pur- chase prior to bankruptcy of the property alleged to have been concealed.^* §1629. Penalties. The penalty for false swearing is controlled by section 29 of the bankruptcy act, and not by the section 5392 of the Eevised Statutes; but the fact that bankrupt, found guilty of false swear- ing, is sentenced under section 5392 and a punishment in excess of that provided for by the bankruptcy act is imposed does not involve an entire failure of prosecution, and in such case the appellate court may remand the cause with instructions to impose sentence under the bankruptcy act.^^ §1630. Habeas corpus. In. any case in which the imprisonment is claimed to be in contravention of the act, the same remedy by habeas corpus may be pursued in addition to any other remedies, as in other cases of unlawful imprisonment, in which case the usual practice in habeas corpus cases will govern. L. B. A. (N. S.) 1194, 20 A. B. E. 724; -24— Jacobs v. TTnited States, 161 Fed. Cohen v. United States, 170 Fed. 715, 694, 20 A. B. R. 550. 22 A. B. E. 333. , 25— Weehsler v. United States, 158 22— Cameron v. United States, 231 U. Fed. 579, 19 A. B. E. 1, rev'g 16 A. B. , S. 710, 58 L. ed. 448, 31 A. B. E. 604, E. 1. rev'g 192 Fed. 548, 27 A. B. E. 657. 23 — Commonwealth v. Ensign^ 40 Pa. Super. Ct. 157, 22 A. B. E. 797. CHAPTER XXXVm Appellate Jubisdiction § 1631. Modes of appeal provided exclusive. § 1632. Petition to revise and appeal in same case. § 1633. Appeals in bankruptcy proceedings proper. 1 1634. — In general. §1635. — From whose decisions. § 1636. — Appealable cases. § 1637. — Parties to the appeal. § 1638. — Scope of review. § 1639. Controversies arising in bankruptcy proceedings, § 1640. — In general. § 1641. — Appealable cases § 1642. — Scope of review. § 1643. Writs of error to circuit court of appeals. § 1644. Mandamus. § 1645. Time for appeal. § 1646. Procedure in taking appeals. § 1647. Appeal bonds. § 1648. Effect of appeal to circuit court of appeals. § 1649. Rehearing in circuit court of appeals. • § 1650. Eevision of bankruptcy proceedings. § 1651. — In general. § 1652. — What may be reviewed. § 1653. — What may not be reviewed. § 1654. — Time for presenting petition. § 1655 — Practice. § 1656. — Dismissal, afirmanee or reversal. § 1657. The Supreme Court of the United States. § 1658. — Statutory provisions as to appeals generally. § 1659. — What constitutes matter or amount in controversy. § 1660. — Appeals from the highest court of a state. § 1661. — ■ Appeals in bankruptcy' proceedings proper. § 1662. — Controversies arising in bankruptcy proceedings. § 1663. — Appeals from courts not in organized circuits. § 1664. — Appeals from District of Columbia. § 1665. — Certification of cases and certiorari. § 1666. — Practice in taking appeals. § 1667. — Time of appeal. § 1668. — Effect of appeal. § 1631. Modes of appeal provided exclusive. Three methods of review are provided by the bantrnptcy act, (1) a review in matter of law of all orders in bankruptcy except 1200 f 1632] ' " Ai>I»BLLATB JUEISDICTION 1201 those provided for in the second method; ^ (2) an appeal in case of orders adjudging or refusing to adjudge bankrupt; granting or denying a discharge, which is held to include granting or refusing an order confirming a composition; ^ or allowing or rejecting a claim of $500 or over; and (3) an appeal in the usual way in controversies arising in bankruptcy proceedings.^ As to questions arising in the bankruptcy proceedings proper the modes of review specifically provided by the bankruptcy act are exclusive.* Provisions in the act for appeal and for review on petition are mutually exclusive, and the revisory jurisdiction does not include any orders or decrees which are appealable or review- able upon writ of error and vice versa.® § 1632. Petition to revise and appeal in same case. An appeal may be taken and a petition to revise filed in the same case." This practice has been frequently followed due to the confusion as to the proper form of proceeding to employ. Where a case before the appellate court on appeal and petition for review, is heard on the appeal, the petition will be dismissed.'^ 1— Section 24b, Act of 1898. 132; In re Holmes, 142 Fed. 391, 15 2— Section 25a, Act of 1898. A. B. E. 689; In re McKenzie, 142 Fed. 3— Section 24a, Act of 1898. 383, 15 A. B. E. 679, aff'g 132 Fed. 986, 4— Calnan Co. v. Doherty, 224 XJ. S. 13 A. B. E. 227. Sections 24a and 24b 145, 56 L. ed. 702, 27 A. B. E. 880; are cumulative. In re Lee, 182 Fed. 579, Tefft, Waller & Co. v. Munsuri, 222 U. S. 25 A. B. E. 436. Sections 24b and 25a 114, 56 L. ed. 118, 27 A. B. E. 338; are cumulative. Stevens v. Nave-McCord Munsuri v. Fricker, 222 IT. S. 121, 56 L. Mercantile Co., 150 Fed. 71, 17 A. B. E. ed. 121, 27 A. B. E. 344. 609. 5— Kirsner v. Taliaferro, 202 Fed. 51, 6— Wells & Co. v. Sharp, 208 Fed. 399, 29 A. B. E. 832; Morehouse v. Pacific 31 A. B. E. 348; Martin v.. Globe Bank & Hardware & Steel Co., 177 Fed. 337, 24 Trust Co., 193 Fed. 841, 27 A. B. E. 545; A. B. E. 178; In re Friend, 134 Fed. 778, In re Heeox, 164 Fed. 823, 21 A. B. E. 13 A. B. E. 595. Sections 24a and 24b 314; Bode & Horn v. Phipps, 195 Fed. are exclusive. In re Martin, 198 Fed. 414, 27 A. B. E. 827 ; Maxwell v. McDan- 947, 29 A. B. E. 935; O'Dell v. Boyden, iels, 195 Fed. 426, 27 A. B. E. 692; Imp: 150 Fed. 731, 17 A. B. E. 751; Barnes v. Co. v. Bradbury, 132 U. S. 509, 515, 33 Pampel, 192 Fed. 525, 27 A. B. E. 192. L. ed. 433; In re Fisher, 103 Fed. 860, 4 Sections 24b and 25a are exclusive. In re A. B. E. 646 ; In re Worcester Co., 102 Doyle, 205 Fed. 543, 30 A. B. E. 58 ; Fed. 808, 4 A. B. E. 496 ; III re Jourdan, Adams v. Lumber Co., 202 Fed. 48, 29 111 Fed. 726, 7 A. B. E. 186. A. B. E. 42; In re Loving, 224 U. S. 183, »7 — Merehants-Laelede Nat. Bank v. 56 L. ed. 725, 27 A. B. E. 852; In re Schade, 195 Fed. 199, 27 A. B. E. 687; Mueller, 135 Fed. 711, 14 A. B. E. 256. Hendricks v. Webster, 159 Fed. 927, 20 Contra: Thomas v. Woods, 173 Fed. A. B. E. 112. 585, 26 L. E. A. (N. S.) 1180, 23 A. B. B. Brandenburg — 76 1202 BBANDENBtJEG ON BaNKEUPTCY § 1633. Appeals in bankruptcy proceedings proper. [§ 1633 §1634. —In general. Section 25a of the act provides 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, (1) from a judgment adjudging or refusing to adjudge the defendant a bankrupt; (2) from a judgment granting or denying a discharge, and (3) from a judgment allowing or rejecting a debt or claim of five hundred dollars or over.* This section applies to "bankruptcy proceedings" as such,* as appears from the specification of the cases from which it pro- vides an appeal, and supplements the preceding provision,^" 8 — ^Analogous provisions of Act of 1867. "See. 8. . . . That appeals may be taken from the district to the circuit courts in all cases in equity, and \rrits of error may be allowed to said cir- cuit courts from said district courts in cases at law under the jurisdiction cre- ated by this act, when the debt or dam- ages claimed amount to more than five hundred dollars, and any supposed credi- tor, whose claim is wholly or in part re- jected, or an assignee who is dissatisfied with the allowance of a claim may ap- peal from a decision of the district court to the circuit court from the same dis- trict, but no appeal shall be allowed in any case from the district to the circuit court unless it is claimed, and notice given thereof to the clerk of the district court", to be entered with the record of the proceedings, and also to the assignee or creditor, as the case may be, or to the defeated party in equity, within ten days after the entry of the decree or decision appealed from. The appeal shall be en- tered at the term of the circuit court which shall be first held vrithin and for the district next after the expiration of ten days from the time of claiming the same. But if the appellant in writii^ ■waives his appeal before any decision thereon, proceedings may be had in the district court as if no appeal had been taken; and no appeal shall be allowed unless the appellant at the time of claim- ing the same shall give bond in man[ner] now required by law in cases of such ap- peals. No writ of error shall be allowed unless the parly claiming it shall comply with the statutes regulating the granting of such writs. . . . Sec. 24. That a supposed creditor who takes an appeal to the circuit court from the decision of the district court, reject- ing his claim in whole or in part, shall, upon entering his appeal in the circuit court, file in the clerk's office thereof a statement in writing of his claim, setting forth the same, substantially, as in a declaration for the same cause of action at law, and the assignee shall plead or answer thereto in like manner, and like proceedings shall thereupon be had in the pleadings, trial, and determination of the cause, as in action at law commenced and prosecuted in the usual manner, in the courts of the United States, except that no execution shall be awarded against the assignee for the amount of a debt found due to the creditor. ■ The final judgment of the court shall be conclu- sive. ' ' 9— In re Friend, 134 Fed. 778, 13 A. B. E. 595; Hewit v. Berlin Machine Works, 194 U. S. 296, 48 L. ed. 986, 11 A. B. E. 709; Shutts v. Bank, 2 N. B. N. R. 320, 3 A. B. E. 492, 98 Fed. 705, 709. 10— Act of 1898, § 24b. § 1636] Appellate Jueisdiction 1203 which provides for the summary review in the matter of law of all other orders if the district courts in "bankruptcy proceed- ings" as such; while section 25 is confined to "appeals as in equity cases" and covers both fact and law.^^ "Controversies arising in bankruptcy proceedings, ' ' that is, between the trustee on one side and a stranger to the proceedings on the other, are to be reviewed in the same manner and under the same rules as other cases in the United States courts.^^ § 1635. — From whose decisions. It should be observed that an appeal is confined to the deci- sions of the courts of bankruptcy. If the purpose is to secure a review of a referee's decision, the question must be certified to the judge and the appeal taken from the latter 's action. § 1636. — Appealable ca^es. An appeal lies from the district court to the circuit courts of appeal from orders adjudging a person a bankrupt; ^* or from an order dismissing a petition for failure to allege facts sufficient to constitute an act of bankruptcy since such order is a judg- ment refusing to adjudge the defendant a bankrupt;^* but an order or judgment refusing to set aside an adjudication ^^ or an order adjudging a person not adjudicated a member of an adju- dicated .partnership ^® is not appealable. A judgment granting or denying a discharge is appealable,^'' as is, ordinarily, an order refusing or confirming a composition, since it is the equivalent of an order of discharge.^^ But while the confirmation of a com- 11— In re Friend, 134 Fed. 778, 13 3 A. B. E. 220, 97 Fed. 330; Simonson v. A. B. E. 595; In re Worcester Co., 102 Sinsheimer, 100 Fed. 426, 3 A. B. E. 824. Fed. 808, 4 A.' B. E. 496; Courier Jour- 14 — Stevens v. Nave-McCord Co., 150 nal Co. V. Schaefer Brewihg Co., 101 Fed. Fed. 71, 17 A. B. E. 609. 699, 4 A. B. E. 83; In re Eichards, 2 15— B. E. Electric & Telephone Mfg. N. B. E. 38, 3 A. B. E. 145, 96 Fed. 935. Co. v. Aetna Life Ins. Co.,, 206 Fed. 885, 12— Section 24a, Act of 1898; see post 300 B. E. 424; Brady v. Bernard & Kit- §1639 et seq. tinger, 170 Fed. 576, 22 A. B. E.342; 13— Columbia Iron Works v, National Goodman v. Brenner, 109 Fed. 481. Lead Co., 127 Fed. 99, 64 L. E. A. 645, 16— Francis v. McNeal, 170 Fed. 445, 11 A. B. E. 340; Taft Co. v. Century Sav. 22 A., B. E.' 337. Bank, 141 Fed. 369, 15 A. B. E. 594; 17— Sec. 25a (8) Act of 1898. Elliott & Co. V. Toeppner, 187 U. S. 327, 18 — United States v. Hammond, 104 47 L. ed. 200> 9 A. B. E. 50; In re Good, Fed. 862, 4 A. B. E. 736, overruling In 99 Fed. 389, 3 A. B. E. 605; Parmenter re Adler, 3 N. B. N. E. 15, 103, Fed. 444, Mfg. Co. V. Stoever, 2 N. B. N. E. 174, 4 A. B. E. 583; eojnpare Eoss.„v, Saun- 1204 Beandenbukg on Banketjptct [§ 1636 position always has the effect of discharging the bankrupt, thereby giving the opposing creditors the right to appeal, an order refusing to confirm a composition on the ground that it is not for the best interests of the creditors is not a bar to a subse- quent discharge and is therefore not appealable.^® An order dismissing an application for discharge is reviewable by appeal,^* but whether an order refusing to revoke a discharge is appealable is questionable.^^ An order overruling the objec- tions made to a discharge by certain creditors is not appealable, such order not being final.^^ An appeal lies from a judgment allowing or disallowing a claim of five hundred dollars or over,^^ notwithstanding it also settles the priority of such claim, which latter could be the subject of review; ^^ and includes as an incident the question of the receipt of a preference which should first be surrendered,^^ or the ques- tion as to the rank or lien of such claim in the distribution of the estate, at least where such question is one of controverted fact and law.^" The presentation for allowance of a demand against a bank- rupt's estate is a step in bankruptcy proceedings as to which appeal is specially provided by section 25. If both a demand and a lien be presented at the same time the procedure for the former dominates, the lien goes along as an incident, and the double presentation is also regarded as a step in the bankruptcy proceeding.^'' ders, 105 Fed. 915, 5 A. B. E. 350; Adler 25 — Cooper v. Miller, 203 Fed. 383, V. Hammoud, 3 N. B. N. E. 58, rev'g 3 30 A. B. E. 194. N. B. E. 15, 103 Fed. 444, 4 A. B. E. 583 ; 26— Coder v. Arts, 213 V. S. 223, 53 In re Friend, 134 Fed. 778, 13 A. B. E. L. ed. 772, 22 A. B. E. 1, aS'g 152 Fed. 595. 943, 18 A. B. E. 513; Bell v. Arledge, 19— In re McVoy Hardware Co., 200 192 Fed. 837, 27 A. B. E. 773 ; Hutehin- Fed. 949, 29 A. B. E. 322. son v. Otis, 190 U. S. 552, 47 L. ed. 1179, 20— In re Semons, 140 Fed. 989, 15 10 A. B. E. 135, aff'g 115 Fed. 937, 8 A. B. E. 822. A. B. E. 382; Burow v. Grand Lodge, 21 — See Thompson v. Mau2y, 174 Fed. 133 Fed. 708, 13 A. B. E. 542; In re 611, 23 A. B. E. 489. Loring, 224 U. S. 183, 56 L. ed. 725, 27 22 — Eagan, Malone & Co. v. Cotton & A. B. E. 852; Cunningham v. Bank, 103 Preston, 195 Fed. 69, 28 A. B. E. 246. Fed. 932, 2 N. B. N. E. 689, 4 A. B. E. 23 — Sec. 25b Act of 1898. , la re Eagle 192 ; Courier Journal Co. v. Schaefer V. Crisp, 2 N. B. N. E. 462, 3 A. B. E. Br'g Co., 101 Fed. 699, 4 A. B. E. 183. 733, 99 Fed. 695. 27— Century Sav. Bank v. Eobert 24 — In re Worcester Co., 102 Fed. 808, Moody & Son/209 Fed. 775, 31 A. B. E. 4 A. B. E. 496. But see. In re Doran, 586. 154 Fed. 467, 18 A. B. E. 760, modf'g 148 Fed. 327, 17 A. B. E. 799. § 1636] Appellate Jukisdiction 1205 The provision restricting the right of appeal to judgments allowing or rejecting claims of over $500 has been held to refer not to the amount of the original claim, but to the amount of the allowance or rejection,** but such holding seems to be contrary to the express provision of the act. In those cases in which the amount to authorize an appeal is in controversy, it may be shown by affidavit and need not appear in the pleadings.^^ An order of the district court upon reconsideration of a claim which operates to restore and allow the claim as originally proved is appealable under section 25a.^' A ruling made in the course of the determination of an issue as to alleged bankruptcy upon a subordinate issue as to whether petitioning ' creditors held "provable" claims is not a judgment allowing or rejecting a debt within the meaning of the seetion.^^ "Whether a claim which represents expenses and costs of administration is "a debt or claim" within 25a is doubtful,** but section 25a has been held not to include an appeal from an order denying allowance of attorney's fees and expenses incurred in contesting claims,** or from an order denying priority to the claim of attorney for fees.** On the other hand, the allowance of an attorney's fee included in the claim of a mortgaged cred- itor, who proves his claim as a secured one;^^ or to petitioning creditors in an involuntary case ** has been held appealable. The rejection of claims against the receiver is within the discretion of the court, and no appeal lies therefrom.*'^ Section 25a has no reference to independent suits to assert title to property or money as assets of the bankrupt against strangers to the proceedings,*® or to summary proceedings to 3ompel the turning over of assets,** or to an order to distribute 28— Gray v. Grand Forks Mercantile 35— In re Eoche, 101 Fed. 956, 4 A. :o., 138 Fed. 344, 14 A. B. E. 780. . B. 'E. 369. 29— U. S. V. Freight Ass'n, 166 U. S. 36— In re Curtis, 100 Fed. 784, 4 A. !90, 41 L. ed. 1007. B. E. 17. 30— Kiskadden v. Steinle, 203 Fed. 37— O'Brien v. Ely, 195 Fed. 64, 28 175, 29 A. B. E. 346. A. B. E. 247. 31 — Calnan Co. v. Doherty, 224 TJ. S. 38 — Delta Nat. Bank v. Easterbrook, :45, 56 L. ed. 702, 27 A. B. E. 880. 133 Fed. 521, 13 A. B. E. 338 ; Boonville 32— Gray v. Grand Forks Mercantile Nat. Bank v. Blakey, 107 Fed. 891, 6 A. 3o., 138 Fed. 344, 14 A. B. E. 780. B. E. 13. 33— Ohio Valley Bank Co. v. Switzer, 39— Kirsner v. Taliaferro, 202 Fed. 51, 53 Fed. 362, 18 A. B. B. 689. 29 A. B. E. 832; that Nat. Bank of Chi- 34— In re Blanchard Shingle Co., 164 cago v. Chicago Title & Trust Co., 198 Fed. 311, 21 A. B. E. 142. V. S. 280, 49 L. ed. 1051, 14 A. B. E. 102, 1206 Bbandenbxjeg on Bankruptcy [| 1636 a fund derived from the recovery and sale of property fraud- ulently conveyed by the bankrupt,*" or to an interlocutory order reversing a ruling of the referee made during the bankrupt's examination, refusing to require him to produce his books ; *^ or to an order requiring the bankrupt summarily to do certain acts, his remedy seeming to have been to refuse to do the acts and, on contempt proceedings against him, to take proper steps for their review;*^ or to, orders or decrees in proceedings for the sale and disposition, of the bankrupt's property,** or to any judgnient rendered or order made by a court of bankruptcy in the administration of an estate, except the particular judg- ments enumerated in this section. An appeal would not lie from a judgment entered on a petition of intervention filed by a claimant of property in the hands of a trustee declaring the ownership of the intervener, and ordering restitution of the property, such judgment not being one allowing a claim withiu the meaning of the statutes; the "debt or claim of $500 or over" would seem to m6an a moneyed demand, the same as debt, and was used not to enlarge but to render certain.** The section does not authorize an appeal from a decree refus- ing to require the trustee to account for the rental value of property,*^ or from an order denying partnership creditors the right to participate in the individual assets of a bankrupt part- ner until the individual partners have been paid.*® No appeal lies from an order appointing a receiver, but where a receiver is appointed by the same order which adjudicated the bankrupt, and such order is reversed and set aside upon the appeal, the appointment of the receiver falls with it.*'' When the judgment is upon- the verdict of a jury it cannot be reviewed under an appeal as in an equity case, but only by writ of error. *^ rev'g 125 Fed. 169, 11 A. B. E. 79; In re In re Groetzinger & Sons, 127 Fed. 124, Eose Shoe Mfg. Co., 168 Fed. 39, 21 A. li A. B. E. 467. B. E. 725. 44— In re Whitener, 105 Fed. 180, 5 40— In re Martin, 198 Fed. 947, 29 A. A. B. E. 198. B. E. 935. 45— Bank of Clinton v. Kondert, 159 41— In re Ives, 113 Fed. 911, 7 A. B. Fed. 703, 20 A. B. E. 178. K- 692. 46— Euclid Nat. Bank v. Union Trust 42— In re Fisher, 103 Fed. 860, 4 A. B. & Deposit Co., 149 Fed. 975, 17 A. B. E. E- 646. 834, aff'gl42Fed. 588, 16 A. B. E. 91. 43— Sohuler v. Hassinger, 177 Fed. 119, 47— Bauman Diamond Co. v. Hart, 192 24 A. B. E. 184. An order for the dis- Fed. 498, 27 A. B. E. 632. tiilDution of the proceeds of the sale of 48 — In re Mueller, 135 Fed. 711, 14 A. bankrupt's property held not appealable. B. E. 256. See post, § 1643. § 1637] Appellate Jubiseiotiost 1207 § 1637. — Parties to the appeal. The general rule that aiiy party in interest adversely affected by an appealable decision may appeal applies,** but, in its appli- cation, it must be remembered that the trustee represents the bankrupt, the estate and the creditors — the bankrupt to see that his estate is administered so as to pay his creditors as far as possible; the estate to see that it is all realized and administered to the best advantage and the creditors to enforce their rights. In the adjudication, the bankrupt and the creditors are the interested parties and creditors appearing in opposition to an involuntary petition as well as the bankrupt and petitioning creditors may appeal if the decision is adverse to their interests. If the act of bankruptcy alleged is a voluntary general assign- ment, the assignee may intervene and, if necessary, appeal,^" Parties interested in rulings made prior to an order of dismissal may appeal from such order and thereby review the previous rulings.*^ The fact that contempt proceedings are pending against the officers of the bankrupt corporation does not affect the right to a review of an order adjudicating the corporation abankrupt.^^ In the granting or denying .of a discharge the trustee is not interested, it being a personal privilege of the bankrupt, and so the parties in interest are the opposing creditors and the bank- rupt. In the allowance of claims, all, trustee, bankrupt and creditors, are interested, though to allow each if dissatisfied to appeal, would be to multiply appeals and allow fractious cred- itors to delay the proceedings, and the appeal must be taken in such case by the trustee, or, if he refuses, or fails to act, the bankruptcy court may, on its own motion, if doubtful of its decision, order him to appeal, or may make such order an appli- cation of a dissatisfied party, or, in its discretion, allow such party to appeal in the name of the trustee.^* 49— Stevens v. Nave-McCord Mercan- 24 A. B. E. 49; Ohio Valley Bank Co. tile Co., 150 Fed. 71, 17 A. B. B. 609. v. Mack, 163 Fed. 155, 24 L. K. A. (N. 50— In re Meyer, 98 Fed. 976, 3 A. B. S.) 184, 20 A. B. B. 40; Chatfield v. E. 559. O'Dwyer, 101 Fed. 797, 4 A. B.: B. 313; 51 — Stevens v. Nave-McCord Merean- Foreman v. Burleigh, 109 Fed. 313, 6 A. tile Co., 150 Fed. 71, 17 A. B. E. 609. B. B. 230; MoDaniel v. Stroud, 106 Fed. 52— Exploration Mercantile Co. v. 486, 5 A. B; B. 685; In re Troy Woolen Pacific Hardware & Steel Co., 177 Fed. Co., 1 Blateh. 191, Fed. Cas. No. 14204; 825, 24 A. B. R. 216. In re Joseph, 2 Woods, 390; Fed. Cas. 53— In re Roadarmour, 177 Fed. 379, No. 7532; In re. Place, 4 N. B. E^ 178, 1208 Bbandenbubg on Bankbxiptcy [ § 1637 In rejecting a claim only the particular creditor whose claim it is can appeal. It should be observed that to be appealable the order must be one allowing or rejecting a claim of $500 or over; so that, if the claim amounts to as niuch as $500, the order allowing or rejecting it wiU be appealable irrespective of the fact that it may be partially allowed. Such a case would be appealable by those entitled to appeal from an allowance and the party entitled to appeal from a rejection. In an appeal by the trustee from an order allowing claims for expenses and costs of administration, he represents merely the general creditors of the estate, and the claimants are enti- tled to notice of the appeal and an opportunity to be heard.^* ^ All parties concerned or interested in the appeal should be made parties,®^ and upon an appeal from a decree denying adju- dicatidn, the original petitioners, as well as the intervening petitioners must either join in the appeal or be severed there- from.^® While the general rule that parties against whom a joint judgment is rendered must unite in an appeal is applicable to appeals in bankruptcy proceedings,^'^ it applies only to a joint judgment or decree against such parties. It has no application to separate judgments or decrees against such parties, though rendered at the same time and contained in the same entry.^* The fact that one was an indispensible party in the lower court does not make him an indispensible party to the appeal.®^ A trustee in bankruptcy who obtains possession of a fund con- cerning which litigation is pending and who is made a party to the suit is not a necessary party to an appeal from a judgment therein.®" § 1638. — Scope of review. An appellee who does not take an appeal, and a defendant in error who does not sue out a writ of error, cannot confer juris- diction upon an appellate court to consider or review decisions 8 Blatch. 302, Ted. Cas. No. 11200; In 56— In re Bandridge & Pugh, 209 Fed. re Randall, 1 Sawy. 56, Fed. Cas. No. 838, 31 A. B. E. 15. 11552; In re Curtis, 100 Fed. 784, 4 A. 57— In re Dandridge & Pugh, 209 Fed. B. R. 17, rev'g 91 Fed. 737; In re 838, 31 A. B. R. 15. Roche, 101 Fed. 956, 4 A. B. R. 369. 58-59-60— Love v. Export Storage Co., 54— Gray v. Grand Forks MercantUe 143 Fed. 1, 16 A. B. R. 171. Co., 138 Fed. 344, 14 A. B. R. 780. 55 — ^Love V. Export Storage Co., 143 Fed.-!, 16 A. B, E. 171. § 1638] ApPEIiLATE JUBISDICTION 1209 adverse to him upon questions suggested by the assignment, or by an assignment of cross-errors, nor can he be heard on such questions. He may only be heard in support of the order, decree or judgment below. Mere assertion of error in an appel- lee's brief does not give the circuit court of appeals jurisdic- tion to review alleged error against an appellee. To review such alleged errors a cross-appeal is necessary.^^ An appeal brings up the whole case and cannot be made to turn upon errors in rulings made upon the trial of a feigned issue.^'' Questions of fact as well as law will be decided.** While all rulings made in the proceedings are reviewable upon an appeal from a final order therein, though not appealable in themselves,"* an appeal cannot be used to give a party a second trial; but only to re-examine and revise the rulings and decree.*^ While a rul- ing of the lower court which is assigned as error but which is not argued either orally or in brief will ordinarily be deemed abandoned,®® the appellate court, sua sponte, will take notice of the want of jurisdiction of the lower court if the same appears by the record, and will in sucl#case reverse a decree though the parties fail to suggest the want of jurisdiction in the bank- ruptcy court.*'^ Where the appeal is from a judgment allowing or disallow- ing a debt, any question of lien or priority of the debt, if allowed, may be considered upon the appeal as an incident of the debt; "* but the action of the district court in allowing or disallowing a claim will not be reversed merely to preserve the claimant's 61— Board of County Com 'rs v. Hur- 65— In re Dow, 6 N. B. E. 10, Fed. Cas. ley, 169 Fed. 92, 22 A. B. B. 209; No. 4036. Swager v. Smith, 194 Fed. 762, 27 A. B. 66— Sturdivant Bank v. Schade, 195 E. 660. Fed. 188, 27 A. B. E. 673, rev'g In re 62— In re Neasmith, 147 Fed. "160, 17 Jackson Brick & TUe Co., 189 Fed. 636, A. B. E. 128. 26 A. B. E. 915. 63— In re Friend, 134 Fed. 778, 13 A. 67— Taft Co. v. Century Sav. Bank, 141 B. B. 595; In re Worcester Co., 102 Fed. Fed. 369, 15 A. B. B. 594. 808, 4 A. B. B. 496; Courier Journal Co. 68— In re Mueller, 135 Fed. 711, 14 A. V. Schaefer Brewing Co., 101 Fed. 699, B. E. 256; see also In re Worcester 4 A. B. E. 183; In re Biehards, 96 Fed. County, 102 Fed. 808, 4 A. B. B. 496; 935, 2 N. B. B. 38, 3 A. B. E. 145. Coder v. Arts, 213 U. S. 223, 53 L. ed. Whole case is open as in appeals in 772, 22 A. B. E. 1, affl'g 152 Fed. 943, equity cases, excejit as to facts deter- 18 A. B. B. 513; Beel v. Arledge, 192 mined by a jury. Bernard v. Lea, 210 Fed. 837, 27 A. B. E. 773 ; Hutchinson v. Fed. 583, 31 A. B. E. 436. Otis, 190 U. S. 552, 47 L. ed. 1179, 10 A. 64 — Stevens v. Nave-McCord Mercan- B. E. 135; Burow v. Grand Lodge, 133 tile Co., 150 Fed. 71, 17 A. B. E. 609. Fed. 708, 13 A. B. E. 542; In re Loving, 1210 Bbandenbtjeg on Bankeuptcy [§ 1638 action in the federal court in ease of a possible adverse decision in the state supreme court in which he has sued concerning the validity and extent of his lien.®^ Objections to the sufficiency of specifications in opposition to a discharge will not be considered, where they were not pre- sented or passed upon by the court below/" The finding of the court below, whether through a verdict or through a decision by the judge or chancellor, where the issue is peculiarly one of faxjt, as whether there was fraud, will not be disturbed unless the appellate court is clearly convinced that it is opposed to the weight of evidence, or plain and manifest error appears J^ Upon an appeal from the judgment of the court below after a hearing upon the merits, the findings of the master are not binding/^ In the absence of any refej'ence, by the judge, to the findings of fact made by the referee, it will be assumed upon appeal from the decision of the judge, that he affirmed such findings and that his decision, reversing the judgment of the referee, expresses inerely his dissent from the c(^clusion of law.''* The appellate court will construe instructions reasonably and, if they are correct when applied to the facts submitted to the jury, will sustain them, though, if standing alone, they would be irioompleteJ* § 1639. Controversies arising in bankruptcy proceedings. § 1640. — In general. The circuit courts of appeals are invested by section 24a of the act with appellate jurisdiction of controversies arising in bank- ruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases, by section 24b, with jurisdiction in equity, either interlocutory or final, to super- 224 TT. S. 183, 27 A. E. E. 852; Cunning- 7 A. B. E. 250; Hussey v. Eiehardson- ham V. German Ins. Bank, 103 Fed. 932, Eoberts Dry-Goods Co., 148 Fed. 598, 17 2 N. B. N. R. 689, 4 A. B. R. 192; Courier A. B. E. 511; Cleage v. Laidley, 149 Fed. Journal Co. v. Shaefer Brg. Co., 101 Fed. 346, 17 A. B. E. 598. 699, 4 A. B. E. 183. 72— Merchant 's Nat. Bank of Toledo 69— The Gregory Co. v. Bristol, 191 v. Cole, 149 Fed. 70*, 18 A. B. E. 44. Fed. 31, 26 A. B. E. 938. 73- Bernard v. Lea, 210 Fed. 583, 31 70— Osborne v. Perkins, 112 Fed. 127, A. B. E. 436. 7 A. B. E. 250. 74— Willis v. Carpenter, 14 N. B. B. 71— Osborne v. Perkins, 112 Fed. 127, 521, Fed. Cas. No. 17770. § 1640] Appellate Jueisdiotion 1211 intend and revise in matter of law the proceedings of the courts of bankruptcy within their jurisdiction; and by section 25a with jurisdiction of appeals from judgments adjudging or refusing to adjudge the debtor a bankrupt, from judgments granting or denying a discharge, and from judgments allowing or reject- ing claims of five hundred dollars or over. A comparison of sections 23, 24 and 25 will show that section 23 clearly indicates a distinction between "controversies arising in bankruptcy pro- ceedings," and "proceedings in bankruptcy;" that section 24a provides for appeals in the former and section 25a in the latter. Section 25a leaves appeals in "controversies arising in bank- ruptcy proceedings" to be determined by the general provisions of the statutes, under section 24a. '^^ The classification of mat- ters in bankruptcy as "controversies arising in bankruptcy proceedings" and "proceedings in bankruptcy," has, in actual application, caused much confusion. There is, however, a clear distinction between the two phrases, the former being generally held to embrace questions between the trustee, representing the bankrupt and his crieditors, on the one side, and adverse claim- ants on the other, and not directly affecting those administrative orders and judgments ordinarily known as "proceedings in bankruptcy," and the latter being confined to those questions between the bankrupt and his creditors which are the very sub- ject of such administrative orders and judgments, from the petition for an adjudication to the settlement of the estate and including the intermediate administrative steps, and such con- troversies as arise between parties to the bankruptcy proceed- ings as are involved in the allowance of claims, fixing their priorities, sales, allowances, and other matters to be disposed of summarily.''® This distinction is emphasised by the provisions 75— Shutts, Tr. v. 1st Nat. Bk., 2 N. TefPt; Weller & Co. v. Munsuri, 222 V. S. B. N. e; 320, 323, i98 Fed. 705, 8 A. B. 114, 56 L. ed. 118, 27 A. B. E. 338; Hew- R. 492; First Nat. Bank of Denver v. it v. Berlin Machine Works, 194 U. S. Klug, 186 U. S. 202, 46 L. ed. 1127, 8 296, 48 L. ed. 986, 11 A. B. E. 709; First A. B. E. 12; compare Walter Scott & Nat. Bank of Chicago v. Chicago Title Co. V. Wilson, 115 Fed. 284, 8 A. B. E. & Trust Co., 198 IT. S. 280, 49 L. ed. 1051, 349; Holden v. Stratton, 198 IT. S. 202, 14 A. B. E. 102, rev'g 125 Fed. 169, 11 48 L. ed. 116, 10 A. B. E. 786. A. B. E. 79 ; Thompson v. Mauzy, 174 76— Barnes v. Pampel, 192 Fed. 525, Fed. 611, 23 A. B. E. 489; Brady v. 27 A. B. E. 192 ; In re Mueller, 135 Fed. Bernard & Kittinger, 170 Fed. 576, 22 A. 711, 14 A. B. E. 256; Liddon & Bro. v. B. R. 342; Morehouse v. Pacific Hard- Smith, 135 Fed. 43, 14 A. B. E. 204; ware & Steel Co., 177 Fed. 337, 24 A. 1212 Bbandenbueq on Bankbtjptcy [§ 1640 of section 23a, providing limitations of the circuit courts [now district courts] in controversies at law and in equity between trustees in bankruptcy, as such, and adverse claimants concern- ing the property acquired or claimed by the trusteed ^ The right of appeal under section 24a may therefore be said to be limited to separable controversies in reference to the title, possession or distribution of the estates of bankrupts which may be rendered in the course of the proceedings ^* in the courts of bankruptcy, which here means only the district courts, and not to the rulings or action of either referee or trustee. In determining the question of the remedy, as between review and appeal, the object and character of the proceeding as deter- mined by the nature of the right involved and the issues raised,''' and not by the circumstance as to which party is actor and which is defendant,*" must govern. § 1641. — Appealable ca,ses. The circuit court of appeals has power to review on appeal the action of a circuit or district court granting or refusing an inter- locutory injunction in a hearing in equity, but not an order appointing a receiver unless an injunction issues also; *^ and, as a bankruptcy proceeding may be equitable, this would prob- ably apply to an injunction granted in bankruptcy proceedings. The decision of the district court in "controversies" between the trustee and a stranger to the bankruptcy proceedings, at B. E. 178; In re Friend, 134 Fed. 778, t. Dalton, 203 Fed. 843, 29 A. B. B. 240. 13 A. B. E. 595. 79— In re FarreU, 176 Fed. 505, 23 A. 77— See Holden v. Stratton, 198 IT. S. B. E. 826; Coder v. Arts, 213 U. S. 223, 202, 48 L. ed. 116, 10 A. B. E. 786; 53 L. ed. 772, 22 A. B. E. 1, aff'g 152 Bank v. Title & Trust Co., 198 U. S. 280, Fed. 943, 15 U E. A. (N. S.) 372, 18 A. 49 L. ed. 1051, 14 A. B. E. 102, rev'g B. E. 513; Loeser v. Savings Deposit 125 Fed. 169, 11 A. B. E. 79. Bank & Trust Co., 163 Fed. 212, 20 A. 78 — Franklin v. Stoughton Wagon Co., B. E. 845. 168 Fed. 857, 22 A. B. E. 63; Mound 80— Loeser v. Savings Deposit Bank Mines Co. v. Hawthorne, 173 Fed. 882, 23 & Trust Co., 163 Fed. 212, 20 A. B. E. A. B. E. 242; Dodge v. Norlin, 133 Fed. 845; Mason v. Wolkowich, 150 Fed. 699, 863, 13 A. B. E.'176; Inre Adler, 3N. B. 10 L. E. A. (N. S.) 765, 17 A. B. E. N. E. 15, 103 Fed. 444, 4 A. B. E. 583. 709; Thomas v. Woods, 173 Fed. 585, 26 Section 24a is limited to oases where L. E. A. (N. S.) 1180, 23 A. B. E. 132; third persons claim hostile to title of trus- contra. In re McMahon, 147 Fed. 684, 17 tee or going to the right of the court to A. B. E. 530. administer the particular estate and not 81 — Highland Ave. B. E. v. Equipment to cases where they claim in and under Co., 168 TJ. 8. 627, 42 L. ed. 605; In re the administration of the estate. Snow Tampa E., 168 U. S. 583, 42 L. ed. 589. §1641] Appellate JtmiSDiCTiON 1213 law or in equity, may be reviewed; ®^ as a judgment, in a suit commenced by the trustee in the bankruptcy court to cancel a conveyance, or set aside a sale ®* or in proceedings instituted by the trustee to have adverse claims and liens declared void and for a sale of the property free of same; ®* or in an independent suit in the nature of an equitable replevin; ®^ or a decision of a circuit court failing to find on the question of fraud and ruling that the cause of action was merged in the judgment and fraud could not be inquired into ; *® or in a case involving a copyright.* '^ On the same theory, a decision in a plenary suit against the wife of the bankrupt to recover funds alleged to have been given her by the bankrupt,®* or an order granting the petition of an adverse claimant to have paid over to him the proceeds of accounts receivable alleged to have been assigned to him by the bankrupt *** or the decision upon a petition praying that the trus- tee be ordered to surrender property in his hands,*" or an order directing the distribution of the proceeds of property recovered by the trustee as fraudulently conveyed,®^ is appealable. An order directing an adverse claimant to deliver property to the trustee,** or an order requiring the purchaser of property 82— Shutts V. Bank, 2 N. B. N. R. 320, 88— Kirkpatrick v. Harnesberger, 199 3 A. B. E. 492, 98 Fed. 705; see Boon- Fed. 886, 29 A. B. B. 439. villa Nat. Bank v. Blakey, 107 Ped. 891, 89— Greey v. DockendorfE, 231 XJ. S. 6 A. B. E. 13. 513, 58 L. ed. 339, 31 A. B. E. 407. 83— McCarty v. CoflSn, 150 Fed 307, 90— Smith v. Evans, 148 Fed. 89, 17 18 A. B. E. 148; In re Jacobs, 99 Fed. A. B. E. 433; Deere Plovr Co. v. Mc- 593, 3 A. B. E. 671. • David, 137 Fed. 802, 14 A. B. E. 653. ' Appeal from decree in suit to set aside 91 — In re Martin, 198 Fed. 947, 29 A. preference is proper. Carey v. Donohue, B. E. 935. 209 Fed. 328, 31 A. B. E. 210. 92— Hinds v. Moore, 134 Fed. 221, 14 84— Thomas v. Woods, 173 Fed. 585, A. B. E. 1, rev'g 129 Fed. 922, 12 A. B. 26 L. E. A. (N. S.) 1180, 23 A. B. E. E. 136; compare First Nat. Bank v. Chi- 132; but see In re McMahon, 147 Fed. oago Title & Trust Co., 198 TJ. S. 280, 684, 17 A. B. R. 530. 49 L. ed. 1051, 14 A. B. E. 102, rev'g 125 85— Stelling v. Jones Lumber Co., 116 Fed. 169, 11 A. B. E. 79. Fed. 261, 8 A. B. E. 521 ; compare Wal- An order directing an attorney to turn ter Scott & Co. v. Wilson, 115 Fed. 284, over to the trustee a sum of money re- 8 A. B. R. 349 ; and see Delta Nat. Bank ceived from the bankrupt for services to V. Easterbrook, 133 Fed. 521, 13 A. B. E. be rendered in the bankruptcy proceed- 339, holding that a writ of error is the ings held appealable. Haffenberg v. Chi- only remedy. cago Title & Trust Co., 192 Fed. 874, 27 86— Packer v. Whittier, 1 N. B. N. 99, A. B. E. 708. 91 Fed. 511, 1 A. B. E. 621. 87— Press Pub. Co. v. Monroe, 164 U. S. 105, 41 L. ed. 367. 1214 Beandenbueg on Bankettptcy [§1641 from the receiver to carry out Ms contract ®^ is appealable, but a decision of the bankruptcy court making or refusing to make a summary order to turn over alleged assets, has been held not appealable.^* Proceeding on intervention to establish a lien upon or title to the property of the bankrupt is a controversy arising in bank- ruptcy proceedings within the meaning of section 24a ®^ and a controversy over a lien, which is independent of the assertion of the debt on which it is claimed to be based is appealable under that section.^^ It is held that an appeal will not lie from an order in a proceeding instituted by the trustee's petition to bring in an adverse claimant to adjudicate his lien or claim against property alleged to belong to the estate.^'^ Orders set- ting aside the allowance of a secured claim and requiring the surrender of a preferential payment,^* or decisions involving disputes of parties to the bankruptcy proceedings as to their respective rights to participate in the proceeds of admittedly valid security,®^ have been held not to be appealable. An order allowing a claim but disallowing priority has been held appeal- able under section 24a,^ but the decisions so holding are clearly 93 — In re Jungman, Inc., 186 Fed. 302, Intervener claiming title to property 26 A. B. E. 401. under conditional sale contract may ap- 94— Kirsner v. Taliaferro, 202 Fed. 5i, peal from adverse decision. Baker Ice 29 A. B. E. 832; In re Farrell, 176 Fed. Maoh. Co. v. Bailey, 209 Fed. 844, 31 505, 23 A. B. JJ. 826. A. B. E. 513. 95 — In re Standard Tel. & Elee. Co., 96 — Century SS,v. Bank v. Eobert 216 TJ. S. 545, 54 L. ed. 610, 24 A. B. B. Moody & Son, 209 Fed. 775, 31 A. B. R. 761, aff'g 162 Fed. 675, 20 A. B. E. 671; 586. In re First Nat. Bank of Canton, 135 97 — OdeU v. Boyden, 150 Fed. 731, 17 Fed. 62, 14 A. B. E. 180. A. B. E. 751. An intervention for the purpose of as- 98 — In re First Nat. Bank of Louia- serting title or claim to property in the ville, 155 Fed. 100, 18 A. B. E. 766. possession of the bankrupt's trustee is an 99 — Snow v. Dalton, 203 Fed. 843, 29 intervention in equity, and a decree is A. B. E. 240. reviewable by appeal to the Circuit Court 1 — In re Doran, 154 Fed. 467, 18 A. B. of Appeals under section 24a. Houghton E. 760, modf 'g 148 Fed. 327, 17 A. B. E. v. Burden, 228 U. S. 161, 57 L. ed. 780, 799; Liddon & Bro. v. Smith, 135 Fed. 30 A. B. E. 16. 43, 14 A. B. R. 204. An issue raised by intervention be- 2— The holdings are in direct conflict tween creditors of a partnership and ered- with Coder v. Arts 213 TJ. S. 223 53 iters of the members thereof held a con- L. ed. 772, 22 A. B. E. 1 aff'g 152 Fed. troversy arising in bankruptcy proceed- 943, 15 L. E. A. (N. S.) 372, 18 A. B. E. ings. Burleigh v. Foreman, 125 Fed. 217, 513. See In re Loving, 224 U. S. 183, 56 11 A. B. E. 74. L. ed. 725, 27 A. B. R. 852. § 1642] Appellate Jueisdiotion 1215 A judgment upon an adverse claim is appealable regardless of whether the trustee instituted the proceedings or whether the claimant * intervened, but the denial of a right to intervene in a bankruptcy proceeding, not being a final order or decree, is not appealable.* An order allowing expenses incurred by the trustee for coun- sel fees in the realization of assets ® or surcharging the account of the trustee ** is not appealable. An order or judgment refus- ing to set aside an adjudication is not appealable under section 24a.^ The provision in section 25a limiting appeals to deci^ sions on a claim of $500 or over does not apply to appeals under section 24a.* ' § 1642. — Scope of review. Appeals under section 24a are governed by the provisions of the general judiciary act.® The appeal opens up the whole case as in other equity appeals, and both the law and the facts are open for consideration." So, on an appeal from an inter-? locutory decree granting an injunction, the court may review the whole of the decree, not merely the part granting the injunc- tion, and determine whether there was an insuperable objection, in point of jurisdiction or merits, to the maintenance of the suit, and if there is it may direct a final decree dismissing the bill.^^ Where the district court upon retrial of a case has placed a different value on property decreed to be paid to the trustee, than that fixed at the former trial the appellate court will examine the evidence on appeal although the same is conflict- ing.^^ 3— Loeser v. Savings Deposit Bank & 8— In re Gold, 210 Fed. 410, 31 A. B. Trust Co., 163 Fed. 212, 20 A. B. R. E. 18. 845. 9— In re Gold, 210 Fed.. 410, 31, A. B, 4— In re Columbia Eeal Estate Co., 112 E. 18. , Fed. 643, 7 A. B.E. 441; In re New York 10— Houghton v. Burden, 228 V. S. Tunnel Co., 166 Fed. 284, 21 A. B. E. 161, 57 L. ed. 780, 30 A. B. E. 16. 531. 11 — United States Fidelity & Guaranty 5— Davidson & Co. v. Friedman, 140 Co. v. Bray, 225 U. S. 205, 56 L. ed. Fed. -853, 15 A. B. E. 489. 1055, 28 A. B. E. 207. 6— In re Moore, 166 Fed. 689, 21 A. B. 12— Mattley v. Giesler, 202 Fe^. 738, R. 651. 29 A. B. E. 132. 7— Brady v. Bernard & Kittinger, 170 Fed. 576, 22 A. B, E. 342. 1216 Bbandbnbubg on Bankbuptcy [§ 1643 § 1643. Writs of error to circuit court of appeals. Eeview of final orders under section 24a may be had upon wnt of error or appeal, depending upon whether the proceeding in the lower court was at law or in equity, and with the difference in practice that under writ of error only questions of law can be considered, while on appeal the review may extend to the consideration of questions of fact. In a proceeding partaking of an equitable form as interventions in the bankruptcy court usually do, appeal is a proper remedy, even though the questions at issue are such as can be considered in a court of law. But when review is desired only on one or more legal questions arising under such proceeding in intervention, a writ of error is appropriate for the purpose. When the proceeding is at law, writ of error is proper although the form of proceeding is not one recognized at common law.^^ If in any "proceeding in bankruptcy" a trial by jury be had under section 19 of the act, a review in the circuit court of appeals cannot be had under section 24b or 25a because those sections confer only jurisdiction in equity and not jurisdiction at law; and a review cannot be had under section 24a because that section relates exclusively to "controversies" as distin- guished from "proceedings" in bankruptcy. If a review lies, it must come by writ of error under section 128 of the Judicial Code of 1911.^* So, in an appeal from a judgment adjudging or refusing to adjudge the defendant a bankrupt in which a jury trial was not had or demanded, but the court of bankruptcy pro- ceeded on its own findings of fact, both the facts and law are re-examinable on appeal, while if the judgment is entered on the verdict of a jury, the issue of facts is concluded and the judgment is reviewable for errors of law only; in the latter case errors in instructions given or refused or in the admission or rejection of evidence must appear by exceptions duly taken and preserved by biU of exceptions.^^ rpj^g question whether the petition alleged an act of bankruptcy against the alleged bankrupt does liot go to the jurisdiction of the bankruptcy court 13— Eode & Horn v. Phipps, 195 Fed. 15— Bower v. Holzworth, 138 Fed. 28, 414, 27 A. B. E. 827.. 15 A. B. E. 22; Elliott & Co. v. Toeppner, 14— In re Friend, 134 Fed. 778, 13 187 U. S. 327, 47 L. ed. 200, 9 A. B. E. A. B. E. 595; In re Neasmith, 147 Fed. 50; Insurance Co. v. Comstoek, 16 WaU. 160, 17 A. B. E. 128. But see Loclnnan 258, 21 L. ed. 493; Duncan-v. Landis, 106 V. Lang, 128 Fed. 279, 11 A. B. E. 597. Fed. 839, 5 A. B. E. 649. §1645] Appellate Jubisdiotion 1217 is reviewable upon writ of error.^® A judgment in a proceeding to punish for contempt for violation of an injunction of the bankruptcy court is reviewable by writ of error." An appeal and a writ of error may be taken to review the same adjudica- tion.^* "Writs of error must issue in the name of the President of the United States, and be attested by the chief justice of the supreme court and the clerk of the circuit court. Any defect in the writ in this regard, however, is amendable.^^ The citation issued upon a writ of error should contain the names of all persons joining in applying for the writ,^" §1644. Mandamus. An order adjudicating a person a bankrupt is not reviewable by mandamus.^^ The propriety of the appointment of a receiver and the effect of the dismissal of the proceedings upon the receivership are judicial questions to be determined primarily by the bankruptcy court and are not reviewable by mandamus.^^ An application for mandamus will be denied where a petition for revision has been filed in the time and no further relief is therefore necessary to preserve the rights of the petitioner.^ ^ §1645. Time for appeal. No time is fixed by section 24a for an appeal under its pro- visions, and an appeal thereunder must be allowed by the judge of the court appealed from or a judge of the court appealed to, within six months, the period of limitation fixed for appeals by the judiciary code.^* The provisions of section 25a of the bank- ruptcy act relate only to cases specifically mentioned in the section, and have no application to appeals in independent pro- 16— Exploration Mercantile Co. v. Pa- 21— In re Biggs, 214 XT. 8. 9, 53 L. ed. cific Hardware & Steel Co., 177 Fed. 825, 887, 22 A. B. E. 720. 24 A. B. E. 216. 22 — Edinburg Coal Co. v. Humphreys, 17— Morehouse v. Pacific Hardware & 134 Fed. 839, 13 A. B. E. 593. Steel Co., 177 Fed. 337, 24 A. B. E. 23— In re Saratoga Gas, Elect. L. & P. 178. Co., 21 A. B. E. 592. 18— Lockman v. Lang, 132 Fed. 1, 12 24 — In re Mueller, 135 Fed. 711, 14 A. B. E. 497. A. B. E. 256; Boonville Nat. Bank v. 19— Long V. Farmers ' State Bank, 147 Blakey, 107 Fed. 891, 6 A. B. E. 13; Fed. 360, 9 L. E. A. (N. S.) 585, 17 A. Steele v. Buel, 104 Fed. 968, 5 A. B. E. B. E. 103. 165; 1 Supp. E. S. U. S. 904, §11. 20— Kerrch v. United States, 171 Fed. 366, 22 A. B. E. 544. Brandenburg — 77 1218 Bbandenbubg on Bankeuptcy [§ 1645 ceedings instituted for the recovery of assets of tlie estate or to set aside alleged preferences,^' or to an appeal from an order or judgment refusing to set aside an adjudication.^* The time limit for a review by appeal or writ of error under section 24a begins to run from the time of the entry of the judg- ment, decree or order.^'' An appeal from an interlocutory order or decree granting, continuing, refusing, dissolving or refusing to dissolve an injunc- tion, or appointing a receiver, must be taken within thirty days from the entry of such order or decree.^* An appeal under section 25a must be taken within ten days. Unless so taken and all the statutory requirements complied with, the appellate court will be without jurisdiction; ^^ but it has been held that a court may, in its discretion, overlook a breach of its own rules ; ^° and, where the failure to appeal in time was due to a mistake of the remedy, the lower court may grant a review of the decision, from which an appeal is desired, so that an appeal may be in time,^^ even though the lower court is satisfied with its original decision on the merits and is unwill- ing to grant a rehearing in order to give these merits further consideration.^^ The citation and bond are not jurisdictional prerequisites and an appeal is in time where the petition for appeal is filed within ten days though the citation and bond are not filed until after expiration of ten days.^^ So, when an appeal has been allowed 25— BoonTille Nat. Bank v. Blakey, 107 B. E. 935; In re Marion Contract & Con- Fed. 891, 6 A. B. K. 13. struetion Co., 166 Fed. 618, 22 A. B. E. 26 — Brady v. Bernard & Kittinger, 170 81 ; Benjamin v. Hart, 4 N. B. E. 138, Fed. 576, 22 A. B. E. 342. 4 Ben. 454, Fed. Cas. No. 1302; Wood v. 27 — E. S. 1008; section 11 of the Bailey, 12 N. B. E. 132, 21 Wall. 640, 22 Courts of Appeal Act of 1891; In re Me- L. ed. 689; Sedgwick v. Fridenberg, 11 Call, 145 Fed. 898, 16 A. B. E. 670, citing Blatch. 77, Fed. Cas. No. 12611; In re Snsby V. Foote, 20 How. 290, 15 L. ed. York, 4 N. B. E. 156, Fed. Cas. No. 410; Board of Com'rs v. Gorman, 19 18139; Hawkins v.- Bank, 1 Dill. 453, Wall. 662, 18 L. ed. 226 ; Polleys v. Black Fed. Cas. No. 6245. Eiver Imp. Co., 113 V. S. 81, 28 L. ed. 30— Barron v. Morris, 14 N. B. E. 371, 938; Marks v. Northern Pac. E. Co., 76 Fed. Cas. No. 9828. Fed. 941; Providence Eubber Co. v. Good- 31 — Stiekney v. Wilt 11 N. B. E. 97 year, 6 Wall. 153, 18 L. ed. 762; Credit 23 Wall. 150, 164, 23 L. ed. 50. ' ' Co. V. Arkansas Central E. Co., 128 TJ. S. 32 — In re Wright 3 A. B. E. 184 96 258, 32 L. ed. 448. Fed. 820. 28— Section 129, Judicial Code of 33— In re Quality Shop, 202 Fed 196, 1911. 29 A. B. E. 854. 29— In re Martin, 198 Fed. 947, 29 A. § 1645] Appellate Jukisdiction 1219 by the taking of security within the statutory time, and the transcript of the record has been filed and the case has been docketed at the proper term, the failure to issue a citation within the time prescribed for an appeal is not ground for the dismissal of an appeal.^* Where, however, appellant, within ten days after the adjudication, prayed an appeal, which was allowed, and filed a bond, but the petition for the appeal, its allowance, and the citation and service thereon were not filed in the district court until after the expiration of the ten days, the appeal was not in time and should be dismissed.*^ Section 31 of the act, like the similar section in the act of 1867, adopts the general rule followed in computing time. In the event the last day falls on Sunday or a holiday and is succeeded by a holiday or a Sunday, the next day thereafter which is not a legal holiday would be included. In computing the time within which an act must be done, holidays or Sundays occurring within the term are to be counted, unless expressly excluded or the last day falls on Sunday or a holiday.^" Whether the time limit begins to run from the date of the decision or from the date of the entry of the judgment is not settled ^'^ though it is held that a judgment allowing or reject- ing a claim is presumptively rendered at the date of its filing with the clerk, and that the ten days would begin to run from that time.^* Where a motion for a rehearing is filed within the time allowed for an appeal the time limit for an appeal or writ of error does not begin to run until the motion is disposed of.^" The court cannot, however, extend the time for appeal,*" and a rehearing should not be granted for the purpose of reviving the right to appeal unless the facts clearly warrant it.*^ Nor can the time be extended indirectly by the entry of an alias 34— Loekman v. Lang, 132 Fed. 1, 12 Fed. 897, 16 L. E. A. (N. S.) 656, 20 A. A. B. E. 497. B. E. 237. 35 — Norcross v. Mercantile Co., 101 40 — Brady v. Bernard & Kittinger, 170 Fed. 796, 4 A. B. E. 317. Fed. 576, 22 A. B. E. 342; Judson v. 36— In re York, 4 N. B. E. 156, 'Fed. Courier Co., 25 Fed. 705. Cas. No. 18139. 41 — ^In re Hudson Clothing Co., 140 37— See In re McCall, 145 Fed. 898, 16 Fed. 49, 15 A. B. E. 254; Eode & Horn A. B. E. 670. V. Phipps, 195 Fed. 414, 27 A. B. E. 38— Peterson v. Nash Bros., 112 Fed. 827; In re Girard Glazed Kid Co., 129 311, 55 L. E. A. 344, 7 A. B. E. 181. Fed. 841, 12 A. B. E. 295; Morgan v. 39— In re McCall, 145 Fed. 898, 16 A. Benedum, 157 Fed. 232, 19 A. B. E. 601. B. E. 670; Mills v. Fisher & Co., 159 1220 Brandenbueg on Bankeuptcy [§ 1645 adjudication *^ or a motion to set aside the order of adjudica- tion made after the expiration of the time allowed for an appeal.*^' While it is an abuse of the court's discretion to set aside an order disallowing a claim for the sole purpose of grant- ing an appeal/^ yet, an order disallowing a claim is within the discretion of the court, and it may, in the exercise of a sound judicial discretion, set it aside after the expiration of 10 days and thereby revive the right to appeal.*^ "When the bankruptcy court in a controversy between the trustee and a creditor has rendered a decision adverse to the trustee and he has lost his right of appeal without culpable neglect, the court may grant a rehearing for the purpose of reviving such right.** While it has been held that if a circuit or district court permits the filing of a petition for rehearing during the term at which the order sought to be reviewed was entered,*'^ it retains jurisdiction to act on it at the succeeding term, and the time for appeal does not begin to run until action is taken on the petition,** such decisions seem to overlook the fact that in the bankruptcy court the term is continuous from the commencing of a proceeding to the closing of an estate.*® § 1646. Procedure in taking appeals. The appellant must present a petition praying the appeal accompanied by an assignment of errors, without which the judgment will be affirmed,^" and, if by others than the trustee, an appeal bond, to the judge of the court of bankruptcy or circuit court of appeals. It should be presented to the judge of the court of bankruptcy first, and, in case of his refusal to allow it, to the judge of the circuit court of appeals. This is the usual 42— In re BerkebUe, 144 Ted. 577, 16 4 A. B. E. 496; Andrews v. Thum, 64 A. B. E. 277. Fed. 149; Kingman & Co. v. Western 43— In re Goldberg, 167 Fed. 808, 21 Mfg. Co., 170 U. S. 675, 679, 42 L. ed. A. B. E. 828. 1192. 44 — ^West V. McLaughlin & Co., 162 49 — See § 25, ante. Ted. 124, 20 A. B. E. 654. 50— Lloyd v. Chapman, 93 Fed. 599; 45— In re Keyes, 160 Fed. 763, 20 A. In re Dunning, 94 Fed. 709. But see B. E. 183 ; West v. McLaughlin & Co., Bernard v. Lea, 210 Fed. 583, 31 A. B. E. 162 Fed. 124, 20 A. B. E. 654. 436, holding that the failure of an ap- 46— In re Wright, 96 Fed. 820, 3 A. B. pellant to file his assignment of errors, ^- 184. as required by rule of court, will not de- 47— In re Anderson, 23 Fed. 482. prive the Circuit Court of jurisdiction. 48— In re Worcester Co., 102 Fed. 808, ■ r § 1646] Appellate Jurisdiction 1221 course and the higher judge, unless there was reason for not having presented it to the lower, would exact this requirement. Upon the allowance of the appeal and the approval of the bond, indorsed on it usually, the papers with the citation, with evi- dence of service on the adverse party,°^ should be filed in the clerk's office of the court of bankruptcy, which must be done within ten days after the order appealed from or the appeal will be dismissed.®^ Where the record is incomplete, the appel- lees should suggest to the court the defect complained of and apply for a certiorari to send up the missing matter."^ If the papers are regular and the judge applied to refuses to allow the appeal, he may be compelled to do so by mandamus.^* The assignment of errors must ordinarily be filed within the time allowed for an appeal,^^ though where the appeal is allowed upon condition that the petitioner give a bond, the assignment of errors need not be filed until such bond is approved.^* In proceedings by appeal and by writ of error to review the same rulings the filing of a single assignment of errors is sufficient.^^ While an appeal may be dismissed because of the generality of the assignment of errors, the court may allow an. amendment and retain the case when the special circumstances justify it, and the application is promptly made.®* A hill of exceptions is unnecessary, for the proceeding in bank- ruptcy being a proceeding in equity, the appeal makes the entire record available to the appellant, and imposes the duty upon Mm, and upon the clerk of the lower court, to place the material parts of it in the transcript sent to the appellate court.®® The practice and requirements upon appeals are substantially the same as in other cases, and the record required to be certified and filed is the record of the case in the bankruptcy court, not 51— Mead v. Piatt, 17 Ted. 509; Ex A. B. E. 497; Lockman v. Lang, 128 Fed. parte Mead, 109 U. S. 230, 27 L. ed. 914. 279, 11 A. B. E. 597. But see Bernard 52— G. O. XXXVI (1) ; Norcross v. v. Lea, 210 Fed, 583, 31 A. B. E. 436. Mercantile Co., 101 Fed. 796, 4 A. B. E. 56— Lockmau v. Lang, 132 Fed. 1, 12 317. ' A. B. E. 497. 53— Flickinger v. First Nat. Bank of 57 — Lockman v. Lang, 132 Fed. 1, 12 Vandalia, 145 Fed. 162, 16 A. B. E. 678. A. B. E. 497. 54— Ins. Co. V. Comstock, 8 N. B. E. 58— Flickinger v. First Nat. Bank of 145, 16 Wall. 258, 21 L. ed. 493. See Vandalia, 145 Fed. 162, 16 A. B. E. 678. also In re McCall, 145 Fed. 898, 16 A. B. 59— Dodge v. Norlin, 133 Fed. 363, 13 E..670. • A. B. E. 176. 65— Lockman v. Ltog, 132 ..Fed. 1, 12 1222 Bban-denbueg on Bankeuptcy [§ 1646 that before the referee.^" Sections 698 and 750 of the revised statutes providing for sending up proofs, entries and papers on file necessary to a hearing of the appeal, and for the transmis- sion of the whole of the record, in the absence of stipulation, apply to appeals under section 25a.® ^ The district court is not authorized to designate what records shall be certified,®* the clerk of the district court, who is also the clerk of the bank- ruptcy court, being the only person authorized to certify to the appellate court the proceedings had in the bankruptcy court, either on appeal or on a petition to revise."^ Where the parties fail to agree on what the record is to contain, the appellant should file a praecipe with the clerk, pointing out specifically what records in his judgment should be certified. If the appellee deems the record insufficient, he can suggest a diminution of the record, and ask for a certiorari.®* While the record should dis- close the question of law suggested in the assignment of errors,^^ the failure to incorporate evidence in the record, when there is nothing to show that any evidence was taken, is no ground for dismissing an appeal.®® While on notice of an appeal, the cita- tion must be given,®'' the citation and bond are not jurisdictional prerequisites, and a failure to give or a defect therein may be cured after the time limited for an appeal,®* and an alias cita- tion may be issued to omitted parties where application therefor is made before the expiration of the first term at which the case could have been heard.®® An appeal cannot be taken in forma pauperis, nor can a receiver be ordered to advance the costs of the transcripts and printing upon an appeal from an order adjudging a debtor a bankrupt because the latter is without means.''* 60— Cook Inlet Coal Fields Co. v. Cald- 66 — Taft Co. v. Century Sav. Bank, 141 well, 147 Fed. 475, 17 A. B. R. 135. Fed. 369, 15 A. B. K. 594. 61 — In re Bobertshaw_ Mfg. Co., 135 67 — ^Wear v. Mayer, 6 Fed. 658. Fed. 220, 14 A. B. E. 341. 68— In re Hill Co., 148 Fed. 832, 17 62 — In re Eobertshaw Mfg. Co., 135 A. B. E. 517; Columbia Iron Works v. Fed. 220, 14 A. B. E. 341. Nat. Lead Co., 127 Fed. 99, 11 A. B. E. 63— Cook Inlet Coal Fields Co. v. Cald- 340. And see In re Quality Shop, 202 well, 147 Fed. 475, 17 A. B. E. 135. Fe'd. 196, 29 A. B. E. 854. 64^-In re Eobertshaw Mfg. Co., 135 69— Gray v. Grand Forks Mercantile Fed. 220, 14 A. B. E. 341. Co., 138 Fed. 344, 14 A. B. E. 780. 65— Fidelity Trust Co. v. Eobinson, 192 70— Keck Mfg. Co. v. Lorsch, 179 Fed. fed. 562, 27 A. B. E. 784. 485, 24 A. B. B. 705. §1648] Appellate Jurisdiction 1223 § 1647. Appeal bonds. A bond running only to the original petitioning creditors bas been beld sufficient.''^ Tbe trustee as beneficial owner of a bond given upon appeal from tbe adjudication and made payable to certain creditors of tbe bankrupt may sue tbereon, buf^ the complaint in such suit must allege that the trustee is tbe bene- ficial owner, and should sbow the manner in which he became sucb.'^* Section 25c of the act provides that trustees shall not be required to give bond when they take appeals or sue out writs of error. This section applies to supersedeas as well as cost bonds.^* § 1648. Effect of appeal to circuit court of appeals. Tbe taking of an appeal deprives the lower court of jurisdic- tion to further consider matters involved in tbe appeal,''^ but without a supersedeas an appeal to tbe circuit court of appeals does not suspend the execution of an order of the bankruptcy court nor stop its enforcement.'^*' Upon reversal of an order refusing tbe bankrupt bis discharge tbe court may merely reverse tbe decree of tbe lower court leav- ing the question of a discharge to a new inquiry, or reverse it with instructions to grant the discharge.'''^ The lower court cannot in any way limit tbe effect of a judgment or order of the circuit court of appeals on affirmance of an order of tbe lower court. It is bound to obey tbe mandate of the court of appeals and carry it into effect without any limitation whatever. ''* By the intervention of a term of the appellate court between the allowance of an appeal and the issuance of the citation, if citation is not waived, the appeal becomes inoperative.''® . 71 — Plickinger v. Pirst Nat. Bank of City v. State Nat. Bank of Miles City, Vandalia, 145 Fed. 162, 16 A. B. R. 678. 131 Fed. 430, 12 A. B. R. 440. 72— Dreher Co. v. Nat. Surety Co., 174 76— In re Brady, 169 Fed. 152, 21 A. Ala. 490, 27 A. B. E. 486. B. B. 364. , 73— Dreher Co. v. Nat. Surety Co., 174 77— Vehon v. Ullman, 147 Fed. 694, 17 Ala. 490, 27 A. B. E. 486. A. B. E. 435. 74 — In re Dresser & Co., 14 A. B. 78 — In re Hudson Eiver Eleo. Co., 184 B. 41. Fed. 970, 25 A. B. E. 873. 75— Bernard v. Lea, 210 Fed. 583, 31 79 — Nazima Trading Co. v. Martin, 164 A. B. R. 436; First Nat. Bank of Miles Fed. 838, 21 A. B. E. 159. 1224 Bbandenbubg on Bankeuptoy [§ 1649 § 1649. Rehearing in circuit court of appeals. The fact that the circuit court of appeals erroneously exer- cised jurisdiction under an appeal does not render the judgment void, but merely erroneous. The error may be corrected by a timely application to that court upon a petition to rehear or by resort to some appellate procedure for the correction of the error.®" A petition to rehear should ordinarily be filed within thirty days after the filing of the opinion but a petition has been allowed after such time where the point upon which the rehear- ing was asked was a reversal of the authority upon which the opinion was based after the time for a petition to rehear, but before the court had lost jurisdiction by the expiration of the term.^1 § 1650. Revision of bankruptcy proceedings. § 1651. — In general. Section 24b of the bankruptcy act provides that "the several circuit courts of appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. ' ' *^ By this provision, the jurisdiction of the circuit courts of appeals is limited to the review in matters of law of some action taken or order made in the course of a bankruptcy proceeding for which an appeal is not provided, and, if an appeal is pro- vided, that is exclusive, but then both law and fact are reviewed.®* The "proceedings" reviewable are those adminis- 80 — Loeser v. Savings Deposit Bank & revising jurisdiction over courts of bank- Trust Co., 163 Fed. 212, 20 A. B. E. ruptey in the Indian Territory, but the 845. court of appeals of that territory alone 81— Unitype Co. v. Long, 149 Fed. 196, has appellate jurisdiction (In re Blair, 17 A. B. E. 627. 106 Fed. 662, 5 A. B. E. 793) ; and that 82 — Analogous provision of Act of this subdivision has no application to tei;- 1867. "See. 2. . . . That the sev- ritorial courts (In re Stumpff, 9 Okla. eral circuit courts . . . shall have a 639, 4 A. B. E. 267). general superintendence and jurisdiction 83 — Elliott & Co. v. Toeppner, 187 V. 8. of all cases and questions . . . and, 327, 47 L. ed. 200, 9 A. B. E. 50, § 25a, except when special provision is otherwise Act of 1898; In re Jacobs, 99 Fed. 539, made, may . . . hear and determine 3 A. B. E. 671; In re Good, 99 Fed. 389, the case." 3 A. B. E. 605; In re Eiehards, 2 N. B. It has been held that the circuit court N. E. 38, 3 A. B. E. 145, 96 Fed. 935; of appeals of the Eighth Circuit has no In re Eusch, 8 A. B. E. 518, 116 Fed. 1 1652] Appellate Jueisdiotion 1225 trative orders and decrees in the ordinary course of a bankruptcy proceeding between the filing of the petition and the final settle- ment of the estate, which are not made specially appealable under sections 24a or 25b, the provision not being intended as a substitute for the right of appeal upon controverted questions of fact under sections 24a and 25a.®* It is held, however, that the circuit court of appeals will not on its own motion decline jurisdiction, of a controversy brought up by petitibn to revise which should properly have come up on appeal;*^ and con- versely an order appealed from has been treated as before the court of appeals by petition for revision tvhere no objection was made and no questions of fact were involved,^® though the true rule, in view of the recent decision of the supreme court,® '^ that the provisions for an appeal under section 25a and those for review under section 24b are mutually exclusive, would seem to be that where an appeal has been erroneously taken it cannot be treated as a petition for review.®* An order is subject to review though made in chambers.®® To have a referee 's decision reviewed, it should be certified to a judge of the district court, and his decision first taken. § 1652. — What may be reviewed. This provision is limited to proceedings already had and con- templates a summary review of the orders of the bankruptcy 270; Mueller v. Nugent, 184 V. S. 1, 9, 85— In re Stroum, 192 Fed. 762, 27 A. 46 L. ed. 405, 7 A. B. E. 224. B. E. 721 ; Martin v. Globe Bank & Trust A similar view prevailed under the for- Co., 193 Fed. 841, 27 A. B. E. 545. raer act. Bank v. Slagle, 106 tl. S. (16 86 — In re Williams' Estate, 156 Fed. otto) 558, 22 L. ed. 273; Bank v. Cooper, 934, 19 A. B. E. 389; In re Blanehard 20 Wall. 171, 22 L. ed. 273 ; Sandusky v. Shingle Co., 164 Fed. 311, 21 A. B. E. Bank, 23 Wall. 289, 23 L. ed. 155; Leg- 142; In re Eose Shoe Mfg. Co., 168 Fed. gett V. Allen, 110 TJ. 8. 741, 28 L. ed. 39, 21 A. B. E. 725. 313. 87— In re Loving, 224 U. S. 183, 56 In the case of Meyers (105 Fed. 353, L. ed. 725, 27 A. B. E. 852. 5 A. B. E. 4) it was held that there is 88 — Brady v. Bernard & Kittinger, 170 nothing in the law which requires the Fed. 576, 22 A. B. E. 342; Davidson & court of bankruptcy to make findings of Co. v. Friedman, 140 Fed. 853, 15 A. B. fact for the purposes of an appeal from E. 489; Diekas v. Barnes, 140 Fed. 849, its decision. 5 L. E. A. (N. S.) 654, 15 A. B. E. 566. 84— In re Loving, 224 IT. S. 183, 56 89— Hall v. Allen, 9 N. B, E. 6, 12 L. ed. 725, 27 A. B. E. 852; Coder v. Wall. 452, 20 L. ed. 458;. Morgan v. Arts, 213 U. S. 223, 53 L. ed. 772, 22 ThornhiU, 5 N. B. E. 1, 11 Wall. 65, 20 A. B, E. 1, afe'g 152 Fed. 943, 15 L. E. L. ed. 60. A. (N,.S.) 372, 18 A. B. E. 513; In re Muellei', 135 Fed. 711, 14 A. B. E. 256. 1226 Bra.n'denbtieg on Bankbitptoy [§ 1652 courts in matters of law, whetlier tlie proceedings be at law or in equity, but does not contemplate any review of the facts, or of decisions which require the consideration of conflicting evidence, or evidence from which different deductions or conclusions may reasonably be drawn.*" The legal questions which can be examined are only those which arise out of the facts found by the' court or admitted by the parties.®^ An order based upon an agreed statement of facts, presents a question of law reviewable by petition.*^ The failure of the defendant to deny or otherwise controvert the facts alleged will be deemed an admission that they are true. A mere motion to dismiss the petition upon the ground that the order is not review- able upon a petition to revise is not a denial of the facts alleged.®^ An order vacating or refusing to vacate an adjudication,®* or denying a petition for the reinstatement of proceedings, where 90— In re Witherbee, 202 Fed. 893, 30 A. B. R. 314; In re Zinner, 202 Fed. 197, 29 A. B. E. 860; In re Blum, 202 Fed. 883, 29 A. B. E. 332; In re Smith, 203 Fed. 369, 29 A. B. E. 628; Stuart v. Eeynolds, 204 Fed. 709, 29 A. B. E. 412; Kirsner v. Taliaferro, 202 Fed. 51, 29 A. B. E. 832; In re Frank, 182 Fed. 794, 25 A. B. E. 486; Ruddick v. BiUings, 3 N. B. E. 14, Woolw. 330, Fed. Gas. No. 12110; In re Irwin, 174 Fed. 642, 23 A. B. E. 487; In re Leeeh, 171 Fed. 622, 22 A. B. E. 599 ; In re Knosher & Co., 197 Fed. 136, 28 A. B. E. 747; Barnes v. Pampel, 192 Fed. 525, 27 A. B. E. 192; In re Grassier & Eeiehwald, 154 Fed. 478, 18 A. B. E. 694; Samel v. Dodd, 142 Fed. 68, 16 A. B. E. 163; In re O'ConneU, 137 Fed. 838, 14 A. B. E. 237; Kenova Loan & Trust Co. V. Graham, 135 Fed. 717, 14 A. B. E. 313; Ellis v. Krulewitch, 141 Fed. 954, 15 A. B. E. 615; In re Gill, 195 Fed. 643, 28 A. B. E. 333; LenHbx v. Allen Lane Co., 167 Fed. 114, 21 A. B. R. 648; Eyan v. Hendricks, 166 Fed. 94, 21 A. B. R. 570; Lesaius v. Goodman, 165 Fed. 889, 21 A. B. R. 446, rev'g 163 Fed. 614, 21 A. B. R. 23; In re Blanchard Shingle Co., 164 Fed. 311, 21 A. B. E. 142; Chestertown Bank of Maryland v. Walker, 163 Fed. 510, 20 A. B. E. 840; Mulford V. Fotirth St. Nat. 'Bank, 167 Fed. 897, 19 A. B. E. 742; In re Letson, 157 Fed. 78, 19 A. B. E. 506; In re Lee, 182 Fed. 579, 25 A. B. E. 436; In re Hays, 179 Fed. 222, 24 A. B. E. 691; In re Loving, 224 IT. S. 183, 56 L. ed. 725, 27 A. B. E. 852. 91— In re Haring, 29 A. B. E. 387, aff'g 193 Fed. 168, 27 A. B. E. 285; In re Moore, 166 Fed. 689, 21 A. B. E. 651; In re Throckmorton, 149 Fed. 145, 17 A. B. E. 856. 92 — ^In re Judkins, 205 Fed. 892, 30 A. B. E. 529. 93— In re Frank, 182 Fed. 794, 25 A. B. B. 486. 94^-B-E Electric & Telephone Mfg. Co. V. Aetna Life Ins. Co., 206 Fed. 885, 30 A. B. R. 424; In re Worsham, 142 Ted. 121, 15 A. B. R. 672; Brady v. Bernard & Kittinger, 170 Fed. 576, 22 A. B. E. 342; contra, In re Goldberg, 167 Fed. 808, 21 A. B. R. 828. An order sustaining a demurrer to a petition filed for tha purpose of vacating an adjudication is reviewable. In re Ives, 113 Fed. 911, 7 A. B. E. 692. Order dismissing the petition after ad- judication because corporation is not such as can be adjudicated under the act is reviewable. In re New England Breed- ers ' Club, 169 Fed. 586, 22 A. B. E. 124, rctv'g leg Fed- 317, 21 A. B. E. 349. § 1652] Appellate Jurisdiction 1227 the adjudication has been refused and the petition dismissed,®" may be reviewed. The court of appeals of the eighth circuit has held that an order dismissing a petition for failure to allege facts sufficient to constitute an act of bankruptcy is reviewable under section 24b as well as appealable under section 25a,"' but its holding is contrary to the decision of the supreme court, which holds the two seefions mutually exclusive and not cumulative.®'^ A finding that an alleged creditor has a provable claim enti- tling him to be a petitioning creditor is reviewable,®® as is a decision as to the priority of a claim not amounting to $500, the validity not being disputed;®® setting off a usury judgment against claims; ^ or setting aside the allowance of a secured claim and requiring the surrender of a preferential payment; ^ or deny- ing partnership creditors the right to participate in the individual assets of a bankrupt partner until the individual part- ners have been paid.* The circuit court of appeals has jurisdiction to review the decision of the district court, exercising ancillary jurisdiction in bankruptcy proceedings, that it has no jurisdiction to deter- mine adverse claims.* It is only when the jurisdiction of the lower court as a federal court is in issue that the supreme court has exclusive jurisdiction to entertain a writ of error or an appeal." A summary order to turn over assets is held reviewable under section 24b,® as is an order requiring partners to turn over prop- 95 — In re Jamison Mercantile Co., 112 makes no reference to the amount in- Fed. 966, 7 A. B. E. 558. volved. 96 — Stevens v. Nave-MeCord Mercan- 1 — ^Wilson v. Bank, 3 Fed. 91. tile Co., 150 Fed. 71, 17 A. B. K. 609. 2 — In re First Nat. Bank of Louisville, 97— In re Loving, 224 TJ. 8. 183, 56 155 Fed. 100, 18 A. B. R. 766. L. ed. 725, 27 A. B. E. 852. 3— Euclid Nat. Bank v. Union Trust & 98— In re Ellis, 143 Fed. 103, 16 A. B. Deposit Co., 149 Fed. 975, 17 A. B. E. E. 221. 834, aff 'g 142 Fed. 588, 16 A. B. E. 91. 99— In re Bouse, Hazard & Co., 1 N. B. 4— Fidelity Trust Co. v. Gaskell, 195 N. 75, i A. B. E. 234, 91 Fed. 96; In re Fed. 865, 28 A. B. R. 4. Worcester County, 102 Fed. 808, 4 A. B. 5— Fidelity Trust Co. v. Gaskell, 195 E. 496. See In re Mueller, 153 Fed. 711, Fed. 865, 28 A. B. E. 4. 14 A. B. E. 256. And see In re Flatland, 6— Kirsner v. Taliaferro, 202 Fed. 51, 196 Fed. 310, 28 A. B. E. 476, which 29 A. B. E. 832; First Nat. Bank of Chi- 1228 Bkandenbueg on Bankbuptcy [§ 1652 erty to the partnership trustee '^ or an order enjoining replevin by a third person against a trustee claiming property in such trustee's possession;* or enjoining an assignee under a volun- tary general assignment avoided by the bankruptcy and directing the marshal to take the assigned property.® So, an order directing a trustee to take possession of property held by a sheriff under attachment at the time of adjudication; ^^ or enjoining a sheriff from paying over money to an execution creditor and directing him to pay it to a trustee; " or directing the payment to a claimant of funds in the hands of a bankrupt's trustee, where the facts are undisputed, ^^ or the refusal of an order directing a receiver to turn over assets to the trustee ; ^* or a decision as to the validity of a trust deed executed by the bank- rupt within four months of the filing of the petition in bank- ruptcy ^* may be reviewed by petition, as may the action of the district court in erroneously retaining jurisdiction of summary proceedings against an adverse claimant,^^ or decisions involv- ing disputes of parties to the bankruptcy proceedings as to their respective rights to participate in the proceeds of admit- tedly valid security.^® The right of revision extends to an order denying the bank- rupt the right to amend his schedules ^'^ or imprisoning bankrupt for contempt in failing to obey an order requiring him to pay cago V. Chicago Title & Trust Co., 198 9— Davis v. Bohle, 1 N. B. N. 216, 1 A. U. S. 280, 49 L. ed. 1051, rev'g 125 Fed. B. E. 421, 92 Fed. 325. 169, 11 A. B. E. 79; In re Farrell, 176 10— In re Francis- Valentine Co., 1 N. Fed. 505, 23 A. B. E. 826. B. N". 529, 2 A. B. E. 522, 94 Fed. 793. But see In re Eichards, 183 Fed. 501, 11— In re Kenney, 2 N. B. N. E. 140, 25 A. B. E. 176; In re Cole, 144 Fed. 392, ^ 3 A. B. E. 353, 97 Fed. 554. 16 A. B. E. 302, holding that unless the 12— In re Hutchinson, 113 Fed. 202, 8 affirmance of an order directing the bank- A. B. E. 20. rupt to turn over assets to the trustees ia 13 — In re Heeox, 164 Fed. 823, 21 A. so unwhoUy unjustified on the proofs as B. E. 314. would require the court on a writ of error 14 — Morgan v. First Nat. Bank of to set aside a verdict for want of evidence Mannington, 145 Fed. 466, 16 A. B. E. to sustain it, the determination of the 639. court below is not reviewable on petition 15 — Shea v. Lewis, 206 Fed. 877, 30 to revise. A. B. E. 436. 7— Diekas v. Barnes, 140 Fed. 849, 5 16— Snow v. Dalton, 203 Fed. 843, 29 L. E. A. (N. S.) 654, 15 A. B. E. 566. A. B. E. 240. ' 8— In re Eussell, 101 Fed. 248, 3 A. B. 17— In re Goodman, 174 Fed. 644, 23 E. 658. A. B. E. 504. §1653] Appellate Jubisdiotion 1229 over money to a trustee; " or to produce books; ^" or requiring a bankrupt to indorse a liquor license for sale.^" An order for the sale of property by a trustee on exception to the report; ^^ or refusing to set aside a sale^^ or allowing an exemption ^* or directing a sale of property claimed as exempt,^* or a decision involving a widow's right to dower in the estate of the bankrupt,^^ may be review by petition. Orders confii-ming or refusing to confirm, or setting aside a composition; ^^ or revoking a discharge; ^'' or denying a motion to dismiss an application for a discharge,^* or denying a creditor the right to amend his specifications in opposition to a dis- charge ; ^® have been held reviewable by petition but this seems doubtful.^" An order removing or refusing to remove a trustee; ®^ or allow- ing expenses incurred by the trustee for counsel fees in the realization of assets ^^ is reviewable by petition. Whether an order directing a re-reference is reviewable under 24b has not been decided.*^ § 1653. — What may not be reviewed. On a petition to the circuit court of appeals under section 24b, an objection of the petitioner that the evidence in the case did not warrant the order complained of will not be considered; ** 18— In re Purvine, 2 A. B. B. 787, 1 26— In re Adler, 3 N. B. N. E. 15, 103 N. B. N. 326, 96 Fed. 192. Fed. 444, 4 A. B. E. 583; In re Joseph, 24 19— In re Horga,n, 98 Fed. -414, 2 N. Fed. 137. B. N. 233, 3 A. B. E. 253, aff'g 97 Fed.' 27— See Thompson v. Mauzy, 174 Fed. 319, 2 N. B. N. 53. 611, 23 A. B. E. 489. 20— In re Fisher, 103 Fed. 860, 4 A. B. 28— Lindeke v. Converse, 198 Fed. 618, E. 646. 28 A. B. E. 596. 21— Bank v. Slagle, 106 U. S. (16 29— In re Carley, 117 Fed. 130, 8 A. B. Otto) 558, 27 L. ed. 204; Nimiek v. Cole- E. 720. man, 95 TJ. S. (5 Ottp) 266, 24 In ed. 30 — See eases cited in succeeding sec- 447. tion. 22— In re Knosher & Co., 197 Fed. 136, 31— Hutchins v. Briggs, 61 Fed. 498; 28 A. B. E. 747. ' In re Prouty, 24 Fed. 554. 23— Holden v. Stratton, 198 U. S. 202, 32— Davidson & Co. v. Friedman, 140 48 L. ed. 116, 10 A. B. E. 786. Fed. 853, 15 A. B. E. 489. 24— Ingram v. Wilson, 125 Fed. 913, 33 — See In re Judkins, 205 Fed. 892, 11 A. B. E. 192. 30 A. B. E. 529. 25— In re McKenzie, 142 Fed.. 383, 15 34— In re Eosser, 101 Fed. 562, 4 A. B. A. B. E. 679, aff'g 132 Fed. 986, 13 A. B. 153; Babbett v. Burgess, 7 N. B. E. B. B. 227. 561, 2 Dill. 169, Fed. Cas. No. 693. 1230 Beandenbubg on Bankbuptoy [§ 1653 or a finding that a creditor did not have reasonable cause to believe his debtor insolvent when he obtained security for his debt; ^^ or an error in entertaining a bill in equity by the trustee against a stranger, a citizen of the same state, to set aside a fraudulent conveyance ; ^® or mere irregularities.'^ Matters com- mitted to the discretion of the lower court cannot be revised unless there was a manifest abuse of such discretion,'* as an order transferring the case to another district,'* or an order to produce bonds and papers and regarding examination of wit- nesses; *" or an order relating to attorney's fees,*^ or an order removing a referee from office *^ or an order staying creditors' proceedings in a state court.*' The proceedings before the referee are not before the court ** nor are the master's findings of fact approved by the district judge brought up for review.*' Questions that do not appear on the record,*® or that were not raised and considered by the court below,*'' will not be con- sidered. The illegality of the adjudication cannot be considered upon petition to revise.** An order directing the payment of the pro- ceeds of a receiver's sale to the trustee, is not reviewable though Petition to revise not proper where the v. Thornhill, 5 N. B. E. 1, 11 Wall. 65, order complained of, involving the valid- 20 L. ed: 60 ; Woods v. Buckewell, 7 N. B. ity of a mortgage, resulted from a con- E. 405, 2 DiU. 38, Fed. Cas. No. 17991. sideration of disputed facts and depended 39 — Kyle Lumber Co. v. Bush, 133 Fed. upon the findings made thereon. Wells & 688, 13 A. B. R. 535. Co. V. Sharp, 208 Fed. 399, 31 A. B. E. 40— In re Horgan, 98 Fed. 414, 3 A. B. 348. E. 253. 35— In re Eggert, 102 Fed. 735, 4 A. B. 41— In re Irwin, 174 Fed. 642, 23 A. B. E. 449. E. 487. 36 — In re Jacobs, 99 Fed. 539, 3 A. B. . 42 — Birch v. Steele, 165 Fed. 577, 21 R. 671 ; In re Abraham, 1 N. B. N. 281, A. B. E. 539. 2 A. B. E. 266, 93 Fed. 767; Stickney v. 43— In re Guanacevi Tunnel Co., 201 Wilt, 23 Wall. 150, 23 L. ed. 50; Milner Fed. 316, 29 A. B. E. 229. v. Meek, 95 IT. S. (5 Otto) 252, 24 L. ed. 44— In re Pettingil & Co., 137 Fed. 444. 840, 14 A. B. E. 757. 37 — Huntington v. Saunders, 64 Fed. 45 — In re Capouigri, 183 Fed. 307, 25 476, 72 Fed. 10. A. B. E. 509. 38— In re Guanacevi Tunnel Co., 201 46— Stuart v. Eeynolds, 204 Fed. 709, Fed. 316, 29 A. B. E. 229; Mulford v. 29 A. B. E. 412; In re Baum, 169 Fed. Fourth St. Nat. Bank, 157 Fed. 897, 19 410, 22 A. B. E. 295; Serra e Hijo v. A. B. E. 742; In re Lesser, 99 Fed. 913, Hoffman, 17 N. B. E. 124. 3 A. B. E. 758; In re Marsh, Fed. Cas. 47— In re Jayeox, 13 N. B. E. 122 Fed. No. 9108 ; In re Adler, 2 Woods 511, Fed. Cas. No. 7244. ' ' Cas. No. 82 ; In re Perkins, 8 N. B. E. 56, 48— Cook Inlet Coal Fields Co. v. Cald- 5 Biss. 254, Fed. Cas. No. 10982; Morgan well, 147 Fed. 475 17 A. B E 135 § 1653] Appellate Jtjeisdictioit 1231 made upon petition of the trustee*** nor can a decree setting aside or sustaining a conveyance made by the bankrupt,®" or an interlocutory decree in a plenary suit brought in the bankruptcy court by the trustee under section 67e,®^ or a proceeding to punish for contempt one who has violated an injunction of the bankruptcy court in a collateral matter®^ be reviewed upon petition. The propriety of an order directing the bankrupt to turn over property to the trustee cannot be questioned upon a petition to review an order adjudging the bankrupt guilty^ of contempt.®* A specific provision®* having been made for appeal from a judgment adjudging or refusing to adjudge a bankrupt, grant- ing or denying a discharge or allowing or rejecting a debt or claim of $500 or over, the courts are not at liberty to disregard the distinction and only non-appealable orders can be reviewed under this provision; ®® which was also the view under the former act; ®® but the present act is mandatory as to the revision while the former was permissive.®'' Accordingly a review of an order allowing or rejecting a claim exceeding $500 ®* cannot be had under section 24b though the trustee' admits the validity of the claim and contests only its validity as a lien upon the bankrupt's property®" since the proper procedure is by appeal. L. ed. 725, 27 A. B. E. 852 ; In re Worces- ter County, 102 Fed. 808, 4 A. B. E. 496; In re Good, 99 Fed. 389, 3 A. B. E. 605. 56— Smith v. Mason, 6 N. B. E. 1, 14 Wall. 419, 20 L. ed. 748; In re Alexander, 3 N. B. E. 6, Chase 295, Fed. Cas. No. 160. 57— Bank v. Cooper, 20 Wall. 171, 22 L. ed. 273. 58 — Union Nat. Bank of Kansas City V. Neill, 149 Fed. 720, 17 A. B. E. 853; In re Dickson, 111 Fed. 726, 55 L. E. A. 349, 7 A. B. E. 186. 59 — In re Streator Metal Stamping Co., 205 Fed. 280, 30 A. B. E. 55; In re Loving, 224 U. S. 183, 56 L. ed. 725, 27 A. B. E. 852. See also In re Doran, 154 Fed. 467, 18 A. B. E. 760, modf'g 148 Fed. 327, 17 A. B. E. 799. As holding to a contrary effect, see Bode & Horn v. Phipps, 195 Fed. 414, 27 A. B. R. 827; Barnes v. Pampel, 192 Fed. 625, 27 A. B. R. 192; In re Lee, 182 Fed. 49— Mason v. Wolkowich, 150 Fed. 699, 10 L. E. A. (N. S.) 765, 17 A. B. E. 709. 50— Barnes v. Pampel, 192 Fed. 525, 27 A. B. E. 192. Judgment of district court in plenary suit under section 60b not revisable. In re Hamilton Automobile Co., 198 Fed. 856, 29 A. B. E. 163. Appeal under section 24a not petition under section 24b proper to review ple- nary suit against wife of bankrupt to recover funds alleged to have been given her by bankrupt. Kirkpatrick v. Hames- berger, 199 Fed. 886, 29 A. B. E. 439. 51— Doroshow v. Ott, 134 Fed. 740, 14 A. B. E. 34. 52 — ^Morehouse v. Paeifle Hardware & Steel Co., 177 Fed. 337, 24 A. B. R. 178. 53— In re Lans, 158 Fed. 610, 19 A. B, B. 458. 54— Section 25a, Act of 1898. 55--In re Loving, 224 V. S. 183, 56 1232 Bbawdknbiteg on Bankbupioy [§ 1653 An order denying to a partnership creditor the right to prove his claim against the partnership estate is not reviewable since it is in effect an order disallowing a claim.^** If the daim is less than $500 it is not within the provision as to appeals and an order allowing or rejecting it is final on the facts but may be reviewed under this provision as to any question of law. An order dismissing an application for discharge ®^ or grant- ing a discharge or confirming a composition ^^ is not reviewable. § 1654. — Time for presenting petition. "While neither the statute nor the rules limit the time within which a petition for review should be filed,** it should be within a reasonable time depending upon the circumstances of each case.®* The better practice is to fix it at six months, by analogy to the time allowed by the statute for taking appeals to the circuit court of appeals in other cases.*^ A petition to revise an order setting aside a sale of the bankrupt's property and ordering a resale need not be presented until after the resale has been made and confirmed.®* Eule 38 of the second circuit limits the time to ten days, unless an order of the bankruptcy court enlarging the time is granted within/ the ten days,*'^ but an order extending the time for the filing of the petition to revise is improper if made nunc pro tunc after the expiration of the time allowed by the rules for the 579, 25 A. B. E. 436; Eitehie County Delay of three months not unreason- Bank V. MeFarland, 183 Fed. 715, 24 A. able. Meyer Bros. Drug Co. v. Pipkin B. E. 893, afE'g 174 Fed. 859, 23 A. B. Drug Co., 136 Fed. 396, 14 A. B. E. 477. E. 530; In re Holmes, 142 Fed. 391, 15 -65— Blanchard v. Ammona, 183 Fed. A. B. E. 689; Courier Journal Co. v. 556, 25 A. B. E. 590; In re Groetzinger Sehaefer Co., 101 Fed. 699, 4 A. B. E. & Sons, 127 Fed. 124, 11 A. B. E. 467; 183. In re Tomlinson Co., 154 Fed. 834, 18 60— In re Mueller, 135 Fed. 711, 14 A. A. B. E. 691 ; In re Hohnes, 142 Fed. 391, B. E. 256. 15 A. B. E. 689 ; In re Totogstrom, 153 61— In re Kuffler, 127 Fed. 125, 11 A. Fed. 98, 18 A. B. E. 572; In re Worcester B. E. 469. County, 102 Fed. 808, 4 A. B. E. 496; 62— In re Friend, 134 Fed. 778, 13 A. First Nat. Bk. v. Cooper, 20 Wall. 171, 22 B. E. 595. L. ed. 273; In re Casey, 8 N. B. E. 71, 10 63 — In re New York Economical Print- Blatoh. 376, Fed. Cas. No. 2495; compare ing Co., 106 Fed. 839, 5 A. B. E. 697. In re Good, 99 Fed. 389, 3 A. B. E. 605. 64 — Blanchard v. Ammons, 183 Fed. 66 — Sturgis v. Corbin, 141 Fed, 1, 16. 556, 25 A. B. E. 590. A. B. E. 548. . Delay of one month not unreasonable. 67 — In re Brown, 174 Fed. 339,- 2p A. In re Eome,. 162 Fed. 971, 19 A. B. E. B. E. 93,- ■ ■ • . . 820. -; ■ ■■ •■ • ■ • ■■■■ ■ -V"'"' : ;"'..-' .: ■".•:; § 1655] Appellate Jxjbisdiction 1233 filing of such petition.®* A stipulation that two petitions to revise be printed in one appeal book is not a waiver of the failure to file within the ten days allowed."* § 1655; — Practice. It is expressly provided that the power of revision shall* be exercised "on due notice and petition by the party aggrieved." '"' The circuit court of appeals cannot revise the proceedings of the district court in bankruptcy without an issue made and pre- sented by parties who have a substantial interest in the con- troversy, and who can suitably represent it, or at least without a proper opportunity being given therefor, and where the cred- itor against whom the petition for review was filed has been paid, and has therefore no longer any interest in the controversy, the court will not proceed further until other creditors, having an interest, are brought in or given an opportunity to come in by notice properly served.''^ Eeasonable notice should be given to the adverse party; but where the record contains everything that was done it may contain more than is necessary, but is cer- tainly sufficient, and notice given in open court in the presence of all the parties and their attorneys at the very instant the judgment sought to be revised was announced is due notice.''^^ A petition for revision should not be dismissed for lack of proper parties, where the parties referred to were not parties to the proceedings below.'^^ While it has been held that the petition may be presented and allowed by a judge of a court of bankruptcy,'^* or any one of the judges of the circuit courts of appeals, the better practice is to present it to the latter.''^ The petition should state specifically the question of law which was involved and was ruled upon by the court below, and 68— In re Brown, 174 Ped. 339, 23 A. 73— In re Utt, 105 Fed. 754, 5 A. B. E. B. E. 93. 383. 69— In re Strobel, 160 Ted. 916, 20 A. 74— In re Abraham, 1 N. B. N. 28, 93 B. E. 22. Fed. 767, 2 A. B. E. 266. 70— Sectioir 24b, Act of 1898 ; Clark 75— In re Williams, 105 Fed. 906, 5 A. V. Pidcock, 129 Fed. 745, 12 A. B. R. B. R. 198. But see Meyer Bros. Drug Co. 309. V. Pipkin Drug Co., 136 Fed. 396, 14 A. ( 71— In re Baker, 3 N. B, N. R. 104, B. R. 477, in which the court refused to 104 Fed. 287, 4 A. B. R. 778. . .. : dismiss the petition though it was not al- 72— In re Abraham, 1 N. B. N. 281, 93 lowed by any judge of the lower or appel- Fed. 767, 2 A. B. E. 266. late court. Brandenburg — 78 1234 Beandenbtjeg on Bankeuptcy [§1655 should be accompanied by a certified copy of so much of the record as will exhibit the manner in which the question arose and its determination,''^ and the question of law so presented is the only question which will be decided.'"^ An informal memo- randum filed by the judge in connection with an order made by him forms no part of the record,'^* and a mere opinion of the district court not specially made a part of the record does not take the place of a finding of facts, although it may be referred to to ascertain what propositions of law governed the court in making its decision, or to determine whether the case went off on facts or lacwJ^ The clerk of the district court, who is -also the clerk of the bankruptcy court, is the only person authorized to certify to the appellate court the proceedings had in the bankruptcy court, either on appeal or on a petition to revise.*" The appellee, in support of the decision of the lower court, may rely upon any ground disclosed by the record even though it may not have been the ground upon which the decision was based.*^ 76— In re Taft, 133 Fed. 511, 13 A. B. of law" and should specifically assign R. 417; Boss v. Stroh, 165 Fed. 628, 21 the alleged errors of law. In re Wither- A. B. E. 644; Steiner v. Marshall, 140 bee, 202 Fed. 896, 30 A. B. E. 314. Fed. 710, 15 A. B. E. 486; Hegner v. In absence of special findings or snffi- Ameriean Trust & Savings Bank, 187 cient transcript, question wiU not be re- Fed. 599, 26 A. B. E. 571'; In re Pettin- viewed under section 24b. In re Smith, gill & Co., 137 Fed. 840, 14 A. B. E. 757; 203 Fed. 369, 29 A. B. E. 628. In re Throckmorton, 196 Fed. 656, 28 Petition denied where transcript con- A. B. E. 487; In re O'Connell, 137 Fed. tained neither an agreed statement of 838, 14 A. B. E. 237 ; In re Boston Dry facts, a finding of facts by the judge, nor Goods Co., 125 Fed. 226, 11 A. B. E. 97; a summary of the evidence. Landry v. In re Baker, 3 N. B. N. E. 104, 104 Fed. San Antonio Brewing Ass'n, 159 Fed. 287; In re Eichards, 2 N. B. N. E. 38, 700, 20 A. B. E. 226. 3 A. B. E. 145, 96 Fed. 935; In re Abra- 77— In re Eoadarmour, 177 Fed. 379, ham, 2 A. B. E. 266, 1 N. B. N. 28, 93 24 A. B. E. 49. Fed. 767; Courier Journal Co. v. Schaefer 78 — In re Alden, 205 Fed. 145, 30 A. Br'g Co., 101 Fed. 699; see also In re B. E. 48. Casey, 8 N. B. E. 71, 10 Blateh. 376, Fed. 79— In re Pettingill & Co., 137 Fed. Cas. No. 2495; A. & C. E. E. Co. v. Jones, 840, 14 A. B. R. 757. 5 N. B. E. 97, Fed. Cas. No. 126. But 80— Cook Inlet Coal Fields Co. v. Cald- see Meyer Bros. Drug Co. v. Pipkin Drug well, 147 Fed. 475, 17 A. B. R. 135. Co., 136 Fed. 396, 14 A. B. R. 477. 81— Davis v. Crompton, 158 Fed. 735, The petition to revise should allege that 20 A. B. E. 53. the error complained of was "in matter §1656] Appellate Jueisdiotion 1235 § 1656. — Dismissal, affirmance or reversal. A petition to revise will be dismissed where the parties elect to stand upon an appeal.*^ Where the record upon motion to dismiss a petition to revise, covers substantially the entire case the court may not only deny the motion to dismiss, but may deny the petition.*^ On the other hand, the appellate court may render a decision on the merits though the petitioner has filed his consent that the petition to revise be dismissed.^* A revisory petition may be dismissed without prejudice to such further proceedings in the district court as that court may consider proper.®^ Ordinarily a case erroneously brought up should be dismissed unless such action would leave a decree entered in a case over which the court had no jurisdiction, when it may be remanded with directions to dismiss.*® The petition will be dismissed where it presents merely a moot question, as where the property to which the appellant asserts the right to a lien has been sold by the receiver in bankruptcy since the entry of the order of the lower court denying the petition asserting the lien.*^ Where an order of the district court is reversed and the case remanded, the district court cannot amend its original order to conform with the opinion of the circuit court of appeals since the same is annulled by the reversal.*® It should be borne in mind that the power to review does not confer original jurisdiction over banliruptcy proceedings as such and the decree, if affirmed, remains the decree of the lower court, to be carried out by it.*" Upon a petition to revise the cir- cuit court of appeals has no power to make any orders requiring certain acts of the trustee®" though it has been held that the circuit court of appeals sits as a court of bankruptcy on a peti- 82— Salsburg v. Blackford, 204 Fed. 87— In re Altieri, 19 A. B. E, 459. 438, 29 A. B. E. 320. 88— In re Lesaius, 181 Ted. 690, 25 83— In re Judkins, 205 Fed. 892, 30 A. B. E. 102. A. B. E. 529. 89— Clark v. Bininger, 3 N. B. E. 489, 84— In re Witherbee, 202 Fed. 896, 30 7 Blatch. 165, Fed. Cas. No. 2815. A. B. E. 314. 90— In re Witherbee, 202 Fed. 896, 30 85— Lennox v. Allen Lane Co., 167 Fed. A. B. E. 314. 114, 21 A. B. R. 648. 86— Stickney v. Wilt, 11 N. B. E. 97, 23 Wall. 150, 23 L. ed. 50. 1236 Bbandenbueg on Bankruptcy [§ 1656 tion for review, and, so far as is necessary to give effect to its decision, has all the powers of the district court.^^ § 1657. The Supreme Court of the United States. § 1658. — Statutory provisions as to appeals generally. ^^ The judicial code of 1911,^* re-enacting in part the act of March 3, 1891,"* establishing the circuit courts of appeals, except as amended,®** fixes the appellate jurisdiction of the United States courts. Appeals or writs of error may be taken from the district courts direct to the supreme court in any case in which the jurisdiction of the court is in issue, in which case only the question of jurisdiction shall be certified;*® in any case that involves the construction or application of the constitution of the United States ; ®^ or in which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question ; or in which the constitution or a law of a state is claimed to be in contravention 91— In re Tucker, 153 Fed. 91, 18 A. B. R. 378. 92 — The following statutory provisions have particular reference to the jurisdic- tion of the supreme court: U. S. Eev. Stat., §§ 687-710, 5261. The Act of April 7, 1874, c. 80 (1 Supp. E. S. 7), which provides that the appellate jurisdiction of the supreme court over judgments and decrees of terri- torial courts, in cases of trial by jury, shall be by writ of error, and in other cases by appeal, etc. The Act of Feb. 16, 1875, c. 77, §1 (1 Supp. R. S. 62, 63), limits the review of the supreme court of decrees of circuit courts in admiralty cases to questions of law arising on findings of fact to be made in such cases by circuit courts. The Act of March 3, 1885, e. 353 (1 Supp. E. S. 485), provides for an appeal to the supreme court in cases of habeas corpus. The Act of March 3, 1885, o. 353 (1 Supp. R. S. 485), regulates appeals from the Supreme Court of the District of Co- lumbia and the territories. The Act of Aug. 13, 1888, e. 866, §§1, 6 (1 Supp. E. S. 613, 614), takes away the right of review by the supreme court of orders of circuit courts remanding causes to state courts. The Act of Feb. 25, 1889, c. 266 (1 Supp. E. S. 650), provides for writs of error or appeals to the supreme court in cases involving the question of the juris- diction of circuit courts. The Act of March 3, 1891 (1 Supp. E. S. 901), creating the circuit courts of appeals.. The Act of March 3, 1911 (36 Stat, at Large 1087), §239, re-enacting in part the Act of March 3, 1891. 93— The Act of March 3, 1911 (36 Stat, at Large 1087), § 239. 94—1 Supp. E. S. 901, 26 TJ. S. Stat. 826; commonly called the Evarts Act. 94a— Act Jan. 28, 1915, e. 22, § 4, as amended. Act Sept. 6, 1916, c. 448, § 3. 95— Bldg. & Loan Ass'n v. Price, 169 U. S. 45, 42 L. ed. 655; First Nat. Bank of Denver v. Klug, 186 TJ. S. 202, 46 L. ed. 1127, 8 A. B. E. 12; Sehweer v. Brown, 195 U. S. 171, 49 L. ed. 144, 12 A. B. E. 673. 96— Walla Walla v. Walla Walla Water Co., 172 IT. S. 1, 43 L. ed. 341. §1658] Appellate Jurisdiction 1237 of the constitution of the United States,*^ in which three latter cases the supreme court passes on the whole case,®* and under any of which a controversy in bankruptcy proceedings may arise. Where the jurisdiction of the district court is in issue, an appeal may be taken to the supreme court on the question of jurisdiction or to the circuit court of appeals on the merits, but appellant will be bound by his election,"® but after an appeal to the circuit court of appeals in a case involving the construction of the constitution of the United States, the case may be taken to the supreme court. ^ The supreme court is also expressly vested with appellate jurisdiction "of controversies arising in bankruptcy proceed- ings, from the court of bankruptcy, from which it has appellate jurisdiction in other cases; and shall exercise a like jurisdiction from the courts of bankruptcy not within any organized circuit of the United States and from the Supreme Court of the District of Columbia." * Prior to the amendment of January 28, 1915, an appeal could be taken to the supreme court "from any final decision of a court of appeals allowing or rejecting a claim under the laws relating to bankruptcy, under such rules and within such time as were prescribed by the supreme court, in the following cases and no other: First. Where the amount in controversy exceeded the sum of two thousand dollars, and the question involved was one which might have been taken on appeal or writ of error from the highest court of a state to the Supreme Court of the United States ; or Second. Where some justice of the Supreme Court of the United States shall certify that in his opinion the determination of the question involved in the allow- ance or rejection of such claim was essential to a uniform con- struction of the laws relating to bankruptcy throughout the United States.^ Under the amendment of January 28, 1915, the judgments and decrees of the circuit court of appeals in all proceedings or causes arising under the bankruptcy act, and in all contro- 97— Penn. Ins. Co. v. Austin, 168 U. S. portation Co., 171 IT. S. 138, 43 L. ed. 685, 42 L. ed. 626. 108. 98— Carey v. Houston & T. By., 150 2— Act of 1898, § 24a. U. S. 170, 37 L. ed. 1041. 3— Bankruptcy Act of 1898, § 25b. 99— Benjamin v. New Orleans, 169 U. Judicial Code of 1911, § 252 (36 Stat. S. 161, 42 L. ed. 700. L. 1159). 1— Pullman Car Co. v. Central Trans- 1238 Bbandenbubg on Bankruptcy [§ 1658 versies arising in such proceedings, are made final, and tliey can only be reviewed by certiorari.* § 1659. — What constitutes matter or amount in controversy. Under the law as it existed prior to the amendment of January 28, 1915, the amount in controversy was a material question. As to what constitutes "matter in controversy" or "matter in dispute," the supreme court has long since definitely stated the law. Chief Justice Taney, in Barry v. Mercein,^ states that matter in controversy, under section 22 of the judiciary act of 1891, must be "money or some right, the value of which, in money, can be calculated and ascertained. . . . The words of the act of congress are plain and unambiguous. They give the right of revision in those cases only where the rights of property are concerned, and where the matter in dispute has a known and certain value, which can be proved and calcu- lated, in the ordinary mode of business transactions. . . . It is the same in judgments in criminal cases, although the liberty or life of the party may depend on the decision of the circuit court." Chief Justice Marshall, in passing upon this same question in Gordon v. Ogden,® said: "The jurisdiction of the court has be-sn supposed to depend on the sum or the value of the matter in dispute in this court, not on that which was in dispute in the circuit court. If the writ of error be brought by the plaintiff below, then the sum which his declara- tion shows to be due may be still recovered, should the judg- ment for a smaller sum be reversed; and consequently the whole sum claimed is still in dispute. But if the writ of error be brought by the defendant in the original action, the judgment of this court can only affirm that of the circuit court, and conse- quently the matter in dispute cannot exceed the amount of that judgment. Nothing but that judgment is in dispute between the parties. ' ' The same view is laid down in Kanouse v. Martin,'^ wherein it is held that: "The settled rule is, that until some further judicial proceedings have taken place, showing upon the record that the sum demanded in the declaration is not the matter in dispute, that sum is the matter in dispute." 4 — Act Jan. 28, 1915, as amended 5 — 5 How. 103, 12 L. ed. 70. Sept. 6, 1916, c. 448, § 3 (TJ. S. Comp. 6—3 Pet. 33, 7 L. ed. 592. St. § 1120a). 7—15 How. 198, 14 L. ed. 660. §1660] Appellate Jiteisdiction 1239 § 1660. — Appeals from the highest court of a state. As the trustee is authorized to sue in the state courts and must do so in many cases, the provisions as to the review of such cases by the Supreme Court of the United States ^ are important. The Supreme Court may re-examine on writ of error the final judg- ment or decree in any' suit in the highest court of a state, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute, or an authority exercised under any state, on the ground of their being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of their validity. A ruling of the state court involving a construction of the bank- ruptcy act is reviewable by the supreme court where the con- struction contended for but not adopted would have defeated the jurisdiction of the state court.' Only questions of law can be examined ; '" and the amount involved is immaterial, but there must have been a final judgment or decree in the lower court ; " that is, there must not be any judicial question undetermined.^^ If either party claims a right, title, privilege or immunity under the United States or the constitution, laws or treaties thereof, he must plead it; ^^ and the attention of the state court must have been directed to it in time for consideration before deciding the case.^* It is not sufficient to raise such question 8 — Section 237, Judicial Code of 1911 j Findings of fact will not be reviewed § 709, 36 Stat. L. 1156, as amended Act in supreme court. Eau Claire Nat. Bank Dec. 23, 1914, c. 2, and Act Sept. 16, v. Jaekman, 204 U. S. 522, 51 L. ed. 596, 1916, c. 448, § 2 (U. S. Comp. St. 17 A. B. E. 675. § 1214) . 11— See also Grant Shoe Co. v. Laird 9— Acme Harvester Co. v. Beekman Co., 212 XT. S. 445, 53 L. ed. 591, 21 A. B. Lumber Co., 222 U. S. 300, 56 L. ed. 208, K. 484; Clark v. Kansas City, 172 U. S. 27 A. B. E. 262. - 334, 43 L. ed. 467. 10— Kaufman v. Tredway, 195 TJ. S. 12 — California Bank v. Stateler, 171 271, 49 L. ed. 190, 12 A. B. E. 682; Egan U. S. 447, 43 L. ed. 233. V. Hart, 165 U. S. 188, 41 L. ed. 680. 13— Chicago & N. W. E. v. Chicago, The direction of a verdict by the state 164 U. S. 454, 41 L. ed. 511; Pittsburgh, court in an action by the trustees in bank- etc., Ey. v. L. & T. Co., 172 U. S. 493, 43 ruptcy to recover alleged assets of the L. ed. 528. bankrupt estate raises a question of law 14 — Bellingham Bay v. New Whatcom, as to whether the evidence was sufficient 172 U. S. 314, 43 L. ed. 460; Capital to require a submission of the case to the Bank v. Cadiz Bank, 172 TJ. S. 425, 43 jury. Hector v. City Deposit Bank Co., L. ed. 502. 200 U. 8. 405, 15 A. fi. E. 336. 124Q. Beandbnbubg on Bankbtjptcy [§1660 first on a motion for a new trial or petition for rehearing," except in a statutory proceeding requiring no answer and where the defense could not be made earlier,^® but the points may be made on trial. ^^ The decision of the state court will not be reviewed if it can be supported on some other ground, though a federal question was passed upon ; ^^ nor unless there was an adverse decision on the federal question; ^^ or the federal question was directly involved.^" If there are several federal questions and the state court considered only one, the supreme court will not consider the others,^ ^ but will affirm the judgment unless the question was decided erroneously.^^ The fact that in determining the right to exemptions, a state court accepts the judgment of the bankruptcy court in the matter does not make the decision of the former court appealable to the supreme court.^* . An action brought by the trustee in bankruptcy to recover what is alleged to be an asset of the estate presents a federal question, and a judgment rendered therein is appealable,^* and, a judgment of a state supreme court in an action by the trustee to recover a preference deciding the right to avoid a preference under the state law has been held appealable.^' 15 — Pim V. St. Louis, 165 TJ. S. 273, acter of the title acquired from the trus- 41 L. ed. 714; Louisville & N. E. E. v. tee, but its decision was based upon the Louisville, 166 U. S. 709, 41 L. ed. 1173; fact of a prior adjudication of the issues comp. Meyer v. Eichmond, 172 TJ. S. 82, between the parties. Corbett v. Craven, 43 L. ed. 374; in which, however, the 215 IT. S. 125, 54 L. ed. 122, 23 A. B. E. state court may have decided on a non- 516. federal question, see dissenting opinion. 21 — Dewey v. Des Moines, 173 U. S. 16— Chicago, B. & Q. E. E. v. Chicago, 193, 43 L. ed. 665. 166 TJ. 8. 226, 41 L. ed. 979. 22— Laclede Gas Co. v. Murphy, 170 17— Backus v. Fort Street Co., 169 TJ. TJ. S. 78, 42 L. ed. 955. S. 557, 42 L. ed. 853. 23— Smalley v. Laugenour, 196 TJ. S. 18— McQuade v. Trenton, 172 TJ. S. 93, 49 L. ed. 40a, 13 A. B. E. 692. 636, 43 L. ed. 581; Bausman v. Dizon, 24 — Eector v. City Deposit National 173 U. S. 113, 43 L. ed. 633. Bank, 200 TJ. S. 405, 50 L. ed. 527, 15 19— Castillo V. McConnico, 168 TJ. S. A. B. R. 336; Traer v. Clews, 115 U. S. 674, 42 L. ed. 622. 528, 29 L. ed. 467. 20 — Leyson v. Davis, 170 TJ. S. 36, 42 A decision of the supreme court of a L. ed. 939; Briggs v. Walker, 171 TJ. S. state interpreting the bankruptcy act and 466, 43 L. ed. 243. holding that a preference was given held No federal question involved where in. to present a federal question. Eau Claire an fiction., ba^ed .upon jjie.. purchase of. Nat. Bank v. Jackman, 204 TJ. S. 522, 51 property from the trustee, the state court; L, ed...596, 17 A. B.,E. 67^^. did not pass upon the nature and char- 25 — Miller v. New Orleans- Acid & F^r- §1661] Appellate Jukisdiction 1241 Where the defendant in a suit in a state court set up the issuance of an injunction against the prosecution of the suit by the bankruptcy court, he thereby sets up a right claimed under a judgment of a court of the United States, the denial of which lays the foundation for a review by the supreme court. This right to review cannot, in such case, be defeated by a finding of the state court that the bankruptcy court has exceeded or ended its jurisdiction.^^ § 1661. — Appeals in bajikruptcy proceedings proper. Section 25b of the bankruptcy act, which is practically iden- tical with section 252 of the judicial code of 1911, provides that "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. Where the amount in controversy^'' exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal^* or writ of error from the highest court of a state to the Supreme Court of the United States; or 2. Where some justice of the supreme court of the United States shall certify that in his opinion the determination of the question or questions involved in the allowance or rejection of such claim is essential to a uniform construction of this act throughout the United States." ^® This section of the statute has been superseded by a recent tilizer Co., 211 TJ. S. 496, 53 L. ed. 300, § 109; Egan v. Hart, 165 V. S. 188, 41 21 A. B. E. 416, aff 'g 117 La. 821. L. ed. 680) ; and only when there is an 26 — Acme Harvester Co. v. Beekman adverse decision on a federal question on Lumber Co., 222 TJ. S. 300, 56 L. ed. 208, which the decision rests. 27 A. B. B. 262. 29 — It will be observed that if the 27 — Note the different phraseology case comes under this subdivision, there here: "exceeds the sum of two thousand is no specified amount required, dollars." The amount in controversy Analogous provision of Act of 1867. would not, under this provision, sufBce if "Sec. 9. . . . That in cases arising just $2,000. under this act no appeal or writ of 28 — The use of the word "appeal" in error shall be allowed in any case from reference to the removal of cases from «the circuit courts to the Supreme Court the highest court of a state to the of the United States, unless the matter in supreme court was probably a slip, as dispute in such case shall exceed two such cases are taken to the supreme court thousand dollars. ' ' by writ of error only (U. 8. Rev. Stat., « 1242 Bkandbnbtjkg on Bankeuptcy [§ 1661 amendment by which all judgments and decrees of the circuit courts of appeals in all proceedings and causes arising under the bankruptcy act are made final and subject to review by certiorari QTaiy29a. j^ j^ay, however, be of value to note the decisions prior to the change in the law. An appeal under section 25b was allowed only in cases coming under clause 3 of section 25a, and then only from the final decision, i. e., one that could not be further affected by action in the circuit court of appeals.*" A ruling made in the course of the determination of an issue as to alleged bankruptcy upon a subordinate issue as to whether the petitioning creditors held "provable" claims is not a judg- ment allowing or rejecting a debt within the meaning of sectioii 25a, and a decision by the circuit court of appeals upon such a ruling is not a final decision allowing or rejecting a claim within the meaning of section 25b.*^ The judgment of the circuit court of appeals as to the validity of a lien asserted by a creditor was appealable under the la|;ter section where- the parties insisted upon different constructions of the act one of which would defeat the lien and the other of which Avould render it valid.*^ A certificate of a justice of the supreme court under section 25b (2) did not give the right of appeal from a decision of the circuit court of appeals allowing or reject- ing a claim of less than $500. In regard to such claims the decision of the circuit court of appeals was final.** Even before the act of 1915, no appeal lay from the decision of a circuit court of appeals, in the exercise of its supervisory jurisdiction over proceedings in bankruptcy.** A judgment that 29a— Act Jan. 28, 1915, c. 22, § 4, as 32— Coder v. Arts, 213 TJ. S. 223, 53 amended Sept. 6, 1916, e. 448 § 3 (U. S. L. ed. 772, 22 A. B. E. 1, aff 'g 152 Fed. Comp. St., § 1120a). 943, 15 L. E. A. (N. S.) 372, 18 A. B. E. 30— See Duff v. Carrier, 55 Fed. 433, 513. aff'g 51 Fed. 906; Chapman v. Bowen, 33 — Duryea Power Co. v. Sterubergh, 207 U. S. 89, 52 L. ed. 116, 18 A. B. E. 218 V. S. 299, 54 L. ed. 1047, 25 A. B. 844 ; Blake v. Openhym & Sons, 216 U. S. E. 66. 322, 54 L. ed. 498, 23 A. B. E. 616; Hall 34— Act Jan. 28, 1915, e. 22, § 4, as T. Allen, 9 N. B. R. 6, 12 Wall. 452, 20 amended Sept. 6, 1916, c. 448, § 3 (TT. S. L. ed. 458; Wiswall v. Campbell, 15 N. B. Comp. St. 1120a) ; Wynkoop, etc., Co. T. E. 421 ; Bank v. Cooper, 9 N. B. E. 529, Gaines, 227 U. S. 4, 57 L. ed. 391, 29 20 Wall. 171, 22 L. ed. 273. A. B. E. 369; Hewit v. Berlin Machine 31— (Mnan Co. v. Doherty, 224 TJ. S. Works, 194 U. S. 296, 48 L. ed. 986, 11 145, 56 L. ed. 702, 27. A. B. E. 880. A. B. E. 709; Holden v. Stratton, 198 § 1662] Appellate Jurisdiction 1243 a person was or was not a bankrupt, entered by the court of bankruptcy on a verdict by a jury, demanded as of right, was reviewable only by writ of error.*' No appeal lay from orders denying a petition for rehearing.** An erroneous decision against an asserted right to an exemp- tion does not create a question of jurisdiction proper to be passed upon by the supreme court by a direct appeal; *'^ nor does an appeal lie from a decision of the circuit court of appeals under section 24b allowing or rejecting a claim for an exemption, the remedy being by certiorari.** An order granting or refusing a discharge is not appealable to the supreme court.*® § 1662. — Contraversies ajdcing in bankruptcy proceedings. By the judicial code of 1911, the supreme court was expressly vested with appellate jurisdiction of controversies arising in bankruptcy proceedings, from the courts of bankruptcy, from which it has appellate jurisdiction in other cases.*" Where the jurisdiction of the federal court rendering the judgment or decree appealed from rested alone upon the diversity of citizen- ship, the decision of the circuit court of appeals was final and no appeal lay to the supreme court.* ^ Whether the jurisdiction depended upon diverse citizenship alone was determined from the complaint or bill, regardless of questions which may have been brought into the suit by the answer or in the course of the subsequent proceedings.*^ It was not sufficient that grounds of jurisdiction other than diverse citizenship might be^ inferred argumentatively from the statements in the complaint or bill.** A suit could not be said to arise under the laws of the United States, simply because the trustee was a party.** So, under the judicial code of 1911, an appeal might be had to the supreme court from a decision of the court of appeals V. S. 202, 48 L. ed. 116, 10 A. B. E. 786; 38— Holden v. Stratton, 198 TJ. S. 202, Duryea Power Co. v. Sternbergh, 218 U. 48 L. ed. 116, 10 A. B. E. 786. S. 299, 54 L. ed. 1047, 25 A. B. E. 66. 39— James v. Stone & Co., 227 V. S. 35— Grant Shoe Co. v. Laird Co., 203 411, 57 L. ed. 573, 29 A. B. E. 476. U. S. 502, 51 L. ed. 292, 17 A. B. E. 1. 40— Judicial , Code 1911, § 252 (36 36— Conboy v. First Nat. Bank of New Stat. L. 1159) ; Bankruptcy Act of 1898, Jersey, 203 IT. S. 141, 51 L. ed. 128, 16 § 24a. i A. B. E. 773. 41-42-43-44 — L o v e 1 1 v. Newman & 37— Lucius V. Cawthon-Coleman Co., Sons, 227 U. 8. 412, 57 L. ed. 577, 29 A. 196 U. S. 149, 49 L. ed. 425, 13 A. B. E. B, B. 482. 1244 Bkandenbueg on Banjceuptcy [§ 1662 upon an appeal to it under section 24a of the act, where the amount in controversy exceeded $1,000 besides costs.*^ The circuit court of appeals could allow an appeal to the supreme court from its decision in a case involving a controversy existing independent of the bankruptcy proceedings which involved the requisite amount and did not depend upon the citizen- ship of the parties.*® A decree of the circuit court of appeals on appeal from an interlocutory decree granting an injunction, directing a decree dismissing the suit was held a final decree and appealable, the requisite amount being involved *'^ as was a decree dismissing the petition of a trustee to prevent the enforcement of a lien in a state court.** The kat of January 28, 1915,**^ is sweeping in its provisions and makes all judgments and decrees of the circuit court of appeals in all proceedings and causes arising under the bank- ruptcy act, as well as in all controversies arising under such proceedings and causes, final, and reviewable only by certiorari, regardless of the amount in controversy. The purpose of con- gress was to render the decisions of the circuit court of appeals final not only in bankruptcy proceedings proper, but in all col- lateral controversies arising in the course of the proceedings as well, and the distinction between "proceedings in bank- ruptcy" and "controversies arising in bankruptcy proceedings" is now immaterial, so far as the right to appeal to the ST}.preme court is concerned. Section 238 of the judicial code of 1911 allowing appeals from 45 — Hewit v. Berlin Machine Works, of bankruptcy throughout the TJnited 194 U. S. 296, 48 L. ed. 986, 11 A. B. E. States,' approved July 1st, eighteen V09. hundred and ninety-eight, aad in all 46 — Hobbs V. Head & Dowst Co., 191 controversies arising in such proceed- Fed. 811, 27 A. B. R. 484, afE'd23ir.8. ings and causes; . . .; and, also 692, 58 L. ed. 440, 31 A. B. R. 656. in all causes axising under any amend- 47 — ^United States Fidelity & Guaranty meut or supplement to any one of the Co. V. Bray, 225 U. S. 205, 56 L. ed. 1055, aforementioned Acts which has been 28 A. E. E. 207. heretofore or may be hereafter enacted, 48 — Hobbs V. Head & Dowst Co., 231 shall be final, save only that it shall be XJ. S. 692, 58 L. ed. 440, 31 A. B. E. competent for the supreme court to re- 636, afe 'g 184 Fed. 409, 26 A. B. E. 63. quire by certiorari, upon petition of any 48a— Act Jan. 28, 1915, c. 22, § 4, as party thereto, that the proceeding, case, amended Act. Sept. 6, 1916, c. 448, §3 or controversy be certified to it for (XJ. S. Comp. St., § 1120a). "Judg- review and determination, with the same ments or decrees of the circuit court of power and authority and with like effect appeals in all proceedings arising under as if taken to that court by appeal or 'An act to establish a uniform system writ of error." § 1665] Appellate Jurisdiction 1245 the district court direct to the supreme court only includes cases where the question is as to the jurisdiction of the United States court as such and does not include a case where the district court determines that it has jurisdiction to require an alleged adverse claimant to turn over property to the trustee.*® § 1663. — Appeals from courts not in organized circuits. The concluding clause of section 24a does not confer juris- diction upon the supreme court to review decisions of the courts of bankruptcy not within any organized circuit of the United States, deciding questions arising in the bankruptcy proceed- ings proper, but jurisdiction in such case is limited as in appeals from the decisions of the other courts to controversies which are not inherently steps in the bankruptcy court, though they may arise in the course of the proceedings. Accordingly, the decision of the district court of Porto Eico allowing or disallowing a claim, has been held not appealable to the supreme court.^* Nor does the supreme court have jurisdiction under section 24b to review an order of the district court of Porto Eico declaring a person to be a general partner of the bankrupt partnership and as such individually liable for firm debts.^^ m § 1664. — Appeals from District of Columbia. Under section 24a of the act appeals from the Supreme Court of the District of Columbia are taken immediately to the Su- preme Court of the United States instead of through the court of appeals of the district.* § 1665. — Certification of cases and certiorari. The circuit court of appeals may at any time within its dis- cretion certify to the Supreme Court of the United States any questions or proposition of law whether its decision would be final or not, concerning which it desires the instruction of that court for its proper decision. The supreme court may either give its opinion which shall bind the circuit court of appeals or require the whole record and then decide it as if on appeal or 49— Sehweer v. Brown, 195 TJ. S. 171, 51— Munsuri v. Fricker, 222 U. S. 121, f 49 L. ed. 144, 12 A. B. E. 673. 56 L. ed. 121, 27 A. B. E. 344. 50— Tefft, Weller & Co. v. Munsuri, 222 U, S. 114, 56 L. ed. 118, 27 A. B. E. 338. 1246 Beandenbueg on Bankeuptct [§ 1665 •writ of error. ^2 While the certification is made by the circuit court of appeals of its own motion, the advisability therefor may be suggested by counsel though not by formal motion. The cer- tification should be restricted to questions of law and not seek a decision of the whole case,^* nor comprehend mixed questions of law and fact.*^* By the act of March 3, 1891,^^ re-enacted in the act of March 3, 1911,^" it is provided that the supreme court may require by certiorari, or otherwise, certain cases made final in the circuit courts of appeals to be certified to the supreme court for its review and determination, with the same power and authority in the case as if it had been carried by appeal or writ of error to the supreme court. Apart from section 25 of the law, the circuit courts of appeals have jurisdiction on petition to super- intend and revise any matter of law in bankruptcy proceedings and also jurisdiction of controversies over which they would have appellate jurisdiction in other cases. The decisions of those courts may be reviewed in the supreme court on certiorari or in certain cases by appeal.*^^ The writ of certiorari may also be allowed by the supreme court in aid of the writ of habeas corpus and for the purpose of enlarging the scope of that writ.°® Appli- cation for the issuance of this writ should be addressed to the supreme court and will not be granted except in its discretion and then only in matters of gravity and general importance.^® Only final orders of the district court can be reviewed by cer- tiorari,^" and after afiirmance of an order by the circuit court of appeals, the lower court cannot insert in its order entered on the mandate of the court of appeals a provision that it should not be prejudicial to the right to apply to the supreme court for a writ of certiorari."* 52— Section 239, Judicial Code of A. B. E. 12 ; Mueller v. Nugent, 184 IT. S. 1911 ; Act of March 3, 1891, par. 6, 1 1, 46 L. ed. 405, 7 A. B. E. 224. Supp. E. S. 901, 26 Stat. L. 826; section 58— Ex parte Lange, 18 Wall, 163, 21 25d, Bankruptcy Act of 1898. L. ed. 872; In re Chetwood, 165 U. S. 53— Warner v. New Orleans, 167 V. S. 443, 41 L. ed. 782; E. S. XJ. S., i 716. 467, 42 L. ed. 239. 59— In re Woods, 143 U. S. 202, 36 54— McHenry v. Alford, 168 TJ. S. 651, L. ed. 125; Forsyth v. Hammond, 166 42 L. ed. 614. U. S. 506, 41 L. ed. 1095. 55—1 Supp. E. 8. 903, § 6. 60— In re Hudson Elee. Co., 184 T'ed. 56 — Section 240. 970, 25 A. B. E. 873. 57 — First Nat. Bank of Denver v. 61 — In re Hudson Eiver Elec. Co., 184 Klug, 186 U. S. 202, 46 L. ed. 1127, 8 Fed. 970, 25 A. B. E. 873. § 1666] Appellate Jueisdiction 1247 By a recent act of congress,"!^ the decisions of the circuit 30urts of appeals in all proceedings and causes arising under the bankruptcy act, and in all controversies arising under such proceedings and causes, are made final, save only that it shall be competent for the supreme court to require by certiorari, upon petition of any party thereto, that the proceeding, case or controversy be certified to it for review and determination, with the same power and with like effect as if taken to that court by appeal or writ of error. No certiorari for diminution of the record will be awarded by the supreme court in any case, unless a motion therefor shall be made in writing, and the facts on which the same is founded shall, if not admitted by the other party, be verified by affidavit. And all motions for certiorari must be made at the first term of the entry of the case; otherwise, the same will not be granted, unless upon special cause shown to the court accounting satis- factorily for the delay.®^ The application must be made by peti- tion, in which the title is A. B., petitioner, vs. C. D., respondent, and which must be filed in the office of the clerk of the supreme court together with a certified copy of the entire record, includ- ing the proceedings in the circuit court of appeals, an entry of appearance for the petitioner, signed by a member of the bar of the supreme court, a deposit of twenty-five dollars on account of costs, and between fifteen and twenty printed copies of such certified copy of the record. It is well to have printed fifty copies for use on the final hearing, in case the application, which must be presented in open court, is granted. § 1666. — Practice in taking appeals. The supreme court provides in its general orders that the lower court, when rendering judgment or decree, must make and file a finding of the facts and its conclusions of law thereon, stated separately, and the record to be transmitted to the supreme court is to contain only the pleadings, the judgment or decree, the finding of facts and the conclusions of law.''^ A party con- templating an appeal to the supreme court, if the conclusion of 61a— Act Jan. 28, 1915, e. 22, §4, as 63— G. 0. XXVI; Calnan Co. v. Do- amended Act Sept. 6, 1916, e. 448, § 3 herty, 224 U. S. 145, 56 L. ed. 702, 27 ,(U. S. Comp. St., § 1120a). A. B. E. 880. 62— Sup. Ct. Rule 14. But see post i 1667. 1248 Bbandenbubg on Bakkbuptcy [§ 1666 the lower court is against him, should at the hearing and before the entry of the decree, request the making of findings of facts and conclusions.'* General Order 36 does not require such find- ings to be made without request, but is intended to give the party a right thereto, if he demands it.*'® It is the practice of the circuit court of appeals not to antici- pate a further appeal but to await requests for findings and con- clusions under General Order 36 and if the decree has been entered prior to a request for findings and conclusions, to vacate the decree.^* The transcript must show affirmatively the ground upon which the action complained of was taken *'' and the omission of findings of fact and conclusions of law cannot be supplied by a reference to the opinion below."® The findings of fact and con- clusions of law may be filed nunc pro tunc as of the date the judgment was entered.®^ The rule requiring the filing of specific findings of fact and conclusions of law does not apply to an appeal in a case involv- ing a controversy existing independent of the bankruptcy pro- ceedings, and appealable under section 24a of the act, and the appeal brings up the whole case.''* The record on appeal from a state supreme court includes the pleadings and judgment in an action at law and the bill of excep- tions; or the pleadings, evidence and decree in equity; and if the local practice makes it part of the record, the opinion of the 64— Lumpkin v. Foley, 204 Fed. 372, 943, 15 L. E. A. (N. S.) 372, 18 A. B. E. 29 A. B. E. 673. 513. 65 — Knapp v. Milwaukee Trust Co., 70 — ^Baker Ice Mach. Co. v. Bailey, 209 162 Fed. 675, 20 A. B. E. 671; Crucible Fed. 844, 31 A. B. R. 513; Houghton v. Steel Co. V. Holt, 174 Fed. 127, 23 A. B. Burden, 228 TJ. S. 161, 57 L. ed. 780, 30 E. 302; Washington v. Tearney, 197 Fed. A. B. E. 16; In re Martin, 201 Fed. 31, 307, 28 A. B. E. 633. 29 A. B. R. 935; Hobbs v. Head & Dowst 66— Century Sav. Bank v. Robert Co., 191 Fed. 811, 27 A. B. E. 484. Moody & Son, 209 Fed. 775, 31 A. B. E. No special finding of facts held neees- 586. sary where appellant was an intervenor 67 — ^Buckingham v. Estes, 128 Fed. in the bankruptcy proceeding seeking to 584, 12 A. B. E. 182. establish a lien on property of the bank- 68 — Chapman v. Bowen, 207 TT. S. 89, rupt. In re Standard Tel. & Elec. Co., 52 L. ed. 116, 18 A. B. E. 844. 216 U. S. 545, 54 L. ed. 610, 24 A. B. E. 69— Coder v. Arts, 213 XT. S. 223, 53 761, afE'g 162 Fed. 675, 20 A. B. E. L. ed. 772, 22 A. B. E. 1, aff 'g 152 Fed. 671. §1668] Appellate Jurisdiction 1249 court may be consideredJ^ The record must show on its face that the federal question was presented to the state court J** A motion made in the circuit court of appeals to vacate a prior decree of reversal entered by it and to enter a final decree consistent with a subsequent holding of the court will be granted where its purpose is simply to avoid the necessity of having the case remanded, only to return to the circuit court of appeals and proceed thence to the supreme court J^ § 1667. — Time of appeal. Under a recent act of congress, "no writ of error, appeal or writ of certiorari intended to bring up any cause for review by the supreme court shall be allowed or entertained unless duly applied for within three months after entry of the judgment or decree complained of." '^^ This statute supersedes General Order 36, under which a party was given thirty days within which to appeal. Even before the act of congress above referred to, it was held that the general order was not applicable to writs of error, the time - within which the latter might be brought having been fixed by the Eevised Statutes ; ''^ nor was the general order applicable to a case involving a controversy existing independent of the bankruptcy proceedings.''® The limitation begins to run from the date of the judgment, not from the date of an order denying a rehearing.''^ § 1668. — Effect of appeal. Under the act of 1867, where a party appealed from the cir- cuit court to the supreme court, it was held that the allowance of the appeal related back to the time when the original applica- tion was made for appeal to the circuit court and entitled the party to a stay of proceedings, which would be true of an appeal under the present act.'^* The pendency of an ajJpeal operates as 71— Thompson v. Maxwell Land Co., W. M. Laird Co., 212 IT. S. 445, 53 L. ed. 168 V. 8. 451, 42 L. ed. 539. 591, 21 A. B. E. 484. 72— Columbia Water Power Co. v. Bail- 76— Hobbs v. Head & Dowst Co., 191 way Co., 172 U. S. 475, 43 L. ed. 521. Fed. 811, 27 A. B. E. 484. 73— In re Martin, 198 Fed. 947, 29 A. 77— Coiiboy v. First Nat. Bank of B. E. 935. New Jersey, 203 TJ. S. 141, 51 L. ed. 128, 74— Act Sept. 6, 1916, e. 448, § 6 (TI. 16 A. B. E. 773. S. Comp. St., § 1228a). 78— Thornhill v. Bank, 5 N. B. E. 377, 75— Section 1008; Grant Shoe Co. v. Fed. Cas. No. 13991. Brandenburg — 79 1250 Beandenbukg ON 3ankbtjptox [§1668 a stay not only of the decree or order appealed from, but of all proceedings in aid of the execution of the same.''® A decision of the supreme court reversing a decree of the circuit court of appeals and directing that court to dismiss an appeal to it and to remand the case to the district court for further proceedings, in conformity with the decision, though addressed to the circuit court of appeals alone, does not authorize that court to grant a peremptory writ of mandamus to enforce obedience to the mandate by the district court. The decision is to be regarded as giving directions which the circuit court of appeals is simply to communicate to the district court, and which the latter is to follow on the authority of the supreme court, not of the circuit court of appeals.*" 79— In re Dresser & Co., 14 A. B. R. 41. R. 542, rev'g 146 Fed. 742, 16 A. B. B. 80— Ex parte First Nat. Bank of C!hi- 848. eago, 207 U. S. 61, 52 L. ed. 103, 19 A. B. FORMS IN BANKRUPTCY The forms given herewith, consisting of the sixty-three official forms promulgated by the Supreme Court of the United States, and 125 forms collected and compiled by the author, are intended merely as a working foundation for use by members of the bar and officers of the bankruptcy court, and are not offered as a complete set of forms to meet every imaginable situation which might arise in bankruptcy practice. Care has been taken to avoid unnecessary repetition an4 duplication. Orders and notices of motion must necessarily follow to a great extent the wording of the particular motion or petition for relief, and, for that reason, preference has been given to forms of petitions, rather than to forms of orders or notices based thereon. Many of the forms represented are verbatim copies of or adopted from forms actually used before the courts. These forms have as a rule been adopted from important eases carried to the Supreme Court by counsel of the highest standing in the bankruptcy practice; No form is represented, however, which does not meet the requirements of. the Bankruptcy Act, and the decisions of the courts. The forms have been indexed in. the general index and, to further facilitate their use, they have been arranged, as nearly as practicable, in the order in which the matters to which they pertain, are treated in the text. Oaths required by the act, except upon hearings in court, may be administered by referees and by officers 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. Bankrupt Act of 1898, c. 4, § 20. §1669. Form No. 1. [Official Form No. 1.] DEBTOR'S PETITION. To the Honorable , Judge of the District Court of the United States for the District of : The petition of , of , in the County of and District and State of — . , [state occupation], respectfully represents : That he has had his principal place of business [or has resided, or has 1251 1252 Brandenbtjeg on Bankruptcy had his domicil] for the greater portion of six months next immediately preceding the filing of this petition at , within said judicial dis- trict; that he owes debts which he is nnable to pay in full; that he is willing to surrender all his property for the benefit of his creditors except such as is exempt by law, and desires to obtain the benefit of the acts of Congress relating to bankruptcy. That the schedule hereto annexed, marked A, and verified by your petitioner's oath, contains a full and true statement of all his debts, and (so far as it is possible to ascertain) the names and places of residence of his creditors, and such further statements concerning said debts as are required by the provisions of said acts: That the schedule hereto annexed, marked B, and verified by your petitioner's oath, contains an accurate inventory of all his property, both real and personal, and such- further statements concerning said property as are required by the provisions of said acts: Wherefore your petitioner prays that he may be adjudged by the court to be a bankrupt within the purview of said acts. , Attorney. United States op America, District of , ss: I, , the petitioning debtor mentioned and described in the foregoing petition, do hereby make solemn oath that the statements contained therein are true according to the best of my knowledge, infor- mation, and belief. , Petitioner. Subscribed and sworn to before me this day of , A. D. 19—, [Official character.] FOBMS 1253 §1670. Form No. 2. OFFICIAL SCHEDULE A.— STATEMENT OF ALL DEBTS OF BANKRUPT. SCHEDULE A. (1) Statement op Aul Cbeditobs Who Are to Be Paid in Pull, ob to "Whom Priority Is Secured by Law. Claims which havb pbi- OBITZ. a Si i 1 "S i at l| s 1 !l Nhture and consid- eration of the debt, and wbetber contracted as part- ner or joint con- tractor ; and if so, with whom. Amount. Taxes and debts due and owing to the United « c. (2) Taxes due and owing to the State of , or to any county, district or mu- (3) Wages due workmen, clerks, or servants, to an amount not exceeding $300 each, earned within three months before filing the petition (4) Other debts having priority by law. Total Petitioner. 1254 Bbancenbubg: <3N Bankeuptcy § 1671. Form No. 3. OFFICIAL SCHEDULE A. (2) Creditors Holding Siii&uRiTiES. TN. B. — Par,tlGulars of securities held, with dates of Bam~- B •a ■III- Description of secu- I'ltles. |8 * .' 1 o 1 ■a ■4-» a o % % c. :::::::::::::: Total... 1 Petitioner. §1672. Form No. 4. OFFICIAL SCHEDULE A. (3) Creditors Whose Claims Are Unsecured, , . [N. B.r-When the name and residence (or either) of any drawer, maker, Indorser, or hold,er of any bill or note, etc., are unknown, the fact must be stated, and also the name and residence of the last holder knowq to the debtor. The debt due to eacli creditor mast be stated in full, and any claim by way of set-ofC stated in the schedule of property.] Reference, to ledger or voucher; s "g s s Residence (if unknown, that fact must be stated). When and where con- tracted. Nature and considera- tion of the debt, and whether any .ludg- ment, bond, bill of exchange, promissory note, etc., and wheth- er contracted as part- ner or joint contractor with any other per- son ; and, if so, with whom. Amount. $ c. Total • * * ■ • • * ■ — , Petitioner. FoKMS 1255 §1673. Form No. 5. OFFICIAL SCHEDULE A. (4) Liabilities on Notes or Bills Discounted Which Ought to Be Paid BY the Drawees, Makers, Acceptors, or Indorsers. IN, B. — The 4«it.ea.of the notes, or hUls, and when due,, with the nam^s, residences, and the business or occupation of the drawers, makers, or acceptors tliel-eof, are to be set foitli un'dfir the names of the holders. If the names of the holders, are not Unown, the name of the last holder known to the debtor shall be stated, and his busiriess and place of residence; The same particulars as to notes or hills on which the debtor is liable as ludorser. ] u -a^ ■6 ility, was tner r, or per- with ' .P 2 .2 a; &o OJ o 0; ■ ' ••' -s • •■ • §a a § mSS S ■a o . ■aa s ° 'Oo,^ . a) u C'd Amount. «>ii ^ ^ o o is t E5 ■ 1 ; " i ^ * ' «■ ' V. ■ Total U.^ .... -, Petitioner. § 1674. Form No. 6. OFFICIAL SCHEDULE A. (5) Accommodation Paper. [N. B. — The dates of the notes or bills, and when due, with the names and residences of the drawers, makers, and acceptors thereof, are to be set forth under the names of the holders; if the bankrupt be liable as drawer, maker, acceptor, or indorser thereof, it is to be stated accordingly. If the names of the holders are not known the name of the last holder known to the debtor should be stated, with his residence. Same particulars as to other commercial paper.] u o t Total Petiti&ner. 1258 BkandenbubG on Bankruptcy §1678. Form No, 10. OFFICIAL SCHEDULE B. (4) Property in Reversion, Remainder, or Expectancy, Including Prop- erty Held in Trust for the Debtor or Subject to Any Power or Right to Dispose op ob to Charge. [N. B. — A particular description of each Interest must be entered. If all or any of the debtor's property has been conveyed by deed of assignment, or otherwise, for the benefit of creditors, the date of such deed should be stated, the name and address of the person to whom the property was conveyed, the amount realized from the proceeds thereof, and the disposal of the same, as far as known to the debtor.] , General interest. Particular description. Supposed value of my Interest $ c. Property in money, stock, shares, bonds, annuities. Bights and powers, legacies and bequests Total Property heretofore conveyed for benefit of cred- itors. Amount realized from pr{>ceeds of property conveyed. What portion of debtor's property has been con- veyed by deed of assignment, or otherwise, for benefit of creditors ; date of such deed, name and address of party to whom conveyed ;.. amount realized-' therefrom, and disposal of same, so far $ 0. What sum or sums have been paid to counsel, and to whom, for services rendered or to be rendered in this bankruptcy Total ■ - . Petitioner. §1679. Form No. 11. OFFICIAL SCHEDULE B. (5) A Particular Statement op the Property Claimed as Exempted prom THE Operation of the Acts op Congress Relating to Bankruptcy, Giving Each Item of Property and. Its Valuation ; and, if Any Portion of It Is Real Estate, Its Location, Description, and Present Use. Valuation. — .-: ---r—^...-, J . , , c. Military uniform, arms, and equipments Property cTftfinled to be exempted ByjStete laws; its valuation ; whether real or personal ; its descrip- tion and present use ; and reference given to the statute of the State creating the exemption. . . . Total -, Petitioner. Forms ' 1259 § 168a Form No. 12. OPFICIAI, SCHEDULE B. (S) BOOKS, PAPERS, DEEDS, AND WRITING^. RELATING TO BANKRUPT'S BUSINESS AND ESTATE. The following 1b a true list of all Ijooks, papei's, deeds, and writings relating to my'traffe, business, dealings, estate, and efffeets, or any part thereof, which, at the date of this petition, are in my possession or under my custody and control, or which are in the possession or custody of any person in trust for me, or for my iise, benefit, or advantage ; and also of ail others which have been heretofore, at any time, in my possession, or under my custody or control, and which are now held by the parties whose names are hereinafter set forth, with the reason for their custody of the same. Books . Deeds . Papers Petitioner. Oath to Schedule B. United States op America, District of , ss : On this day of , A. D. 19 — , before me personally came , the person mentioned in and who subscribed to the fore- going schedule, and wiio, being, by me .first duly .sworn^^did declare the said schedule to be a statement of all his estate, both real and personal, in accordance with the acts of Congress relating to bankruptcy. [Offlcial character.] 1260 Bkandenbubg on Bankbuptcy §1681. Form No. 13. SUMMARY OF DEBTS AND ASSETS. [From the .statements of the bankrupt in Schedules A and B.] Schedule A •1 It 1 (1) Taxes and debts due United States 1 (2) Taxes due States, counties, districts, and (( If 1 (3) Wages it it 1 (4) Other debts preferred by law Schedule A Schedule A 3 Unsecured claims Schedule A 4 Notes and bills which ought to be paid by other parties thereto. Schedule A, total 1 Real estate Schedule B 2-a Cash on hand <( " 2-b Bills, promissory notes, and securities. . . . 2-c Stock In trade tt (( 2-d Household goods. &c 2-e Books prints, and pictures . tt u 2-f Horses, cows, and other animals 2-g Carriageis and other vehicles tt tt tt tt 2-i Shipping and shares in vessels tt tt (t \t 2rl Patents, copyrights, and trade-marks 2-m Other personal property Schedule B 3-a Debts due on open accounts 3-b Stocks, ijegotlable bonds, &c (( tt tt ti • 3-d Unliquidated claims Schedule B ! ! '. ! ] Schedule B Schedule B 3-e Deposits of money in banks and elsewhere 4 Property In reversion, remainder, trust, &c. 5 Property claimed to be excepted 6 Books, deeds, and papers Schedule B, total §1682. Form No. 14. [Official Form No. 2.] PARTNERSHIP PETITION. To the Honorable United States for the The petition of -, Judge of the District Court of the District of : respectfully represents : That your petitioners and — have been partners under the firm name of , having their principal place of business at , in the County of , and District and State of , for the greater portion of the six months next immediately preceding the filing of this petition ; that the said partners owe debts which they are unable to pay in full ; that your petitioners are willing to surrender all their property for the benefit of their creditors, except such as is exempt by law, and desire to obtain the benefit of the acts of Congress relating to bankruptcy. That the schedule hereto annexed, marked A, and verified by oath, contains a full and true statement of all the debts of said partners, and, Forms 1261 as far as possible, the names and places of residence of their creditors, and such further statements concerning said debts as are required by the provisions of said acts. That the schedule hereto annexed, marked B, verified by oath, contains an accurate inventory of all the property, real and personal, of said partners, and such further statements concerning said property as are required by the provisions of said acts. And said further states that the schedule hereto annexed, marked C, verified by his oath, contains a full and true state- ment of all his individual debts, and, as far as possible, the names and places' of residence of his creditors, and such further statements concern- ing said debts as are required by the provisions of said acts ; and that the schedule hereto annexed, marked D, verified by his oath, contains an accurate inventory of all his individual property, real and personal, and such further statements concerning said property as are required by the provisions of said acts. And said further states that the schedule hereto annexed, marked E, verified by his oath, contains a full and true state- ment of all his individual debts, and, as far as possible, the names and places of residence of his creditors, and such further statements concern- ing said debts as are required by the provisions of said acts; and that the schedule hereto annexed, marked F, verified by his oath, contains an accurate inventory of all his individual property, real and personal, and such further statements concerning said property as are required by the provisions of said acts. And said further states, that the schedule hereto annexed, marked G, verified by his oath, contains a full and true state- ment of all his individual debts, and, as far as possible, the names and places of residence of his creditors, and such further statements concern- ing said debts as are required by the provisions of said acts ; and that the schedule hereto annexed, marked H, verified by his oath, contains an accurate inventory of all his individual property, real and personal, and such further statements concerning said property as are required by the provisions of said acts. And said further states that the schedule hereto annexed, marked J, verified by his oath, contains a full and true state- ment of all his individual debts, and, as far as possible, the names and places of residence of his creditors, and such further statements concern- ing said debts as are required by the provisions of said acts; and that the schedule hereto annexed, marked K, verified by his oath, contains an accurate inventory of all- his individual property, real and personal, and such further statements concerning said property as are required by the provisions of said acts. 1262 , Beandenbueg on Bankbuptcy Wherefore your petitioners pray that the said firm may be adjudged by a decree of the court to be bankrupts within the purview of said acts. , Attorney. Petitioners. , the petitioning debtors mentioned and described in the foregoing petition, do hereby make solemn oath that the statements con- tained therein are true according to the best of their knowledge, infor- mation, and belief. , Petitioners. Subscribed and sworn to before me this day of A.D. 19— . [Official character.] [Schedules to be annexed corresponding with schedules under Form Nos. 2 to 13, ante.] § 1683. Form No. 15. [Official Form No. 3.] CREDITORS' PETITION. To the Honorable , Judge of the District Court of the United States for the District of : The petition of , of , and , of -, and ^, of , respectfully shows: That , of , has for the greater portion of six months next preceding the date of filing this petition, had his principal place of business, [or resided, or had his domicil] at , in the County of and. State and District aforesaid, and owes debts to the amount of $1,000. That your petitioners are creditors of said , having provable claims amounting in the aggregate, in excess of securities held by them, to the sum of $500. That the nature and amount of your peti- tioners' claims are as follows: ■ And your petitioners further represent that said is insolvent, and that within four months next preceding the date of this petition the said — • committed an act of bankruptcy, in that he did heretofore, to-wit, on the day of , Forms ' 1263 , Wherefore your petitioners pray that service of this petition, with a subpoena, may be made upon , as provided in the acts of Congress relating to bankruptcy, and that he may be adjudged by the court to be a bankrupt within the purview of said acts. Petitioners. -, Attorney. United States op America, District of , ss : , , , being three of the peti- tioners above named, do hereby make solemn oath that the statements contained in the foregoing petition, subscribed by them, are true. Before me, , this day of , 19 — . [Official character.] [Schedules to be annexed corresponding with schedules under Forms 2 to 13, ante.] §1684. Form No. 16. 1. Formof alleging acts of bankruptcy. See posf, § 1684. Form No. 16. INVOLUNTARY PETITION— LESS THAN TWELVE CREDITORS. To the Honorable Judge of the District Court of the United States for the District of : Eespectfully submitting to the Honorable Court, your petitidners allege : First. That the said K. P. Co. (a corporation) for the greater portion of six months preceding the date of the filing of this petition has been principally engaged in business as manufacturer of pianos and had its principal place of business at No. Street in the City of , and that the said>K. P. Co. (a corporation) is not a wage- earner or person engaged chiefly in farming or tilling of soil and is not a municipal, railroad, insurance or banking corporation, and owes debts to the ainount of $1,000 or over. Second. That your petitioners are creditors of the said alleged bank- rupt, having provable claims amounting in the aggregate in excess of ?,f?|.^ritj||!.(held. by.-them to ■the -sum of $500. . • •: ■ Third. The nature and amount of your petitioners' els-im are a^^ follows : .^ - . , (a) The claim of your petitioner W. C! Si is as follows: 1264 Beandenbtjeg on Bankbttptct Money loaned and advanced by G. C. to the alleged bankrupt above named on or about and between the first day of January, 1907, and the first day of January, 1908, both days inclusive, amounting to the sum of $800.00, and thereafter and for value said claim was assigned by G. C. to petitioner, who is now the owner and holder thereof. [(b) The claim of your petitioner A. B. is as follows: (Here allege nature of other claims) .] Fourth. Your petitioners further show that the said alleged bank- rupt is insolvent, and within four months next preceding the date of this petition, and while insolvent, committed acts of bankruptcy as follows : I. Your petitioners are informed and believe that said alleged bank- rupt paid certaia claims, demands, accounts and indebtedness to several persons, firms and corporations, creditors of said alleged bankrupt, upon antecedent indebtedness, with the intent and for the purpose of pre- ferring such creditors of said alleged bankrupt and for the purpose of allowing said creditors to obtain a greater percentage of their respec- tive debts than any other of such creditors of the same class, which payments amounted in the aggregate to the sum of about $2,500.00. II. Your i)etitioners are informed and believe that the said alleged bankrupt, with intent to hinder, delay and defraud its creditors, and with intent and for the purpose of giving a preference contrary to the provisions of the Bankruptcy Law, and upon pretended and alleged antecedent indebtedness claim and alleged to be due from said alleged bankrupt to divers persons, firms and corporations, assigned, transferred and set over unto said divers persons, firms and corporations large and valuable property, consisting of merchandise, accounts and dues receiv- able, of the value of about $2,500.00, applicable to the payment of the debts of said alleged bankrupt. Fifth. Your petitioners further represent that the said alleged bankrupt has creditors other than your petitioners, and that the said creditors were and are less than twelve in number. Wherefore, your petitioners pray that service of this petition, with a subpoena, may be made upon K. P. Co. (a corporation), as pro- vided in the acts of Congress relating to^bankruptcy, and that it may be adjudged by the Court to be bankrupt within the purview of said acts. Dated , 19—. yr e, n W. 0. S., Petitioner. Attorneys for Petitioning Creditor. [Verification.] [Schedules to be annexed corresponding with schedules under Forms 2 to 13, ante.] Note. — rrom record in Cameron v. TTnited States, 231 V. $. 7,10. Forms 1265 § 1685. Form No. 17. AMENDED VERIFICATION OF PETITION BY ATTORNEY FOR CREDITOR. H. F. H., being duly sworn upon his oath, says that he is a member of the firm of D. & H., a society of attorneys practicing in the eiHy of San Juan, Porto Rico, composed of the said H. P. H. and F. H. D., and that the said D. & H. are members of the bar of the United States Dis- trict Court for Porto Rico, regularly practicing therein; that the said firm D. & H., and each of the. partners thereof, were duly and fully authorized by S. P. & Co. and by S. R. & Co. to sign the petition in bankruptcy herein filed by the said S. P. & Co. and S. R. & Co., and the A. T. Co. against the S. de J. H., on the 8th day of June, 1903; that the said S. P. & Co. and S. R. & Co. are mercantile associations and firms engaged in business in the city of New York, neither of whom have any representatives in Porto Rico, nor did they have at the time of filing the petition in bankruptcy as aforesaid ; that neither the said S. P. & Co. nor the said S. R. & Co. nor the partners thereof in the said city of New York were aware of the acts of bankruptcy alleged in the said petition to have been committed by the said S. de J. H. at the time of the filing of the said petition, but that your affiant had knowledge thereof, having acquired such knowledge within a few days previous to the filing of said petition in bankruptcy, and the affiant alleges that he acquired knowledge of the said acts of bankruptcy by reading a certified copy of the transfer set forth in the said petition in bankruptcy, dated March 7, 1903, and that the reason why he signed and verified the said petition in bankruptcy in behalf and for the said S. P. & Co. and S. R. & Co. is and was because he was familiar with the facts as aforesaid and it would greatly delay the filing of the petition in bank- ruptcy if time had been taken to send the petition in bankrupty to New York for the signature of a member of the firm of the said S. P. & Co. and the said S. R. & Co., or to have awaited the arrival in Porto Rico of a duly authorized person to sign such petition. Affiant states that all the matters and facts set forth in said petition in bankruptcy filed as aforesaid are true. And affiant further says that at the time of the filing of said petition in bankruptcy D. J. A. was the regular and general agent in Porto Rico of the A. T. Co. of New York, and such company had no other agent in Porto Rico at the time; that the said D. J. A. was duly and fully authorized by the said A. T. Co. to sign the said petition in bankruptcy and that he signed the same for the reason that the facts relating to the act in bankruptcy as set forth in said petition were not known to said A. T. Co., but were known to the said J. A., who acquired the knowledge thereof from the reading of the document or transfer set forth in said petition in bank- BrandenbtiTg — 80 1266 Brandenbueg on Baistkeuptcy ruptcy; and that he, the said J. A., signed and verified the said, petition in bankruptcy for the reason that it would have delayed the, proceedings herein, to the great prejudice of his client, the said A. T. Co., if he had waited until the petition of bankruptcy should be sent to New York for signature or if he should wait until an officer of the said company should come to Porto Rico. [Sgd.] H. F. H. [Verification.] Note. — From Record in Munsuri v. Fricker, 222 U. S. 121. § 1686. Fomi No. 18. PETITION FOR LEAVE TO FILE AMENDED PETITION. [Caption.] To the District Court of the United States, for the District of Your petitioners respectfully represent and show to the court: 1. That they are the petitioning creditors in the above entitled proceeding, which was duly commenced on the — • day of , 19 — , by the filing of an involuntary petition in bankruptcy against the above named . 2. . That it becomes necessary for your petitioners to. amend the peti- tion originally filed by them as aforesaid in the following respects: (or, by the insertion of the following clause in place of — paragraph thereof; or otherwise indicate the nature of the proposed amendment) . 3. That a copy of the proposed amendment is attached hereto and made a part hereof. 4. That the cause of the error {or omission) in the petition orig- inally filed by the petitioners is as follows : 5. That no previous application for leave to amend said petition has been made. Wherefore, your petitioners pray that they be granted leave to file the amended petition attached hereto in lieu of the petition originally filed by them. . [Verification.] Forms 1267 §1687. Pom No. 19. ADMISSION OP WILLINGNESS TO BE ADJUDICATED. (By ah Individual.)! 1, , of the of ■, iq the County; of State of , hereby admit my inability to pay my debts and consent to being adjudged bankrupt on that ground. [Acknowledgment..] 1 This form can also be used by a partnership. §1688. Perm No. 20. ADMISSION OF WILLINGNESS TO BE ADJUDICATED. (By Cohpoeate Directors. )! "We, the undersigned, , ^ and , being — = of the directors of the , a corporation duly organized and existing under the laws of the State of , with its principal place of business at , , for and in behalf of said corporation, hereby admit its inability to pay its debts and consent to its being adjudged a bankrupt on that ground. [Acknowledgment. ] 1 Authority of directors, see ante, § 53. §1689. PormNo.21. ADMISSION OF WILLINGNESS TO BE ADJUDICATED. , (By Stockholders. )i At a special meeting of the stockholders of the , a corpora- tion organized and existing under the laws of the State of , which meeting was duly called and held pursuant to law and to the articles and by-laws of said corporation, the following resolution was duly adopted by the affirmative vote of shares of the capital stock outstanding. Eesolved, That the ■ ; — , a corporation organized and existing under the laws of the State of , the principal place of business of which is at , in the State of , do and the same hereby 1268 Bbandenbtjeg on Bankeuptct j does admit its inability to pay its debts and consents to being adjudged a bankrupt on that ground. State op ) County of 1 We, the undersigned, , president, and , secretary, of the , do hereby certify that the foregoing resolution admitting the inability of said corporation to pay its debts and its will- ingness to be adjudged a bankrupt on that ground was duly adopted at a special meeting of the stockholders of said corporation, duly called and held pursuant to law and to its articles and by-laws, which meeting was held at the principal oflSce of said corporation at , , on the day of , 19 — . And we do further certify that the whole number of shares of stock of said corporation issued and outstanding at the time of the holding of such meeting was ; that shares voted in favor of said reso- lution and shares against it. That the foregoing copy of said resolution is a full, true and correct copy of the original resolution so adopted, and of the whole thereof. In. Witness Whereof, We, the president and secretary of the , have hereunto officially subscribed our names and have caused the cor- porate seal of said corporation to be hereto affixed this- day of , 19-. , President. [Corporate Seal.] , Secretary. 1 In some states the power to make the above admission resides in the stockhold- ers and not the directors. See ante, § 53. §1690. Form No. 22. [Official Form No. 4.] ORDER TO SHOW CAUSE UPON CREDITORS' PETITION. In the District Court of the United States for the District of . In the matter of ) _ _ , ^ In Bankruptcy. Upon consideration of the petition of ■ that ■ be declared a bankrupt, it is ordered that the said • do appear at this court, as a court of bankruptcy, to be holden at ■ in the district aforesaid, on the day of , at — o'clock in the noon, and show cause, if any there be, why the prayer of said petition should not be granted; and It is further ordered that a copy of said petition, together with a writ of" Subpoena, be served on said , by delivering the same to him personally or by leaving the same at his last usual place of abode • in said district, at least five days before the day aforesaid. Forms 1269 Witness the Honorable , judge of the said court, and the seal thereof, at , in said district, on the day of , A. D. 1—. [Seal of the Court.] , Clerk. § 1691. Form No. 23. [Official Fonu No. 5.] SUBPOENA TO ALLEGED BANKRUPT. United States op America, District of . To , in said district, greeting : For certain causes offered before the District Court of the United States of America within and for the district of , as a court of bankruptcy, we command and strictly enjoin you, laying all other matters aside and notwithstanding any excuse, that you personally appear before our said District Court to be holden at , in said district, on the day of , A. D. 19 — , to answer to a petition filed by in our said court, praying that you may be adjudged a bankrupt ; and to do further and receive that which our said District Court shall consider in his behalf. And this you are in no wise to omit, under the pains and penalties of what may befall thereon. Witness the Honorable , judge of the said court, and the seal thereof, at , this day of , A. D. 19 — . [Seal of the Court.] , Clerk. §1692. Form No. 24. AFFIDAVIT FOR SERVICE BY PUBLICATION UPON NON- RESIDENT BANKRUPT. [Caption.] ss. State op County op , being first duly sworn, says : That he is one of the attorneysi for the petitioning creditors in the above entitled proceeding. That the above named , against whom a petition in involuntary bankruptcy was filed in this court on the day of -, A. D. 19 — , by , and other creditors of said , is not a resident of the district of and cannot be found therein. That the above named has not voluntarily appeared in this proceeding. [Jurat.] 1270 Beandenbueg on Bankkuptcy §1693. Form No. 25. ORDER FOR SERVICE BY PUBLICATION UPON NON-RESIDENT BANKRUPT. [Caption.] On reading and filing the afBdavit of ■ and on the files and proceedings herein, it appearing to the satisfaction of the court that ■ , against whom a petition in involuntary bankruptcy was filed in this court on the day of — -^ — , A, D. 19 — , by and other creditors of said -. ■ , is not a resi- dent of this district and cannot be found therein and that personal service of subpoena cannot be made upon him, Now,, on motion of ■ , attorney for the petitioning cred- itors her§in. It Is Ordered, That said alleged bankrupt, , appear and plead to the aforesaid petition in involuntary bankruptcy on or before the day of , A. D. 19 — , and that in default thereof this court will proceed to a hearing on said petition and an adjudication thereon. Let a copy of this order be published in , a newspaper published at , in said district, once a week for two con- secutive weeks. Dated , A. D. 19—. U. S. District Judge. §1694. Form No. 26. PRINTER'S AFFIDAVIT OF PUBLICATION. State op ) > ss County of — ■ ^ = , of said county, being duly , sworn, says that he is the printer and publisher [Here annex Printed (or, the principal clerk of the publisher) of the Copy of .Notice.] , a daily (or, weekly) newspaper printed and published in the city of -j in the county and state aforesaid, and duly desig- nated by the District Court of the United States for the _ District of , for the publi- cation of notices in bankruptcy, in the county and state aforesaid. Forms 1271 That the notice of which the annexed is a printed copy taken from the paper in which it was published, was published in said newspaper, , on the following date or dates, to-wit: [Verification.] §1695. Form No. 27. [Official Form No. 6.] DENIAL OF BANKRUPTCY. In the District Court of the United States for the District of . In the matter of ) _ _ , V In Bankruptcy. At , in said district, on the day of , A. D. 19^. And now the said appears, and denies that he has committed the act of bankruptcy set forth in said petition, or that he is insolvent, and avers that he should not be declared bankrupt for any cause in said petition alleged; and this he prays may be inquired of by the court [or, he demands that the same may be inquired of by a jury]. Subscribed and sworn to before me this day of A. D. 19—. [Official character.] Note. — The respondent is not limited to this form. See ante, § 181, post, § 1695. § 1696. Form No. 28. ANSWER OF CREDITOR OR BANKRUPT. [Caption.] Now comes, — : , and in answer to the petition in involun- tary bankruptcy filed herein, by , and others,, on the day of , 19 — , respectfully shows to the Court : [That he is a creditor of the above named alleged bankrupt, -, and has a provable claim against said , amounting in the aggregate in excess of securities held by him to the sum of Dollars ($ — ■ ), the value of which is as follows:] That neither the petitioners in the aforesaid petition nor the form 1272 BEANDENBtTRG ON BaNKEUPTCT of the petition are within the requirements of the acts of Congress re- lating to bankruptcy. That the alleged bankrupt is (principally engaged in farming and tilling of the soil) (a banking corporation) and is not amenable to the acts of Congress relating to bankruptcy and not subject to the jurisdic- tion of this court. [Verification.] • §1697. Form No. 29. WITHDRAWAL OF ANSWEB. [Caption.] It Is Herebt Stipulated and Agreed that the answer heretofore filed by me for and in behalf of , is hereby withdrawn with prejudice, and the same may be stricken from the records herein, and an order adjudicating the above-named bankrupt entered by the court without notice. Dated , 19—. § 1698. Form No. 30. PETITION OF INTERVENTION. [Caption.] To the Honorable , Judge of the District Court of the United States for the District of : Respectfully represents, , that he is a creditor of the above-named bankrupt and has a claim against said bankrupt amount- ing in the aggregate, in excess of securities held by him, to the sum of Dollars ($ ). That the nature of your petitioner's claim is as follows: That a petition in bankruptcy has been filed in this court against by , Case No. , in bankruptcy, pray- ing that said may be adjudged a bankrupt, and your petitioner hereby intervenes, and prays that the said be adjudged a bankrupt. [Verification.] ■ , Petitioner. Note. — Order is unnecessary. See ante, § 137. Forms 1273 §1699. Form No. 31. MOTION TO DISMISS INVOLUNTARY PETITION. [Caption.] Now come the said alleged bankrupts, S. de J. H., J. M. y H., and J. T. y M., by their attorneys, N. B. K. P., appearing specially for this purpose and no other, and move the Court to vacate and set aside the service of process in said cause upon the said respondents and to dismiss the said petition filed against them, for the following reasons, to-wit : First, because said writ was issued on the 10th day of June, 1903, and made returnable on the 12th day of June, 1903, which failed to give such reasonable notice as is required to constitute due process of law. Second, because, although said writ was issued and attested on the 10th day of June, 1903, it was not served upon respondents until late in the afternoon of the 11th day of June, 1903, by reason of which these respondents were given less than twenty-four hours' notice to appear in this court in defense of said petition, which is not such reasonable notice as constitutes due process of law. Third, because the petition in this case fails to allege that these respondents are included within the classes of persons against whom involuntary petitions in bankruptcy can be filed under the law, by rea- son whereof this Court is without jurisdiction to proceed against these respondents. Fourth, because the said petition is not legally or sufficiently verified, in that it is sworn to by one claiming to be an attorney in fact of cer- tain corporation petitioners without power of attorney under which he claims to act being set forth or attached to the said petition so as to enable the Court to judge of the sufficiency of the same. Fifth, because the said petition is not legally or sufficiently verified, in that the party verifying the same as an attorney in fact does not set forth in said affidavit to said petition that he has had any opportunity to ascertain the accuracy of the allegations made in the said petition, or has in fact any knowledge thereof, whereby he is enabled to verify the same. Sixth, because of others matters apparent on the face of said petition. Filed June 15, 1903. N. B. K. P., Attorney for Respondents. Note. — rrom record in Munsuri v. Fricker, 222 U. S. 121. 1274 Bbandenburg on Bankkuptcy §1700. Form No. 32. [Official Form No. 7.] ORDER FOR JURY TRIAL. In the District Court of the United States for the District of . In the matter of In Bankruptcy. At , in said district, on the day of -, 19 — . Upon the demand" in writing filed by , alleged to be a bankrupt, that the; fact of the commission by him of an act of bank- ruptcy, and the fact of his insolvency may be inquired of by a jury, it is. ordered, that said issue, be submitted to a jury. [Seal of the Court.] : , GUrk. § 1701. Form No. 33. [Official Form No. 8.] SPECIAL WARRANT TO MARSHAL. In the District Court of the United States for the - District of ■ . In the matter of In Bankruptcy. To the marshal of said district or to either of his deputies, greeting : "Whereas a petition for adjudication of bankruptcy was, on the day of , A. D. 19 — , filed against , of the County of and State of , in said district, and said petition is still pending; and whereas it satisfactorily appears that said has committed an act of bankruptcy [or has neglected or is neglecting, or is about to so neglect his property that it has thereby deteriorated or is thereby deteriorating or is about thereby to deteriorate in value] , you are therefore authorized and required to seize and take possession of all the estate, real and personal, of said , and of all his deeds, books of account, and papers, and to hold and keep the same safely subject to the further order of the court. Witness the Honorable , judge of the said court, and the seal thereof, at , in said district, on the of , A. D. 19—. [Seal of the Court.] , Clerk. FoKMs 1275 Return by Makshal Thereon. By virtue of the within warrant, I have taken possession of the estate of the within-named , and of all his deeds, books of account, and papers which have come to my knowledge. Marshal [or Deputy Marshal], FEES AND EXPENSES. 1. Service o£ warrant :;. Necessary travel, at the rate of six cents a mile each way 3. Actual expenses in custody of property and other services as follows. [Here state the particulars.] Marshal [or Deputy Marshal], District of , A. D. 19—. Personally appeared before me the said , and made oath that the above expenses returned by him have been actually incurred and paid by him, and are just and reasonable. lieferee in Bankruptcy. § 1702. Form No. 34. PETITION FOR RECEIVER. [Caption.] To the Honorable Judges of the District Court of the United States for the District of : The petition of W. C. S. respectfully shows to this Honorable Court and alleges : First. That he is a creditor of the bankrupt above named, and that a petition praying for the involuntary adjudication of said alleged bank- rupt was filed in the office of the clerk of this court on the day of , 19 — , and thereafter on said day a subpoena was issued on the said involuntary petition. Second. That the alleged bankrupt above named has its place. of business at No. Street, , , and is a corporation incor- porated under the laws of the State of and has liabilities of dollars, and assets which consist of outstanding accounts and merchan- dise of about dollars. Third. That the alleged bankrupt is a manufaetvjrer of pianos. That none of the creditors have an inventory of the bankrupt's property and that its officers or other employers desire to abstract, 1276 Brandenbttkg on Bankeuptcy purloin or remove any parts of the piano or merchandise used in the construction thereof, if it can be done without knowledge of the creditors, for the reasons aforesaid, that the creditors have no inventory. Fourth. Petitioner's attorneys, Messrs. M. & 6., were informed by the bankrupt's attorneys that the said alleged bankrupt has less than twelve creditors, and further that it is insolvent and cannot pay its just debts in full. Information was also obtained that the rent of the premises of the bankrupt has not been paid for the past month and there is fear that dispossess proceedings will be brought, and, if per- mitted, grave and serious injury will result. That if the bankrupt's property is dispossessed, the wood used in the construction of said pianos, — which is of delicate hue — as well as the veneer which is attached to the various wood — Eind is also delicate — will become scratched, and if they become scratched, they become worthless. Fifth. Petitioner further says that he has been informed, that the bankrupt has outstanding accounts, having sold some pianos on the , installment plan, which demand immediate attention by a custodian to be appointed by this court. That if the debtors become advised of the bankruptcy herein, they will delay making payments on the install- ment accounts through various pretexts and excuses, and some will move and the accounts become lost and the property of the bankrupt to which the estate is entitled will also be lost. Sixth. Therefore, petitioner submits that a custodian be appointed at once to take charge of these outstanding accounts and vigorously prosecute them, to the end that collection of the same may be success- fully had. Seventh. Petitioner further shows that the bankrupt has refused to permit an examination of its books and that the major portion of its debts are now past due and no inspection can be obtained of the bank- rupt's premises in relation to the payment of past due accounts. Eighth. Tour petitioner further shows that the outstanding and quick assets of the bankrupt might be disposed of in some way so that the same will be lost to the estate. Wherefore, your petitioner prays for an order of this court appoint- ing a receiver of the K. P. Co., with the usual powers, and that the usual injunction order issue, and for such other and further relief in the premises as to the Court may seem just and proper. And your petitioner will ever pray, etc. Dated , 19—. [Verification.] W. C. S., Petitioner. Note. — Prom record in Cameron v. United States, 231 tJ. S. 710. FoBMs 1277 §1703. Pom No. 35. NOTICE OF APPLICATION FOR RECEIVER. [Caption.] Upon consideration of the petition of that a temporary receiver be appointed to take charge of the estate of , prior to the adjudication and until a trustee can be elected herein, and on motion of , of , attorney for the creditors petitioning for said receivership, It Is Ordered that the said do^appear at this court (continuing as in Form No. 22). Note. — Notice should be given to the alleged bankrupt and to any person in pos- session of the property sought to be seized. See ante, § 203. §1704. Form No. 36. ORDER APPOINTING RECEIVER. I [Caption.] On reading and consideration of the petition of ^ for the appointment of a receiver herein, the Court finds that it is absolutely necessary for the preservation of said estate that a receiver be appointed to take charge of and conserve the property of said estate, and it is therefore Ordered, that be and hereby is appointed receiver of the property and estate of said bankrupt, upon filing a bond herein in the penal sum of Dollars ($ ), conditioned for the faithful performance of its duties as such receiver. Dated , 19 — . , Judge. §1705. Form No. 37. BOND OF RECEIVER. [Caption.] Know all men by these presents: That we, , of , as principal, and , of , and , of , as sureties, are held and firmly bound unto the United States of America in the sum of Dollars ($ ) in lawful money of the United States, to be paid to the said United States, for which payment well and truly to be made, we bind ourselves and our heirs, executors and administrators, jointly and severally, by these presents. Signed and sealed this day of , A. D. 19 — . The conditions of this obligation are such, that whereas the above- named , was, on the day »of , 19 — , appointed receiver to take charge of the above-named until the peti- tion herein to have the said declared a bankrupt is dis- 1278 Beandenbubg on Bankbuptcy missed or a trustee qualifies herein, and he, 'the said , has accepted said trust with all the duties and obligations pertaining thereto: Now, therefore, if the said , receiver in bankruptcy as aforesaid, shall obey all such orders as said court may make in rela- tion to said trust, and shall faithfully and truly account for all the moneys, assets and effects of the estate of said , which shall come into his bauds and possession, and shall in all respects faith- full perform all his official duties as said receiver, that this obligation be void ; otherwise, to remain in full force and virtue. Signed and sealedurt of the United States for the District of . In'the matter of ) ,. t. i ^ In Bankruptcy. Whereas on the day of , A. D. 19 — , a petition was filed to have , of , in the county of and district aforesaid, adjudged a bankrupt according to the provisions of the acts of Congress relating to bankruptcy ; and whereas the judge of said court was absent from said district at the time of filing said petition [or, in case of involimtary bankruptcy, on the next day after the last day on which pleadings might have been filed, and none have been filed by the bankrupt or any of his creditors], it is thereupon ordered that the said matter be referred to , one of the referees in bank- ruptcy of this court, to consider said petition and take such proceedings therein as are required by said acts; and that the said shall attend before said referee on the day of A. D. 19 — , at . Witness my hand and the seal of the said court, at , in said district, on the day of , A. D. 19 — . [Seal of the Court. ] , Clerk. § 1714. Form No. 46. [Official Form No, 16.] REFEREE'S OATH OF OFFICE. I, , do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent on me as referee in bankruptcy, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States. So help me God. Subscribed and sworn to before me this day of , A. D. 19—. District Jud^e. 1284 Beandbnbubg on Bankruptcy §1715. Form No. 47. [Official Form No. 17.] BOND OF REFEREE. Know all men by these presents : That we, of , as principal, and of and of , as sureties, are held and firmly bound to the United States of America in the sum of dollars, lawful money of the United States, to be paid to the said United States, for the payment of which, well and truly to be made, we bind ourselves, our heirs, executors, and administrators, jointly and severally, by these presents. Signed and sealed this day of , A. D. 19 — . The condition of this obligation is such that whereas the said ■ — has been on the day of , A. D. 19 — , appointed by the Honorable , judge of the district court of the United States for the district of , a referee in bankruptcy, in and for the County of , in said district, under the acts of Congress relating to bankruptcy. Now, therefore, if the said shall well and faithfully discharge and perform all the duties pertaining to the said oflSee of referee in bankruptcy, then this obligation to be void; otherwise to re- main in full force and virtue. Signed and sealed in the presence of ^ . , [L. 8.] . , [L. 8.] ■ — ,[L.8.] [Acknowledgment.] [Justification of Sureties.] Ajiproved this day of ■ , A. D. 19 — . , District Judge. §1716. Form No. 48. PETITION FOR TRANSFER OF CASE FROM ONE REFEREE TO ANOTHER. [Caption.] To the Honorable ■ — , Judge of the United States District Court for the District of : The petition of : respectfully shows to the court : That your petitioner is a creditor of the above named haAdng a provable claim amounting, in excess of securities held by him, to the sum of Dollars ($ ), the nature of which is as fol- lows: (or otherwise show- the interest of the petitioner). That on the -n: day of , 19 — , the above named Forms 1285 , of , in the county of ' , and district aforesaid, was duly adjudicated a bankrupt upon a petition filed by (or, against) him on the day of , 19 — , according to the provisions of the acts of Congress relating to bankruptcy. That thereafter and on the day of , 19 — , by order of this court, the said matter was referred to , one of the referees in bankruptcy of this court. That your petitioner verily believes that the interest and conven- ience of all parties concerned would be better served if the proceedings herein be referred to , Esq., one of the referees in bank- ruptcy of this court, having his office in the city of , in ihe county of , and district aforesaid, for the following reasons : (If the removal is sought for cause allege:) That the referee appointed as aforesaid has conducted himself in a manner unbecoming a judicial officer, and is not a proper person to act as referee heiein, for the following reasons : That no previous application has been made for the order asked for herein. Wherefore, your petitioner prays for an order of this court directr ing that the proceedings herein be transferred from the said — —77- , to the said , to take such further proceeding? herein as required by law. Petitioner. . [Verification.] KOTE.— See ante, § 323. §1717. Form No. 49. REPORT OF REFEREE. [Caption.] To the Honorable ■■ , Judge of the District Court of the United States for the District of ■ — : The undersigned referee of your court in compliance with your annexed order would respectfully report herewith the evidence taken upon the claim of against said estate with findings of fact established by same. In addition to the evidence hereto attached and taken herein, the evidence taken upon the claim of against said estate is to be considered herein as far as applicable, which said evidence has been returned and is on file herein. ' All of which is respectfully submitted. Dated , 19—. , Beferee. NcHE-.— Prom record in Coder v. Arts, 213 U. S. 223. 1286 Beandenbtjkg on Bankextptct § 1718. Form No. 50. PETITION FOB REVIEW OF REFEREE'S ORDER. [Caption.] Comes W. T. N., by counsel, and files herewith his petition for review of the order of the referee entered herein on Oct. 16th, 1900, and says that said referee erred in ordering and adjudging as insufficient his response to the rule filed herein on Oct. 13th, 1900, that said referee erred in adjudging that there came to the hands of said W. T. N. as agent of the bankrupt on Feb. 9th, 1900, the sum of $4,133.45, being the net proceeds realized from the mortgage executed by the bankrupt upon his house and lot in the city of Louisville ; that said referee erred in adjudging that there came to the hands of said W. T. N., as the agent of the bankrupt on Feb. 19th, 1900, the further sum of $10,100.00, being the net proceeds from the sale of merchandise sold to H. S. ; that said referee erred in adjudging that the said sums are the property of the bankrupt, E. B. N., and belong to A. E. M., trustee in bankruptcy hereia of said estate ; that the said referee erred in ordering that the said rule be made absolute to the amount of said two sums aggregating the sum of $14,233.45 ; that the said referee erred in ordering and requiring said W. T. N. to pay to A. E. M., trustee in bankruptcy in this cause on or before 9:30 o'clock on Oct. 17th, 1900, the said sum of $14,233.45, and said referee erred in entering said order on Oct. 16th, 1900, a copy of which is filed herewith, that said order is erroneous and void, and said referee had no jurisdiction to enter same. "Wherefore, said "W. T. N. prays that said order entered hereon by the referee on Oct. 16th, 1900, be reviewed by the honorable judge of the District Court of the United States for the District of Kentucky, and that said order be adjudged erroneous and void. W. M. S., Z. P., F. F., Jr., Att'ys for W. T. N. Note. — From the record in Mueller v. Nugent, 184 TJ. S. 1. See, also, ante, § 356. FoEMS 1287 § 1719. Form No. 51. [Official Form No. 56.] CEBTIFICATE BY REFEREE TO JUDGE. In the District Court of the United States for the District of . In the matter of Bankrupt. In Bankruptcy. I, , one of the referees of said court in bankruptcy, do hereby certify that in the course of the proceedings in said cause before me the following question arose pertinent to the said proceedings: [Here state the question, a summary of the evidence relating thereto, a/nd the finding and order of the referee thereon.] And the said question is certified to the judge for his opinion thereon. Dated at , the day of , A. D, 19 — . Referee in Bankruptcy. § 1720. Form No. 52. APPLICATION FOR PROTECTION FROM ARREST. [Caption.] To , Esq., Referee in Bankruptcy : The petition of respectfully shows: 1. That on the day of , 19 — , a petition was duly filed in the above entitled court praying that your petitioner be adjudged a — (in)voluntary bankrupt; that on the day of , 19 — , your petitioner was duly adjudged a bankrupt on said petition ; i that the above entitled proceeding is still pending and your petitioner has not received {or applied for) his discharge therein. 2. That your petitioner is informed and verily believes civil process is about to be issued {or, has been issued) by the Court of the County of , State of , for the arrest of your petitioner in a civil action commenced {or about to be commenced) by against your petitioner upon a debt or claim from which your petitioner's discharge in bankruptcy would be a release; that your petitioner is liable to arrest thereon. 3. That the facts upon which said claim is based are as follows : 4. That your petitioner has not previously applied for the order hereinafter prayed for. ' Wherefore, Petitioner prays for an order exempting him from arrest upon civil process in all actions now pending or hereafter begun in any 1288 B.BANDENBUEG oisr : Bankbuptcy state court, rupon any debt or claim from which his discharge in bank- ruptcy would, be a release, to continue until the final adjudication on petitioner's application for a discharge in bankruptcy. Petitioner. [Verification.] 1 Exemption begins with filing of petition and the allegation as to adjudication is unnecessary. See ante, § 425. § 1721. Form No. 53. ORDER PROTECTING BANKRUPT FROM ARREST. [Caption.] The petition of praying for an order exempting him from arrest in certain actions in the state courts having been filed from which it satisfactorily appears that sufficient grounds exist for the issuance of the order prayed for, now on motion of , attorney for the said . It Is Oedeeed that said petition be and the same is hereby granted, and that all persons and officers be and they are hereby prohibited from arresting said upon civil process in any action now pend- ing or hereafter begun in any state court, upon any debt or claim from which his discharge in bankruptcy would be a release, until the final adjudication on his application for a discharge Jn bankruptcy, or until further order of this Court. Referee. Dated ■ 19—. § 1722. Form No. 54. PETITION FOR WRIT OP HABEAS CORPUS. [Caption.] To the Honorable , Judge of the District Court for the • — District of : The petition of of of the County of , State of , respectfully shows to the Court : That on the day of , A. D. 19 — , a petition in bank- ruptcy was filed against (by) him in the above named court; (that there- after and on the day of , A. D. 19 — , he was duly ad- judicated a bankrupt thereon). FoBMs ' 1289 That he is now impl-isoned and restrained of his liberty by at , in the County of , State of ; that he is not committed or detained by virtue of the final judgment or decree of any competent tribunal of civil or critriinal jurisdiction, or by virtue of an execution issued upon such judgment or decree; that the cause or pretense of such confinement or restraint, according to the knowledge and belief of the petitioner, is a claim constituting a debt provable and dischargeable in bankruptcy, (or, that your petitioner is utterly ignorant of the cause or pretense of such confinement or restraint and is unable to ascertain the same) . , Your Petitioner Therefore Prays, That a writ of habeas corpus may issue directed to the said <- commanding him that he have the body of the said by him imprisoned and detained, together with the time and cause of such imprisonment and detention, before the said court to do and receive what shall then and there be con- sidered concerning the said in pursuance of the statute in such case provided. Petitioner. Dated , A. D, 1?—, [Verification.] § 1723. Form No. 55. [Official Form No. 18.] NOTICE OF FIRST MEETING OP CREDITORS. In the District Court of the United States for the District of — . In Bankruptcy. In the matter of " ■ . In Bankruptcy. Bankrupt. To the creditors of , of , in the County of and district aforesaid, a bankrupt: Notice is hereby given that on the day of , A. D. 19 — , the said was duly adjudicated bankrupt; and that the first meeting of his creditors will be held at in — : , on the day of , A. D. 19 — , at o'clock in the noon, at which time the said creditors may attend, prove their claims, appoint a. trustee, examine the bankrupt, and transact such other business as may properly come before said meeting. Referee in Bankruptcy. 19—. 1290 BEANDENBtTEG ON BaNKEUPTCT § 1724. Form No. 56. [Official Form No. 19.] LIST OF DEBTS PROVED AT FIRST MEETING. In the District Court of the United States for the District of . In the matter of In Bankruptcy. Bankrupt. At — -■ , in said district, on the • day of A. D. 19—, before -, referee in 'bankruptcy. The following is a list of creditors who have this day proved their debts : Names ot creditors. Residence. Debts proved. DoUs. Cts. Referee in Bankruptcy. § 1725. Form No. 57. [Official Form No. 20.] GENERAL LETTER OF ATTORNEY IN FACT WHEN CREDITOR IS NOT REPRESENTED BY ATTORNEY AT LAW. In the District Court of the United States for the District of . In the matter of Bankrupt: In Bankruptcy. To I. -, of -, ia the County of — and State of , do hereby authorize you, or any one of you, to attend the meet- ing or meietings of creditors of the bankrupt aforesaid at a Bourt of bankruptby, whferfever iadvertisied or direete'd to be holden^ on the day and at the hour appoinije'd and notified by said court in said mattel:, or at sjicih otheir pisxse ao'^ timfe aa m^ Ife 'a'ppdntiEia by ^ xSowrt far holding FoBMS 1291 such meeting or meetings, or at which such meeting or meetings, or any adjournment or adjournments thereof may be held, and then and there from time to time, and £i3 often as there may be occasion, for me and in my name to vote for or against any proposal or resolution that may be then submitted under the acts of Congress relating to bankruptcy; and in the choice of trustee or trustees of the estate of the said bankrupt, aad for me to assent to such appointment of 'trustee; and with like powers to attend and vote at any other meeting or meetings of creditors, or sitting or sittings of the court, which may be held therein for any of the purposes aforesaid; also to accept any composition proposed by said bankrupt in satisfaction of his debts, and to receive payment of dividends and of money due me under any composition, and for any other purpose in my interest whatsoever, with full power of substitution. In witness whereof I have hereunto signed my name and afSxed my seal the day of , A. D. 19 — . . [l. s.] Signed, sealed, and delivered in presence of — Acknowledged before me this day of , A. D. 19- [Official character.] § 1726. Form No. 58. [Official Form No. 21.] SPECIAL LETTER OF ATTORNEY IN FACT. In the matter of . In Bankruptcy. Bankrupt. To I hereby authorize you, or any one of you, to attend the meeting of creditors in this matter, advertised or directed to be holden at , on the day of , before , or any adjournment thereof, and then and there for and in name to vote for or against any proposal or resolution that may be lawfully made or passed at such meeting or adjourned meeting, and in the choice of trustee or trustees of the estate of the said bankrupt. , ^ . [L. S.] In witness whereof I have hereunto signed my name and affixed, my seal the day of -, A. D. 19—. Signed, sealed, and delivered in presence of — Acknowledged before me this day of , A, D. 19 — . , [Official character.] 1292 Bkandenbueg on Bankktjptcy § 1727. Form No. 59. [Official Form No. 22^,] APPOINTMENT OF TRUSTEE BY CREDITORS. In the District Court of the United States for the — District of . Inthe matter of 1 I In bankruptcy. Bankrupt. J At , in said district, on the day of , A. D. 19 — , before , referee in bankruptcy. This being the day appointed by the court for the first meeting of creditors in the above bankruptcy, and of which due notice has been given in the {here insert tJCe names of the newspapers in which notice was piiilished], we, whose names are hereunder written, being the majority in number and in amount of claims of the creditors of the said bankrupt, whose claims have been allowed, and who are present at this meeting, do hereby appoint , of — , in the County of and State of , to be the trustee of the said bankrupt's estate and effects. Signatures of creditors. Residences of tbe same. Amount of debt. Dolls. Cts. . ■ ' .- 1^ - ■ ■. Ordered that the above appointment of trustee be, and the same is hereby, approved. , Referee in Bankruptcy. § 1728. Form No. 60. [Official Form No. 23.] APPOINTMENT OF TRUSTEE BY REFEREE. In the District Court of the United States for the District of . In the matter of ] I In Bankruptcy. Bankrupt. J At , in said district, on the day of , A. D. 19 — , before , referee in bankruptcy. This being the day appointed by the court for the first meeting of creditors under the said bankruptcy, and of which due notice has been given in the [here insert the names of the newspapers in which notice was piibUshed], I, the iindersigned referee of the said court in bank- Forms 1293 ruptcy, sat at the time and place above mentioned, pursuant to such notice, to take the proof of debts and for the choice of trustee under the said bankruptcy ; and I do hereby certify that the creditors whose claims had been allowed and were present, or duly represented, failed to make choice of a trustee of said bankrupt's estate, and therefore I do hereby appoint , of , in the County of -' and State of , as trustee of the same. , Referee in Bcmkruptcy. § 1729. Porm No. 61. [Official Form No. 24,] NOTICE TO TRUSTEE OF HIS APPOINTMENT. In the District Court of the United States for the District of . In the matter of " - In Bankruptcy. Bankrupt. To , of , in the County of , and district aforesaid : I hereby notify you that you were duly appointed trustee [or one of the trustees] of the estate of the above-named bankrupt at the first meeting of the creditors, on the day of , A. D. IS'—, and I have approved said appointment. The penal sum of your bond as such trustee has been fixed at dollars. You are required to notify me forthwith of your acceptance or rejection of the trust. Dated at the day of , A. D. 19 — . Referee in Bankrupicy. § 1730. Form No. 62. TRUSTEE'S ACCEPTANCE OR REJECTION OF APPOINTMENT. fCaption.] To -^ , Referee, in the above entitled proceeding: I hereby signify my acceptance [rejection] Qf my appointment as trustee in bankruptcy of the estate of , bankrupt, above named. . Dated , 19—. Note. — See ante, § 684. 1294 Beandenbueg on Bankeuptct §1731. Pom No. 63. BOND OF TRUSTEE. Know all men by these presents : That we, , of , as principal, and , of , and : — , of , as sureties, are held and firmly bound unto the United States of America in the sum of dollars, in lawful money of the United States, to be paid to the said United States, for which payment, well and truly to be made, we bind ourselves and our heirs, executors, and admin- istrators, jointly and severally, by these presents. Signed and sealed this day of , A. D. 19 — . The condition of this obligation is such, that whereas the above named was, on the day of , A. D. 19 — , appointed trustee in the ease pending in bankruptcy in said court, wherein is the bankrupt, and he, the said , has accepted said trust with all the duties and obligations pertaining thereunto: Now, therefore, if the said , trustee as aforesaid, shall obey such orders as said court may make in relation to said trust, and shall faithfully and truly account for all the moneys, assets, and effects of the estate of said bankrupt which shall come into his hands and pos- session, and shall in all respects faithfully perform all his official duties as said trustee, then this obligation to be void ; otherwise, to remain in full force and virtue. Signed and sealed in presence of , [seaIi.] , [seal.] , [seal.] [ Acknowledgment. ] [Justification of Sureties.] §1732. Form No. 64. [Official Form No. 26.] ORDER APPROVING TRUSTEE'S BOND. At a court of bankruptcy, held in and for the District of -, at , this day of , A. D. 19 — . Before , referee in bankruptcy, in the District Court of the United States for the District of . In the matter of Bankrupt. In Bankruptcy. It appearing to the Court that , of , and in said district, has been duly appointed trustee of the estate of the above-named bankrupt, and has given a bond with sureties for the faithful perform- FoBMS 1295 ance of his oflRcial duties, in. the amount fixed by the creditors [or by order of the court], to-wit, in the sum of dollars, it is ordered that the said bond be, and the same is hereby, approved. Referee in BanUruptcy. § 1733. Form No. 65. [Official Form No. 27.] ORDER THAT NO TRUSTEE BE APPOINTED. In the District Court of the United States for the District of . In the matter of . In Bankruptcy. Bankrupt. It appearing that the schedule of the bankrupt discloses no assets, and that no creditor has appeared at the first meeting, and that the appointment of a trustee of the bankrupt's estate is not now desirable, it is hereby ordered that, until further order of the court, no trustee be appointed and no other meeting of the creditors be called. Referee in Bankruptcy. ;■«*> :•*«; 1296 Bbandenbtjbg onIBankkuptcy § 1734. Form No. 66. [Official Form No. 49.] ACCOUNT OF TRUSTEE. H m § P o o o Eh M pq o E-i FoBMs 1297 § 1735. Form No. 67. [Official Porm No. 50.] OATH TO PINAL ACCOUNT OP TRUSTEE. In the District Court of- the United States for the, r District of . In the matter of Bankrupt. In Bankruptcy. On this day of , A. D. 19—, before me comes , of , in the County of — and State of , and makes oath, and says that he was, on the day of —. , A. D. 19—, appointed trustee of the estate and the effects of the above-named bankrupt, and that as such trustee he has conducted the settlement of the said estate. That the account hereto annexed containing sheets of paper, the first sheet whereof is marked with the letter [reference may here also be made to any prior account filed hy said trustee] is true, and such account contains entries of every sum of money received by said trustee on account of the estate and effects of the above- named bankrupt , and that the payments purporting in such account to have been made by said trustee have been so made by him. And he asks to be allowed for said payments and for commissions and expenses as charged in said accounts. , Trustee. Subscribed and sworn to before me at , in said District of , this day of , A. D. 19—. [Official character.] § 1736. Porm No. 68. NOTICE OP PINAL ACCOUNT AND MEETING. [Caption.] At , on the day of , A. D. 19—. To the creditors of , Bankrupt: Notice is hereby given that on the day of , A. D; 19 — , • , trustee of the estate of the above-named bankrupt, filed his final accoujit in the above entitled matter, containing a detailed state- ment of the administration of said estate ; that the final meeting of the creditors of said baiikrupt ^iU be held at — ^-r-rf.ia r — , on the day_of -r-fr — , Av D. 19-r-, .at — ■ o'clock in the — — ;— noon,..at whicli titne the creditors .ofsaidbankrupt may attend^ examine the final account of said Irustee. filed-aa aforesaid, object to the confirmatipn thereof and Brandenburg — 82 1298 Beandenbtjeg on Bankexjptct transact such other business as may properly come before the meeting; and that at said time and place the Gourt will make allowances to the officers of the court for their fees and expenses, and to the attorneys for the bankrupt and the trustee for their services, and will declare final dividends due to the creditors of said estate. Referee in Bankruptcy. Note.— See ante, §§ 445, 721, 1344, 1425. § 1737. Form No. 69. [Official Form No, 51.] ORDER ALLOWING ACCOUNT AND DISCHARGING TRUSTEE. In the District Court of the United States for the District of . In the matter of ■■ I In Bankruptcy. Bankrupt. The foregoing account having been presented for allowance, and hav- ing been examined and found correct, it is ordered, that the same be allowed, and that the said trustee be discharged of his trust. Referee in Bankruptcy. § 1738. Form No. 70. [Official Form No. 52.] PETITION FOR REMOVAL OF TRUSTEE. In the District Court of the United States for the District of . In the matter of " - In Bankruptcy. Bankrupt. To the Honorable , Judge of the District Court for the District of : The petition of , one of the creditors of said bankrupt, respectfully represents that it is for the interest of the estate of said bankrupt that , heretofore appointed trustee of said bank- rupt 's estate, should be removed from his trust, for the causes following, to-wit: [Here set forth the particulwr cause or causes for which such removal is requested.] "Wheeeforb prays that notice may be served upon said , trustee as aforesaid, to show cause, at such time as may be fixed by the covirt, why an brder should not be made removing him from said trust. . FoBMS 1299 § 1739. Form No. 71. [Official Form No. 53.] NOTICE OF PETITION FOR REMOVAL OP TRUSTEE. In the District Court of the United States for the District of . In the matter of . In Bankruptcy, Bcmkrupt. At , on the day of , A. D. 19 — . To , Trustee of the estate of , banltrupt : You are hereby notified to appear before this court, at -, on the day of , A. D. 19 — , at o'clock — . m., to show cause (if any you have) why you should not be removed from your trust as trustee as aforesaid, according to the prayer of the petition of , one of the creditors of said bankrupt, filed in this court on the day of , A. D. 19 — , in which it is alleged [here insert the allegation of the petition] . Clerk. § 1740. Form No. 72. [Official Form No. 54.] ORDER FOR REMOVAL OF TRUSTEE. In the District Court of the United States for the District of — - — . In the matter of - In Bankruptcy. Bankrupt. "Whereas , of , did, on the day of , A. D. 19 — , present his petition to this court, praying that for the rea- sons therein set forth, , the trustee of the estate of said -, bankrupt, might be removed: Now, therefore, upon reading the said petition of the said and the evidence submitted therewith, and upon hearing counsel on behalf of said petitioner and ?ounsel for the trustee, and upon the evidence submitted on behalf of said trustee. It is ordered that the said be removed from the trust as trustee of the estate of said bankrupt, and that the costs of the said petitioner incidental to said petition be paid by said , trustee [or, out of the estate of the said , subject to prior charges] . Witness the Honorable , judge of the said court, and the seal thereof, at , in said district, on the day of , A. D. 19—. [Seal of the Court.] , Clerk. 1300 Brandenburg on Bankruptcy § 1741. Form No. 73. [Official Form No. 55.] ORDER FOR CHOICE OF NEW TRUSTEE. In the District Court of the United States for the — District of . In the matter of In Bankruptcy. Bankrupt. At , on the — '■ day of A. D. 19- Whereas by reason of the removal [or the death or resignation] of -, heretofore appointed trustee of the estate of said bank- rupt, a vacancy exists in the office of said trustee, It is ordered, that a meeting of the creditors of said bankrupt be held at , in , in said district, on the day of , A. D. 19 — , for the choice of a new trustee of said estate. And it is further ordered that notice be given to said creditors of the time, place, and purpose of said meeting, by letter to each, to be deposited in the mail at least ten days before that day. Referee in Bankruptcy. § 1742. Form No. 74. [Official Form No. 40.] LIST OF CLAIMS AND DIVIDENDS TO BE RECORDED BY REFEREE AND BY HIM DELIVERED TO TRUSTEE. In the District Court of the United States for the District of . In the matter of In Bankruptcy. Bankrupt. At. in said district, on the day of ■ A. D. 19—. A List of Debts Proved and Claimed Under the Bankruptcy op , vnTH Dividend at the Rate op Per Cent This Day Declared Thereon by Bankruptcy. A Referee in No. Creditors. [To he placed aIpbal)etlcall.T, and the names of all the parties to the proof to be carefully set forth.] Sum proved. Dividend. Dollars. Cents. Dollars. Cents. 1 i Referee in Bankruptcy. Forms 1301 § 1743. Porni No, 75. ORDER DECLARING DIVIDENDS. [Caption.] And now to-wit, , 19 — , a meeting of the creditors hav- ing been this day held, after due notice, to consider and pass upon the account of the trustee, and to declare and fix the time of payment of a dividend, now upon due consideration it is ordered, adjudged and decreed as follows,"to-wit : First. That the account of the trustee, no exceptions being filed thereto, is hereby confirmed. Second. The claims for wages set forth in the Schedule of Distribu- tion hereto attached are allowed in the amounts set forth in said schedule as entitled to priority under the provisions of the Bankruptcy Law. Third. The following rent claims are allowed in the following amounts as entitled to priority under the provisions of the Bankruptcy Law, to-wit : , $ ^ ; , $ -. The total amount of debts duly proven and allowed and entitled to participate in dividends is the sum of $ , and the dividend rate is hereby declared to be per cent upon the claims duly proven and allowed, as aforesaid, and the trustee is ordered to pay out of the funds in hands in accordance with the Schedule of Distribution hereto attached, and filed herewith, and that vouchers for said claims, respec- tively, be prepared for delivery by the trustee to said claimants, respectively, on the day of , A. D. 19 — . , Referee in Bankruptcy. , Note.— From record in Guarantee T. & T. Co. v. Title G. & T. Co., 224 IT. S. 152. § 1744. Form No. 76. [Official Form No. 41.] NOTICE OF DIVIDEND. In the District Court of the United States for the District of . In the matter of ■ r- . In Bankruptcy. Bcmkriipt. At , on the day of , A. D. 19—. To . Creditor of ■ , bankrupt: I hereby inform you that you may, on application at my office, on the day of , or on any day thereafter, between the hours of , receive a warrant for the dividend due' to you 1302 Bkandenbueg on Bankeuptcy out of the above estate. If you can not personally attend, the warrant will be delivered to your order on your filling up and signing the sub- joined letter. , Trustee. , Cesditoe's Lettee to Trustee. To- , Trustee in bankruptcy of the estate of , bankrupt : Please deliver to the warrant for dividend payable out of the said estate to me. , Creditor. § 1745. Form No. 77. BOND OP DEPOSITORY. [Caption.] Know all men by these presents : That we, the Bank of , , as principal, and , of , , and , of , , as sureties are held and firmly bound unto the United States of America in the sum of dollars ($ ), in lawful money of the United States, to be paid to the said United States, for which payment, well and truly to be made, we bind ourselves and our heirs, executors and administrators, jointly and severally by these presents. Signed and sealed this ;- day of , A. D. 19 — . The condition of this obligation is such, that whereas the above bounden Bank of , , was, on the day of , A. D. 19 — , by order of said court designated as a depository for the money of the bankrupt estate of the above named , bankrupt, and it, the said Bank of , , has accepted said trust with all the duties and obligations pertaining there- unto. Now, therefore, if the said Bank of , depositors, as aforesaid, shall obey such orders as said court may make in relation to said trust, and shall faithfully and truly account for all the money, assets and effects of the estate of said bankrupt which shall come into its hands and possession, and shall in all respects faithfully perform all its official duties as such depository, then this obligation shall be void; otherwise to remain in full force and virtue. Signed and sealed in presence of: ^[seal ] By '- [Acknowledgment.] [Justification of Sureties.] Note. — See ante, § 728. -[seal.] -[seal.] FoEMS 1303 § 1746. Ponn No. 78. ORDER DESIGNATING REFEREE TO COUNTERSIGN WARRANTS. [Caption.] An order having been heretofore made in this proceeding appointing trustee (or, receiver) herein, and the Bank of , , having thereafter been designated by an order of this court, as a depository for the money of the bankrupt estate lierein, and said Bank of , , having accepted said trust and duly qualified as such depository, It is ordered that , referee in bankruptcy, be and he hereby is, authorized to countersign all checks and warrants drawn by the trus- tee or clerk herein upon said depository, and that said depository be, and is hereby, directed not to pay out or disburse any funds in its pos- session as such depository except upon proper check or warrant signed by the trustee or clerk herein and countersigned by the judge of this court, or the referee above named. Let a copy of this order be served upon the trustee herein and upon the above-named depository forthwith. Dated , A. D. 19—. , Judge. Note.— See ante, § 728. § 1747. Form No. 79. PETITION FOR EXAMINATION UNDER SECTION 21A. [Caption.] To the Honorable Judges bf the District Court of the United States for the Southern District of New York : The petition of J. W. respectfully shows to this Honorable Court : First. That the petition praying for the involuntary adjudication of the alleged bankrupt above named was duly filed in the office of the clerk of this court on the 2d day of August, 1909, and thereafter and on said day, your petitioner was duly appointed receiver of the property, assets and effects of the alleged bankrupt, above named, and duly quali- fied in the manner and form prescribed by law. Second. That after your petitioner's qualification, he entered upon the discharge of his duties as such receiver, and took possession of all the assets of the alleged bankrupt discoverable. Third. That the petitioner found that the bankrupt was a dealer in and manufacturer of pianos, and that the bankrupt had certain out- 1304: BbANDENBTJEG on 3AKrKBUPTCT standing accounts "with which your petitioner is unacquainted at this time. Fourth. Petitioner has been informed that the bankrupt made a statement in which he said that he had assets much larger than those •taken possession of by him, and petitioner desires an examination and investigation into the facts concerning the disappearance of the assets, as he believes from such examination, facts may be elicited which may bring said assets into the estate. Fifth. Your petitioner therefore deems it necessary and essential for the best interests of the creditors herein that the alleged bankrupt above named, its officers and directors and J. J. (the name "J. J." being fictitious, real name being unknown, but more particularly identified as the bookkeeper of the alleged bankrupt), be examined under the pro- visions of Section 21-A of the Bankruptcy Act, so that your petitioner may obtain information which will aid him in bringing assets into the estate herein. Wheeepoee, your petitioner prays an order of this court directing the alleged bankrupt above named, its officers and directors and J. J. (the name "J. J." being fictitious, real name being unknown, but more particularly identified as the bookkeeper of the alleged bankrupt), to appear for examination before a special examiner to be appointed for the purpose, and that they produce for exhibit and exajnination aU books, vouchers, papers, writings, etc., relating to their business, and that Uiey be examined concerning their acts, conduct and property, and for such other and further order and relief in the premises as the Court may deem just and proper. And your petitioner wiU ever pray, etc. Dated New York, August 3, 1909. [Verification.] J. W., Petitioner. Note. — From record in Cameron v. United States, 231 IT. S. 710. § 1748. Form No. 80. [Official Form No. 28.] ORDER FOR EXAMINATION OF BANKRUPT. In the District Court of the United States for the District of . In the matter of - In Bankruptcy. Bankrupt. At -^, on the day of , A. D. 19 — . Upon the application of — — , trustee of said bankrupt [or creditor of said bankrupt], it is ordered that said bankrupt attend before ■ • -• -' , one of the referees in bankruptcy of this court, at ". -' ■■ '. FoBMS 1305 on the day of , at o'clock in the noon, to submit to examination under the acts of Congress relating to bankruptcy, and that a copy of this order be delivered to him, the said bankrupt, forthwith. , Referee m Bankruptcy. § 1749. Form No. 81. [Official Form No. 29.] EXAMINATION OF BANKRUPT OR WITNESS. In the District Court of the United States for the District of . In the matter of ] l In Bankruptcy. Bankrupt. J At , in said district, on the day of , A. D. 19 — , before , one of the referees in bankruptcy of said court. , of , in the County of , and State of , being duly sworn and examined at the time and place above mentioned, upon his oath says: [Here insert substance of examination of party.] Referee in BanJcruptcy. § 1750. Form No. 82. [Official Form No. 30.] SUMMONS TO WITNESS. In the District Court of the United States for the District of . In the matter of ■ . In Bankruptcy. Bankrupt. To : Whereas , of ■ — , in the County of , and State of , has been duly adjudged bankrupt, a,nd the proceeding in bankruptcy is pending in the District Court of the United States for the District of , These are to require you, to whom this summons is directed, person- ally to be and appear before , one of the referees in bank- ruptcy of the said court, at , on the day of , at o'clock in the noon, then and there to be examined in rela- tion to said bankruptcy. Witness the Honorable , judge of said court, and the seal thereof, at , this day of , A. D. 19 — . , Clerk. 1306 Bbandenbtjeg on Bankruptcy Return of Summons to "Witness. In the District Court of t|ie United States for the District of . In the matter of In Bankruptcy. Bankrupt. On this day of — , A. D. 19—, before me came -, of , in the County of and State of , and makes oath, and says that he did, on , the day of , A. D. 19 — , personally serve , of , in the County of and State of , with a true copy of the summons hereto annexed, by delivering the same to him ; and he further makes oath, and says that he is not interested in the proceeding in bankruptcy named in said summons. . Subscribed and sworn to before me this day of , A. D. 19—. § 1751. Form No. 83. [Official Fonn No. 31.] PROOF OF UNSECURED DEBT. In the District Court of the United States for th^ ■ — District of . In the matter of 1 J. In Bankruptcy. Bankrupt. J At , in said District of , on the day of , A. D. 19 — , came ■ , of , in the County of , in said District of , and made oath, and says that , the person by [or against] whom a petition for adjudication of bank- ruptcy has been filed, was, at and before the filing of said petition, and still is, justly and truly indebted to said deponent in the sum of dollars; that the consideration of said debt is as follows: ; that no part of said debt has been paid [except ] ; that there are no set-offs or counter-claims to the same [except ] ; and that deponent has not, nor has any person by his order, or to his knowledge or belief, for his use, had or received any manner of security for said debt whatever. Creditor. Subscribed and sworn to before me this day of , 19 — . [Official character.] FoBMs 1307 § 1752. Form No. 84. [Official Form No. 32.] PKOOF OF SECURED DEBT. In the District Court of the United States for the District of . In the matter of ^ I In Bankruptcy. Bankrupt J At , in said District of -, on the day of , A. D. 19 — , came , of , in the County of , in said District of , and made oath, and says that , the person by [or against] whom a petition for adjudication of bank- ruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to said deponent, in the sum of dollars ; that the consideration of said debt is as follows ; that no part of said debt has been paid [except ] ; that there are no set- offs or counter-claims to the same [except ] ; and that the only securities held by this deponent for said debt are the following : Creditor, Subscribed and sworn to before me this day of A. D. . [Offtciai character.] ' § 1753. Form No. 85. [Official Form No. 33.] PROOF OF DEBT DUE CORPORATION. In the District Court of the United States for the — ■ District of . In the matter of "] — t In Bankruptcy. Bankrupt. J At , in said District of , on the day of , A. D. 19 — , came , of , in the County of and State of , and made oath, and says that he is , of the , a corporation incorporated by and under the laws of the State of , and carrying on business at , in the County of and State of — , and that he is duly authorized to make this proof, and says that the said , the person by \or against] whom a petition for adjudication of bankruptcy has been filed, was at and before the filing of the said petition, and still is, justly and 1308 Bbandenburg on Bankkuptcy truly indebted to said corporation in the sum of dollars; that the consideration of said debt is as follows: — ; that no part of said debt has been paid [except ] -, that there are no set-offs or counter-claims to the same [except — ^ ] ; and that said corporation has not, nor has any person by its order, or to the knowledge or belief of said deponent, for its use, had or received any manner of security for said debt whatever. of said Corporation. ■Subscribed and sworn to before me this day of A. D. 19—. [Official character. § 1754. Form No. 86. [Official Perm No. 34.] PROOF OF DEBT BY PARTNERSHIP. In the District Court of the United States for the District of . In the matter of - In Bankruptcy. Banhrupt. At , in said District of , on the day of. , A. D. 19 — , came , of , in the County of , in said District of , and made oath, and says that he is one of "the firm of , consisting of himself and , of , in the County of and State of ; that the said , the person by [or against] whom a petition for adjudi- cation of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to this deponent's said firm in the sum of dollars; that the consideration of said debt is as follows : ; that no part of said debt has been paid [except ] ; that there are no set-offs or counter-claims to the same [except ] ; and this deponent has not, nor has his said firm, nor has any person by their order, or to this deponent's knowledge or belief, for their use, had or received any manner of security for said debt whatever. Creditor. Subscribed and sworn to before me this day of A. D. 19—. _••- '.''•f '-3? -'^,"1^. "••'»:-'■' *-f -J v*- •' ' [Official character.] FoBMS 1309 § 1755. Form No. 87. [Offloial Form No. 35.] PROOF OF DEBT BY AGENT OR ATTORNEY. In the District Court of the United States for the District of . In the matter of - In Bankruptcy. Bankrupt. At , in said District of , on the day of , A. D. 19 — , came , of , in the County of and State of , attorney [or authorized agent] of , in the County of and State of , and made oath, and says that , the person by [or against] whom a petition for adjudi- cation of bankruptcy has been filed, was at and before the filing of said petition, and still is, justly and truly indebted to the said , in the sum of dollars; that the consideration of said debt is as follows : ; that no part of said debt has been paid [except ] ; and that this deponent has not, nor has any person by his order, or to this deponent's knowledge or belief, for his use, had or received any manner of security for said debt whatever. And this deponent further says, that this deposition can not be made by the claimant in person because ; and that he is duly authorized by his principal to make this affidavit, and that it is within his. knowledge that the aforesaid debt was incurred as and for the consideration above stated, and that such debt, to the best of his knowledge and belief, still remains unpaid and unsatisfied. • Subscribed and sworn to before me this day of , A. D. 19—. [Official character.] § 1756. Form No. 88. [Official Form No. 36.] PROOF OF SECURED DEBT BY AGENT. In the District Court of the United States for the District of . In the matter of ■ - In Bankruptcy. Bankrupt. At , in said District of , on the day of , A. D. 19—, came , of , in the County of , and State of , attorney [or authorized^ agent] of , in the County of , and State of , anS made oath, and says that 1310 Beandenbueg on Bankeuptcx , the person by [or against] whom a petition for adjudi- cation of bankruptcy has been filed, was, at and before the filing of said petition, and still is, justly eind truly indebted to the said in the sum of dollars; that the consideration of said debt is as follows : that no part of said debt has been paid [except ] that there are no set-offs or counter-claims to the same [except ] and that the only securities held by said for said debt are the following: — — — ; and this deponent further says that this deposition can not be made by the claimant in person because ■ — , and that he is duly authorized by his principal to make this deposition, and that it is within his knowledge that the aforesaid debt was incurred as and for the consideration above stated. Subscribed and sworn to before me this day of , A. D. 19—. [Official character.] §1757. Form No. 89. [Official Pom No. 37.] AFFIDAVIT OF LOST BILL, OR NOTE. In the District Court of the United States for the District of . In the matter of In Bankruptcy. Bankrupt. On this day of , A. D. 19 — , at , came , of , in the County of , and State of , and- makes oath and says that the bill of exchange [or note], the particidars whereof are underwritten, has been lost under the following circum- stances, to wit, and that he, this deponent, has not been able to find the same ; end this deponent further says that he has not, nor has the said , or any person or persons to their use, to this deponent's knowledge or belief, negotiated the said bill [or note], nor in any manner parted with or assigned the legal or beneficial interest therein, or any part thereof; and that he, this deponent, is the person now legally and beneficially interested in the same. FOBMS Bill or note aJ>ove referred to. 1311 Date. Drawer or maker. Acceptor. Sum. Subscribed and sworn to before me this ■ 19—. day of , A. D. [Official character.] §1758. Pom No. 90. OBJECTIONS TO CLAIM. [Caption.] In re Claim of ■ Now comes — of] the above named ■ claim filed by , the trustee of the estate of [or, a creditor , bankrupt, and objects to the proof of of , , and prays that the same may not be allowed on the following grounds : 1. That said claim is not due and owing to said by the bankrupt herein. 2. That said claim is not a provable claim in bankruptcy ; that the amount claimed to be due in said proof of claim was not due and owing at the date of the filing of the petition herein or at the date of the ad- judication herein; that said claim was not a fixed liability absolutely owing at the time of the filing of the petition herein. Attorneys for § 1759. Form No. 91. SPECIAL REFERENCE. [Caption.] The referee, findings to facts as to the claim of denee and said findings of fact to the Court with all reasonable speed, but will make or adopt no conclusions of law. Esq., will take the evidence and make -, and report said evi- Judge. Dated -, A. D. 19—. Note. — ^From record in Coder v. Arts, 213 U. 8. 223. 1312 Beandenbubg on Bankeuptcy § 1760. Form No. 92. [Official Form No. 38.] ORDER REDUCING CLAIM. In the District Court of the United States for the District of . In the matter of : — ■ : - In Bankruptcy. Bankrupt. At , in said district, on the day of , A. D. 19 — > Upon the evideiiee suhmitted to this court upon the claim of -against said estate [and, if the fact he so, upon hearing counsel thereon], it is ordered, that the amount of said cjlaim. be reduced from the sum of , as set forth in the affidavit in proof of claim filed by said creditor in said case, to the sum of ^ — , and that the latter- named sum be entered upon the books of the trustee as the true sum upon which a dividend shall be computed [if with interest, with interest thereon from the day of , A. D. 19 — ] . Referee in Bankruptcy. § 1761. Form No. 93. [Official Form No. 39.] ORDER EXPUNGING CLAIM. In the District Court of the United States for the District of . In the matter of 1 I In Bankruptcy. Bankrupt. J At , in said district, on the day of , A. D. 19 — . Upon the evidence submitted to the court upon the claim of against said estate [and if the fact he so, upon hearing counsel thereon], it is ordered, that said claim be disallowed and expunged from the list of claims upon the trustee's record in said case. Referee in Bankruptcy. FoEMS 1313 § 1762. Form No. 94. PETITION FOR RE-EXAMINATION OF CLAIM PRAYING FOR SURRENDER OF PREFERENCE. [Caption.] To R. S. H., Esquire, Referee in Bankruptcy: The petition of The P. L. & T. Co., of Philadelphia, trustee of the estate of Or. W. and I. W., individually and trading as G. "W. & Co., bankrupts, respectfully represents: 1. That a petition praying that G. W. and I. "W., individually and trading as G. W. & Co., be adjudged voluntary bankrupts, was filed in the said District Court of the United States, for the Eastern District of Pennsylvania, on the thirty-first day of December, 1901, and in pur- suance thereof, they were so adjudged on the same day. 2. That your petitioner is the trustee of the estate of G. W. and I. "W., individually and trading as G. W. & Co., bankrupts, and has duly qualified as such. 3. That J. W. & Co. have filed a proof of claim against the estate of the said bankrupts on the present proceedings in the sum of $2,565.92, and that the said claim is based upon the sale and delivery of merchan- dise on an open account, as shown by the statement annexed to the proof of claim, between July 19 and October 8, 1901. 4. That G. W. and I. W., individually and trading as G. W. & Co., were on or before October 9, 1901, insolvent, and continued so up to the date of bankruptcy, and your petitioner is informed, believes, and expects to be able to prove, and therefore avers that the said G. W. and I. W., individually and trading as G. W. & Co., did pay or cause to be paid to J. W. & Co., on October 9, 1901, the sum of $634.78 ; that said sum of money was then and immediately prior thereto, the property and assets of said G. W. and I. W., individually and trading as G. W. & Co., and that said payment did not wholly extinguish the indebtedness at the date of payment due claimants by said G. W. & I. W., individually and trading as G. W. & Co., but was only in liquidation pro tanto of said indebtedness then existing. 5. That the said payment by said G. W. and I. "W., individually and trading as G. W. & Co., to the said J. W. & Co., claimants, constitutes a preference within the meaning and intent of the Bankruptcy Act, being a transfer of property, the result of which will be to enable the said claimants to obtain a greater percentage of their debt than any other of said creditors of the same class. 6. That said preference should be surrendered before the said claim is allowed. Your petitioner therefore objects to the allowance of said claim and Brandenburg — 83 1314 Bbandenbubg on Bankeuptcy prays that if allowed, it be re-examined and that no dividend be paid thereon unless and until the said preference be surrendered. The P. L. & T. Co., Trustee for the Estate of G. W. and I. W., Individually and Trading as G. W. & Co., Bankrupts. [Sdv] By J. R. F., Trust Officer. Note.— From record in Wild & Co. v. Prov. L. & T. Co., 214 U. S. 292. §1763. Form No. 95. ORDER FOR RE-EXAMINATION OF CLAIM. [Caption.] ' And now, to- wit : this day of , A. D. 19 — , on motion of , esquire, pro petitioner, and upon consideration of- the foregoing petition, it is ordered that the claim of ; , in the said petition mentioned, be re-examined before me on , 19 — , at o'clock, m., at , and that ten days' notice of this order be given to the said claimants or their attorney by mail. Referee in Bankruptcy. § 1764. Form No. 96. [Official Form No. 48.] TRUSTEE'S RETURN OF NO ASSETS. In the District Court of the United States for the District of . In the matter of 1 I In Bankruptcy. Bankrupt. I At , in said district, on the ■ day of ,' A. D. 19-p. On the day aforesaid; before me comes , of , in the County of and State of , and makes oath, and says that he, as trustee of the estate and effects of the above named bankrupt — , neither received nor paid any moneys on account of the estate. Subscribed and sworn to before me at , this day of — , A. D. 19—. Referee in Bankruptcy. FoiBMs 1315: § 1765. Form No, 97. PETITION FOR LEAVE TO ABANDON PROPERTY. [Caption.] The petition of respectfully shows : That petitioner is the duly qualified and acting trustee of the estate of the above-named bankrupt. That among the assets listed by the said bankrupt in his schedules on files herein and coming into the possession of your petitioner as trustee herein is the following described personal property, to-wit : That your petitioner is informed that on the day of , 19 — , more than four months prior to the filing of the petition in bank- ruptcy herein, said bankrupt made and delivered to one , hereinafter called the mortgagee, his promissory note dated on that day, whereby for value he promised to pay to the order of said , the sum of Dollars, on or before the day of , 19 — , at the Bank of , , with interest thereon at the rate of per cent per annum. That your petitioner is informed that to secure the payment of said note according to its terms, the bankrupt herein made and delivered to said , a chattel mortgage of and upon, the above described. personal property, and that said mortgage was filed and recorded in the office of the Register of Deeds in and for the County- of , Stat© of , as required by law, on the day of , 19- — , the county in which the bankrupt resided at last mentioned date, as petitioner is informed. That the value of the above described property does not exceed the sum of Dollars ($ ), which is less than the amount of the aforesaid mortgage thereon; that the value of said property is not sufficient to justify an attempt on the part of petitioner to redeem it or to administer it in these proceedings, unless the said note and mortgage are invalid as against the trustee herein and the creditors of the said bankrupt other than the aforesaid mortgagee. That your petitioner has not sufficient information to form a belief that the aforesaid note and mortgage are valid as against him and the creditors of the bankrupt other than the aforesaid mortgagee, but believes that it would be unprofitable at this time for him to retain pos- session of the said property for the following reasons : Whebbfoee, your petitioner prays for an order permitting and authorizing him to deliver the said property to the aforesaid mortgagee^ without prejudice, however, to the right, of the petitioner to contest the validity of the mortgage and tetake possesion, of said property ifesaiij 1316 Beandenbubq ok Bankeuptct mortgage be declared invalid by a court of competent jurisdiction, and for such other and further relief as to the court may seem just. Petitioner. [Verification.] Note. — See ante, § 760. § 1766. Form No. 98. [Official Form No. 47.] TRUSTEE'S REPORT OF EXEMPTED PROPERTY. In the District Court of the United States for the District of . In the matter of Bankrupt., In Bankruptcy. At- on the ■ day of • -, 19—. The following is a schedule of prbperty designated and set apart to be retained by the bankrupt aforesaid, as his own property, under the provisions of the acts of Congress relating to bankruptcy : Genebal bead. Particular description. Value. Military uniform, arms, and equipments Dolls. Cts. Property exempted by State laws 1 Trustee: § 1767. Form No. 99. EXCEPTIONS TO TRUSTEE'S REPORT OP EXEMPTED PROPERTY. [Caption.] Now comes ■ and respectfully shows to the Court : That he is a creditor of the above named bankrupt and has filed his claim herein. That he excepts to the report of the trustee herein as to the articles set off by him to the bankrupt as exempt in the following particulars: for the following reasons, to-wit:— — — ■ [here set up that the property is not exempt under the laws of the state FoHMs 1317 of bankrupt's domicile, or facts showing; a waiver of bankrupt's right to exemptions]. Wheeefoee, Your petitioner prays that the Court fix a time and place for the hearing of his objections to said report, and the argument thereof, as provided by law Dated , 19—. Note. — See ante, § 994. §1768. Form No. 100. ORDER DECLARING INSURANCE POLICIES EXEMPT. [Caption.] This cause coming on this 15th day of July, 1901, to be heard on the report of the referee, filed herein on the 17th day of June, 1901, and the exceptions of said bankrupts to said report in denying to said bank- rupts their claim of exemptions to the following life insurance policies numbered 206,383 and 303,921, issued on the 15th day of June, 1894, by the N. L. I. Co., of Milwaukee, "Wisconsin ; and the Court, after hearing arguments of counsel for and against said report, being fully satisfied in the premises, allows the exemption of said policies claimed by said bankrupts. Wherefore, It is ordered and adjudged that the report of the referee be, and the same is hereby, vacated and set aside, and that the bank- rupts, D. N. H. and T/. H. be, and they are hereby, allowed their said claim of exemptions as to the said life insurance policies; and it is fur- ther ordered and adjudged that the said life insurance policies be, and they are hereby, exempt from all debts and liabilities of said bankrupts, and from all claims of every kind and character made in these proceed- ings by the creditors of said bankrupts, and that said life insurance policies be returned to said bankrupts. Done in open court this 16th day of July, 1901. C. H. H., Judffe. Note. — From record in Holden v. Stratton, 198 IT. 8. 202. §1769, Pom No. 101. PETITION TO RESTRAIN NON-ASSENTING PARTNER. And now comes W. H. H., attorney for various creditors herein, and shows unto th^ Court that evidence having been taken in the above men- tioned cause, -whereby it is contended that J. M. is a general partner 1318 Brandenburg on Bankruptcy in the firm of S. de J. H. and therefore liable for the debts of the firm to the full extent of his property, and that the said J. M. is the owner of and through his agents possessor of, houses No. Street, No. -: Street, and No. Street,- San Juan, and certain other country properties in the interior of the island, including those of Utuado, and that he is, through his agents, receiving the rents and profits from said properties, and that the said J. M. is absent in Spain where he has been for some time, and that the said rents and profits are being sent to him monthly, now therefore, the said W. H. H. as attorney and representative of the various creditors herein. Petitions the referee to enter a restraining order herein enjoining said J, M. or his agent or agents from selling, encumbering, or in any way disposing of the said properties or any properties which may appear upon the schedule of his property hereinafter to be filed by the said J. M. or his agent, and ordering the said J. M., his agent or agents to deposit with the referee all rents and profits received from the said houses and properties until the question of the general liability of the said J. M. for the debts of the bankrupt firm S. de J. H. shall be deter- mined by the Court. W. H. H., Attorney for Creditors. May 14, 1907. Note. — From record in Munsuri v. Fricker, 222 U. S. 121. § 1770. Form No. 102. MOTION TO DECLARE PARTNER GENERALLY LIABLE. [Caption.] And now comes , trustee herein, and moves the court upon the minutes of the testimony taken at the first meeting of creditors herein and on all the records and proceedings herein, that who claims to be a special partner in the above named bankrupt partner- ship and as such having only a limited liability, be declared a full or gen- eral partner in said partnership, and generally liable to the full extent of his property for the payment of the just debts of said partnership, that said be ordered to deliver over to the trustee herein forth- with, all his property not exempt by law to be administered by this court for the purposes of paying the debts of said partnership, and that said ■ file schedules of his debts and inventories of his individual property. Trustee. Dated— ^ ,19—. FoBMs 1319 § 1771. Pom No. 103. PETITION BY TRUSTEE TO MAKE CREDITOR A PARTY. [Caption.] Your petitioner respectfully represents to the Court that he is the duly elected, qualified and acting trustee of the estate of The li. K. M. Co., bankrupt herein ; that among the assets of said estate not in his hands as such trustee for distribution among the creditors of said bank- rupt, is the sum of $52,003.80, remaining from the proceeds of the same, under former orders of this Court, of the property of The D. J. Co., which property was by the decree of this Court entered herein on June 2, 1910, duly adjudged to be the property of and belonging to your petitioner as such trustee. Your petitioner further represents to the Court that on October 7, 1910, The M. S. B. Co., a corporation organized and existing under the laws of the State of Ohio, a citizen of said state and a resident of the Western Division of the Southern District thereof, having its office and principal place of business in the City of Cincinnati, in said State of Ohio, filed a petition against said The D. J. Co. in the Common Pleas Court of Hamilton County, Ohio, being cause No. 146,289 on the docket of said court, praying for a judgment against said The D. J. Co. for the sum of $6,500.00 with interest from the first day of July, 1910, on account of rent ^.lleged to be due from said The D. J. Co. under and by virtue of a lease between said companies dated August 30, 1900, for the use and occupation of certain parts of said The M. S. B. Co.'s premises in said city, known as Nos. West Fourth Street, and also on account of certain alterations made by The D. J. Co. to certain parts of said premises. Your petitioner further represents to the Court that service of the summons had been made on said The D. J. Co. in said case ; that the said claim made by said The M. S. B. Co. and said suit brought by it to enforce the same, constitute a cloud upon the title and possession of petitioner to said assets of said The D. J. Co. now in his hands as trustee of the bankrupt herein, and a hindrance to their speedy and proper distribu- tion by him to creditors of said bankrupt, and that it is necessary for the complete determination of said claim and for a speedy and proper distribution of said assets to creditors of said bankrupt, that sa;id The M. S. B. Co. be forthwith made a party to this proceeding. Wherefore, Your petitioner prays that the said The M. S. B. Co. be forthwith made a party to this proceeding and ordered to set up herein whatever claim or claims, if any, it may have against said The D. J. Co. or its said assets now in his hands as aforesaid ; that notice of the pen- dency and prayer of this petition, in such form as to the Court may seem 1320 Bkandenbxjbg on Bankbtjptcy proper, be given to or served upon said The M. S. B. Co., and for such other and further relief as he may. be entitled to in the premises. R. de V. C, Trustee of the Estate of The E. K. M. Co., Bankrupt. M. & R., Attorneys for the Trustee in Bankruptcy. [Verification.] Note. — From the record in Mitchell Store Building Co. v. Carroll, 232 IT. S. 379. § 1772. Form No. 104. ORDER IVTAKING CREDITOR A PARTY. [Caption.] This cause came on for hearing this day on the petition of R. de V. C, trustee herein, to make The M. S. B. Co. a party to those proceedings, notice of filing the said petition having been given to said The M. S. B. Co. by said trustee, and was submitted to the Court by counsel for said trustee. On consideration whereof the Court finds that it is necessary for the complete determination of the claim of said The M. S. B. Co. referred to in said petition of said trustee and for a speedy and proper distribution of the assets of The D. J. Co. now in the hands of said trustee for distribution to creditors of the bankrupt herein that said The M. S. B. Co. be forthwith made a party to this proceeding, and It is therefore ordered that the said The M. S. B. Co. be, and it is hereby, made a party to this proceeding and ordered to set up herein whatever claim or claims, if any, it may have against the said The D. J. Co. or its assets now in the hands of said trustee as aforesaid, and that a writ of subpoena be i^ued by the clerk of this court to said The M. S. B. Co. requiring it to answer said petition of said trustee. C. T. G., Referee in Bankruptcy. Nov. 23, 1910. Note. — From the record in Mitchell Store Building Co. v. Carroll, 232 TJ. S. 379. §1773. Form No. 105. PETITION BY TRUSTEE TO COMPEL DELIVERY OP CORPORATE RECORDS. To the Honorable Judges of the District Court of the United States for the Southern District of New York : Your petitioner, B. F. B., trustee in bankruptcy of the Estate of the R. M. C. Co., a corporation, respectfully states that on the 21st day of February, A. D. 1907, a petition in bankruptcy was filed in the District Forms 1321 Court of the United States in and for the Eastern Division of the Eastern Judicial Dii^trict of Missouri against the R. M. C. Co., a corporation duly organized under the laws of the State of Missouri ; that thereafter, and to-wit, on the 26th day of March, A. D. 1907, said R. M. C. Co. was by said court duly adjudged a bankrupt, a certified copy of which said order of adjudication is hereto attached and marked ' ' Exhibit A. ' ' That thereafter and to-wit, on the 10th day of May, A. D. 1907, your petitioner was duly appointed trustee in bankruptcy of said R. M. C. Co. and, on said 10th day of May, A. D. 1917, duly qualified as such by giving ihond in the penal sum of thirty thousand dollars ($30,000), a certified copy of which order of the referee in bankruptcy approving said bond being hereto attached and marked "Exhibit B," and that your petitioner brings this petition in his capacity as trustee in bank- ruptcy of said corporation. Your petitioner further states on information and belief that at the time said petition in bankruptcy was filed against said bankrupt as afore- said, the said J. T. G. was president, and said H. D. was secretary of said company, and that said parties are now acting, resjjectively, ' as president and secretary of said R. M. C. Co. That certain books and papers relating to the business of said bank- rupt, to-wit, the stock-certificate book, or books, the corporation minute book, and stock ledger have been and are now in the possession and custody or under the control of either said president or secretary or both of them and that the said stock-certificate book, corporation minute book and stock register book are necessary to your petitioner as trustee in bank- ruptcy of said R. M. C. Co. in his administration and settlement of its aifairs. That your petitioner has requested and demanded of said J. T. G. as president and said H. D. as secretary, that they deliver or cause to be delivered to your petitioner as such trustee in bankruptcy, said stock- certificate book, corporation minute book, and stock ledger, but that the dem£ind and request have been refused in writing, a copy of which re- fusal is hereto attached and marked "Exhibit C." Wherefore, Your petitioner prays for an order directing the said J. T. G. and H. D., or either of them, to deliver to your petitioner the stock-certificate book, corporation minute book and stock ledger of said R. M. C. Co., together with all other records and documents belonging to said corporation in their* possession or under their control, and your petitioner as in duty bound will ever pray. H., M. & P., Attorneys fdr Petitioner. Note.— Frtm record in Babbitt v. DutcteV, Si^ V. 8. 102. It will be noted that the petition is addressed to a court of bankruptcy other than that Of original adjufli- oation. 1322 Brandenburg on Banketjptcy §1774. Form No. 106. PETITION FOR AN ORDER TO SHOW CAUSE WHY BANKRUPT SHOULD NOT TURN OVER ASSETS.^ [Caption.] Now comes , and. respectfully shows to the Court : 1. That heretofore and on the day of , 19 — , a petition in involuntary bankruptcy was duly filed in the above named court, against said bankrupt; that thereafter said bankrupt was duly adjudi- cated such by the above named Court ; that on the day of , 19 — , your petitioner was duly appointed trustee of the estate of said bankrupt and that he thereafter duly qualified and is still acting as such trustee. 2. That the claims of creditors not having security and entitled to participate in dividends in this estate have been filed and allowed largely in excess of the total amount and value of the assets of said estate, and that unless the relief hereinafter asked for is granted, there will not be sufficient proceeds available to pay the expense of administration herein, and that in any event there will not be enough realized to pay the credit- ors in full upon their said claims. 3. That during the year , and until the month of , 19 — , said bankrupt was engaged in the business of , at , 4. That at the time last mentioned, said bankrupt was the owner of the following described non-exempt property, which was of the follow- ing value, to-wit : [here describe or identify the assets, or point out the source from which the petitioner claims they came. See ante, § 1180.] 5. That your petitioner verily believes that said bankrupt has secreted said property and the proceeds thereof from his creditors, and that he is still possessed of said property or moneys derived there- from, or a large part thereof, that said property or the proceeds thereof rightfully constitute a part of his estate in bankruptcy, and that bapk- rupt unlawfully, fraudulently and wrongfully keeps, retains and con- ceals the same, and has refused, although demand has been duly made iiipon him, to turn over said property or any part thereof to your trustee ,and petitioner. . 6. That your petitioner- respectfully refers the Court herein to the testimony taken at the first meeting of creditors herein, transcript of which is now on file herein. Wherefore, Your pet'itimer. prays the order of this Court citing the said bankrupt to appear a^^^q,y cajise^ if any there be, at a time, and place to be fixed by the CoiJit>. why aii .ftriJ^^sKojaid. not. then' ind, there be entered ordering and- directing said bankrupt to forthwith" return to FoKMs 1323 said trustee, the property hereinbefore mentioned, or in case its return is impossible, then to forthwith to pay the said trustee, the sum of dollars ($ ), the value thereof, and in default of same to be pun- ished for contempt of court. Trustee, By , His Attorneys. [Verification.] 1 This form can also be used in case where the property is held by a third person as agent or bailee of the bankrupt. , § 1775. Form No. 107. ORDER TO SHOW CAUSE WHY BANKRUPT SHOULD NOT TURN OVER ASSETS. [Caption.] Upon reading and filing the petition of , trustee in bank- ruptcy of the estate of the above named bankrupt, and upon the evidence heretofore given at the first meeting of creditors herein, and after duly considering the same, It Is Oedehed, That the above named bankrupt , appear at the office of the undersigned in the city of , , at — ; o'clock in the ^noon, and show f .said? volun- tary-petition in. bankruptcy may :-be ascertained .'and-, that the defendant 1336 Bbandenbtjeg on Bankruptcy • may be decreed by the court to return to your orator all property so received by the said R. I. P. Co. from the said bankrupt, or the value thereof, and that the said defendant may be decreed to surrender to your orator all preferences received by it from the said bankrupt within four months previous to the filing of said petition in bankruptcy ; that the said defendant may be required to set forth and discover a full and com- plete description, together with the value thereof, of all property received by it from the said P. B. within four months previous to the date of filing of said voluntary petition in bankruptcy, and under what circum- stances it received the same ; and that your orator may have such other and further relief in the premises as the nature of the case may require and to your Honor may seem meet. May it please your Honor to grant to your orator the writ of sub- poena directed to the R. I. P. Co., commanding it on a day certain therein to be named to be and appear in this honorable court then and there to answer the premises and to stand to, perform and abide by such other and further orders, directions and decrees as may be made against it, and your orator as in duty bound will ever pray, etc. E. J. R., C. & C, TriLstee in Bankruptcy of F. B. Solicitors for Complainant. Note. — ^From record in Eock Island Plow Co. v. Eeardon, 222 U. S. 354. Tha form of action to set aside a preference may be in law or in equity. See ante, §1127. §1789, Form No. 121. COMPLAINT IN ACTION BY TRUSTEE TO RECOVER PREFER- ENCE BASED ON ENTRY OF JUDGMENT. District Court, Judicial District. State op ] County of \ of- -, as Trustee in Bankruptcy Plaintiff, a Corporation, Defendant. Complaint. Complaining of the above-named defendant, plaintiff alleges; L That on the day of , A. D. 19—, filed a petition in the United States District Court for the District of FoBMS 1337 . Division, praying that he be adjudged a bankrupt, and on the day of , A. D. 19 — , the said was by said court, duly adjudicated a bankrupt within the purview of the acts of Congress relating to bankruptcy. II. That on the day of , A. D. 19 — , plaintiff was appointed the trustee in bankruptcy of the estate of the said , and has accepted said trust, filed his bond as provided by order of appoint- ment, which bond has been duly approved, and plaintiff is now the regularly appointed and acting trustee in bankruptcy of said ; that plaintiff has been by the court of bankruptcy administering the estate of said , duly authorized to prosecute this action. ip. That during the month of , A. D. 19 — , the said was insolvent and executed a deed of assignment or deed of trust to one as trustee, conveying to such trustee a stock of mer- chandise, fixtures and other property then belonging to said , with authority to convert the same into cash and distribute the same pro rata among the creditors of said , providing each and every such creditor should execute and deliver to the said trustee a full release of his claim. That certain of the creditors of said , to-wit: the defendant above named, and Co., and and Co., declined to execute releases and accept the benefits of said trust deed or assignment, and thereafter the said executed a supplemental agreement with the said as trustee, directs ing said trustee to apportion the funds in his hands among all of the creditors of said , ' and deliver to each creditor his pro- portion of said estate, provided such creditor, in consideration thereof, execute a full release of his claim; and further directing said trustee to return to him, the said '■ , at the expiration of thirty days any funds remaining in his hands not disbursed to creditors in accordance with said agreement. That during the month of , A. D. 19 — , there was in the hands of said as trustee of said , the sum of dollars ($ ) in money, which was then and there the property of said and constituted all of his estate. IV. That the said defendant commenced suit in the District Court of County, State of , during the month of , A. D. 19 — , recovered judgment in said action against said for the sum of dollars ($ ) damages and dollars ($ -) costs, in aU dollars ($ ). 1338 Beandenbukg ox Bankbuptcy V. That on the day of , A. D. 19 — , said defendant caused to be issued out of the District Court of County, an execution on its said judgment and levied upon the funds of said in the hands of said , and took from the said on or about the day of , A. D. 19^, the sum of dollars ($ -), which was then and there the property and a part of the estate of said . VI. That at the time of levying the said execution and securing said property, the said was wholly insolvent and was indebted in large amounts to divers persons, whose claims were then 'valid claims against the estate of said : and are sfill unpaid and have been filed against said estate in the bankmptcy proceedings of said VII. That the effect of the levying and taking of said money from the estate of said effected a, preference in favor of said defend- ant over and above the other creditors of said (of the same class as defendant) and the said defendant received a greater pro- portion of its claim against the said ; than the other creditors of said — i (of the same class as defendant). VIII. That said defendant well knew (and had reasonable cause to believe) at the time of the issuance of said execution and the taking of said money from the estate of said that the said was wholly insolvent and that there were not sufficient funds in his estate to pa,y his creditors in full, "that the claim of said defendant against the said '■ had been in existence a long time prior thereto, and that by taking the said money from the said estate of as aforesaid, the said defendant obtained a much greater propor- tion of its claim against the said than the other creditors (of the same class) could have or did receive. IX. That there have been filed and allowed with the referee in bank- ruptcy in the bankruptcy proceedings of said , claims amounting in the aggregate to more than dollars ($ ), and plaintiff has no assets or property with which to pay the same or the expenses of administration ; that more than dollars ($ ) of the claims filed and allowed in the bankruptcy proceeding of the said as aforesaid existed and were valid claims against the estate of said on and a long time prior to the day of , A. D. 19--. FoEMs 1339 Wherefore, plaintiff prays judgment against said defendant for the sum of dollars ($ ), with interest thereon from the day of , A. D. 19 — , together with the costs and disburse- ments of this action. Attorney for Plaintiff. Note. — From the record in Marsh v. Wilson Bros., 124 Minn. 254. See, also, ante, § 1151, § 1790. Form No. 122. ACTION TO SET ASIDE A CONVEYANCE AS FRAUDULENT. United States District Court, District of , Division. , as Trustee of ■ -, Bankrupt, V. Plaintiff, and , Defendants. Complaint. The above-named plaintiff for his complaint in the above-entitled action alleges and shows to the Court : First. That on the day of — , A. D. 19—, the above- named bankrupt, r—. , duly filed his petition in voluntary ibank- ruptcy in the above-entitled court and was on the said day duly adjudged a bankrupt under and pursuant to the acts of Congress relating to bankruptcy. ' Second. That thereafter such proceedings were had in said court, sitting as a court of bankruptcy, that the plaintiff was on the — ■ : day of , A. D. 19 — , duly appointed the trilstee in bankruptcy of said bankrupt ; that the plaintiff thereupon duly qualified as such trustee and ever since has been and now is the duly qualified and acting trustee of the said . Third. That for several years preceding the month of , 19 — , the said bankrupt was engaged in the business in the Village of , County of , State of ; that on or about the day of , A. D. 19 — , the said bankrupt received, among other goods, a shipment of farm implements of the value of dollars ($ ) from the , a corporation, at , , which implements were received by said bankrupt at his place of business in , — , on or about the day of , A. D. 19 — . That at said time the said bankrupt was indebted in the sum of about ■ dollars ($ — - — ) to — r*— ■, inaming other creditors). Fourth. That the said, bankrupt, in. payment of said shipment of 1340 Beandenbtteg on Bankruptcy implements, made and executed his promissory notes which became due in the month of , A. D. 19 — , to the said . That said notes nor any part thereof have never been paid ; that the indebted- ness heretofore alleges to be due said has never been paid. That the said bankrupt on the said day of , A. D. 19 — , was insolvent and unable to pay his debts in full. Fifth. That throughout all the times and dates hereinafter referred to and for several years prior to the month of , A. D. 19 — , and subsequent to said date and up to and after the month of , A D. 19 — , the above-named defendants, who are the sons of the said bankrupt, had actual knowledge of said bankrupt's business affairs; knew of his financial condition ; knew of the existence of all outstanding debts, and of the property owned by said bankrupt; had access to and knew of the conditions of his books and records, and knew or had every reason to know that said bankrupt was indebted in the sum of several thousand dollars, and knew or had every reason to know and by the exercise of common prudence should have known that said bankrupt's indebtedness was in excess of his assets and knew that said bankrupt executed his notes in payment of said shipment of implements and that the said notes executed therefor would become due in , A. D. 19 — ^ and that said defendants knew of the existence of debts to said and to other creditors. Sixth, That while said bankrupt was insolvent he had knowledge of his outstanding obligations, and while in contemplation of bankruptcy, he did, without consideration and with intent to cheat and defraud his creditors and to put his property beyond the reach of creditors, on the day of , execute and deliver a warranty deed, which deed was recorded in book of deeds, page , in the office of the register of deeds in County, , conveying to said defendants the following described real estate situate in the County of , State of , to-wit : . Seventh. That at the time said bankrupt transferred said real estate to these defendants, the said defendants and each of them knew and had reasonable cause to believe that said bankrupt was insolvent and that said defendants took and accepted the transfer of said real estate for the purpose of assisting, aiding and abetting said bankrupt to place his said property beyond the reach of his creditors, and of securing to said defendants a preference over legitimate creditors of said bankrupt, and that the effect of the transfer of said property was and is to enable the defendants to hold said real estate and the value thereof in their own names and to assist the said bankrupt in defrauding and cheating his creditors. Eighth. That at the time of the transfer to said defendants of said real estate by said bankrupt, in the month of , A. D. 19 — , the FoEMs 1341 actual and reasonable value of said real estate was the sum of dollars ($ ). That the said plaintiff prior to the commencement of this action made a demand upon said defendants for the recovery of said property or its value, and that said defendants and each of them refuses to reoonvey said property or return its value or any part thereof to this plaintiff, the trustee of said bankrupt. Ninth. That prior to the commencement of this action, the said court of bankruptcy duly made and filed its order in said bankruptcy proceedings, authorizing and directing plaintiff to commence jind pros- ecute this action. Wherefoee, plaintiff prays judgment against said defendants and each of them for the recovery of the real estate herein described, or for the sum of dollars ($ ), its value, with interest thereon, in the event said real estate can not be had, and for such other relief as to the Court may seem just and proper, together with plaintiff's costs and disbursements herein. Attorney for Plaintiff, §1791. Form No. 123. COMPLAINT IN ACTION TO SET ASIDE TRANSFER AS BOTH PREFERENTIAL AND FRAUDULENT. [Caption.] Plaintiff complains of defendant and alleges: That on the 20th day of May, 1911, one R. J. J. was duly adjudged a bankrupt upon his voluntary petition theretofor filed in the clerk's office of the United States District Court for the Eastern District of the State of Washington, and thereafter on the 21st day of June, 1911, the plaintiff was duly elected trustee in the matter of the estate of said R. J. J. and thereafter qualified and entered upon the discharge of his duties. That on the 16th day of May, 1911, an action was brought in the Eighth Judicial District of the State of Idaho by the D. C. Co., a cor- poration, against said R. J. J. and others, in which action an attachment was duly issued and the B. L. Co. was garnished, and in answer to such garnishment stated that it was indebted to said R. J. J. in the sum of $369.35, and still is indebted to him in said sum, and that demand has been made by the plaintiff for the payment of said sum from the said B. L. Co., by plaintiff, but the said company still holds and refuses to pay plaintiff said sum or any part thereof. 1342 Beandenbukg On Bankruptcy That said R. J. J. was doing business prior to his adjudication in bankruptcy as the S. C. Co., arid that any indebtedness due the S. C. Co. is in fact and reality due to said R. J. J., that being the name under which he transacted business. That Mrs. R. J. J. was divorced from said J. on the ground of non- support. That the said R. J. J., for the purpose of defrauding his creditors, voluntarily and without demand on the part of his former wifcj assigned to her 01^ May 17, 1911, the said account of indebtedness due him from the B. L. Co. That said assignment was intended as a preference and to prevent said sum from being divided among his creditors proportionately and equitably, and as a transfer to his said former wife, so as to enable her to obtain a greater percentage of her debt than any other creditor of his in the same class. That the said transfer was made while J. was utterly insolvent and knew himself to be insolvent, and such insolvency was known to Mrs. J., and- that said transfer was known by her to be for the purpose of hin- dering, delaying and defrauding his other creditors. That said R. J. J. and his wife had a property settlement of all their affairs, and in such settlement the said R. J. J. retained possession of said account against the B. L. Co. for^his own use and benefit, and that the said transfer to his said former wife was not made to her in good faith. . That the said money is still in the possession of the B. L. Co. That the plaintiff applied to the referee in bankruptcy where said petition in bankruptcy was filed for leave to preserve the said attach- ment lien for the benefit of the estate of said bankrupt, and so that the rights of said D. C. Co. under said attachment might be used for the benefit of the creditors of said bankrupt, and that upon notiee to and waiver of the statutory time, and with the consent of the D. C. Co., said referee made an order permitting this plaintiff to bring this action to recover the said money and to maintain and preserve the lien of said attachment issued in said action of the D. C. Co. against the said R. J. J. Wheeepoeb, plaintiff prays that the said assignment of said claims be adjudged null and void and fraudulent as to creditors, and that plaintiff may have judgment against defendant for the sum of $369.35, with interest and costs. Attorneys for Plaintiff. Note. — This complaint held sufficient as against demurrer, in Corey v. Blackwell Lumber Co., 24 Idaho 642, 135 Pae. 742. SeOi also, ante, §1151. • - . _ ■ , FoBMs 1343 § 1792. Form No. 124. PETITION FOR ASSESSMENT OF STOCKHOLDERS. [Caption.] The petition of respectfully shows : That he is the dijly appointed, qualified alnd acting trustee of the estate of the above-named bankrupt corporation, which was duly adjudi- cated bankrupt by this court on the day of , 19 — , upon a petition filed by (ar, against) it. That prior to its adjudication in bankruptcy herein, the above-named ■ Company was a corporation duly organized and existing undei- the laws of the State of — '-^ ; as a corporation, and duly engaged in carrying on the business of — , in the City of , — County, . That the capital stock of said corporation consisted of — '■ shares of the par value of Dollars ($ ) each. That under the laws of said state of , the stockholders of said bankrupt corporation are liable for its debts to the amount of the stock held or owned by them, and for the amount unpaid on the shares of stock held by them (or otherwise allege the extent of stockholder's liability according to the laws of the state wherein the corporation was organized) . That said bankrupt corporation is insolvent, and the reasonable value of its assets do aot equal the amount of its indebtedness ; that claims of creditors of said corporation entitled to participate in dividends and not having security have been filed herein largely in excess of the total amount and value of the assets of said corporation, and unless {or, though), the relief hereinafter eisked for is granted, there will not be suiBeient assets to pay the expenses of administration and the claims of creditors filed and allowed as aforesaid. That a. list of the stockholders of the said bankrupt corporation, so far as known, their respective addresses, and the amount each of said stockholders have paid to the bankrupt corporation" for their respective shares of stock, is attached hereto, marked Exhibit "A," and made a part hereof. Wherefore, your petitioner prays that the amounts unpaid by the stockholders of the said bankrupt corporation, the stock owned and held by them, be ascertained by the court and their liability thereon adjudged, and that they be assessed and required to pay to your petitioner the amount of their liability on said stock, or so much thereof as will meet the deficiency of other assets of said corporation. Petitianer. [Verification.] Note. — See ante, § 1125.- - 1344 BBANDENBtTEG OlT BaNKEUPTCY § 1793. Form No. 125. ORDEB REQUIRING STOCKHOLDERS TO SHOW CAUSE. [Caption.] Upon reading and filing the petition of , trustee in bankruptcy of the estate of the above-named bankrupt, and after duly considering the same, It Is Obdeked, That the stockholders of the above-named corporation, and each of them, appear before said court, at , in said district, at o'clock in the noon, and show cause, if any there be, why an order should not then and there be made assessing the stock and stockholders of said corporation according to the laws of the state of , and directing said stockholders to pay the said trustee enough of the unpaid balance of their stock subscriptions and of the amount found to be due from them as such stockholders as will meet the deficiency of the other assets of the above-named bankrupt corporation. Let a copy of this order and said petition be sent by mail to all known stockholders of the above-named bankrupt corporation, addressed to them at their places of residence as the same are set forth in the Exhibit marked "A" attached to said petition, and let a notice of the hearing on said petition be published in , a newspaper printed in said district. Witness the Honorable , Judge of said Court, and the seal thereof this day of , 19 — . [Seal.] , Judge. § 1794. Form No. 126. COMPLAINT TO ENFORCE STOCKHOLDER'S LIABILITY. [Caption.] Plaintiff complains of defendant and alleges : I. That at all times hereinafter mentioned prior to the adjudication in bankruptcy hereinafter alleged, the Company was a corporation duly organized and existing under the laws of the state of , as a corporation, and duly engaged in carrying on the business of ; in the city of , County, . II. That the capital stock of said corporation consisted of shares of the par value of DoUars ($ ) each. FoBMS 1345 III. That on the day of , 19 — , the said corporation was duly adjudicated bankrupt upon a petition filed by {or, against) it on the day of , 19 — , by order of the District Court of the United States for the ^District of , according to the provi- sions of the acts of Congress relating to bankruptcy. IV. That on the day of , 19 — , plaintiff Svas duly elected trustee of the estate of said bankrupt, and thereafter duly qualified as such trustee and ever since has been and now is the duly qualified and acting trustee in bankruptcy of the said bankrupt corporation. V. That on the day of , 19 — , said District Court of the United States, in said bankruptcy proceedings duly made and entered an order assessing the stockholders of said bankrupt corporation per cent on the amount of stock held by each stockholder and authorizing and directing' plaintiff herein, as trustee in bankruptcy, to collect the amounts so assessed by action in case of the refusal of said stockholders, or any of them, to pay said amounts upon demand. VI. That at the time said order was made and entered as aforesaid, defendant was a stockholder in said corporation, owning and holding shares of the capital stock thereof, and in said order was duly assessed as such by said court in the sum of Dollars, and directed to pay the same to plaintiff; as trustee in bankruptcy; upon, demand. VII. That though the payment of the Said assessment as aforesaid has been "duly demanded of defendant, he has neglected and refused and still neglects and refuses to pay the same or any part thereof, and by reason of the premises he is now indebted to plaintiff in the sum of Dollars ($- ) , with interest -thereon at the rate of per cent -per annum from the day of , 19 — . VIII. That claims of creditors of said bankrupt corporation entitled to participate in dividends and not having security have been filed and allowed in said bankruptcy proceedings largely in excess of the total iamount and value of the assets of the estate of said bankrupt, and that. Unless the relief hereinafter asked for is granted, there will not be sufficient assets available in said bankruptcy proceedings to pay the expenses of administration, and that in any event there will not be Jenough realized to pay the aforesaid creditors in full upon their said claims. :..,., , Brandenburg — 85 1346 Bbandenbubg on Bankbuptcy Wherefore, plaintifE demands judgment against defendant in the sum of , with interest thereon from the day of , 19 — , at the rate of per cent per annum, together with the costs and disbursements of this action. Attorney for Plaintiff. Dated , 19—. Note. — See ante, § 1125. §1795. Form No. 127. COMPLAINT TO ENFORCE LIABILITY OF WITHDRAWING STOCKHOLDER. [Caption.] Plaintiff complains of defendant and alleges: L That on the day of , 19 — , the Company was a manufacturing corporation duly organized and existing under the laws of the state of , and owned and operated a manufacturing plant known as the , in the city of , County, , and continued to exist as such corporation and to own and operate said manufacturing plant until its adjudication in bankruptcy hereinafter mentioned. II. That the capital stock of said corporation consisted of shares of the par value of Dollars ($ ) each, and all of said stock was issued and delivered to actual purchasers thereof and the full amount of the par value of said stock paid in by the owners and holders thereof at the time hereinbefore mentioned. III. That on said day of , 19 — , after the organization of said corporation, defendant became a stockholder therein, holding shares of capital stock thereof of the par value of Dollars ($ ) ; that defendant continued to own and hold said stock until the day of , 19 — , when he surrendered all of it to the stockholders of said corporation, and said stock was thereupon cancelled ; that the officers and stockholders of said corporation then entered into an agreement in writing with defendant to refund to defendant the full par value of said stock, to-wit, Dollars ($ ). IV. That between the day of , 19 — , and the day of , 19 — , said officers and stockholders paid defendant in monthly FoEMs 1347 installments, each month, during said time, the sum of Dollars ($ ), in consideration of which the said shares of stock held and owned hy the defendant were withdrawn and refunded to the stock- holders of said corporation and surrendered and cancelled, contrary to the provisions of § of the General Statutes of , and no other certificates of stoc^ were issued in lieu thereof. V. That at the time of the withdrawal and refunding of all of the stock of this defendant, as above set forth, there existed debts and liabilities of said corporation unsecured and past due exceeding in the amount the sum of Dollars ($ ) ; that said debts and liabilities remained unpaid from the time of the withdrawal and refunding of the stock of defendant as aforesaid continuously to the time of the adjudication of said corporation in bankruptcy as hereinafter alleged and are still unpaid, notwithstanding the creditors of said corporation to whom said debts and liabilities were owing have duly filed their claims in the bankruptcy proceeding hereinafter alleged, and the same have been allowed. VI. That on the day of , 19 — , the said , was duly adjudicated a bankrupt upon a petition filed by (or, against) it on the ■ day of , 19 — , by order of the United States District Court for the District of , according to the provisions of the acts of Congress relating to bankruptcy. VII. That on the day of , 19 — , plaintiff was duly elected trustee of the estate of said bankrupt, and thereafter duly qualified as such trustee and ever since has been and now is the duly qualified and acting. trustee in bankruptcy of the said . VIII. That plaintiff has been duly authorized and directed by the said United States District Court, in said bankruptcy proceedings, to com- mence this action in his capacity as such trustee to recover for the use of the creditors of said corporation the money so refunded to defendant. IX. That prior to the commencement of this action plaintiff, as such trustee, demanded of defendant the return of the money so refunded to tim, but defendant refused and still refuses to return the same, or any part thereof. X. That there are insufficient assets in the hands of plaintiff to pay the unsecured debts and liabilities of said corporation, and it is necessary to secure the return of the money, belonging to said corporation, so wrong- 1348 Beandbitbtjrg on Bankettptcy fully refunded io defendant, and to appTy the same to the payment of the debts of the corporation for which the same is liable. Wheeefore, plaintiff demands judgment against defendant for the sum of Dollars ($ ), with interest thereon at the rate of per cent per annum from the day of , 19 — , together with the costs and disbursements of this action. Dated , 19 — '. Attorney for Plaintiff. Note. — Adopted from the record in Preiss v. Ziiia, 122 Minn. 441. § 1796. Form No. 128. ANSWER BY TRUSTEE IN ACTION OP REPLEVIN. Now comes the defendant afld for answer to the complaint of the plaintiff herein alleges and respectfully shows to the Court: L That on the day of ,. 19 — , A. B. and others filed a petition in the District Court of the United States for the — = Dis- trict of , to have C. D. declared an involuntary bankrupt; [or, C. D. filed his petition in the District Court, etc., to be declared a bank- rupt] ; that thereafter and on the day of , 19 — , said C. D. was duly adjudged a bankrupt by said District Court; that on the day of , 19 — , defendant was appointed the trustee in bankruptcy of the estate of said C. D. ; that plaintiff thereupon duly qualified and entered upon his duties as such, trustee and has ever since been and now is such trustee. n. That the property described in the complaint hertin was the prop- erty of said C. D., at the date of the filing of said petition in bankruptcy and at the date of aforesaid adjudication in bankruptcy, and is part of the assets of said estate of C. D., and defendant holds the same as such trustee, and this court is without jurisdiction in this action. Attorney for Defendant. § 1797. Form No. 129. SECURITY FOR COSTS— Affidavit. [Caption.] State op County of , being first duly sworn, says : 1. That he is the defendant in the above-entitled , action, which was commenced on the ^— .day qt—it: , 19-rr.... .,• .•... .: ;.; ■ ,• ^ss. Forms 1349 2. That he has fully and fairly stated the facts in tfeis case to his attorney, , of — ^ , — , and has a good defense on the merits, as he is advised by his counsel after such statement and verily believes true. Or [2. That he has personal knowledge of the facts constituting defend- ant's defense to plaintiff's action and verily believes that such facts con- stitute a good defense on the merits ; ihat the reason this affidavit is hot made by defendant personally is .] 3. That the plaintiff is the trustee [or receiver] in bankruptcy of , bankrupt; that plaintiff was appointed such trustee [or receiver] by the District Court of the United States for the — — — District of , and is not a resident of this [district or state]. 4. That the purported cause of action upon which plaintiff sues arose, if at all, prior to the bankruptcy of said ; that in commencing and prosecuting this action the plaintiff is acting unreason- ably, oppressively and in bad faith, and that it would be ihequitablfe and unfair to the defendant not to require indemnity for- costs from plaintiff, by reason of the following facts, to-wit : . 5. That the assets belonging to the estate of said ■ , bankrupt, are insufficient to pay the costs and disbursements of' the defendant herein. 6. That this affidavit is made in support of a motion to require the plaintiff herein forthwith to give security for costs in this action. [Jurat.] Note. — See ante, § 1166. §1798. PonnNo. 130. SECURITY FOR COSTS— Order. [Caption.] On the affidavit of , with proof of service thereof, and on all the files and records herein^ on motion of , attorney for the defendant, — , appearing in opposition. It Is Obdeked that the plaintiff, within ten days after service of this order upon his attorney, file security for costs and disbursenients herein as provided by statute and pay the defendant $ cost of motion. And Id Is FuKTHEE Ohdered that until such security for costs is filed and costs paid, all further proceedings herein on the part of the plaintiff herein be and the same are hereby stayed, »nd defendant is hereby allowed days after plaintiff's compliance with this order to answer, demur or otherwise plead to the complaint herein. Dated -,19 — . - i > ——. , Judge, 1350 Bbandbnbukg on Banketjptct §1799. Form No. 131. [Official Form No. 42.] PETITION AND ORDER FOR SALE BY AUCTION OF REAL ESTATE. In the District Court of the United States for the — District of . In the matter of . In Bankruptcy. Bankrupt. Respectfully represents — ■- , trustee of the estate of said bankrupt, that it would be for the benefit of said estate that a certain portion of the real estate of said bankrupt, to-wit: [here describe it and its esti- mated value] should be sold by auction, in lots or parcels, and upon terms and conditions, as foUows: Wheeepoee he prays that he may be authorized to make sale by auction of said real estate as aforesaid. Dated , 19—. , Trustee. The foregoing petition having been duly filed, and having come on for a hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse in- terest being represented thereat [or after hearing in favor of said petition and in opposition thereto], it is ordered that the said trustee be authorized to sell the portion of the bankrupt's real estate specified in the foregoing petition, by auction, keeping an accurate account of each lot or parcel sold and the price received there- for and to whom sold; which said account he shall file at once with the referee. Witness my hand this day of , A. D. 19 — . Referee in Bankruptcy. § 1800. Fonn No. 132. [Official Form No. 43.] PETITION AND ORDER FOR REDEMPTION OF PROPERTY FROM LIEN. In the District Court of the United States for the District of . In the matter of ' . In Bankruptcy. Bankrupt. Respectfully represents , trustee of the estate of said bankrupt, that a certain portion of said bankrupt's estate, to-wit: [here FoBMS 1351 describe ihe estate or 'property and its estimated value] is subject to a mortgage [describe the mortgage], or to a conditional contract [describ- ing it], or to a lien [describe the origin and nature of the lien], [or, if the property be personal property, has been pledged or deposited and is subject to a lien] for [describe the nature of the Uen],^nd tliat it would be for the benefit of the estate that said property shoulcj be redeemed and discharged from the lien thereon. Wherefore he prays that he may be empowered to pay out of the assets of said estate in his hands the sum of , being the amount of said lien, in order to redeem said property therefrom. Dated this day of , A. D. 19—. , Trustee. The foregoing petition having been duly filed and having come on for a hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after due hearing,' no adverse interest being represented thereat [or after hearing in favor of said petition and in opposition thereto], it is ordered that the said trustee be authorized to pay out of the assets of the bankrupt's estate specified in the foregoing petition the sum of , being the amount of the lien, in order to redeem the property therefrom. Witness my hand this day of , A. D. 19-^. Beferee in Bankruptcy. § 1801. Form No. 133. [Official Form No. 44.] PETITION AND ORDER FOR SALE SUBJECT TO LIEN. In the District Court of the United States for the District of . In the matter of ' ' - In Bankruptcy. Bankrupt. Respectfully represents — , trustee of the estate of said bankrupt, that a certain portion of said bankrupt's estate, to-wit : [here describe the estate or property^ and its estimated value] is subject to a mortgage [describe mortgage], or to a conditional contract [describe it], or to a lien [describe the origin and naiture of the lien], or [if the property be personal property] has been pledged or deposited and is subject to a lien for [describe the nature of the lien], and that it would be for the benefit of the said estate that said property should be sold, subject to said mortgage, lien, or other incumbrance. Wherefore 1352 Beandenbukg ofr Bankkuptcy he prays that he may be authorizes to make sale of said property, suib ject to the incumbrance thereon. Dated this ■ — day of '-, A. D. 19—. ■■ , Trustee. The foregoing petition having been duly filed and having come on for a hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse interest being represented thereat [or after hearing -— in favor of said petition and in opposition thereto], it is ordered that the said trustee be authorized to sell the portion of th»- bankrupt's estate specified in the foregoingjietition, by auction [or, at private sale], keep- ing an accurate account of the property sold and the price received therefor and to whom sold; which said account he shall file at once with the referee. Witness myiand this day of , A. D. 19 — . Referee in Bankruptcy. §1802. Form No. 134. [Official Form No. 45.] PETITION AND ORDER FOR PRIVATE SALE. In the District Court of the United States for the District of . In the matter of "] I In Bankruptcy. Bankrupt. J Eespectfully represents — — '■, duly appointed trustee of the estate of the aforesaid bankrupt: That for the following reasons, to- wit: it is desirable and for the best interest of the estate to sell at private sale a certain portion of the said estate, to-wit : Wherefore he prays that he may be authorized to sell the said property at private sale. Dated this day of , A. D. 19—. , Trustee. The foregoing petition having been duly filed and having come on for a hearing before me, of which hearing ten days' notice was given by mail to creditors of said bankrupt, now, after due hearing, no adverse interest being represented thereat [or after hearing in favor of said petition and in opposition thereto] , it is ordered that jFoEMS 1353 the said trustee be authorized to sell the portion of the bankrupt's estate specified in the foregoing petition, at private sale, keeping an accurate account of each article sold and the price received therefore and to whom sold; which, said account he shall file at once with the referee. Witness my hand this day of , A. D. 19 . Referee in BaHkruptci^. § 1803. Form No. 135. [Official Form No. 46.] PETITION AND ORDER FOR SALE OP PERISHABLE PROPERTY. In the District Court of the United States for the — District of . In the matter of . In Bankruptcy. Banhrupt. Respectfully represents '■ , the said bankrupt, [or, a creditor, or the receiver, or the trustee of the said bankrupt's estate] : That a part of the said estate, to-wit : rr^ r ■■ i now in , is perishable, and that there will be loss if the same is not sold immediately. , Wherefore, he prays the Court to order that the same be sold immei diately as aforesaid. Dated this day of , A. D. , 19—. ,' The foregoing petition having been duly filed and having come on for a hearing before me, of which hearing ten days' notice was given by mail to the creditors of the said bankrupt, [or without notice to the creditors], now, after due hearing, no adverse interest being represented thereat, [or after hearing-, in favor of said petition and : — - — : r in opposition thereto], I find that the facts are as above stated,, and that the same is required, in the interest of the estate, and it is there- fore ordiered that the same be sold forthwith and the proceeds thereof depositeli in court. . Witness my hand this day of -; —, A. D. .19 — . Referee in Bankruptcy.. 1354 Bbandenbxjbg on BANKBtrpict § 1804. Ponn No. 136. PETITION BY RECEIVER FOR SALE OF PERISHABLE PROPERTY FREE FROM LIEN. [Caption.] To the Honorable C. C. K., Judge of said Court : Your petitioner, the C. T. & T. Co., temporary receiver heretofore appointed by the Court in this cause, respectfully shows to the Court that your petitioner as such receiver has taken possession of the prop- erty and assets of the said bankrupt, all of which is situated at the premises Street in the city of Chicago, Cook County, Illinois, excepting about 475 bags of timothy seed, which is in the C. D. Co. warehouse and the S. S. warehouse in said city, and your petitioner has been engaged in and has now about completed an inventory of said property; that upwards of $30,000.00 of said estate consists of seed, in substantially the following quantities: Timothy and clover seed, 4,539 bags; miUet and hungarian, 1,081 bags; redtop, 322 bags; buckwheat, 584 bags, and a limited quantity of barley, rape, peas, blue grass, and some other kinds of grain, but comparatively small quantities, the season for the sale of which is now on or drawing to a close; and your peti- tioner further and more particularly shows that there is a present active market for timothy and clover for fall sowing, which activity will be practically ended in the course of the next two or three weeks and that there will then be no active market until the coming winter for the spring sowing season, except a few days in July for fall sowing; that the market for the sale of redtop is nearly over for this season, and that now for a very few weeks is the season for selling and disposing of hungarian, buckwheat and millet, so that the present time is the season or nearly the closing of the season for selling, marketing and disposing of substantially all of the said stock of seed and grain belonging to the said estate, and that it is and will be to the great interest and advantage of the said estate and of the creditors thereof to have the said stock sold immediately and that as speedy a sale as possible within a couple of weeks for the most of said stock and within a week or ten days thereafter for the remainder thereof is absolutely necessary to prevent great loss and depreciation in the value of said stock of seed and grain and to save the great expense and loss that would result from selling the same out of season or carrying it over to another season; and as showing the attitude and view of the creditors of the said estate as regards the necessity of a speedy sale of said stock of seed, your peti- tioner shows that on the afternoon of May 10th, instant, a meeting of the following Creditors of the SaiQ est^te^ called by your petitioner at FoEMS 1355 the request of some of said creditors, was held at room , Building in said city, namely : F. E. W., J. A. P., M. T. Co., G. & Co., E. & D., M. S. H., F. N. B. of Chicago, H. W. R. & Bros., J. F. H., E. S. & Co., M. D. & Co., J. C. V., B. & S., and E. W. B., many of which creditors were personally present and also were represented by their attorneys at said meeting, and at said meeting the matter of said bankrupt's estate was considered by said creditors and it was the consensus of opinion of said creditors that the said stock of seed and grain should be sold speedily and for the rea- sons your petitioner has above in this petition set forth, and without formal action taken, it was agreed that your petitioner should prepare and present to this Court a petition for leave and authority to your petitioner as such receiver to sell the said stock immediately in the open markets and through the usual channels of trade, and that such petition be pre- sented to this Court at 10 o'clock Saturday morning. May 11th, instant, and that the said creditors who attended said meeting would consider themselves as notified at such meeting of the presentation of such petition to this Court at said time on said May 11th without the serviccof further notice, and your petitioner shows that the said creditors, who are herein above named as attending said meeting have claims against the said estate aggregating about $59,500.00 in amount, the same being over nine-tenths of the indebtedness of said bankrupt, as appears from the schedules filed herein by said bankrupt and as your petitioner is informed and believes. Your petitioner therefore prays the authority and direction of the court in the premises, and that if an order be entered for the sale of said stock of seed and there are any liens or claims of priority upon or with respect to any of said stock such, lien be transferred to the funds arising out of the sale of the property by the proper order of the court. And your petitioner will ever pray, etc. C. T. & T. Co., Receiver. N. W., Attorney. By D. B. L., [Verification.] Pres. Note. — ^From record in Tirst National Bank v. Chicago Title & Trust Co., 198 U. 8. 280. ■1356 Beandenbueg on Bankruptcy §1805. Form No. 137. SPECIAL Appearance by pledgee, denying authority TO SELL. [Caption.] The F. N. Banfc of Chicago appears herein for the sole purpose of denying the jurisdic'tion of this court to enter an order as prayed in and by the petition of the C. T. & T. Co., the temporary receiver herein, filed herein May 13, A. D. 1901, or any order interfering with the con- trol by this respondent of the property hereinafter described; and this respondent not waiving its objection to the jurisdiction of the court as aforesaid and for the sole purpose of supporting its said objection, shows to the court that it holds in pledge to secure indebtedness owing to it by the bankrupt, warehouse receipts issued by the N. S. Co., to said bank- rupt as follows : . Said warehouse receipts were all duly endorsed by the bankrupt and delivered, and pledged to this respondent as aforesaid for moneys in , good faith loaned and advanced to said bankrupt at the times, respec- tively, of the pledging of said receipts as aforesaid. This respondent further says that all of the seed described in and covered by the warehouse receipts aforesaid is included, as this respond- ent is informed and ibelieves, as a part of that which the temporary receiver herein claims in and by its petition aforesaid to have in its pos- session, but that as a matter of fact, the said seed covered and repre- sented by the warehouse receipts aforesaid is not and never has been in the possession of the said liemporary receiver, and was not at the time of the bankruptcy or at any time since the issuing of the warehouse receipts therefor, respectively, as aforesaid,in the possession of the said bankrupt. On the contrary, the said seed represented and covered by the warehouse receipts aforesaid was and has been at all times since the issuing of the warehouse receipts therefor, respectively, as aforesaid, in the full possession and control of the said N. S. Co. This respondent further shows to the court in support of its objec- tion to the jurisdiction of the court as aforesaid, that although a repre- sentative of this respondent did attend the meeting mentioned in the said petition of the temporary receiver as held on the afternoon of May 10th, instant, this respondent by its said representative or otherwise did not concur in the proceedings of said meeting or in anything said or done thereat except to the extent of agreeing that the seed in question ought to be promptly sold in order not to lose a favorable market there- for, and this respondent therefore denies all the averments of said peti- tioner the effect that this respondent agreed to the filing of the petition aforesaid either with or without notice to this respondent. And this respondent denies also that it waived notice of the filing of said petition or of any other proceeding which might be taken by the temporary re- ceiver or other parties involved, and on the contrary avers that it in- sisted that it would accept no notice and consent to no application to this court until what was proposed was put into writing and submitted, which was never done until the petition aforesaid was filed. , For the reason aforesaid this respondent denies the jurisdiction of the- court herein and prays that said petiticm may on that account be dismissed, so fai" as the seed represented and covered by the warehouse receipts aforesaid held in pledge by this deponent is concerned. - ■ ^ ' : ■■ • '-■>.;- • The-ii'. ■iSr.B.'.af GhiGiago, • - By J. B. F., '■ . Pres. Dated, Chicago, Ills., May 15, 1901. Note. — From record in First National Bank v. Chicago Title & Trust Co., 198 V. S. 280. § 1806. Form No. 138. STIPULATION FOR SALE OF MORTGAGED PROPERTY. [Caption.] Whereas it is deemed for the benefit of all parties interested that the stock in trade, furniture and fixtures in the store of the alleged bank- rupt at Nos. Boylston Street, Boston, Mass., be converted into cash, and said stock being perishable in its nature, and Whoreas J. H. D., the alleged mortgagee thereof, claiming possession as such, now has the custody of said property, it is hereby stipulated and agreed by the undersigned, being all the parties interested in the above entitled action : First. That the injunction of the Court now in force restraining the alleged mortgagee, J. H. D., from disposing of the said property may be dissolved. Second. That the said alleged mortgagee, J. H. D., be allowed, to forthwith convert the said stock in trade, furniture and fixtures into cash, using absolute good faith in procuring the highest price possible consistent with an immediate sale and the existing circumstances, either by selling in the usual course of trade or in bulk to the highest bidder, it being understood that the rights of: the parties interested shall remain unchanged by said sale o^. sales, but shall exist in the funds realized therefrom in the same manner and in like proportion as they would exist in the property were it not sold. ■ ■ Third. That the said J. H. D. shall pay out of the moneys received from such sale or sales the. necessary expenses, of .conducting ..the same 1358 Beandbnbxjeg on Bankbuptcy or protecting the property, including labor, advertising and rent from this date [rent being at the rate of $317.50 per month, and to cease as soon as the premises are vacated], and deposit the balance realized in the S. S. T. Co., in the name of J. H. D., trustee, to await the final order of the Court as to the rights of the parties herein. Fourth. That the said J. H. D. shall act in conjunction with and consult the judgment of "W. C, representing the creditors, and C. H. 6,, representing the alleged bankrupt, in matters pertaining to the price at which said property shall be sold and like details relating to the sale. W. C, Attorney for the Petitioning and Intervening Creditors. J. H. D., Mortgagee. W. P. E., Attorney for W. A. P., Landlord and Creditor. C. H. G., Attorney for Alleged .Bankrupt. Dated, June 7, 1909. Note. — Prom record in Duffy v. Clarak, 236 U. S. 97. §1807. Form No. 139. BEPORT OF SALE BT PLEDGEE. [Caption.] The F. N. Bank of Chicago respectfully reports to the Court that under and in pursuance of the order of the Court entered herein, August 5, 1901, it sold the seed which it held in pledge from said bankrupt cov- ered or represented by warrants of the N. S. Co., numbers 9426, lot No. 60; 9427, lot 61; 9425, lot 59; a part thereof to A. D. Co., a part to T. M. H., and a part to the I. S. Co., and realized from such sale fifteen thousand eight hundred and twenty-two doUars ($15,822.46) from which has been paid and deducted the expense of sampling and brokers' charges forty-nine dollars and five cents ($49.05), leaving a balance in the bank's hands of fifteen thousand seven hundred seventy-three doUars and forty- one cents ($15,773.41), and the proper charges of the N. S. Co., are also to be deducted when fixed. As to such storage charges the unpaid bill of said N. S. Co. is submitted herewith, and the Court is asked to con- sider the same and fix the proper amount thereof. Also attached hereto and made a part hereof are : (1) General statement of sales of seed as aforesaid. (2) Full and particular statement of the portions thereof sold respectively to the A. D. Co., T. M. H., and the I. S. Co. Forms 1359, (3) Copy of voucher for the payment of charges as aforesaid. (4) Copy of unpaid bill of the N. S. Co. Said P. N. Bank of Chicago further reports that the said sales of seed were made as promptly as possible after the entry of the order herein aforesaid and were made at the best obtainable prices in the regular course of business, and the net proceeds of said sales as afore- said are held by said bank subject to the order of the Court herein. The F. N. Bank of Chicago, By J. B. F., Pres. [Verification.] Note. — From record in First National Bank v. Chicago Title & Trust Co., 198 U. S. 280. §1808. Pom No. 140. OROEB FOR DISPOSITION OF PROCEEDS OF SALE. [Caption.] On motion of the C. T. and T. Co., trustee in bankruptcy in this cause, and on due notice to the F. N. B. of Chicago, H. W. R. and Bro., and the N. S. Co., said motion being by petition of the said trustee filed herein this day, it is Ordered that the said F. N. B. turn over from the proceeds of sale of seed made by it pursuant to the order of Court heroin of August 5, 1901, to the said trustee the sum of five thousand dollars ($5,000.00) as assets of said bankrupt estate, without prejudice to the rights and interest of said F. N. B., H. W. E. and Bro., and the N. S. Co. of the claims of them or any of them to liens and priority of payment, to or upon said proceeds of said sale, and the payment of any further part of said proceeds by said F. N. B. over to said trustee before the final determination of said claim for lien and priority is reserved for the future consideration of the Court. Note. — From record in First National Bank v. Chicago Title & Trust Co., 198 tr. S. 280. §1809. Form No. 141. BILL OF SALE FROM TRUSTEE. Know All Men by These Presents : That , as trustee in bankruptcy of the estate of , of , in the County of , State of , a bankrupt, party of the first part, in con- sideration of the sum of Dollars, to him in hand paid by . of , in the County of , State of 1360 BeANDENBTJBG - on BANKBtXPTCY -, party of the second part, the receipt whereof is hereby acknowl- edged, do hereby grant, bargain^ sell and convey unto the said party of the second part, his executors, administrators and assigns, forever, the following described goods, chattels, and personal property, to-wit: (Here insert description of property sold.) To Have and to Hold the Same, tFnto the said party of the second part, his executors, administrators and assigns. Forever. In Testimony Whereof, The said party of the first part has here- unto set his hand and seal this' day of , 19 — . Signed, Sealed and Delivered in Presence of : > As Trustee in Bankruptcy of . . [ Acknowledgment. ] § 1810. Form No. 142. TRUSTEE'S DEED. To All to Whom These Presents May Come : I, , of , in the County of , State of ?, duly qualified and acting trustee in bankruptcy of the estate of , of — ^ , in the County of , State of , a bankrupt. send greeting: Whereas, By an order made by the District Court of the United States for the District of — , on the :— day of , 19 — , in bankruptcy proceedings then pending in said court against the above-named bankrupt, I the said , in my capacity as trustee of the estate of the said bankrupt, was duly authorized and empowered, to sell the portion of the bankrupt's estate hereinafter described, by auction {or by private sale), subject to the incumbrance thereon {or, free and clear of liens). And Whereas, I the said i trustee of the estate of the said bankrupt, having caused the property hereinafter described to be appraised as required by law, and having given due notice of the intended sale of said property, and of the time and place the;reof, as required by law and by the order of above-named court aforesaid, and having in all things fully complied with said order and with the requirements of the statute in such case made and provided, did, on the ; day of — r, 19-7-, at ^ 'j by virtue, of said -order pf court, and pursuant thereto •FopMs . ■ 1361 and to the said notice, expose and offer for sale, at public auction, the real estate hereinafter described, and did then and there strike off and sell the same to , of , in the County of , State of , for the sum of Dollars ($ — -. ), he being the highest bidder therefor, and said sum being more than seventy-five per centum of the appraised value of said real estate: And Whereas, I, the said , trustee of the estate of said bankrupt, have made report of my proceedings upon the aforesaid order of the United States District Court for the District of :, to said court, and said court; having on the day of , 19 — , duly made an order to said court, confirming said sale, and directing a conveyance for said real estate to be executed to the said , Now Therepoke, Know Ye, That I, the said , in my capacity of trustee of the estate of , bankrupt, aforesaid, by virtue of the power and authority in me vested as aforesaid, and in consideration of the sum of Dollars ($ ), to me in hand paid by the said , the receipt of which is hereby acknowl- edged, do hereby grant, bargain, sell and convey, unto the said , heirs and assigns, all (Here insert description of property sold) 7 To Have and to Hold, The above bargained premises, to the said , heirs and assigns, to and their use and behoof, forever. In Witness Whereof, I, the said , trustee, as afore- said, have hereunto set my hand and seal, this day of , 19—. Signed, Sealed and Delivered in Presence of : -, [Seal.] As Trustee in Bankruptcy of . [Acknowledgment] §1811. Form No. 143. PETITION FOR LEAVE TO COMPROMISE CLAIM.i [Caption.] Now comes ^ — and respectfully shows to the Court : That he is the duly appointed, qualified and acting trustee in bank- ruptcy of the estate of the above named bankrupt.^ "* 'niat a cdnff ove^Tias afisfeh in the administration of the said estate, Brandenbur'g^sff' "'' ' " ' ' 1362 Beandenbtteg on Bankeuptct the subject matter of which is a claim against of .- -, due and belonging to the estate of the bankrupt,^ arising by- reason of the following facts, to-wit : — [here set forth fully the subject matter of the controversy. See ante, § 1191]. That your petitioner has duly presented said claim and payment thereof in full has been refused, but that said has offered to pay the sum of doUars in full settlement of said claim against him. That your petitioner deems it proper and for the best interests of the estate to accept said offer of settlement for the following reasons, to-wit : ! Whkkepobe, Your petitioner prays for an order of this court citing all creditors of the estate and other persons interested, to appear and show cause, if any there be, at a time and place to be fixed by the Court, why an order should not then and there be made and entered authoriz- ing and directing your petitioner to accept, the offer of compromise here- inbefore set forth. \ Trustee. [Verification.] 1 This form, with appropriate changes, can also be used where the trustee peti- tions for leave to submit a controversy to arbitration. 2 The application may be made by the trustee, the bankrupt or any creditor who has proved his claim; if, by the latter, the petition should allege that he is a creditor and that he has proved his claim. See ante, § 1188. G. O. XXVIII. 3 Claims against the estate may also be compromised. G. O. XXVUI. § 1812. Form No. 144. ORDER TO SHOW CAUSE WHY CLAIM SHOULD NOT BE COMPROmSED. [Caption.] Upon reading and filing the petition of , trustee in bankruptcy of the aboYe named bankrupt, and upon all the files and proceedings herein, on motion of _ , attorney for said trustee. It Is Ordered, That the creditors of the above named bankrupt and other persons interested, and each of them, appear before the under- signed at his office in the , in the city of , , on the day of , A. D. 19 — , at o'clock in the ^noon, and show cause, if any there be, why an order should not then and there be entered authorizing and directing , trustee of the esti^te of the above named bankrupt to accept the offer of , Forms 1363 of , , to pay the sum of dollars ($ ) in full settlement of the claim said bankrupt and his estate against said , as set forth in the aforesaid petition. Let a copy of this order and said petition be served on creditors of said bankrupt and other persons interested on or before the day of , A. D., according to law. Dated at — , , this day of , A. D. 19—. NoTK.— See CJliapter XXVIH. Referee. §1813. Pom No. 145. ORDER AXTTHORIZING COMPROMISE OF CLAIM. [Caption.] The petition of , trustee of the estate of the above named bankrupt, having been duly presented to this court, praying for authority to compromise a claim against of , , due and belonging to the estate of the bankrupt, arising by reason of the facts therein recited, and due notice of the time and place of hearing on said petition having been given to the creditors of said bankrupt and all persons interested, the Court having heard the parties interested who appeared herein and it satisfactorily appearing to the Court from said petition and the evidence submitted, that the best in- terests of the estate are as in said petition and hereinafter set forth ; Now on motion of , attorney for said trustee. It Is Ordered, That said trustee be and he hereby is authorized and directed to accept the sum of — = dollars ($ — : ) in full settlement of the claim of said estate against said , and to execute the necessary acquittances and receipts therefor. Dated ■. , 19- Befereei, §1814. Form No. 146. OFFER OF COMPOSITION. [Caption.] The above named , against whom a petition in bank- ruptcy was filed [or, who filed his petition in voluntary bankruptcy] herein, on the day of , 19 — , having been examined in open court {or, at the first meeting of creditors] herein, and having filed in 1364 Bbandenbueg on Bankeuptcy court the schedule of his property and the list of his creditors as re- quired by law, hereby offers a composition of per cent (^%) upon all unsecured debts, not entitled to priority herein, in satisfaction of his debts, payable as follows :— Dated ,19—. .. NoTK^Seeanie, § 1196. ' ' " • ' " "' §1815. Form No. 147. [Officiaa;PoMflNo,.60.]:: - .:: PETITION FOR MEETING TO CONSIDER COMPOSITION. District Court of the United States for the — District of . In the matter of - In Bankruptcy. ' Bankrupt. To the Honorable , Judge of the District Court of the United States for the District of ■ : The above named bankrupt respectfully represents that a composi- tion of per cent upon all unsecured debts, not entitled to a priority in satisfaction of — debts has been proposed by to creditors, as provided by the acts of Congress relat- ing to bankruptcy, and verily believes that the said composition will be accepted by a majority in number and in value of — ■■ credit- ors whose claims are allowed. Wherefore, He prays that a meeting of creditors may be duly called to act upon said proposal for a composition, according to the pro- Arisions of said acts and the rules of court. Bankrupts . Note. — As to the necessity for a meeting of creditors, see ante, § 1201. §1816. Form No. 148. NOTICE OF COMPOSITION MEETING. [Caption.] To THE Creditors op , in the County op and District Aforesaid, a Bankrupt : Notice Is Hereby Given that the above-named bankrupt has pro- posed a composition of per cent upon all his unsecured debts, not entitled to priority,. in satisfaction thereof, and that a meeting of cred- Forms 1365 itors will be held at , in the city of , County, — , for the purpose of considering the said offer of composition and acting thereon. Dated , 19 — . Referee. NoTE.-^This form should only be used where a .speeiallieieting is called. If the offer is submitted at the first meeting, no special meeting is necessary. See ante, i 1201. § 1817. Form No. 149. [Official Form No. 61.] APPLICATION FOR CONFIRMATION OF COMPOSITION. In the District Court of the United States for the — District of . In the matter of Bankrupt. In Bankruptcy. To the Honorable , Judge of the District Court of the United States for the District of : At , in said district, on the ;: — day of , A. D, 19 — , now comes — :7— , the above named bankrupt, and respectfully represents to the Court that, after he had been examined in open court [or at a meeting of his creditors] and had filed in court a schedule of his property and a list of his creditors, as required by law, he offered terms of composition to his creditors, which terms have been accepted in writing by a majority in number of all creditors whose claims have been allowed, which number represents a majority in amount of such claims ; that the consideration to be paid by the bankrupt to his creditors, the money necessary to pay all debts which have priority, and the costs of the proceedings, amounting in all to the sum of — '■ dollars, has been deposited, subject to the order of the judge, in the r National Bank of , a designated depository of money in bankruptcy eases. - Wheeepobe, The said -^ ■. — ; - — = — - respectfully asks that the said .composition may be confirmed by the. Court. ..„_ Bemkrupt. 1366 Bbandenbueg ON Bankeuptcy §1818. Farm No. 150. ORDER FOR HEARING ON PETITION TO CONFIRM COMPOSITION. [Caption.] Upon consideration of the petition of , bankrupt, for confirmation of a composition heretofore offered by him, and upon all the records and proceedings herein, on motion of » attorney for said bankrupt. It Is Oedeeed, That a hearing on said petition be had before this court, as a court of bankruptcy, to be holden at , in the district aforesaid, on the day of , 19—, at o'clock in the noon, and that creditors of said , bankrupt, then and there appear and show cause, if any there be, why the prayer of said petition should not be granted; and It Is FuETHEE Oedeeed, That notice of the time and place of such hearing be given to the creditors of said bankrupt by; the clerk of this court [or, the referee herein], as required by law. Witness, The Honorable ■- — , judge of the said court, and the seal thereof, at — , , in said district, on the day of , 19—. Clerk. Note. — See ante, § 1213. §1819. Form No. 151. ACCEPTANCE OF COMPOSITION. [Caption.] We, the undersigned, being respectively creditors of the above named, to the amounts set opposite our respective names at the foot hereof, hereby on behalf of ourselves and our respective firms severally agree to accept in full discharge of our respective debts against said a composition of per cent ( — %) payable according to the offer of composition heretofore made and filed herein by the above named , as follows :— — ■ Creditor Address Amount of Claim Dated , 19—. Note.— See ante, § 1196. FoEMs 1367 §1820. Form No. 152. ORDER REFERRING PETITION FOR CONFIRMATION OF COMPOSITION. [Caption.] "Whereas, on this day of , A. D. 19 — , said bankrupts filed their petition herein praying that their composition with creditors be confirmed. It is thereupon Oedebed, In accordance with the provisions of rule of the rules of bankruptcy of this court, that said petition be and the same is hereby referred to referee, , with directions to give notice to the bankrupt's creditors as required by the rules, said notices to be returnable before the Court on , A. D. 19 — , at ten o'clock A. M., that said referee be and he is hereby authorized and directed to hear said application and any objections which may be filed thereto, take proofs thereon, and report his conclusions and recommendations thereon to this court. Judge. §1821. Form No. 153. REPORT OF SPECIAL MASTER IN COMPOSITION PROCEEDINGS. [Caption.] To the Honorable C. C. K, Judge of Said Court : I, F. L. "W., referee in bankruptcy to whom as special master was heretofore referred, the matter of the specifications of the objections to the confirmation of the composition in said cause filed herein on April 2nd, 1904, on behalf of J. T. and P. W. M. Co., and the A. W. Co., of New York, a corporation, creditors of said bankrupts, do hereby report : That the said matter was duly set for hearing before me for argument on the sufficiency of said specifications and that on such argument it was contended that specification numbered 1, to the effect that the bank- rupts had not nor had any or either of them filed any schedule of their individual property, was insufficient to warrant the Court in refusing to confirm the said composition. It is also contended that specification numbered 8, filed on behalf of J. T., was not sufficient, if true, to prevent the confirmation of the com- position because the statement charged was alleged to have been made to a commercial agency and not such false statement in writing made to the objecting creditor directly for the purpose of obtaining such property on credit. As to specifieation No^ 8 of J. T., referred to, I am of the opinion 1368 Brandenbueg on Bankbuptcy that a reasonable and proper construction of section 14b (3) would re- quire the "materially false statement in writing" to be made direct to the creditor in question, and I deem the allegations in this specification which are to the effect that the alleged false statement was made to a commercial agency to be insufiScient, and I am of the opinion that the specification should be overruled for this reason. I am also of the opinion that specification No. 4, filed by the P. W. M. Co., is iijsufficient and should be overruled. I am further of the opinion that the other specifications, if proven to be true, would be sufficient to prevent the confirmation of the composi- tion and that, if the Court should determine that such specification 1 is insufiieient, evidence should be heard with reference to other specifica- tions. F. L. W., Special Master. Chicago, April 26, 1904. NOTr. — ^From record in Friend v. Taleott, 228 TJ. 8. 27. § 1822. Form No. 154. [Official Form No. 62.] ORDER CONFIRMING COMPOSITION. In the District Court of the United States for the District of . In the matter of 7 ,. t. i > In Bankruptcy. An application for the confirmation of the composition offered by the bankrupt having been filed in court, and it appearing that the com- position has been accepted by a majority in number of creditors whose claims have been allowed and of such allowed claims ; and the considera- tion and the money required by law to be deposited, having been de- posited as ordered, in such place as was designated by the judge of said court, and subject to his order ; and it also appearing that it is for the best interests of the creditors; and that 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 that the offer and its acceptance are in good faith £ind have not been, made or procured by any means, promises, o^r acts contrary to the acts of Congress relating to bankruptcy : It is therefore hereby ordered that the said composition be, and it hereby is, confirmed. Witness the Honorable , judge of said court, and the seal thereof, this day of — , A. D. 19 — '. [Sealqf the Court.]., , -, — :,_, , Clerk. FoBMs 1369 § 1823. Form No. 155. [Official Form No. 63.] ORDER OF DISTRIBUTION ON COMPOSITION. United States op America: In the District Court of the United States for the District of . In the matter of 1 Bankruptcy. r Bankrupt. The composition offered by the above named bankrupt in this ease having, been duly confirmed by the judge of said eoiirt, it is hereby or- dered and decreed that the distribution of the deposit shall be made by the clerk of the court as follows, to-wit : 1st, to pay the several claims which have priority; 2d, to pay the costs of proceedings; 3d, to pay, according to the terms of the composition, the several claims of general creditors which have been allowed, and appear upon a list of allowed claims, on the files in this case, which list is made a part of this order. "Witness the Honorable , judge of said court, and the seal thereof, this day of , A. D. 19 — . [Seal of the Court. ] , Clerli. §1824. Form No. 156. [Official Form No. 57.] BANKRUPT'S PETITION FOR DISCHARGE. In the matter of ] — l In Bankruptcy. Bankrupt. J To the Honorable , Judge of the District Court of the United States for the District of . — '■ , of , in the County of and State of -, in said district, respectfully represents that on the day of , last past, he was duly adjudged bankrupt under the acts of Congress relating to bankruptcy; that he has duly surrendered all his property and rights of property, and has fully complied with all the re- quirements of said acts and of the orders of the Court touching his bankruptcy.. Wherefore he prays that he may be decreed by the Court to have a full discharge from all debts provable against his estate under said bankrupt acts, except such debts as are excepted by law from such dis- charge. Dated this day of , A. D. 19—. Bankrupt. 1370 Beandenbtjeg ON Bankbuptcy Obdee of Notice Theeeoh. District of , ss: On this day of , A. D. 19 — , on reading the foregoing petition, it is — Ordered by the Court, that a hearing be had upon the same on the day of , A. D. 19 — , before said court', at , in said district, at o'clock in the noon; and that notice thereof be published in , a newspaper printed in said district, and that all known creditors and other persons in interest may appear at the said time and place and show- cause, if any they have, why the prayer of the said petitioner should not be granted. And It Is H'urther Ordered by the Court, that the clerk shaU send by mail to all known creditor^ copies of said petition and this order, addressed to them at their places of residence as stated- Witness the Honorable , judge of the said court, and the seal thereof, at , in said district, on the day of , A. D. 19—. [ Seal of the Court. ] ■ , Clerk. hereby despose, on oath, that the foregoing order was pub- lished in the on the following days, viz : On the day of and on the day of , in the year 19 — . District of . 19—. Personally appeared , and made oath that the fore- going statement by him subscribed is true. Before me, [Officiai character.] I hereby certify that I have on this day of , A. D. 19 — , sent by mail copies of the above order, as therein directed. Clerk. ' §1825. Form No. 157. NOTICE OP APPLICATION FOR DISCHARGE. [Caption.] To the Creditors of , in the County of and District Aforesaid, a Bankrupt, and to All Parties Interested : Notice Is Hereby Given that the above-named bankrupt has filed his petition praying for a full discharge from all his debts provable FoBMs 1371 against his estate in bankruptcy, except such debts as are excepted by law from such discharge, and t^iat a hearing on said petition will be had before -. , United States District Judge, at the United States Court Boom, in the city of , County, , on the day of , 19 — , at -7 o'clock in the — : noon, at which time and place said bankrupt will be examined, and all creditors of said ■■ ' ■ — , and other persons interested are ordered then and there to appear and show cause, if any there be, why the prayer of said peti- tion should not be granted. Clerk of said Dated , 19 — . United States District Court. Note. — Thirty days ' notice is required. See ftnte, § 1450. The form here given may be used for publication in place of the more lengthy official form given in § 1824. §1826. Form No. 158. APPEARANCE IN OPPOSITION TO DISCHARGE OR COMPOSITION. [Caption.] Now comes , who is a creditor of said bankrupt, and enters his appearance herein for the purpose of objecting to the dis- charge [pTf confirmation of the composition] herein, and asks ten days' time be allowed him to file his specifications of objections thereto. Attorneys for ■ Dated , 19—. Note. — See ante, § 1458. § 1827, Form No. 159. [Official Form No. 58.] SPECIFICATION OF GROUNDS OF OPPOSITION TO BANKRUPT'S DISCHARGE. In the District Court of the United States for the District of -. In the matter of In Bankruptcy. Bankrupt. , of , in the County o£ , and State of , a party interested in the estate of said , bankrupt, do hereby oppose the granting to him of a discharge from his debts, and 1372 Beandbnbtteg; oisr Bankruptcy for the grounds of such opposition do file the following^ specifications: [Here specify the grounds of opposition.] — — -J Creditor. §1828. Form No. 160. BANKRUPT'S PLEA TO SPECIFICATIONS OF OBJECTION TO DISCHARGE. [Caption.] Now comes , the above named bankrupt, and excepts to the sufficiency of the specifications in opposition to his discharge filed herein by , on the following grounds, to-wit : 1. That said specifications fail to show how the aforesaid is interested, or that he has a provable debt affected by the dis- charge. 2. That said specifications, and each of them, are not sufficiently clear, positive and direct to advise the bankrupt of the particular ground relied upon by the objector — to defeat his discharge, or to enable him to properly prepare to meet the same or to advise the Court of the issue to be tried by it. 3. That said specifications fail to state facts sufficient in law to con- stitute a bar to his discharge. Wheeefoee, bankrupt prays that said specifications be dismissed, and that he be granted his discharge as heretofore petitioned for. Attorney for Bankrupt, Dated , 19—. Note. — See ante, § 1461. § 1829. Form No. 161. [Official Form No. 59.] DISCHARGE OF BANKRUPT. District Court of the United States, District of . Whereas, of in said district, has been duly adjudged a bankrupt, under the acts of Congress relating to bankruptcy, and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by this court that said be discharged from all debts and claims which are made provable by said acts against his estate, and which existed on the day of ., Forms 1373 A. D. 19 — , on wbich day the petition for adjudication was filed him ; excepting such debts as are by law excepted from the operation of a discharge in bankruptcy. Witness the Honorable , judge of said district court, and the seal thereof this day of , A. D. 19 — . [Seal of the Court.] Clerk. § 1830. Form No. 162. SHORT FORM OF PLEA OF DISCHARGE OR COMPOSITION. [Caption.] Now comes the defendant and for answer to the complaint of the plaintiff herein respectfully shows to the Court that heretofore and on the day of , 19 — , he was discharged from the claim alleged in plaintiff's complaint by an order in bankruptcy of the District Court of the United States for the District of , [of which the following is a copy] : — — Note. — Proof of an order confirming a composition with creditors is admissible under this plea. See ante, § 1237. §1831. Form No. 163. PLEA OF DISCHARGE IN BANKRUPTCY. [Caption.] The defendant for his answer to the complaint of the plaintiff herein respectfully shows and alleges : That heretofore and on or about the day of , 19 — , [and before the commepcement of this action] a petition was duly filed by this defendant as petitioner in the United States District Court for the. District of sitting in bsmkruptey, alleging among other things that the- petitioner, this defendant, was insolvent, and asking to be adjudged a bankrVipt. Annexed to said petition were the schedules required by law, among them the schedule giving a list of the creditors of the petitioner and tbe amounts due or claimed. That in said list was a claim of the plaintiff! for.$ and a statement that such claim was disputed, and defendjantbegs leave to refer to such petition on the trial for a more parti.culgr statement of the contents. -That-th«|i'ea|tgt;;^eh_proBfieding8; were duly had in said bankruptcy 1374 Beandenbueg on Bankeitptcy court thiat the petitioner, this defendant, was duly adjudicated a bank- rupt. That thereafter and on or about the day of , 19 — , upon proceedings duly had thereon, and in accordance with all the re- quirements of law" in that behalf, the. said United States District Court for the District of duly granted to the said petitioner, this defendant, a discharge from all debts and claims which were prov- able against said petitioner, this defendant, and which existed on the day of , 19 — . ' A copy of such discharge being hereto annexed marked "A." That the alleged claim of the plkintiff existed prior to the day of , 19 — , and is a claim, as appears from the complaint herein, that under the acts of Congress relating to bankrupts, was made provable against the estate of the petitioner, this defendant. That by virtue of said bankruptcy proceedings and said discharge as hereinbefore set out, the plaintiff is barred and prevented from fur- ther prosecuting this ease, and this defendant has been forever released and discharged from any alleged claim set forth in the complaint herein. Wheeefoee, defendant demands judgment that the complaint herein be dismissed, with costs. Attorney for Defendant. § 1832. Form No. 164. AGREEMENT TO REVIVE DEBT AFTER DISCHARGE. This Agreement made and entered into this day of — 19 — , by and between , of , , party of the first part, and , of , , party of the second part, witnesseth : "Whereas, on the day of , 19 — , party of the first part, being then indebted to party of the second part in the sum of Dollars ($ ), was by the United States District Court, for the ■ ■ — District of , duly adjudged a bankrupt, and under the said bankruptcy proceedings, the creditors of party of the first part, including party of the second part, were paid a dividend of per cent on their claims, and thereafter and on the day of , 19 — , party of the first part was duly discharged from all liability for the residue of his debts by an order of the said United States District Court ; And "Whereas party of the first part considers himself morally bound to pay to party of the second part the balance of his said debt remaining unpaid at the time of the discharge in bankruptcy of the party of the first part, as aforesaid, to-wit, the sum of Dollars ($ — ) ; FoEMS 1375 Now, Therefore, in consideration of the facts above recited, for the purpose of rendering himself legally liable to party of the second part for the balance of his said debt remaining unpaid as aforesaid, party of the first part hereby expressly acknowledges that he is justly indebted to party of the second part in the sum of Dollars ($ '—), and agrees to pay the same on or before the day of , 19 — , with interest thereon at the rate of per cent per annum from the day of , 19—. In Testimony Whereof party of the first part has hereunto affixed his hand and seal the day and year above written. In presence of ' . . Note. — See ante, 1 1538. §1833. Form No. 165. REPLY TO PLEA OF DISCHARGE. (New Promise.) [Caption.] For his reply to the answer of the defendant herein, plaintiff alleges that subsequent to the order in bankruptcy set up in the answer of de- fendant, defendant expressly and unequivocally promised plaintiff that he would pay the claim set out in the complaint. §1834. Form No. 166. PETITION TO CANCEL A JUDGMENT AFTER DISCHARGE. [Caption.] To the Supreme Court of the State of : The petition of respectfully represents : That this action was brought in the year nineteen hundred and -\ , for goods, wares and merchandise sold and delivered by the plaintiffs to the defendant, and on the day of , 19 — , a judgment was recovered in favor of the plaintiffs and against the de- fendant for the sum of $ , which judgment was duly docketed in the office of the clerk of this Court on the day of , 19 — . That thereafter and on or about the day of , 19 — , petitioner was duly adjudged a bankrupt by the United States District Court for the District of , which court had jurisdiction to so adjudge petitioner bankrupt. That thereafter, petitioner duly filed, schedules according to law in the office of the clerk of the said United States District Court for the District of , in which schedules appeared the name and 1376 Bkandenbueg on Bankkuptcy debt of the plaintiffs herein, and upon information and belief, this plain- tiff received due notice of the pendency of such proceedings and had actual knowledge thereof. ' That thereafter such proceedings were had that on the day of , 19 — , a decree was entered in the said United States District Court, discharging the defendant in the above entitled action from all debts provable in bankruptcy at the date of his adjudication. That the debt for which this judgment was obtained was not due as a tax levied by the United States, the State, County, District or Munici- pality in which the petitioner resides, nor was it a liability for obtaining money by false pretiense or false representaG6ns,"iibr for willful and malicious injury to the person or property of the plaintiff, nor for alimony due or to become due, nor for the maintenance and support of wife and child, nor for the seduction of an unmarried female, nor for criminal conversation, nor was said debt created'by fraud, embezzlement, misappropriation or defalcation while acting eis an officer in any fiduciary capacity, and that said debt was duly scheduled in time for proof and allowance with the name of the plaintiffs therein. That hereto annexed is a certified copy of the decree of the United States District Court for the District of , discharging this petitioner from all his debts provable against his estate in bankruptcy as was set forth. That more than one year has elapsed since the entry of the said decree. Wherefore, Your petitioner prays that an order may be made herein, cancelling the said judgment of record, and directing the clerk of this Court to mark the same cancelled and discharged, for which no previous application has been made. Tetitvoner. Dated , , 19 — . [Verification.] Note. — From record in Guasti v. Miller, 203 N. Y. 259, affirmed 226 IT. S. 170. § 1835. Farm No. 167. PETITION TO REVOKE DISCHARGE. [Caption.] To the Honorable , Judge of the United States District Court for the District of • The petition of respectfully shows to the court: That your petitioner is a creditor of the above-named bankrupt, hav- ing a provable claim amounting, in excess of securities held by him and Forms 1377 in excess of dividends received by him herein, to the sum of Dollars ($ ), which has been proved and allowed herein, the nature of said claim being as follows : ' That said claim is affected by the discharge herein. That on the day of , 19 — , the above-named . , was duly adjudicated a bankrupt by order of this court upon a petition filed by (or, against) him on the day of , 19 — , according to the provisions of the acts of Congress relating to bank- ruptcy. That on the day of , 19 — , upon petition of the said bankrupt, this court made its order discharging the said bankrupt pom his debts. That the actual facts existing at the time of the granting of said discharge did not warrant said discharge, but, on the contrary, said dis- charge was obtained through the fraud of the bankrupt, as appears from the following facts, knowledge of which has come to your petitioner since the granting of the said discharge, to-wit: That the fraud of the bankrupt, as aforesaid, was first discovered by your petitioner on the day of , 19—^, in the following manner: (Here state also the diligence used to discover the fraud.) That the time for applying for an order revoking said discharge has not expired, and no application therefor has been previously made. "Wherefore, your petitionefr for an order of this court vacating and setting aside the discharge of the bankrupt herein, and for such other and further relief as to the court may seem just. Petitioner. [Verification.] NOT«. — See ante, § 1513. §1836. Form No. 168. PETITION TO RE-OPEN ESTATE. [Caption.] To the Honorable , Judge of the District Court of the United States for the District of : The petition of respectfully shows to the court : That on the day of , 19 — , a petition in (in)voluntary bankruptcy was filed in the above-named court praying that the above- named be adjudicated a bankrupt. That on the day of , 19 — , the above-named was duly adjudicated a(n) (in)voluntary bankrupt upon said petition by the above-named court, according to the acts of Congress relating to bankruptcy. Braiidenburg-r87 1378 Bbandenbubg on Bankruptcy That on the dsiy of , 19—, , of . , was duly elected trustee of the estate of said bankrupt, and thereafter duly qualified as such trustee and continued to act as such trustee until the time of his discharge as hereinafter alleged. That your petitioner is a creditor of the above-named bankrupt, having a provable claim amounting to Dollars (.$ —)j~T.ii excess of securities; that the nature of your petitioner's claim is as follows : ■■ — ' That your petitioner duly filed his said claim in the bankruptcy pro- ceedings against said — ■ ^ and said claim "was duly allowed oil the =^^^ day of ^ , 19 — -, ihat no part of said claim has been paid except the sum of Dollars ($ ). That on the ' day of -, 19—, upon petition of the said bankrupt, this court made its order discharging the said bankrupt- from his debts. That on the day of , 19 — , by order of this, court the final account of the aforesaid trustee was duly presented to this court and allowed as filed, the said trustee duly discharged of his trust, and the proceedings' herein closed. That the claims of creditors entitled to participate in dividends in said estate in bankruptcy, and not having security, were filed and allowed in said bankruptcy proceedings, largely in excess of the total amount and value of the assets thereof coming into the hands of the aforesaid trustee, and that the assets of said estate discovered by said trustee and coming into his piossession were insufficient to pay the expenses of administration and the claims of' the creditors whose claims were filed and allowed in said proceedings. That at the time of the filing of the petition in bankruptcy against said , as aforesaid, and at the time of his adjudication in bankruptcy as aforesaid, said was the owner of the follow- ing described property, no mention of which was made in the schedules filed by him in said bankruptcy proceedings, and no portion of which ever came into the possession of his trustee in bankruptcy or was ever administered in said bankruptcy proceedings, to-wit: (Here describe property in detail). That said bankrupt wilfully, fraudulently and unlawfully omitted said property from his schedules in bankruptcy, and wilfully, fraudu- lently and wrongfully concealed the same from his trustee in bankruptcy and his creditors. That said bankrupt is still in possession and control of said property. That the value of said property is Dollars ($ ). That the omission of said property from the schedules in bankruptcy, as aforesaid, and the fraud of the bankrupt as aforesaid was first- dis- Forms '' 13'79 covered by the petitioner on the • day of , 19 — (Here state also the diligence used to discover the fraud and omissions) . Wherefore your petitioner prays the order of the court reopening the estate of the said , bankrupt, for the purpose of dis- covering property fraudulently omitted from the bankruptcy proceedings aforesaid and administering the same in bapkruptcy, for the appointment of a receiver to take charge of said property, and for such other and further relief as to the court may seem just. Petitioner. [Verification.] Note. — See ante, § 1427. § 1837. Form No, 169. GEBTIFICATE OF BEFEREE THAT BANKRUPT IS IN CONTEMPT. [Caption.] To the District Court of the United States, for the District of Theundersigned, one of the referees of said court of bankruptcy, hereby certifies that the above named bankrupt is in contempt 6f court, and hereby recommends that he 'be punished therefor according to law, by reason of the following facts, to-wit : That heretofore and on the '■ — day of — -, 19 — , the under- signed duly made and entered an order herein directing said bankrupt to forthwith return to the trustee herein the following described personal property, to-wit : [here describe the property as in the order referred to], or, in the event it was impossible to return said property in specie, then to forthwith pay to said trustee the sum of dollars, ($ ) , the value thereof, and in default of same to be punished for contempt of court. That bankrupt was duly notified of the entry of said order and served with a copy thereof, and, though he has been able to comply with said order, said bankrupt has wilfully refused to deliver said property to said trustee upon demand, or to pay to said trustee the value thereof as aforesaid. Referee. Dated -, 19—. Note. — See ante, § 1602. 1380 Beandenbiteg on Bankbuptcy §1838. Form No. 170. AFFIDAVIT OF CONTEMPT. [Caption.] State of — County of- [ss: , being first duly sworn, says : 1. That he is the trustee in bankruptcy of the estate of the above named bankrupt. 2. That on the day of , A. D. 19 — , an order was duly made and entered by the Court herein, of which a copy is hereto annexed marked Exhibit A, requiring to [here specify act re- quired] . 3. That on the day of , A. D. 19 — , said order was duly served on said , as more fully appears by the return of the United States marshal thereon, on file in this court. 4. That although he has had and still has the ability to comply there- with, said has wilfully and contumaciously refused and still refuses to obey said order, in this : . Wherefore, Your affiant prays for an order of this Court directing said to show cause why he should not be punished as for contempt. [Jurat.] §1839. Form No. 171. ORDER TO SHOW CAUSE IN CONTEMPT PROCEEDINGS. [Caption.] On reading and filing the within affidavit of , trustee in bankruptcy of the estate of the above named bankrupt, and on motion of , attorney for said trustee. It Is Ordered, That the above named bankrupt show cause before this Court at in the City of , , on the day of , A. D. 19 — , at o'clock in the ^noon of said day, why he should not be punished as for contempt for his mis- conduct in failing to obey the order of said Court as set forth in the said affidavit hereto attached [or otherwise state the act of contempt ac- cording to the fact] . Let this order and a true copy of said affidavit be served on the said , on or before the day of , A. D. 19 — . By the Court : Judge. Dated , A. D. 19—. FoEMs 1381 § 1840. Form No. 172. INDICTMENT FOR RECEIVING PROPERTY FROM BANKRUPT AND FOR CONCEALMENT. United States District Court, District of Kentucky. United States of America, ) District op Kentucky { In the District Court of the United States for the Sixth Judicial Circuit and District of Kentucky, held at Louisville, Kentiicky, October Term, in the Year of Our Lord Nineteen Hundred. First count. The grand jurors of the United States of America, im- paneled and sworn, and charged to inquire in and for the District of Kentucky, on their oaths present, that W. T. N. did on the first day of October, nineteen hundred, in the district aforesaid and within the juris- diction of this Court unlawfully, knowingly and fraudulently receive a material part of the money and personal property, of E. B. N., to-wit : the sum of ten thousand dollars in lawful money of the United States, which was then and there paid to the said W. T. N. by H. S. — a more particular description thereof is to the grand jurors aforesaid unknown ; a certain cheek drawn by E. P. T. on the S. N. Bank of Louisville, Ken- tucky, in favor of E. B. N. and Co. for two dollars, dated February 21, 1900, and numbered 78, with the fraudulent intent on the part of said W. T. N. to defeat the provisions of an act of the Congress of the United States, entitled, "An act to establish a uniform system of bankruptcy throughout the United States," approved July 1, 1898, and that said, money, personal property and check were then and there personal prop- erty of the said E. B. N., as the said E. T. N. then and there knew — and that a petition then and there seeking to have the said E. B. N. adjudged a bankrupt had been then and there filed in the ofiice of T. S., who was then and there duly appointed, qualified and acting clerk of the United States District Court for the district aforesaid, at Louisville, Kentucky, where the said E. B. N. had then resided and had his domicile for more than six months, by the W. K. M., B. Bros, and Co. and the G. I. Bank, as the said W. T. N. then and there knew and that the said E. B. N. was then and therfe insolvent and bankrupt as the said W. T! N. then and there knew. Against the peace and dignity of the United States and contrary to the form of the statute in such ease made and provided. Second count. And the grand jurors aforesaid, upon their oaths aforesaid, do further present, that W. T. N. did on October 1, 1900, in the district aforesaid and within the jurisdiction of this Court, unlaw- fully, knowingly and fraudulently, while E. B. N. was a bankrupt aid, 1382 Brandenbueg on Bankruptcy abet and assist the said E. B. N. in concealing, and did then and there unlawfully, knowingly and fraudulently while the said B. B. N. was a bankrupt, procure the said E. B. N. to conceal a large amount of his, the said E. B. N.'s personal property, to-wit: the sum of ten thousand dollars, lawful money of the United States, which was then and there paid to the said W. T. N. by H. S., a more particular description whereof is to the grand jurors aforesaid unknown, from A. E. M., who was then and there the duly appointed, qualified and acting receiver and the trustee of the estate of the said E. B. N. in bankruptcy, and the said E. B. N. then and there was and had then and there been adjudged a bankrupt as the said W. T. N. then and there knew, by the United States District Court at Louisville, in the district court aforesaid, where the said E. B. N. had then resided and had his domicile for more than six months and the personal property aforesaid was then and there the personal property of the said E. B. N. and then and there belonged to his said estate in bankruptcy, as the said W. T. N. then and there knew. Against the peace and dignity of the United States and contrary to the form of the statute in such ease made and provided. Third count. And the grand jurors aforesaid, upon their oath aforesaid, do further present, that AV. T. N. did on October 1, 1900, in the district aforesaid and within the jurisdiction of his court, unlawfully, knowingly and fraudulently, while E. B. N. was a bankrupt conceal a large amount of personal property of the said E. B. N., to-wit : the sum of ten thousand dollars in lawful money of the United States, which was then and there paid to the said W. T. N. by H. S. — a more particular description whereof is to the grand jurors aforesaid unknown — from A. E. M., who was then and there the duly appointed, qualified and acting receiver and trustee of the estate of the said E. B. N. in bank- ruptcy — and the said B. B. N. then and there was and had/ then and there been adjudged a bankrupt as the said "VV. T. N. then and there knew, by the United States District Court at Louisville, in the district aforesaid, where the said E. B. N. had then resided, and had his domicile for more than six months, and the personal property, aforesaid, was then and there the personal property of the said E. B. N., and then and there belonged to the said estate of the E. B. N., in bankruptcy, as the said W. T. N. then and there knew. Against the peace and dignity of the United States and contrary to the form of the statute in such case made and provided. R. D. H., United States Attorney, District of Kentticky. Witnesses : Note. — From the record in Mueller v. Nugent, 184 U. S. 1. See, also, ante, §§ 1611, 1616, 1624. FoKMS 1383 §1841. Form No. 173. INDICTMENT FOR FALSE OATH. Circuit Court of the United States of America for the Southern District of New York, in the Second Circuit. At a stated term of the Circuit Court of the United States of America for the Southern District of New York, in the Second Circuit, begun and held in the City of New York, within and for the district and circuit aforesaid, on the first Monday of September, in the year of our Lord one thousand nine hundred and ten, and continued by adjournment to and including the 24th day of October, in the year of our Lord one thousand nine hundred and ten. Southern District of New York, ss: The jurors of the United States of America within and for the dis- , triet and circuit aforesaid, on their oath present that on the 2d day of August, in the yeai^ of our Lord one thousand nine hundred and nine, a petition in bankruptcy, dated on the 13th day of July, in said year, signed by W. S. M., petitioner, and creditor of the K. P. Co. (a cor- poration organized under the laws of New York), by and under the acts of Congress relating to bankruptcy, was duly filed in the District Court of the United States for the Southern District of New York, pray- ing that the said K. P. Co. should be adjudged an involuntary bankrupt- that on the said second day of August of the same year, J. W. was duly appointed receiver of the property, assets and effects of the said alleged' bankrupt; that on the fourth day of August of the said year the said receiver, having duly qualified, petitioned the said Court for an order under Section 21a of the Bankruptcy Act, requiring the said K. P; Co., its oiBcers and directors, to appear before a special examiner or com- missioner to be appointed for that purpose, to be examined concerning their acts, conduct and property of the said alleged bankrupts; that on the said fourth day of August in the same year, an order was nlade by the Honorable C. M. H.. judge of the said District Court, that the said examination should proceed before T. A., special commissioner and examiner, and that the witnesses should testify and give evidence before him as to the acts, conduct and property aforesaid ; that on the nine- teenth day of August of the said year the said K. P. Co. was duly adjudged an involuntary bankrupt and S. M. was duly appointed referee ; that the said referee was duly authorized under and by virtue of the laws of the United States relating to bankruptcy to examine witnesses and require them to give evidence in any and all examinations before him as such referee ; that pursuant to the said authority, A. B. C. named herein as defendant, appeared before the said referee on the twenty-eighth day of October, in the said year, to testify before him as such referee, and the said defendant was then and there duly sworn by the said referee at the 1384 Brandenbubg on Bankbxjptcy city of New York in said Southern District of New York, who then and there had the right and authority and was a competent person to admin- ister said oath under and by virtue of the order of the said .court appoint- ing him as such referee ; and the said oath was authorized by the laws of the United States ; and the said A. B. C. was then and there duly sworn that the evidence he should give in the proceedings then before the said referee should be the truth, the whole truth, and nothing but the truth ; and the said defendant was then and there examined by and before the said referee under and by authority of said oath concerning the acts, conduct and property of the said alleged bankrupt on the said twenty- eighth day of October in the said year and also on the ninth day of November in thfe same year. And thereafter on the ninth day of March, in the year of our Lord one thousand nine hundred and ten, the said A. B. C. then and there perused and made himself acquainted with the testimony he had given as aforesaid and which had been reduced to type- writing, and signed the same with his name and was again sworn by the said referee, authorized and empowered as aforesaid, to the effect that the evidence which he, the said A. B. C, had so as aforesaid signed was the truth, the whole truth, and nothing but the truth, and upon the examination aforesaid it became and was a material matter and inquiry in the said proceeding before the said referee to ascertain and discover what property and assets the said alleged bankrupt had, was entitled to, possessed of, or owned, and which should be administered by the court of bankruptcy pursuant to the provisions of the acts relating to bank- ruptcy, and it was especially a material matter and inquiry then and there : First. As to whether or not he, the said A. B. C, had been able to obtain the address of "W". C. S. or had ever known the same. Second. As to whether or not the said A. B. C. had a conversation or conversations with the said W. C. S. in regard to his buying pianos of and from the said alleged bankrupt. And the jurors aforesaid, on their oath aforesaid, do further present that he, the said A. B. C, having been sworn as aforesaid, then and there falsely, corruptly, knowingly, willfully and contrary to said oath, did swear and depose before the said referee, among other things, in substance and to the effect following, that is to say : First. That he, the said A. B. C, had not been aible to obtain the address of said W. C. S. and had never known the said address. Second. That he, the said A. B. C, had had a conversation or con- versations with the said W. C. S. in regard to his, the said "W. C. S.'s buying pianos of and from the said alleged bankrupt. Whereas, in truth end in fact, it. was not and is not true and at the time of so swearing and deposing the said A. B. C. did not believe it to be true : Forms 1385 First. That he, the said A, B. C, had not been able to obtain the address of the said W. C. S. and had never known the same. Whereas, in truth and in fact, it was not and is not true and at the time of so swearing and deposing the said A. B. C, did not believe it to be true : Second. That he had a conversation or coijiversations with the said "W. C. S. in regard to his, the said W. C. S. 's, buying pianos of and from the said alleged bankrupt. And so the jurors aforesaid, on their oath aforesaid, do say that A. B. C, within the said jurisdiction^ in manner and form aforesaid, having taken an oath before a competent tribunal in a cause wherein a law of the United States authorized an oath to be administered, that he, the said A. B. C, would truly depose and testify, willfully, falsely and contrary to his said oath, did depose and state material matters which he then did not believe to be true, and thereby did commit willful and corrupt perjury ; against the peace of the United States and their dignity and contrary to the form of the statute of the United States in such case made and provided. H. A. W., V. 8. Attorney. Note. — From Cameron v. XJnitecl States, 231 V. S. 710. This indictment was drawn before the abolishment of the Circuit Court. See, also, ante, §§ 1612, 1624. § 1842. Form No. 174. PETITION FOR REVISION OF ORDER OF DISTRICT COURT. In the United States Circuit Court of Appeals for the Ninth Circuit. In re D. N. H. and L. H., Bankrupts. No. . To the Honorable the Judges of the United States Circuit Court of Appeals for the Ninth Circuit : The petition of J. A. S. respectfully shows as follows: I. In the District Court of the United States for the District of Wash- ington, Northern Division, two separate proceedings were begun against D. N. H. and L. H., his wife, on the 19th day of January, 1901, to the end that they each be declared a bankrupt, and on the 9th day of Feb- ruary, 1901, these two proceedings were consolidated. II. Thereafter, on the 25th day of February, 1901, each of the aforesaid H.'s was adjudged a bankrupt, and thereafter, on the same proceedings, your petitioner became the duly elected and qualified trustee in bank- ruptcy of each of their estates under the laws of the United States. 1386 Bbandenbxjbg on Bankruptcy III. Thereafter the aforesaid bankrupts, and eaeh of them, claimed exemp- tion in their favor of two certain policies of life insurance in the hands of the trustee upon the life of D. N. H., payable to L. H., the wife. Of these policies copies are hereto annexed and made a part of this petition. As therein appears, these policies are, respectively, in the sum of $5,000 and $2,000 in the event of death, and have a present cash surrender value, combined, of about $2,200. IV. Such proceedings were had upon this application for exemption that the claim of the bankrupts was, on the 17th day of June, 1901, denied by the referee ; but upon certification of the matter to the District Court, his action. was, on July 16, 1901, overruled and the exemption in favor of the bankrupts by order was allowed. V. Your petitioner, considering himself aggrieved by this order of the District Court, respectfully applies to this Honorable Court for a revision and review thereof, to the end that the claim of exemption of the bank- rupts of these policies of insurance may be denied and the action of the lower court corrected, and that such orders emanate from this court as are necessary to that end. For this purpose your petitioner annexes hereto a certified copy of so much of the record as will enable your Honorable Court to review and correct the action of the District Court with due care and justice to all concerned. J. A. S., As Trustee in Bankruptcy of D. N. H. L. H., Bankrupts, Petitioner, B. & K, [Verification.] Counsel for Petitioner. Note. — ^From record in Holden v. Stratton, 198 TJ. S. 202. See, also, ante, § 1655. § 1843. Form No. 175. NOTICE OP PETITION FOR REVISION. In the United States Circuit Court of Appeals for the Circuit. In re , Bankrupt. \ To Attorney for You Will Please Take Notice,, That the undersigned has filed in the United States Circuit Court of Appeals for the Circuit, his FoEMS 1387 petition for a revision of that certain order of the District Court of the United States for the — District of , made and entered on the day of , A, D. 19 — , whereby [here describe order You will also take notice that the undersigned will call up for hearing the aforesaid petition at the regular annual term of the United States Circuit Court of Appeals for the Circuit, to be held on the day of , A. D. 19 — , in the eourtroom in , in city of , — . , at o'clock in the forenoon of said day, or as soon thereafter as counsel can be heard. Attorneys for . See ante, § 1655. §1844. Form No. 176. DESIGNATION OP RECORD UPON PETITION TO REVISE. In the United States Circuit COurt of Appeals for the Ninth Circuit. In re D. N. H. and L. H., Bankrupts. No. . To the Above Named Bankrupts and to P. P. C, Your Solicitor: You and each of you will please take notice that the error of the District Court upon which the undersigned trustee intends to rely in his petition for revision and review from the order of the District Court for the District of Washington, Northern Division, dated July 16, 1901, which petition has heretofore been filed and copy thereof served upon you, is the error of adjudging an exemption in favor of you and each of you of the two policies of insurance referred to in that petition. As necessary for the consideration thereof, the petitioner aforesaid desig- nates the following portions of the record to be printed : 1. Order consolidating cases 1953 and 1954. 2. Adjudication of bankruptcy. 3. Order of district judge awarding insurance exemption. . 4. The insurance policies. 5. The petition for revision and review. 6. The notice of filing and calling up the petition for revision and review. B. & K., Solicitors for J. A. S., Trustee in Bankruptcy of D. N. H. and L. H., Bankrupts. Note. — Prom record in Holden v. Stratton, 198 U. S. 202. See, also, ante, § 1655. 1388 Beandenbtjkg on Bankruptcy §1845. Pom No. 177. PETITION FOR APPEAL TO CaROUIT COURT OP APPEALS. [Caption.] The above-named defendant, , a corporation, conceiving itself Aggrieved by the judgment or decree made and entered in the above- entitled cause on the day of , 19 — , does hereby appeal from said judgment or decree to the United States Circuit Court of Appeals for the Circuit, for the reasons specified in the assign- ment of errors which is filed herewith. And the said '-, prays that he be allowed this appeal, and that the transcript of record, papers and proceedings upon which said judg- ment or decree was made, duly authenticated, may be sent to the United States Circuit Court of Appeals for the Circuit. Attorney for Defendant. The within petition for appeal is hereby allowed. Judge. § 1846. Form No. 178. BOND ON APPEAL. Know All Men by These Presents : That we, the , as principals, and the , having an office and usual place of business at No. Street, in the city of , as sureties, are held and firmly bound unto , as trustee in bankruptcy of the estate and effects of , in the sum of thousand dollars ($ ), lawful money of the United States of America, to be paid to the said , as triistee in bankruptcy of the estate and effects of , for the payment of which well and truly to be made, we bind ourselves, our successors and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated this day of , in the year one thousand nine hundred and — . Whereas, the above-named has proseeuocd an appeal to the United States Circuit Court of Appeals for the Circuit, to reverse the decree rendered in the above-entitled suit, by the judge of the District Court of the United States, District of . Now, therefore, the condition of this obligation is such, that if the above-named A. W. Co. of New York and N. "W. Co. shall proseciite their appeal to effect, and answer all damages and costs if he fails to FoBMS 1389 make his pka good, then this obligation shall be void; otherwise the same shall be and remain in full force and effect. 1 1 [Acknowledgment.] [Justification of Sureties.] Note.— See ante, $ 1647. §1847. Pom No. 179. ASSIGNMENT OF ERRORS ON APPEAL TO CIRCUIT COURT OF APPEALS. Come now the A. W. Co. of New York and the N. W. Co., appellants, and make and file the following assignment of errors, upon which they and each of them will rely upon the prosecution of their appeal from the decree made by this Honorable Court on March 4, 1910, and entered March 8, 1910, in the above entitled cause : [Here specify errors,] In order that the foregoing assignment of error may be. and appear of record, the defendants present the same to the Court, and pray that such disposition be made thereof as in accordance with law and statutes of the United States in such case made and provided, and defendants pray a reversal of the said_ decree appealed from, and each and every part thereof, entered by the United States District Court for the Southern District of New York. H., H. & W., Solicitors for Defendants. OflSce and PostofBce Address, No. 115 Broadway, Borough of Manhattan, City of New York. NoTB. — ^From record of Ludvigh v. American Woolen Co./ See, also, ante, § 1646- §1848. Form No. 180. ORDER ALLOWING SUPERSEDEAS. [Caption.] The appellant, , having heretofore filed his petition for an appeal from a final decree rendered herein on the day of , 19—, filed in the office of the clerk of the United States District Court on the — r day of , 19—, and granting the prayer of the plaintiffs-appellees' bill of complaint upon the merits. 1390 Brandenbttkg :*'on Bankeuptcy with costs, and having filed an assignment of errors, and said appeal having been heretofore allowed to the petitioner, aforesaid, it is Ordered, that the said appeal shall operate as a supersedeas of the decree entered herein on the day of , 19 — , and shall stay the execution of said decree pending such appeal upon the execution of a bond in the penalty of the sum of dollars ($ ). Dated , , 19—. V.S.D. J. §1849. Form No. 181. PETITION FOR WRIT OF ERROR IN CRIMINAL PROCEEDINGS. District Court of the United States, District of , Criminal Branch. United States of America, Plaintiff, V. Defendant. To the Honorable Judges of the United States Circuit Court of Appeals of Judicial District : Comes now the above-named defendant, by his attorneys, , and complains that in the record and proceedings had in the trial of the above cause, and also in the rendition of the judgment in the above-entitled cause in said United States District Court for the District of , at the term thereof, 19 — , against the said defendant on the day of , 19 — , manifest error hath happened, to the great damage of the said defendant. Wherefore, said defendant 'prays for the allowance of a writ of error and for such other orders and processes as may cause the same to be corrected by the said United States Court of Appeals for the Judicial Circuit. Dated , -^ , 19—. Attorneys for Defendants Allowed : Note.— Stee ante, § 1658. -,U.S.J. TORMS 1391 § 1850. Form No. 182. ORDER ALLOWING WRIT OP ERROR. At a stated term, to-wit, the term, 19 — , of the District Court of the United States in ,and for the District of , held at in the city of , on the day of , 19—. Present : Hon. , U. S. District Judge. The United States of America, Plaintiff, V. Defendant* On motion of , attorneys for the defendant, and upon filing a petition for a writ of error and an assignment of error, it is Ordered that a writ of error be and hereby is allowed, to have reviewed in the United States Circuit Court of Appeals for the Second District, the judgment heretofore rendered herein and the sentence pronounced thereon, and it is Further Ordered that the defendant may hereafter and within ten days, after the entry- of this order file additional assignments of error nunc pro tunc. , U. 8. J. Note.— -See .ante, § 1658. §1851. Form No. 183. PETITION FOR WRIT OF ERROR FROM STATE COURT, United States op America, State of Georgia : To the Honorable W. H. P., Chief Justice of the Supreme Court of Georgia : The petition of T. M. K., Administrator of E. K., deceased, respect- fully shows: That on the 17th day of February, 1911, the Supreme Court of Georgia rendered final judgment against your- petitioner in a certain cause wherein" your petitioner was plaintiff in error and LaG. M. defend- ant-i-n. error, affiming the judgment of the Supreme Court of Troup County, Georgia, against your petitioner and in favor of said LaG. M., iifa: suit filed by petitioner against said LaG. M. for the recovery of a .one-fifth undivided interest in certain lands in said county, and for costs, (isip tF.ilL'fuliy appear by reference to the record and proceedings in said ;e^e,,^|ind,;j;hat,the .said Supreme Court of Georgia is the highest court of Sg;^.^tfe.iH which,; ai^deeision. in said. suit could be had. y 1392 BeaNDENBITEG out BANKEtrPTCY And your petitioner claims the right to remove said judgment of the Supreme Court of the United States by writ of error under Section 709 of the Revised Statutes of the United States, because it was contended by your petitioner before the Supreme Court of Georgia that the home- stead exemption set apart in 1878 to G. K., bankrupt, was not subject to a judgment founded on a debt contracted prior to the adoption of the Constitution of the State of Georgia of 1868 ; that a sale of said home- stcEid under an execution predicated on such judgment was void ; that the title to the property thus sold remained in said G. K. until his death, when it descended by operation of law to his children, including plain- tiff's estate ; that under the agreed statement of facts, in which it appears that the defendant claims the premises under said void sale, the peti- tioner was entitled to recover the interest in the land sued for. Upon the hearing of the said case the Supreme Court of Georgia held that "an exemption in bankruptcy made under the Constitution of 1868 is subject to a judgment founded on a debt contracted prior to the adoption of said Constitution," and affirmed the judgment of the court below in favor of the defendant therein and against your peti- tioner, as appears by the record of the proceedings in said cause, which is herewith submitted. Wheeefoee, your petitioner prays the allowance of a -writ ol^ error, returnable to the Supreme Court of the United States, and for citation and supersedeas; and your petitioner will ever pray, etc. T. M. K., D. W. R., Adm'r of E. K., Petitioner. Attorney for Petitioner^ Let the writ of error issue as prayed. April 4, 1911. W. H. P., Chief Justice of the Supreme Court of the State of Georgia. Note. — From record of Kener v. La Grange Mills, 231 IT. S. 215. §1852. Form No. 184. WRIT OP ERROR. United States of America, ss. The President of the United States of America to the Judges of the District Court of the United States for the District of , Greeting : Because in the record and proceedings, as also in the rendition of the judgment of a plea which is in the District Court, before you, or some of you, between and , a manifest error hath happened, to the great damage of the said , as is said and appears by his complaint: we, being willing that such error, if any hath been, should FoEMs 1393 be duly corrected, and full and speedy justice done to the parties aforesaid in this behalf, do command you, if judgment be therein given, that then, under your seal, distinctly and openly, you send the record and proceedings aforesaid, with all things concerning the same, to the judges of the United States Circuit Court of Appeals for the Circuit, at the city of , together with this writ, so that you have the same at the said place, before the judges aforesaid, on the day of , 19 — , that the record and' proceedings aforesaid being inspected, the said judges of the United Statefs Circuit Court of Appeals for the Circuit may cause further to be done therein, to correct the error, what of right and according to the law and custom of the United States ought to be dolie. Witness the Honorable , associate justice of the Supreme Court of the United States, this day of , in the year of our Lord one thousand nine hundred and , and of the independence of the United States the one hundred and . Clerk of the Circuit Court of the United States of America for the Dis- trict of , in the Circuit. The foregoing writ is hereby allowed. 17. iSf. Judge. The execution of the judgment herein is hereby stayed pending the hearing and determination of this writ of error in the Circuit Court of Appeals for the Circuit, and the defendant is hereby admitted to bail in the sum of dollars ($- ). Note.— See ante, § 1643. §1853. Form No. 185. PETITION FOR CERTIORARI. [Caption.] To the Honorable the Chief Justice and the Associate Justices of the Supreme Court of the United States : Your petitioner, , brings this, his petition for a writ of certiorari, to bring before this court a final judgment of the United States Circuit Court of Appeals for the Circuit, confirming [or reversing] a decree of the District Court of the United States for the District of , whereby it is held : . Said judgment was entered' in a certain suit pending in said court under the style of v. ■ — . Brandenburg — 88 13&4 Beandenbueg. on 'Bankeuptcy The proceedings leading up to the judgments and decrees aforesaid are as follows: . . It is maintained that the Circuit Court of Appeals erred in entering the judgment aforesaid, and that this honorable court should require the said case to be certified to it for its review and determination in conformity with the provisions of the acts of Congress in such case made and provided, for the following reasons: [Here state such matters as the importance of the question; the diversity of opinions thereon as shown by different decisions of the lower courts, etc.] The contention of your petitioner is : "Wheeepoee, your petitioner prays that a writ of certiorari may be issued out of and under the seal of this court, directed to the Circuit Court of Appeals of the Circuit, commanding the said court to certify and send to this court, on a day certain to be therein designated, a final and complete transcript of the record and all proceedings of said Circuit Court of Appeals in the said* case herein entitled : , Appellant, v. , Appellee, No. , to the end that the said cause -may be reviewed and determined by this court, as provided by law ; and that- your petitioner -may have such other relief or remedy in the premises as to this court may_ seem appropriate, and that said judgment- of -the Gireuit- Court of Appeals in said case, and every part thereof, may be reviewed by this honorable court. And. your petitioner will ever pray. [Verification.] Attorney for Petitioner. § 1854. Form No. 186. CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS TO THE UNITED STATES SUPREME COURT. [Caption.] In this case, duly argued and submitted to this court, there arise questions of law, concerning which this court desires the instructions and advice of the Supreme Court of the United States. The facts so far as necessary for the determination of said questions of law are as follows: — '- — . The opinion of the District Court upon the hearing referred to above is reported in In re — -, , Fed. R. . The petitioner here, by his originaL petition, has presented the matters of law raised by the order so made by the District Court sitting in- bankrup tey.- The.questiqns.Qf law upon which this court desires the advice and instruction of the Sup-rem-e- Court-are : "FoBMS 1395 First. Second. These questions the court on this day certified and submitted to the Supreme Court of the United States for its proper decision. Dated , 19—. Note. — See ante, % 1665. Judges of the U. 8. Circuit Court of Appeals for the Cir- cuit, Sitting in Said Cause. § 1855. Form No. 187. CERTIFICATE OF CLERK TO TRANSCRIPT. United States of America, Southern District of New York, ss : I , clerk of the District Court of the United States of America for the District of New York, by virtue of the foregoing writ of error, and in obedience thereto, do hereby certify, that the pages, numbered from one to , inclusive, contain a true and complete transcript of the record and proceedings had in the said court in the cause of , Plaintiif in Error, against , Defendant in Error, as the same remain of record and on file in said office. In Testimony Whereof I have caused the seal of the said court to be hereunto affixed, at the city of , in the District of New York, this day of , in the year of our Lord one thousand nine hundred and — one hundred and — -, and of the independence of the United States , Clerk. § 1856. Form No. 188. STIPULATION AS TO TRANSCRIPT. [Caption.] To the Clerk of the Circuit Court of Appeals for the Circuit : Sir: It is hereby stipulated and agreed that the certified transcript of record heretofore filed herein in the office of the clerk of the Supreme Court of the United States, on the '- day of , , be taken as a return to the writ of certiorari granted herein on the 1396 Beandenbxtbg on Bankbuptct day of , , with the same force and effect as if filed in pur- suance of said writ. Dated . . df Attorney for Plaintiff in ^rror. Attorney for Defendant in Error, [A:..iAiiT 'm: :h;c;'^"; ;]!»'") .':i;;« GENERAL ORDERS IN BANKRUPTCY ADOPTED AND ESTABLISHED BY THE SUPREME COURT OF THE UNITED STATES, NOVEJIBER 28, 1898 [AS AMENDED] In pursuance of the powers conferred by the Constitution and laws upon the Supreme Court of the United States, and particularly Ijy the act of Congress approved July 1, 1898, entitled "A.n act to establish a uniform system of bankruptcy throughout the United State^," it is ordered, on this 28th day of November, 1898, that the following rules lie adopted and established as general orders in bankruptcy, to take effect on the first Monday, being the second day, of January, 1899. And it is further ordered that all proceedings in bankruptcy had before that day, in accordance with the act last aforesaid, and being in substantial con- formity either with the provisions of these general orders, or else with the general orders established by this court under the bankrupt act of 1867 an.d with any general rules or special orders of tbj courts in bank- ruptcy, stand good, subject, however, to such further regulation by rule or order of those courts as may be necessary or proper to carry into force and effect the bankrupt act of 1898 and the general orders of this court. DOCKET The clerk shall keep a docket, in which the cases shall be entered and numbered in the order in which they are commenced. It shall contain a memorandum of the filing of the petition and of the action of the court thereon, of the reference of the case to the referee, and of the transmission by him to the clerk of his certified record of the proceedings, with the dates thereof, and a memorandum of all proceedings in the case except those duly entered on the referee's certified record aforesaid. The docket shall be arranged in a manner convenient for reference, and shall at all times be open to public inspection. Sees. 163, 177. II PILING OP PAPERS The clerk or the referee shall indorse on each paper filed with him the day and hour of filing, and a brief statement of its character. Sees. 30, 163, 177. 1397 1398 Beandenbubg on Bankbuptcy III PROCESS All process, summons and subpoenas shall issue out of the court, under the seal thereof, and be tested by the clerk; and blanks, with the signa- ture of the clerk and seal of the , court, may, upon application, be furnished to the referees. Sees. 30, 145-149. IV CONDUCT. OP PE0CEEDIN6S Proceedings in bankruptcy may be conducted by the bankrupt in person in his own behalf, or by a petitioning or opposing creditor; but a creditor will only be allowed to manage before the court his individual interest. Every party may appear and conduct the proceedings by attorney, who ^all be an attorney or counsellor authorized to practice in the circuit or district court. The name of the attorney or counsellor, with his place of business, shall be entered upon the docket, with the date of Ihe entry. All papers or proceedings offered by an attorney to be filed shall be indorsed as above required, and orders granted on motion shall contain the name of the party or attorney making the motion. Notices iind orders which are not, by the act or by these general orders, required to be served on the party personally may be served upon his attorney. Sees. 9, 177, 454. V FRAME OF PETITIONS All petitions and the schedules filed therewith shall be printed or written out plainly, without abbreviation or interlineation, except where such abbreviation and interlineation may be for the purpose of reference. Sees. 153, 400. VI PETITIONS IN DIFFERENT DISTRICTS In case two or more petitions shall be filed against the same individual in different districts, the first hearing shall be had in the district in Avhich the debtor has his domicile, and the petition may be amended by inserting an allegation of an act of bankruptcy committed at an earlier date than that first alleged, if such earlier act is charged in either of the other peti- tions ; and in ease of two or more petitions against the same partnership in different courts, each having jurisdiction over the case, the petition first filed shall be first heard, and may be amended by the insertion of an allegation of an earlier act of bankruptcy than that first alleged, if such earlier act is charged in either of the other petitions ; and, in either ease, the proceedings upon the other petitions may be stayed until an adjudica- tion is made upon the petition first heard ; and the court which makes the first adjudication of bankruptcy shall retain jurisdiction over all pro- ceedings therein until the same shall be closed. In case two or more peti- General Obdebs in Bankeuptcy 1399 tions shall be filed in different districts by different members of the same partnership for an adjudication of the bankruptcy of said partnership^ the court in which the petition is first filed, having jurisdiction, shall take and retain jurisdiction over all proceedings in such bankruptcy until the same shall be closed; and if such petitions shall be filed in the same district, action shall be first had upon the one first filed. But the, court so retaining jurisdiction shall, if satisfied that it is for the greatest con- venience of parties in interest that another of said courts should proceed with the cases, order them to be transferred to that court. Sees. 14, 27. VII PRIORITY OF PETITIONS Whenever two or more petitions shall be filed by creditors against a common debtor, alleging separate acts of bankruptcy committed by said debtor on different days within four months prior to the filing of said petitions, and the debtor shall appear and show cause against an adjudi- cation of bankruptcy against him on the petitions, that petition shall be first heard and tried which alleges the commission of the ealrliest act of bankruptcy ; and in case the several acts of bankruptcy are alleged in the different petitions to have been committed on the same day, the court before which the same are pending may order them to be consolidated, and proceed to a hearing as upon one petition ; and if an adjudication of bankruptcy be made upon either petition," or for the commission of a single act of bankruptcy, it shall not be necessary to proceed to a hearing upon the remaining petitions, unless proceedings be taken by the debtor for the purpose of causing such adjudication to be annulled or vacated. Sees. 9, 14, 27, 113, 247. VIII PROCEEDINGS IN PARTNERSHIP CASES Any member of a partnership, who refuses to join in a petition to have the partnership declared bankrupt, shall be entitled to resist the prayer of the petition" in the same manner as if the petition had been filed by a creditor of the partnership, and notice of the filing of the petition shall be given to him in the same manner as provided by law and by these rules in the case of a debtor petitioned against ; and he shall have the right to appear at the time fixed by the court for the hearing of the petition, and to make proof, if he can, that the partnership is not insolvent or has not committed an act of bankruptcy, and to make all defenses which any debtor proceeded against is entitled to take by the provisions of the act ; and in case an adjudication of bankruptcy is made upon the petition, such partner shall be required to file a schedule of" his debts and an inventory of his property in the same manner as is required by the act in cases of debtors against whom adjudication of bankruptcy shaU be made. Sees. 189-197, 263, 270-276, 399, 836-840. IX SCHEDULE IN INVOLUNTAHY BANKRUPTCY ' In all cases of .involuntary . bankruptcy- in which the bankrupt is absent or can not be found, it shall be the duty of the petitioning creditor to file, 1400 Bbandenbtjbg on Bankbuptct within five days after the date of the adjudication, a schedule giving the names and places of residence of all the creditors of the bankrupt, accord- ing to the best information of the petitioning creditor. If the debtor is found, and is served with notice to furnish a schedule of his creditors and fails to do so, the petitioning creditor may apply for an attachment against the debtor, or may himself furnish such schedule as aforesaid. Sees. 344, 398. INDEMNITT FOB EXPENSES Before incurring any expense in publishing or mailing notices, or in travelling, or in procuring the attendance of witnesses, or in perpetu- ating testimony, the clerk, marshal, or referee may require, from the bankrupt or other person in whose behalf the duty is to be performed, indeilinity for such expense. Money advanced for this purpose by the bankrupt or other person shall be repaid him out of the estate as part of the cost of administering the same. Sees. 31, 34, 365, 669. XI AMENDMENTS The court may allow amendments to the petition and schedules on application of the petitioner. Amendments shall be printed or written, signed and verified, like original petitions and schedules. If amendments are made to separate schedules, the same must be made separately, with proper references. In the application for leave to amend, the petitioner shall state the caiise rf the error in the paper originally filed. Sees. 164-173, 408, 993. xn DUTIES OF KEFEEEE 1. The order referring a case to a referee shall name a day upon which the bankrupt shall attend before the referee; and from that day the bankrupt shall be subject to the orders of the court in all matters relating to his bankruptcy, and may receive from the referee a protection against arrest, to continue until the final adjudication on his application for a discharge, unless suspended or vacated by order of the court. A copy of the order shall forthwith be sent by mail to the referee, or be delivered to him personally by the clerk or other ofiicer of the court. And there- after all the proceedings, except such as are required by the act or by these general orders to be had before the judge, shall be had before the Sees." 9, 10, 30, 322, 333, 334, 422, 424, 425. 2. The time when and the place where the referees shall act upon the matters arising under the several cases referred to them shall be fixed by special order of the judge, or by the referee ; and at such times and places the referees may perform the duties which they are empowered by the act to perform. 3. Applications for a discharge, or for the approval of a composition, or for an injunction to stay proceedings of a court or officer of the United Genebal Oedees IK Bankbuptct 1401 States or of a State, shall be heard and decided by the judge. But he may refer such an application, or any specified issue arising thereon, to the referee to ascertain and report the facts. Sees. 1040, 1201, 1214, 15S0. XIII APPOINTMENT AND REMOVAL OP TRUSTEE The appointment of a trustee by the creditors shall be subject to be approved or disapproved by the referee or by the judge ; and he shall be removable by the judge only. Sees. 9, 682, 700. XIV NO OFFICIAL OE GENERAL TRUSTEE No official trustee shall be appointed by the court, nor any general trustee to act in classes of cases. Sec. 675. XV TRUSTEE NOT APPOINTED IN CERT.\IN CASES If the schedule of a voluntary bankrupt discloses no assets, and if no creditor appears at the first meeting, the court may, by order setting out . the facts, direct that no trustee be appointed ; but at any time thereafter a trustee may be appointed, if the court shall deem it desirable. If no trustee is appointed as aforesaid, the court may order that no meeting of the creditors other than the first meeting shall be called. Sees. 435, 443, 678. XVI NOTICE TO TRUSTEE OF HIS APPOINTMENT It shall be the duty of the referee, immediately upon the appointment and approval of the trustee, to notify him in person or by mail of his appointment ; and the notice shall require the trustee forthwith to notify the referee of his acceptance or rejection of the trust, and shall contain a statement of the penal sum of the trustee's bond. See. 684. XVII DUTIES OF TRUSTEE The trustee shall, immediately upon entering upon his duties, prepare a complete inventory of all the property of the bankrupt that comes into his possession. The trustee shall make report to the court, within twenty days after receiving the notice of his appointment, of the articles set off to the bankrupt by him, according to the provisions of the forty-seventh section of the act, with the estimated value of each article, and any creditor may take exceptions to the determination of the trustee within twenty days after the filing of the report. The referee may require the 1402 Bbandenbubg on Bankbuptcy exceptions to be argiied before him, and shall certify them to the court for final determination at the request of either party. In case the trustee shall neglect to file any report or statement which it is made his duty to file or make by the act, or by any general order in bankruptcy; within five days after the same shall be due, it shall be the duty of the referee to make an order requiring the trustee to show cause before the judge, at a time specified in the order, why he should not be removed from office. The referee shall cause a copy of the order to be served upon the trustee at least seven days before the time fixed for the hearing, and proof of the service thereof to be delivered to the clerk. All accounts of trustees shall be referred as of course to the referee for audit, unless otherwise specially ordered by the court. Sees. 713-740, 994. XVIII SALE OF PEOPEETY v 1. All sales shall be by public auction unless otherwise ordered by the court. Sees. 727, 1275-1284, 1364. 2. Upon application to the court, and for good cause shown, the trustee may be authorized to sell any specified portion of the bankrupt's estate at private sale ; in which ease he shall keep an accurate account of each article sold, and the price received therefor, and to whom sold; which account he shall file at once with the referee. See. 1278. 3. Upon petition by a bankrupt, creditor, receiver or trustee, setting forth that a part or the whole of the bankrupt's estate is perishable, the nature and location of such perishable estate, and that there wiU be loss if the same is not sold immediately, the court, if satisfied of the facts stated and that the sale is required in the interest of the estate, may order the same to be sold, with or without notice to the creditors, and the pro- ceeds to be deposited in court. Sees. 220, 727, 1279. XIX ACCOUNTS OP MARSHAL The marshal shall make return, under oath, of his actual and neces- sary expenses in the service of every warrant addressed to him, and for custody of property, and other services, and other actual and necessary expenses paid by him, with vouchers therefor whenever practicable, and also with a statement that the amounts charged by him are just and reasonable. Sees. 35, 1344. XX PAPERS FILED AFTER REFERENCE Proofs of claims and other papers filed subsequently to the reference, except such as call for action by the judge, may be filed either with the referee or with the clerk. Sec. 603. General Orders in Bankruptcy 1403 XXI PROOF OF DEBTS 1. Depositions to prove claims against a bankrupt's estate shall be correctly entitled in the court and in the cause. When made to prove a debt due to a partnership, it must appear on oath that the deponent is a member of the partnership ; when made by an agent, the reason the depo- sition is not made by the claimant in person must be stated ; and when made to prove a debt due to a corporation, the deposition shall be made by the treasurer, or, if the corporation has no treasurer, by the officer whose duties most nearly correspond to those of treasurer; if the treas- urer or corresponding officer is not within the district wherein the bank- ruptcy proceedings are pending, the deposition may be made) by some officer or agent of the corporation having knowledge of the facts. Depo- sitions to prove debts existing in open account shall state when the debt became or will become due ; and if it consists of items maturing at differ-r ent dates the average due date shall be stated, in default of which it shall not be necessary to compute interest upon it. All such, depositions shall contain an averment that no note has been received for such account, nor any judgment rendered thereon. Proofs of debt received by any trustee shall be delivered to the referee to whom the; cause is referred. Sees. 185, 595, 607-614. 2. Any creditor may file with the referee a request that all notices to which he may be entitled shall be addressed to him at any place, to' be designated by the post-office box or street number, as he may appoint ; and thereafter, and until some other designation shall be made by such creditor, all notices shall be so addressed ; and in other eases notices shall be addressed as specified in the proof of debt. Sec. 342. 3. Claims which have been assigned before proof shall be supported by a deposition of the owner at the time of the commencement of proceed- ings, setting forth the true consideration of the debt and that it is entirely unsecured, or if secured, the security, as is required in proving secured claims. Upon the filing of satisfactory proof of the assignment of a claim proved and entered on the referee 's docket, the referee shall immediately give notice by mail to the original claimant of the filing of such, proof of assignment j and, if no objection be entered within ten days, or within further time allowed by the referee, he shall make an order subrogating the assignee to the original claimant. If objection be made, ;he shall proceed to hear and determine the matter. See. 610. 4. The claims of persons contingently liable for the bankrupt may be proved in the name of the creditor when known by the party contingently liable. When the name of the creditor is unknown, such claim may be proved in the name of the party contingently liable ; but no dividend shall be paid upon such claim, except upon satisfactory proof that it will diminish pro tanto the original debt. Sec. 597. 5. The execution of any letter of attorney to represent a creditor, or of an assignment of claim after proof , may be proved or acknowledged bpfore a referee, or a. United States commissioner, or a notary puhJiCi 1404 Bbandenbttbg on Bankbtjptcy When executed on behalf of a partnership or of a corporation, the per- son executing the instrument shall make oath that he is a member of the partnership, or a duly authorized officer of the corporation on whose behalf he acts. When the person executing is not personally known to the officer taking the proof or acknowledgment, his identity shall be estab- lished by satisfactory proof. Sees. 454, 463. 6. When the trustee or any creditor shall desire the re-examina,tion of any claim filed against the bankrupt's estate, he may apply by petition to the referee to whom the case is referred for an order for such re-examina- tion, and thereupon the referee shall make an order fixing a time for hear- ing the petition, of which due notice shall be given by mail addressed to the creditor. At the time appointed the referee shall take the examina- tion of the creditor, and of any witnesses that may be called by either party, and if it shall appear from such examination that the claim ought to be expunged or diminished, the referee may order accordingly. Sees. 444, 662-669. XXII TAKING OP TESTIMONY The examination of witnesses before the referee may be conducted by the party in person or by his counsel or attorney, and the witnesses shall be subject to examination and cross-examination, which shall be had in conformity with the mode now adopted in courts of law. A deposition taken upon an examination before a referee shall be taken down in writing by him, or under his direction, in the form of narrative, unless he determines that the examination shall be by question and answer. When completed it shall be read over to the witness and signed by him in the presence of the referee. The referee shall note upon the deposition any question objected to, with his decision thereon ; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just. Sees. 463-506. XXIII ORDERS OP REPEREE In all orders made by a referee, it shall be recited, according as the fact may be, that notice was given and the manner thereof ; or that the order was made by consent ; or that no adverse interest was represented at the hearing; or that the order was made after hearing adverse in- terests. Sec. 348. XXIV TRANSMISSION OP PROVED CLAIMS TO CLERK The referee shall forthwith transmit to the clerk a list of the claims proved against an estate, with the names and addresses of the proving creditors. XXV SPECIAL MEETING OP CREDITORS Whenever, by reason of a vacancy in the office of trustee, or for any other cause, it becomes necessary to call a special meeting of the creditors General. Obdebs in Bankeuptoy 1405 in order to carry out the purposes of the act, the court may call such a meeting, specifying in the notice the purpose for which it is called. Sec. 443. XXVI ACCOUNTS OP REFEREE Every referee shall keep an accurate account of his travelling and inci- dental expenses, and of those of any clerk or other officer attending him in the performance of his duties in any case which may be referred to him; and shall make return of the same under oath to the judge, with proper vouchers when vouchers can be procured, on the first Tuesday in each month. Sees. 367, 368, 1344. XXVII REVIEVr BY JUDGE When a bankrupt, creditor, trustee, or other person shall desire a re- view by the judge of any order made by the referee, he shall file with the referee his petition therpf or, setting out the error complained of; and the referee shall forthwith certify to the judge the question presented, a summary of the evidence relating thereto, and the finding and order of the referee thereon. Sees. 355-361, 408. XXVIII REDEMPTION OP PROPERTY AND COMPOUNDING OP CLAIMS Whenever it may be deemed for the benefit of the estate of a bankrupt to redeem and discharge any mortgage or other pledge, or deposit or lien, upon any property, real or personal, or to relieve said property from any conditional contact, and to tender performance of the conditions thereof, or to compound and settle any debts or other claims due or belonging to the estate of the bankrupt, the trustee, or the bankrupt, or any creditor who has proved his debt, may file his petition therefor; and thereupon the court shall appoint a suitable time and place for the hearing thereof, notice of which shall be given as the court shall direct, so that all credi- tors and other persons interested may appear and show cause, if any they have, why an order should not be passed by the court upon the peti- tion authorizing such act on .the part of the trustee. Sees. 724, 726, 773, 872, 1188. XXIX PAYMENT OP MONEYS DEPOSITED No moneys deposited as required by the act shall be drawn from the depository unless by cheek or warrant, signed by the clerk of the court, or by a trustee, and countersigned by the judge of the court, or by. a referee designated for that purpose, or by the clerk or his assistant under an order made by the judge, stating the date, the sum, and the account for which it is drawn; and an entry of the substance of such check or 1406 Bkandenbukg on Bankbuptcy warrant, with the date thereof, the sum drawn for, and the account for which it is drawn, shall be forthwith made in a book kept for that pur- pose by the trustee or his clerk ; and all checks and drafts shall be entered in the order of time in which they are drawn, and shall be numbered in the ease of each estate. A copy of this g'eneral order shall be furnished to the depository, and also the name of any referee or clerk authorized to countersign said cheeks. Sec. 341. XXX IMPRISONED DEBTOR If, at the time of preferring his petition, the debtor shall be im- prisoned, the court, upon application, may order him to be produced upon habeas corpus, by the jailor or any officer in whose custody he may be, before the referee, for the" purpose of testifying in any matter relating to his bankruptcy ; and, if committed after the filing of his petition upon process in any civil action founded upon a claim provable in bankruptcy, the court may, upon like application, discharge him from such imprison- ment. If the petitioner, during the pendency of the proceedings in bank- ruptcy, be arrested or imprisoned upon process in any civil action, the district court, upon his application, may issue a writ of habeas corpus to bring him before the court to ascertain whether such process has been issued for the collection of any claim provable in bankruptcy, and if so provable he shall be discharged ; if not, he shall be remanded to the cus- tody in which he may lawfully be. Before granting the order for dis- charge the court shall cause notice to be served upon the creditor or his attorney, so as to give him an opportunity of appearing and being heard before the granting of the order. See. 427. XXXI PETITION FOR DISCHARGE The petition of a bankrupt for a discharge shall state concisely, in accordance with the provisions of the act and the orders of the court, the proceedings in the case and the acts of the bankrupt. XXXII OPPOSITION TO DISCHARGE OR COMPOSITION A creditor opposing the application of a bankrupt for his discharge, or for the confirmation of a composition, shall enter his appearance in opposition thereto on the day when the creditors are required to show cause, and shall file a specification in writing of the grounds of his opposi- tion within ten days thereafter, unless the time shall be enlarged by spe- cial order of the judge. Sees. 1213, 1458, 1468. XXXIII ARBITRATION •Whenever a trustee shall make application to the court for authority to submit a -controversy arising in the settlement of a demand against a G-BNEEAL . ObDEES IN" 'BAlTKEUPfCY 1407 bankrupt 's estate, or for a debt due to it, to the determination of arbitra- tors, or for authority to compound and settle such controversy by agreement with the other party, the application shall clearly and dis- tinctly set forth the subject-matter of the controversy, and the reasons why the trustee thinks it proper and most for the. interest of the estate that the controversy should be settled by arbitration or otherwise. Sec9. 1186-1194, XXXIV COSTS IN CONTESTED ADJUDICATIONS In cases of involuntary bankruptcy, whem the debtor, resists an adjudir cation, and the court, after hearing, adjudges the debtor a bankrupt, the petitioning creditor shall recover, and be paid out of the estate, the. same costs that are allowed to a party recovering in. a suit in equity ; and if the petition is dismissed, the debtor shall recover like costs .against, the petitioner. Sees. 1319, 1335, 1337, 1360. XXXV 1. The fees allowed by the act to clerks shall be in full compensation for all services performed by them in regard to filing petitions or other papers required by the act to be filed with them, or in certifying or de- livering papers or copies of records to referees or other officers, or in receiving or paying out money; but shall not include copies' furnished to other persons, or expenses necessarily incurred in publishing or mail- ing notices or other papers. 2. The compensation of referees, prescribed by the act, shall be in full compensation for all services performed ^by them under the act, or under these general orders; but shall not include expenses necessarily incurred by them in publishing or mailing notices, in travelling, or in perpetuating testimony, or other expenses necessarily incurred in the performance of their duties under the act and allowed by special order of the judge. Sees. 34, 365. 3. The compensation allowed to trustees by the act shall be in full com- pensation for the services performed by them; but shall not include ex- penses necessarily incurred in the performance of their duties and allowed upon the settlement of their accounts. Sec. 705. 4. In any ease in which the feesi.of .the clerk, referee and trustee are not required by the act to be paid by a debtor before filing his petition to be adjudged a bankrupt, the judge, at any time during the pendency of the proceedings in bankruptcy, may order those fees to be paid out of the estate ; or may, after notice to the bankrupt, and satisfactory proof that he then has or can obtain the money with which to pay those fees, order him to pay them within a time specified, and, if he fails to do so, may order his petition to be dismissed. He may also, pending such pro- ceedings, both in voluntary and involuntary cases, order the com- missions of referees and trustees to be paid immediately after such commissions accrue and are earned. Sees. 82, S4, 363, 369, 371, 1483. 1408 Bbandenbueg on Bankbuptcy XXXVI APPEALS 1. Appeals from a court of bankruptcy to a circuit court of appeals, or to the supreme court of a Territory, shall be allowed by a judge of the court appealed from or of the court appealed to, and shall be regu- lated, except as otherwise provided in the act, by the rules governing appeals in equity in the courts of the United States. Sec. 1646. 2. Appeals under the act to the Supreme Court of the United States from a circuit court of appeals, or from the supreme court of a Territory, or from the supreme court of the District of Columbia, or from any court of bankruptcy whatever, shall be taken within thirty days after the judgment or decree, and shall be allowed by a judge of the cpurt appealed from, or by a justice of the Supreme Court of the United States. Sees. 1667. See also Acts of 1915 and 1916, p. 1450, post. 3. In every case in which either party is entitled by the act to take an appeal to the Supreme Court of the United States, the court from which the appeal lies shall, at or before the time of entering its judgment or decree, make and file a finding of the facts, and its conclusions of law thereon, stated separately; and the record transmitted to the Supreme Court of the United States on such an appeal shall consist only of the pleadings, the judgment or decree, the finding of facts, and the con- clusions of law. Sec. 1666. XXXVII GENERAL PROVISIONS In proceedings in equity, instituted for the purpose of carrying into effect the provisions of the act, or for enforcing the rights and remedies given by it, the rules of equity practice established by the Supreme Court of the United States shall be followed as nearly as may be. In proceed- ings at law, instituted for the same purpose, the practice and procedure in cases at law shall be followed as nearly as may be. But the judge may, by special order in any case, vary the time allowed for return of process, for appearance and pleading, and for taking testimony and publication, and may otherwise modify the rules for the.preparation of any particular case so as to facilitate a speedy hearing. Sees. 178, 180, 243, 357, 1093. XXXVIII FORMS The several forms annexed to these general orders shall be observed and used, with such alterations as may be necessary to suit the circumstances of any particular case. BANKRUPTCY ACT OF 1898, AS AMENDED [Under the various provisions of the Act will be found references to specific sections of the text where such provisions are treated.] CHAPTER I Definitions § 1. Meaning of words and phrases. Meaningf of words and phrases. Sec. 1. (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 filed" shall include a person who has filed a voluntary petition ; Sees. 883, 1042. (2) "adjudication" shall mean the date of the entry of a decree that the defendant, in a bankruptcy proceeding, is a bankrupt, or if such decree is appealed from, then the date when such decree is finally con- firmed ; Sec. 1069. (3) "appellate courts" shall include the circuit courts of appeals of the linited States, the supreme courts of the Territories, and the Supreme Court of the United States ; (4) "bankrupt" shall include a person- against whom an involuntary petition or an application to set a composition aside or to revoke a dis- charge has been filed, or who has filed a voluntary petition, or who has been adjudged a bankrupt ; See. 423. (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 associations organized under laws making the capital subscribed alone responsible for the debts of the association ; (7) "court" shall mean the court of bankruptcy in which the proceed- ings are pending, and may include the referee ; Sees. 332, 333, 1168, 1192, 1345, 1580. (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, ami of Alaska ; ' See. 8. (9) "creditor" shall include anv one who owns a demand or claim 1409 Brandenburg — 89 1410 Bkandenbueg on Bankruptcy provable in bankruptcy, and may include his duly authorized agent, attorney, or proxy ; Sees. 454, 595, 927, 1202. (10) "date of bankruptcy" or "time of bankruptcy," or "commence- ment 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 ; See. 67. (12) "discharge" shall mean the release of a bankrupt from all of his debts which are provable in bankruptcy, except such as are excepted 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 States or the Congress of the United States as a holiday or as a day of public fasting or thanksgiving ; See. 947. (15) a person shall be deemed insolvent within the provisions of this Act whenever the aggregate of his property exclusive of any property 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 sufScient in amount to pay his debts ; Sees. 40, 41, 880. (16) "judge" shall mean a judge of a court of bankruptcy, not includ- ing the referee ; Sec. 28. (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 ; Sees. 36, 471. (19) "persons" shall include corporations, except where otherwise specified, and officers, partnerships, and women, and when used with reference to the commission of acts which are herein forbidden shall include persons who are participants in the forbidden acts, and the agents, officers, and members of the board of directors or trustees, or other similar controlling bodies of corporations; Sec. 27. (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 bankruptcy by a debtor therein named ; (21) "referee" shall mean the referee who has jurisdiction of the case or to whom the case has been referred, or any one acting in his stead; (22) "conceal" shall include secrete, falsify, and mutilate; (23) "secured creditor" shall include a creditor who has security for Bankeuptcy Act op 1898 1411 his debt upon the property of the bankrupt of a nature to be assignable under this Act, or who owns such a debt for which some indorser, surety, or other persons secondarily liable for the bankrupt has such security upon the bankrupt 's assets ; Sees. 310, 451. (24) "States" shall include the Territories, the Indian Territory, Alaska, and the District of Columbia ; (25) "transfer" shall include the sale and every other and different mode of disposing of or parting with property, or the possession of prop- erty, absolutely or conditionally, as a payment, pledge, mortgage, gift, or security ; Sees. 785, 952. (26) "trustee" shall include all of the trustees of an estate; (27) "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 ; Sees. 1369-1375. (28) words importing the masculine gender may be applied to and include corporations, partnerships, and women ; (29) words importing the plural number may be applied to and mean only a single person or thing ; (30) words importing. the singular number may b€ applied to and mean several persons or things. [1 July, 1898, 30 Stat. L., 544, e. 541, s. 1; 2 Supp., 843.] CHAPTEE II Creation of Courts of Bankruptcy and Their Jurisdiction § 2. Courts of bankruptcy. Courts of bankruptcy. Sec. 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 established, or as they may be hereafter changed, with such jurisdiction at law and in equity as will enable them to exercise original jurisdiction in bankruptcy proceedings, in vacation in chambers and during their respective terms, as they are now or may be hereafter held, to Sees. 8-10, 12, 13, 19, 22, 23, 25, 27, 243, 262, 333, 1099. (1) adjudge persons bankrupt -yvho have had their principal place of business, resided, or had their domicile within their respective territo- rial jurisdictions for the preceding six months, or the greater portion thereof, or who do not have their principal place of business, reside, or have their domicile within the United States, but have property within their jurisdictions, or who have been adjudged bankrupts by courts of 1412 Beandenbukg on Bankbtjptcy competent jurisdiction without the United States and have property within their jurisdictions; Sees. 8, 14-17, 21, 69, 156. (2) allow claims, disallow claims, reconsider allowed or disallowed claims, and allow or disallow them against bankrupt estates ; Sees. 8, 668. (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 ; Sees. 8, 198-242, 1168, 1357. (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 ; . Sees. 8, 723, 1609. ' (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, and allow such officers additional compensation for such services, as provided in section forty-eight ; Sees. 8, 13, 19, 707, 708, 1333. (6) bring in and substitute additional persons or parties in proceed- ings in bankruptcy when necessary for the complete determination of a matter in controversy ; See. 8. (7) cause the estates of bankrupts to be collected, reduced to money and distributed, and determine controversies in relation thereto, except as herein otherwise provided ; Sees. 8, 1096, 1406-1441. (8) close estates, whenever it appears that they have been fully admin- istered, by approving the final accounts and discharging the trustees, and reopen them whenever it appears they were closed before being fully . administered ; Sees. 1427-1432. (9) confirm or reject compositions between debtors and their creditors, and set aside compositions and reinstate the eases ; Sees. 8, 1241-1252. (10) consider and confirm, modify or overrule, or return, with instruc- tions for further proceedings, records and findings certified to them by referees ; Sees. 8, 356, 359. (11) determine all claims of bankrupts to their exemntions • Sees. 8, 985-1026. *^ ' (12) discharge or refuse to discharge bankrupts and set aside dw- charges and reinstate the cases ; Sees. 8, 1442-1520. Bankbuptcy Act of 1898 1413 (13) enforce obedience by bankrupts, officers, and other persons to all lawful orders, by fine or imprisonment or fine and imprisonment ; Sees. 8, 18, 394, 432, 475, 1577-1608. (14) extradite bankrupts from their respective districts to other districts ; Sees. 8, 430-432. (15) make such orders, issue such process, and enter such judgments in addition to those specifically provided for as may be necessary for the enforcement of the provisions of this Act ; Sees. 8, 10, 18, 248, 427. (16) punish persons for contempts committed before referees: Sees. 8, 394, 475, 1577-1608. (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 hearings and after notices to them ; Sees. 8, 700. (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; Sees. 8, 306, 336. (19) transfer cases to other courts of bankruptcy; and Sees. 8, 27. (20) exercise ancillary jurisdiction "over persons or. property within their resfpective territorial limits in aid of a receiver or trustee appointed in any bankruptcy proceedings pending in any other court 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. [1 July, 1898, 30 Stat. L., 545, o. 541, s. 2.; 2 Supp., 845. 5 Feb., 1903, 32 Stat. L., 797, c. 487, s. 1. 25 June, 1910, 36 Stat. L., 838, c. 412, ss. 1, 2.] Sees. 8, 12, 13, 1103, 1173, 1254. CHAPTER III Bankrupts S 3. Acts of bankruptcy. § 10. Extradition of bankrupts. § 4. Who may become bankrupts. § 11. Suits b^ and against bankrupts. § 5. Partners. i 12. Compositions, when confirmed. S6. Exemptions of bankrupts. §13. Compositions, when set aside. § 7. Duties of bankrupts. § 14. Discharges, when granted. S 8. Death or insanity of bankrupts. § 35. Discharges, when revoked. § 9. Protection and detention of bank- § 16. Co-debtors of bankrupts. rupts. § 1'^' Debts not affected by discharge. Acts of bankruptcy. Sec. 3. (a) Acts of bankruptcy by a person shall consist of his having Sees. 3, 9, 39, 160, 161, 267. 1414 Bkandenbubg on Bankruptcy \ (1) conveyed, transferred, concealed, or removed, or permitted to be concealed or removed, any part of his property with intent to hinder, delay, or defraud his creditors, or any of them ; or Sees. 37, 42, 45-49, 254. (2) transferred, while insolvent, any portion of his property to one or more of his creditors with intent to prefer such creditors over his other creditors ; or Sees. 37, 40, 41, 43-48, 50, 162. (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 prefer- ence vacated or discharged such preference ; or Sees. 37, 40, 41, 51, 54, 254. (4) made a general assignment for the benefit of his creditors, or, being insolvent, applied for a receiver or trustee for his property or because of insolvency a receiver or trustee has been put in charge of his property under the laws of a State, of a Territory, or of the United States; or Sees. 20, 37, 41, 52, 94. (5) admitted in writing his inability to pay his debts and his willing- ness to be adjudged a bankrupt on that ground. Sees. 37, 52, 53, 84, 85, 250. (6) A petition may be filed against a person who is insolvent and who has committed an act of bankruptcy within four months after the com- mission of such act. Such time shall not expire until four months after Sees. 50, 54, 55, 181. (1) 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 record- ing or registering is reqitired 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. See. 21. (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 of 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. Sees. 55, 181, 251, 254. (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 testimony as to all Bankruptcy Act of 1898 1415 matters tending to establish solvency or insolvency, and in ease of his failure to so attend and submit to examination the burden of proving his solvency shall rest upon him. Sees. 56, 254. (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 peti- tion is dismissed, to the respondent, his or her personal representatives, all costs, expenses, and damages occasioned by such seizure, taking, and detention of the property of the alleged bankrupt. If such petition be dismissed by the court or withdrawn by the petitioner, the respondent or respondents shall be allowed all costs, counsel fees, expenses, and damages occasioned by such seizure, taking, or detention of such property. Counsel fees, costs, expenses, and damages shall be fixed and allowed by the court, and paid by the obligors in such bond. [1 July, 1898, 30 Stat. L., 546, c. 541, s. 3 ; 2 Supp., 846. 5 Feb., 1903, 32 Stat. L., 797, e. 487, s. 2.] Sees. 204, 306-308. Who may become bankrupts. Sec. 4, (a) Any person, except a municipal, railroad, insurance, or banking corporation, shall be entitled to the benefits of this Act as a voluntary bankrupt. Sees. 40, 58-65, 71, 84, 89, 110-114, 159, 392. (6) Any natural person, except a wage-earner or a person engaged chiefly in farming or the tillage of the soil, any unincorporated company, and any moneyed, business, or commercial corporation, except a munici- pal, railroad, insurance, or banking corporation, owing debts to the amount of one thousand dollars or over, may. be adjudged an involuntary bankrupt upon default or an impartial trial, and shall be subject to the provisions and entitled to the benefits of this Act. The bankruptcy of a corporation shall not release its officers, directors, or stockholders, as such, from any liability under the laws of a State or Territory or of the United States. [1 July, 1898, 30 Stat. L., 547, c. 541, s. 4 ; 2 Supp., 847. 5 Feb., 1903, 32 Stat. L., 797, c. 487, s. 3. 25 June, 1910, 36 Stat. L., 839, c. 412, ss. 3, 4.1 Sees. 58, 59, 61, 62, 65-83, 85-96, 109, 117, 118, 159, 181, 392, 1533. Partners. Sec. 5. (a) A partnership during the continuation of the partnership business, or after its dissolution and before , the final settlement thereof, may be adjudged a bankrupt. Sees. 41, 45, 88, 91, 94, 97-109, 138, 189-197, 270-276, 295, 391, 557-559, 836-840, 935, 1010. (b) The creditors of the partnership shall appoint the trustee ; in other respects so far as possible the estate shall be administered as herein pro- vided for other estates. Sees. 449, 677. 1416 Bkandbnbukg on Bankbuptcy (c) 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 trustees shall keep separate accounts of the partnership prop- erty and of the property belonging to the individual partners. Sec. 721. (e) The expenses shall be paid from the partnership property and the individual property in such proportions as the court shall determine. Sees. 1312-1344. (/) The net proceeds of the partnership property shall be appropri- ated 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 partner- ship assets and be applied to the payment of the partnership debts. Should any surplus of the partnership property remain after paying the partnership debts, such surplus shall be added to the assets of the indi^ vidual partners in the proportion of their respective interests in the partnership. Sees. 1433-1441. (g) The court may permit the proof of the claim of the partnership estate against the individual estates, and vice versa, and may marshal the assets of the partnership estate and individual estates so as to prevent preferences and secure the equitable distribution of the property of the several estates. Sec. 1440. (h) In the event of one or more but not all of the members of a part- nership 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 expeditiously as its nature will permit, and account for the interest of the partner or part- ners adjudged bankrupt. [1 July, 1898, 30 Stat. L., 547, c. 541, s. 5; 2 Supp., 847.] Secs.1 103, ;107, 840. Exemptions of bankrupts. Sec. 6. (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. [1 July, 1898, 30 Stat. L., 548, c. 541, s. 6 ; 2 Supp., 848.] Sees. 40, 955, 985-1038, 1262. Duties of bankrupts. Sec. 7. The bankrupt shall Sees. 414-421. (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 discharge, if filed; Sees. 393, 439. (2) comply with all lawful orders of the court ; Sees. 394, 724, 1503. Bankbuptcy Act or 1898 1417 (3) examine the correctness of all proofs of claims filed against his estate ; Bees. 396, 653. (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 ; See. 1294. (6) immediately inform his trustees 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 resi- dences, if known, if unknown, that fact to be stated, the amounts due each of them, the consideration, thereof, the security held by them, if any, and a claim for such exemptions as he may be entitled to, all in triplicate, one copy of each for the clerk, one for the referee, and one for the trustee ; and Sees. 33, 344, 397-412, 743, 992. (9) when present at the first meeting of his creditors, and at such other times as the court shall order, submit to an examination concerning the 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 admin- istration 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 bankrupt shall be paid his actual expenses from the estate when examined or required to attend at any place other than the city, town, or village of his residence. [1 July, 1898, 30 Stat. L., 548, c. 541; 2 Supp., 848.] Sees. 215, 411, 465, 468, 487, 494, 506, 1595, 1610, 1623, 1628. Death or insanity of bankrupts. Sec. 8. (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 insE^ne : Provided, That in case of death the widow and children shall be entitled to all rights of dower and allow- ance fixed by the laws of the State of the bankrupt's residence. [1 July, 1898, 30. Stat. L., 549, c. 541, s. 7 ; 2 Supp., 848.] Sees. 377-392, 811, 1310. i Protection and detention of bankrupts. Sec. 9. (a) A bankrupt shall be exempt from arrest upon civil process except, in, the following cases: (1) When issued from a court of bankruptcy for contempt or disobedience of its lawful orders; (2) when issued, from; a State court 1418 Brastdenbueg on Bankeuptoy having jurisdiction, and served within such State, upon a debt or claim from which his discharge in bankruptcy would not be a release, and in such case he shall be exempt from such arrest when in attendance upon a court of bankruptcy or engaged in the performance of a duty imposed by this Act. Sees. 422-427. (&) The judge njay, at any time after the filing of a petition by or against a person, and before the expiration of one month after the quali- fication 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 bankruptcy, issue a warrant to the marshal, directing him to brinig such bankrupt forthwith before the court for examination. If upon hearing the evi- dence 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 mar- shal to keep such bankrupt in custody not exceeding ten days, but not imprison him, until he shall be examined and released or give bail con- ditioned for his appearance for examination, from time to time, not ex- ceeding in all ten days, as required by the court, and for his obedience to all lawful orders made in reference thereto. [1 July, 1898, 30 Stat. L., 549, c. 541, 8. 9; 2 Supp., 849.] Sees. 18, 428, 429. Extrardition of bankrupts. Sec. 10. (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 extradited from one district within which a district court has jurisdiction to another. [1 July, 1898, 30 Stat. L., 549, c. 541, s. 10; 2 Supp., 849.] Sees. 430-432. Suits by and against bankrupts. Sec. 11. {a) A suit which is founded upon a cMim 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 Jstayed until after an adjudication or the dismissal of the petition ; if such person is adjudged a bankrupt, such action may be further stayed until twelve months after the date of such adjudication, or, if within that time such person applies for a discharge, then until the question of such discharge is determined. Sees. 9, 10, 210, 1039-1078, 1087, 1091, 1116, 1534. (&) The court may order the trustee to enter his appearance and de- fend any pending suit against the bankrupt. Sees. 9, 1079-1086, 1112. (c) A trustee may, with the approval of the court, be permitted to prosecute as trustee any suit commenced by the bankrupt prior to the adjudication, with like force and effect as though it had been commenced by him. Sees. 9, 1088-1091, 1112. (c?) Suits shall not be brought by or against a trustee of a bankrupt Bankbuptcy Act of 1898 1419 estate subsequent to two years after the estate has been closed. [1 July, 1898, 30 Stat. L., 549, c. 541, s. 11; 2 Supp., 849.1 See. 1139. Compositions, when confirmed. Sec. 12. (a) A bankrupt may offer, either before or after adjudication, terms of composition to his creditors after, but not before, he has been examined in open court or at a meeting of his creditors, and has filed in court the schedule of his property and the list of his creditors required to be filed by bankrupts. In compositions before adjudication the bankrupt shall file the required schedules, and thereupon the court shall call a meeting of creditors for the allowance of claims, examination of the bankrupt, and preservation or conduct of estates, at which meeting the judge or referee shall preside ; and action upon the petition for adjudication shall be delayed until it shall be deter- mined whether such composition shall be confirmed. Sees. 1195-1206. (&) An application for the confirmation of a composition may be filted in the court of bankruptcy after, but not before, it has been accepted 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 desig- nated by and subject to the order of the judge. Sees. 1207-1220. (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. Sees. 1212-1215, 1249. (d) The judge shall confirm a composition if satisfied that (1) it is for the best interests of the creditors; (2) the bankrupt has not been guilty of any of the acts or failed to perform any of the duties which would be a bar to his discharge ; and (3) the offer and its acceptance are in good faith and have not been made or procured except as herein provided, or by any means, promises, or acts herein forbidden. Sees. 1215-1240, 1249. (e) Upon the confirmation of a composition, the consideration shall be distributed as the judge shall direct, and the case dismissed. Whenever a composition is not confirmed, the estate shall be administered in bank- ruptcy as herein provided. [1 July, 1898, 30 Stat. L., 549, c. 541, a. 12 ; 2 Supp., 849. 25 June, 1910^ 36 Stat. L., 839, c. 412, s. 5.] Sees. 1223-1240. Compositions, when set aside. Sec. 13. (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 compo- sition, fl July, 1898, 3d Stat. L., 550, c. 541, s. 13; 2 Supp., 850.] Sees. 757, 1241-1252, 1420 Bkandenbxjbg on Bankbuptcy Discharges, when granted. Sec. 14. (a) Any person may, after the expiration of one month and within the next twelve months subse- quent to being adjudged a bankrupt, file an application for a discharge in the court of bankruptcy in which the proceedings are pending; if it shall be made to appear to the judge that the bankrupt was unavoidably prevented from filing it within such time, it may be filed within but not after the expiration of the next six months. Sees. 22, 23, 1442-1453. (b) The judge shall hear the application for a discharge, and such proofs and pleas as may be made in opposition thereto by the trustee or other parties in interest, at such time as will give the trustee or parties in interest a reasonable opportunity to be fully heard, and investigate the merits of the application and discharge the applicant unless he has Sees. 1217, 1454-1507. (1) committed an offense punishable by imprisonment as herein pro- vided; or Sees. 1478, 1488. (2) with intent to conceal his financial condition, destroyed, canceled, or failed to keep books of account or records from which such condition might be ascertained; or (3) obtained money or property on credit upon a materially false statement in writing, made by him to any person or his representative for the purpose of obtaining credit from such person; or See. 1495. (4) at any time subsequent to the first day of the four months imme- diately preceding the filing of the petition transferred, removed, destroyed, or concealed, or permitted to be removed, destroyed, or con- cealed, any of his property, with intent to hinder, delay, or defraud his creditors ; or Sees. 1496-1501. (5) in voluntary proceedings been granted a discharge in bankruptcy within six years ; or Sees. 113, ,1502. (6) in the course of the proceedings in bankruptcy refused to obey any lawful order of, or to answer any material question approved by the court : Provided, That a trustee shall not iuterpose objections to a bank- rupt 's discharge until he shall be authorized so to do at a meeting of creditors called for that purpose. Sees. 504, 1503. (c) The confirmation of a composition shall discharge the bankrupt from his debts, other than those agreed to be paid by the terms of the composition and those not affected by a discharge. [1 July, 1898, 30 Stat. L., 550, c. 541, s. 14; 2 Supp., 850. 5 Feb., 1903, 32 Stat. L., 797, c. 487, s. 4. 2d June, 1910, 36 Stat. L., 839, c. 412, s. 6.1 Sees. 1228-1240. Discharges, when revoked. Sec. 15. (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 Bankruptcy Act of 1898 1421 obtained through the fraud of the bankrupt, and that the knowledge of the fraud has eome to the petitioners since the granting of the discharge, ard that the actual facts did not warrant the discharge, fl July 1898' 30 Stat. L., 550, c. 541, s. 15 ; 2 Supp., 850.1 & l j, , Sees. 757, 1241-1252, 1508-1520. Co-debtors of bankrupts. Seo. 16. (a) The liability of a person who ]s a co-debtor with, or guarantor or in any manner a surety for, a bankrupt shall not be altered by the discharge of such bankrupt. '[1 July, 1898, 30 Stat. L., 550, e. 541, s. 16 ; 2 Supp., 850.1 Sees. 1233, 1539-1543. Debts not affected by a discharge. Sec. 17. (a) A discharge in bankruptcy shall release a bankrupt from all of his provable debts, except such as Sees. 1521-1538, 1544-1576. (1) are due as a tax levied by the United States, the State, county, dis- trict, or municipality in which he resides ; \ Seo. 1551. (2) are liabilities for obtaining property by false pretenses or false representations, or for willful and malicious injuries to the person or property of another, or for alimony due or to become due, or for main- tenance or support of wife or child, or for seduction of an unmarried female, or for criminal conversation: Sees. 1548, 1552, 1559, 1560, 1561. _(3) have not been duly scheduled in time for proof and allowance, with the name of the creditor if known to the bankrupt, unless such credi- tor had notice or actual knowledge of the proceedings in bankruptcy ; or Sees. 407, 1569. (4) were created by his fraud, embezzlement, misappropriation, or de- falcation while acting as an officer or in any fiduciary capacity [1 July 1898, 30 Stat. L., 550, e. 541, s. 17; 2 Supp., 850. 5 Feb., 1903, 32 Stat! L., 798, e. 487, s. 5.] See. 1557. CHAPTER IV Courts and Procedure Therein § 18. Process, pleadings, and adjudiea- § 24. Jurisdietion of appellate courts. tions. § 25. Appeals and writs of error. S 19. Jury trials. § 26. Arbitration of controversies. § 20. Oaths, affirmations. § 27. Compromises. § 21. Evidence. § 28. Designation of newspapers. § 22. Eeference of cases after adjudiea- § 29. Offenses. tion. § 30. Rules, forms, and orders. § 23. Jurisdiction of United States and § 31. Computation of time. State courts. § 32. Transfer of eases. ' Process, pleadings, and adjudications. Sec. 18. (a) Upon the filing of k petition for involuntary bankruptcy, service thereof, with a writ of subpoena, shall be made upon the person therein named as defendant in 1422 Bbandenbueg on Bankkuptcy the same manner that service of such process is now had upon the com- mencement 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 laAV for notice by publication in suits to enforce a legal or equitable lien in courts of the United States, except that, unless the judge shall otherwise direct, the order shall be published not more than once a week for two consecutive weeks, and the return day shall be ten days after the last publication unless the judge shall for cause fix a longer time. Sees. 11, 12, 21, 148, 149, 153, 155-162, 195-197, 472. (6) The bankrupt, or any creditor, may appear and plead to the peti- tion within five days after the return day, or within such further time as the court may allow. Sees. 14, 85, 143, 175, 178, 179, 245. (c) All pleadings setting up matters of fact shall be verified under oath. Sees. 112, 177, 183-188. (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. Sees. 22, 23, 26, 27, 243-260, 279-302. (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 adjudica- tion or dismiss the petition. Sec. 277. (/) If the judge is absent from the district, or the division of the dis- trict 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 bank- rupt or any of his creditors, the clerk shall forthwith refer the case to the referee. Sees. 30, 277, 320. (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 -if the filing, the clerk shall forthwith refer the case to the referee. [1 July, 1898, 30 Stat. L., 551, c. 541, s. 18 ; 2 Supp., 851. 5 Feb., 1903, 32 Stat. L., 798, c. 487, s. 6.] Sees. 30, 269, 320. Jury trials. Sec. 19. (a) A person against whom an involuntary petition has been filed shall be entitled to have a trial by jury, in respect to the question of his insolvency, except as herein otherwise provided, and any act of bankruptcy alleged in such petition to have been com- mitted, upon filing a written application therefor at or Ijefore the time within which an answer may be filed. If such application is not filed within such time, a trial bv jurv shall be deemed to have been waived. Sees. 52, 261-268, 1160, 1249, 1469., Bankeuptcy Act op 1898 1423 (6) If a jury is not in attendance upon the couTt, one may be spe- cially summoned for the trial, or the case may be postponed, or, if the case is pending in one of the district courts within the jurisdiction of a circuit court of the United States, it may be certified for trial to the circuit court sitting at the sam« place, or by consent of parties when sit- ting at any other place in the same district, if such circuit court has or, is to huve a jury first in attendance. Sec. 266. (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 in force or such as may be enacted in relation to trials by jury. [1 July, 1898, 30 Stat. L., 551, e. 541, s. 19; 2 Supp., 851.] Sec. 1626. Oaths, aflBrmations. Sec. 20. (a) Oaths required by this Act, except upon hearings in court, may be administered by (1) referees; (2) officers 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 officers of the United States in any foreign country. Sees. 459, 160. (6) Any person conscientiously opposed to taiing an oath may, in lieu thereof, affirm. Any person who shall afiStm falsely shall be pun- ished as for the making of a false oath. [1 July, 1898, 30 Stat. L., 551, c. 541, s. 20 ; 2 Supp., 852.] See. 461. Evidence. Sec. 21. (a) A court of bankruptcy may, upon appli- cation of any offieer, bankrupt, or creditor, by orlder require any desig- nated person, including the bankrupt and his wife, to appear in court or before a referee or the judge of any State court, to be examined concern- ing the acts, conduct, or property of a bankrupt whose estate is in process of administration under this Act : Provided, That the wife may be exam- ined only touching business transacted by her or to which she is a party, and to determine the fact whether she has transacted or been a party to any business of the bankrupt. Sees. 465-469, 471, 473-496, 503-506, 1472, 1595. (6) 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. Sees. 498-502. (c) Notice of the taking of depositions shall be filed with the referee in every case. When depositions are to be taken in opposition to the allowance of a claim notice shall also be served upon the claimant, and when in opposition to a discharge notice shall also be served upon the bankrupt. See. 499. {d) Certified copies of proceedings before a referee, or of papers, when issued by the clerk or referee, shall be admitted as evidence with 1424 Bbandenbubg on Bankeuptcy 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 evidence. Sec. 351. (e) A certified copy of the order approving the bond of a trustee shall constitute conclusive evidence of the vesting in him of the title to the property of the bankrupt, and if recorded shall impart the same notice that a deed from the bankrupt to the trustee if recorded would have' im- parted had not bankruptcy proceedings intervened. See. 841. (/) 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 proceed- ings, and of the fact that the order was made. Sec. 1252. (g) A certified copy of an order confirming a composition shall con- stitute evidence of the revesting of the title of his property in the bank- rupt, and if recorded shall impart the same notice that a deed from the trustee to the bankrupt if recorded would impart. [1 July, 1898, 30 Stat. L., 552, c. 541, s. 21 ; 2 Supp., 852. 5 Feb., 1903, 32 Stat. L., 798, c. 487, s. 7.] Sec. 1239. ^ Reference of cases after adjudication. Sec. 22. (a) After a person has been adjudged a bankrupt the judge may cause the trustee to proceed with the administration of the estate, or refer it (1) generally to the referee or specially with only limited authority to act in the premises or to consider and report upon specified issues ; or (2) to any referee within the territorial jurisdiction of the court, if the convenience of parties in interest will be served thereby, or for cause, or if the bankrupt does not do business, reside, or have his domicile in the district. Sees. 14, 321. (&) The judge may, at any time, for the convenience of parties or for cause, transfer a case from one referee to another. [1 July, 1898, 30 Stat. L., 552, c. 541, s. 22 ; 2 Supp., 852.] Sees. 321, 323. Jvtrisdiction of United States and State courts. Sec. 23. (a) The United States circuit courts shall have jurisdiction of all controversies at law and in equity, as distinguished from proceedings in bankruptcy, between trustees as such and adverse claimants concerning the property acquired or claimed by the trustees, in the same manner and to the same extent only as though bankruptcy proceedings had not been instituted and such controversies had been between the bankrupts and such adverse claimants. Sees. 9, 10, 18, 19, 243, 1092-1094, 1104-1166. (h) 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 bank- ruptcy had not been instituted, unless by consent of the proposed defend- ant, except suits for the recovery of property under section sixty, sub-division (b), section sixty-seven, sub-division (e) , and section seventy, sub-division (e). [1 July, 1898, 30 Stat. L., 552, c. 541, s. 23; 2 Supp., Bankruptcy Act of 1898 1425 853. 5 Feb., 1903, 32 Stat. L., 798, c. 487, s. 8. 25 June, 1910, 36 Stat. L., 840, c. 412, s. 7.] Sees. 9, 10, 1095-1185. (c) The United States circuit courts shall have concurrent jurisdiction with the courts of bankruptcy, within their respective territorial limits, of the offenses enumerated in this Act. Sees. 723, 1609. Jud. Code, § 290, abolishing circuit courts, impliedly repeals this section. Jurisdiction of appellate courts. Sec. 24. (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 chambers and during their respective terms, as now or as they may be hereafter held, are hereby invested with appellate jurisdiction of controversies arising in bankruptcy proceedings from the courts of bankruptcy from which they have appellate jurisdiction in other cases. The Supreme Court of the United States shall exercise a like jurisdiction from courts of bank- ruptcy not within any organized circuit of the United States and from the Supreme Court of the District of Columbia. Sees. 1631, 1642, 1643, 1645, 1651, 1653, 1662-1664. {&) The several circuit courts of appeal shall have jurisdiction in equity, either interlocutory or final, to superintend and revise in matter of law the proceedings of the several inferior courts of bankruptcy within their jurisdiction. Such power shall be exercised on due notice and petition by any party aggrieved. [1 July, 1898, 30 Stat. L., 553, c. 541, s. 24;2 Supp., 853.] Sees. 1075, 1631, 1634, 1643, 1650-1656. Appeals and writs of error. Sec. 25. (a) That appeals, as in equity cases, may be taken in bankruptcy proceedings from the courts of bank- ruptcy 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 bank- rupt; (2) from a judgment granting or denying a discharge; and (3) from a judgment allowing or rejecting a debt or claim of five hundred dollars or over. Such appeal shall be taken within ten days after the judgment appealed from has been rendered, and may be heard and deter- mined by the appellate court in term or vacation as the case may be. Sees. i41, 206, 288, 306, 1240, 1631-1649. (&) 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) Where the amount in controversy exceeds the sum of two thousand dollars, and the question involved is one which might have been taken on appeal or writ of error from the highest court of a State to the Supreme Court of the United States; or (2) where some Justice of the Supreme Court of the United States shall certify that in his opinion the determina- tion 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. Sees. 1643, 1657-1668. _ See also Acts of 1915 and 1916, p. 1450, posi, which practi- cally repeal this subdivision. Brandenburg — ^90 1426 Bbandenbueg on Bankkuptcy (c) Trustees shall not be required to give bond when they take appeals or sue out writs of error. See. 1647. (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. [1 July, 1898, 30 Stat. L., 553, c. 541, s. 25 ; 2 Supp., 853.1 See. 1665. Arbitration of controversies. Sec. 26. (a) The trustee may, pur- suant to the direction of the court, submit to arbitration any controversy arising in the settlement of the estate. Sees. 1186-1192. (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 appoint- ment the court shall appoint the third arbitrator. See. 1193. (c) The written finding of the arbitrators, or a majority of them, as to the issues presented, , may be filed in court and shall have like force and effect as the verdict of a jury. [1 July, 1898, 30 Stat. L., 553, c. 541, s. 26; 2 Supp., 854.] See. 1194. Compromises. Sec. 27. (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. [1 July, 1898, 30 Stat. L., 553, e. 541, s. 27 : 2 Supp., 854.1 Sees. 1187, 1190-1192. Designation of newspapers. Sec. 28. (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 pub- lished shall be inserted. Any court may in a particular case, for the con- venience of parties in interest, designate some additional newspaper in which notices and orders in such case shall be published. [1 July 1898 30 Stat. L., 554, c. 541, s. 28 ; 2 Supp., 854.] Sees. 11, 436. Offenses. Sec. 29. (a) A person shall be punished, by imprison- ment for a period not to exceed five years, upon conviction of the offense of having knowingly and fraudulently appropriated to his own use, embezzled, spent, or unlawfully transferred any property or secreted or destroyed any document belonging to a bankrupt estate which came into his charge as trustee. Sees. 723, 1621. (6) A person shall be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently See. 1217. Bankruptcy Act of 1898 1427 (1) concealed while a bankrupt, or after his discharge, from his trustee any of the property belonging to his estate in bankruptcy ; or Sees. 395, 1611, 1614. (2) made a false oath or account in, or in relation to, any proceeding in bankruptcy ; Sees. 1488, 1612-1614. (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 Sees. 396, 454, 1615. ' (4) received any material amount of property from a bankrupt after the fil#ig of the petition, with intent to defeat this Act ; or Sec. 1616. (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. Sec. 1618. (c) A person shall be punished by fine, not to exceed five hundred dollars, and forfeit his office, and the same shall thereupon become vacant, upon conviction of the offense of having knowingly (1) acted as a referee in a case in which he is directly or indirectly interested; or Sec. 1620. (2) purchased, while a referee, directly or indirectly, any property* of the estate in bankruptcy of which he is referee ; or See. 1620. (3) refused, while a referee or trustee, to permit a reasonable oppor- tunity for the inspection of the accounts relating to the affairs of, and the papers and records of, estates in his charge by parties in interest when directed by the court so to do. Sees. 1620, 1621. (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. [1 July, 1898, 30 Stat. L., 554, c. 541, s. 29; 2 Supp., 854.] Sec. 1622. Bules, forms, and orders. Sec. 30. (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. [1 July, 1898, 30 Stat. L., 554, c. 541, s. 30; 2 Supp., 855.] Computation of time. Sec. 31. (a) Whenever time is enumerated by days in this Act, or in any proceeding in bankruptcy, the number of days shall be computed by excluding the first and including the last, unless the last fall on a Sunday or holiday,, in which event the day last included shall be the next day thereafter which is not a Sunday or a legal holiday. [1 July, 1898, 30 Stat. L., 554, c. 541, s. 31 ; 2 Supp., 855.] Sees. 54, 163, 947, 1645. 1428 Bkakdenbukg on Bankeuptcy Transfw of cases. Sec. 32. (a) In the event petitions are filed against the same person, or against different members of a partnership, in different courts of bankruptcy each of which has jurisdiction, the cases shall be transferred, by order of the courts relinquishing jurisdiction, to and be consolidated by the one of such courts which can proceed with the same for the greatest convenience of parties in interest. [1 July, 1898, 30 Stat. L., 554, c. 541, s. 32; 2 Supp., 855.] Sec. 27. CHAPTER V Ofpicbrs, Their Duties and Compensation j 33. Creation of two offices. i 34. Appointment, removal, and districts of referees. J 35. Qualifications of referees, i 36. Oaths of office of referees. I 37. Number of referees. ) 38. Jurisdiction of referees. \ 39. Duties of referees. J 40. Compensation of referees, j 41. Contempts before referees. \ 42. Records of referees. \ 43. Eef eree 's absence or disability. j44. 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 mar- shals. § 53. Duties of Attorney-General. § 54. Statistics of bankruptcy proceed- ings. Creation of two offices. trustee are hereby created. 2 Supp., 855.] See. 309. Sec. 33. (a) The offices of referee and [1 July, 1898, 30 Stat. L., 555, c. 541, s. 33; Appointmrait, removal, and districts of referees. Sec. 34. (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 Sees. 312, 314, 316, 319. (2) 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, mav constitute at least one district. [1 July, 1898, 30 Stat. L., 555, c. 541, s. 34; 2 Supp., 855.] Sec. 310. Qualifications of referees. Sec. 35. (a) Individuals shall not be eligible to appointment as referees unless they are respectively (1) com- petent 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 chan- cery, or notaries public; (3) not related by consanguinity or affinity, within the third degree as determined by the common law, to any of the judges of the courts of bankruptcy, or circuit courts of the United States, or of the justices or judges of the appellate courts of the districts wherein Bankbuptcy Act of 1898 1429 they may be appointed ; and (4) residents of, or have their offices in, the territorial districts for which they are to be appointed. [1 July, 1898, 30 Stat. L., 555, c. 541, s. 35; 2 Supp., 855.] Sees. 310, 315. Oaths of office of referees. Sec. 36. (a) Referees shall take the same oath of office as that prescribed for judges of United States courts. [1 July, 1898, 30 Stat. L., 555, c. 541, s. 36 ; 2 Supp., 855.] See. 317. Number of referees. Sec. 37. (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. [1 July, 1898, 30 Stat. L., D55, c. 541, s. 37; 2 Supp., 855.] See. 310. Jurisdiction of referees. Sec. 38. (a) Referees respectively are hereby invested, subject always to a review by the judge, within the limits of their districts as established from time to time, with jurisdiction to (1) consider all petitions referred to them by the clerks and make the adjudications or dismiss the petitions; Sees. 277, 324-338. (2) exercise the powers vested in courts of bankruptcy for the admin- istering 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 ; Sees. 324-338, 472. (3) exercise the powers of the judge for the taking possession and re- leasing of the property of the bankrupt in the event of the issuance by the clerk of a certificate showing the absence of a judge from the judicial district, or the division of the district, or his sickness or inability to act ; • Sees. 30, 324-338. (4) perform such part of the duties, except as to (questions arising out of the applications of bankrupts for compositions or discharges, as are by this Act conferred on courts of bankruptcy and as shall be prescribed by rules or orders of the courts of bankruptcy of their respective districts, except as herein otherwise provided ; and Sees. 324-338, 1192, 1214. (5) upon the application of the trustee during the examination of the bankrupts, or other proceedings, authorize the employment of stenogra- phers at the expense of the estates at a compensation not to exceed ten cents per folio for reporting and transcribing the proceedings. [1 July, 1898, 30 Stat. L., 555, c. 541, s. 38 ; 2 Supp., 855.] Sees. 215, 324-338, 366, 501, 504. Duties of referees. Sec. 39. (a) Referees shall (1) declare dividends and prepare and deliver to trustees dividend sheets showing the dividends declared and to whom payable ; Sees. 341, 1408. (2) examine all schedules of property and lists of creditors filed by bankrupts and cause such as are incomplete or defective to be amended ; Sec. 343. 1430 Bbandbnburg ox Banketjptcy (3) furnish such information concerning the estates in process of ad- ministration before them as may be requested by the parties in interest ; Sees. 325, 345. (4) give notices to creditors as herein provided; See. 342. (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, to- gether with their findings therein, and transmit them to the judges; Sees. 350, 356, 362. (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 ; Sees. 344, 398. (7) safely keep perfect, and transmit to the clerk the records, herein required to be kept by them, when the eases are concluded ; Sec. 33. (8) transmit to the clerks such papers as may be on file before them whenever the same are needed in any proceediiigs 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 ; Sees. 33, 350. (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 See. 350. (10) whenever their respective offices are in the same cities or towns where the courts of bankruptcy convene, call upon and receive from the' clerks all papers filed in courts of bankruptcy which have been referred to them. Sec. 33. (h) Referees shall not (1) act in eases in which they are directly or indirectly interested; (2) practice as attorneys ia,nd counselora at law in any bankruptcy proceedings; or (3) purchase, directly or indirectly, any property of an estate in bankruptcy. [1. July, 1898, 30 Stat. L., 555, c. 541, s. 39 ; 2 Supp., 856.]. See. 1620. Compensation of referees. Sec. 40. (o) Referees shall receive as full compensation for their services, payable after they are rendered, a fee of fifteen dollars deposited with the clerk at the time the petition is filed in each case, except when a fee is not required from a voluntary bankrupt, and twenty-five cents for every proof of claim filed for allow- ance, to be paid from the estate, if any, as a part of the cost of adminis- tration, and from estates which have been administered before them one per centum commissions on all moneys disbursed to creditors by the trus- tee, or one-half of one per centum on the amount to be paid to creditors upon the confirmation of a composition. Sees. 81, 363, 369, 370, 374, 375. Bankbuptcy Act of 1898 1431 (&) Whenever a case is transferred from one referee to another the judge shall determine the proportion in which the fee and commissions therefor shall be divided between the referees. Sec. 372. (c) In the event of the reference of a case being revoked before it is concluded, and when the case is specially referred, the judge shall deter- mine what part of the fee and commissions shall be paid to the referee. [1 July, 1898, 30 Stat. L., 556, c. 541, s. 40; 2 Supp., 856. 5 Feb., 1903, 32 Stat. L., 799, e. 487, s. 9.] Sec. 373. Contempts before referees. Sec. 41. (a) A person shall not, in proceedings before a referee, Sec. 431. (1) disobey or resist any lawful order, process, or writ; Sec. 1580. (2) misbehave during a hearing or so near the place thereof as to obstruct the same; (3) neglect to produce, after having been ordered to do so, any perti- nent document; or Sec. 1587. (4) refuse to appear after having been subpoenaed, or, upon appear- ing, refuse to take the oath as a witness, or, after having taken the oath, refuse to be examined according to law : Provided, That no person shall be required to attend as a witness before a referee at a place outside of the State of his residence, and more .than one hundred miles from such place of residence, and only in case his lawful mileage and fee for one day's attendance, shall be first paid or tendered to him. Sees. 1590, 1595, 1002. (6) 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 there- upon, in a summary manner, hear the evidence as to the acts complained of, and, if it is such as to warrant him in so doing, punish such person in the same manner and to the same extent as for a contempt committed before the court of bankruptcy, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with refer- ence to the process of, or in the presence of, the court. [1 July, 1898, 30 Stat. L., 556, c. 541, s. 41; 2 Supp., 857.] Sees. 394, 493, 504, 1599-1605. Records of referees. Sec. 42. (a) The records of all proceedings in each case before a referee shall be kept as nearly as may be in the same manner as records are kept in equity cases in district courts of the United States. Sec. 350. (6) A record of the proceedings in each ease shall be kept in a sepa- rate book or books, and shall, together with the papers on file, constitute the records of the case. (c) The book or books containing a record of the proceedings shall, when the case is eoncluded 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 1432 Brandenburg on Bankruptcy of the court. [1 July, 1898, 30 Stat. L., 556, c. 541, s. 42; 2 Supp., 857.] Beferee's absence or disability. Sec. 43. (a) Whenever the office of a referee is vacant, or its occupant is absent or disqualified to act, the judge may act, or may appoint another referee, or another referee hold- ing an appointment under the same court may, by order of the judge, temporarily fill the vacancy. [1 July, 1898, 30 Stat. L., 557, c. 541, s. 43; 2 Supp., 857.] Sec. 313. Appointment of trustees. Sec. 44. (a) The creditors of a bankrupt estate shall, at their first meeting after the adjudication or after a va- cancy has occurred in the office of trustee, or after an estate has been reopened, or after a composition has been set aside or a discharge revoked, or if there is a vacancy in the office of trustee, appoint one trustee or three trustees of such estate. If the creditors do not appoint a trustee or trustees as herein provided, the court shall do so. [1 July, 1898, 30 Stat. L., 557, e. 541, s. 44; 2 Supp., 857.] Sees. 9, 26, 441, 677, 683, 696-700. Qualifications of trustees. Sec. 45. (a) Trustees may be (1) in- dividuals 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 (2) corporations authorized by their char- ters or by law to act in such capacity and having an office in the judicial district within which they are appointed. [1 July, 1898, 30 Stat. L., 557, c. 541,s. 45;2Supn., 857.] Sees. 685-689. Death or removal of trustees. Sec. 46. (a) The death or removal of a trustee shall not abate any suit or proceeding which he is prosecuting or defending at the time of his death or removal, but the same may be proceeded with or defended by his joint trustee or successor in the same manner as though the same had been commenced or was being defended by such joint trustee alone or by such successor. [1 July, 1898, 30 Stat. L., 557, c. 541, s. 46 ; 2 Supp., 858.] Sees. 701, 1141. Duties of trustees. Sec. 47. (a) Trustees shall respectively (1) account for and pay over to the estates under their control all interest received by them on property of such estates; Sec. 730. (2) collect and reduce to money the property of the estates for which they are trustees, under the direction of the court, and close up the estate as expeditiously as is compatible with the best interests of the parties in interest; and such trustees, as to all property in the custody or coming into the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a creditor holding a lien by legal or equitable proceedings thereon; and also, as to all property not in the custody of the bankruptcy court, shall be deemed vested with all the rights, remedies, and powers of a judgment creditor holding an execution duly returned unsatisfied ; Sees. 321, 748, 774, 788, 796, 835, 859, 906, 1310, 1370. (3) deposit all money received by them in one of the designated depos- itories ; Sec. 728, Bankbuptcy Act of 1898 1433 (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 ; Sec. 723. ^ / (6) keep regular accounts showing all amounts received and from what sources and all amounts expended and on what accounts ; Sees. 13, 721. (7) lay before the final meeting of the creditors detailed statements of the administration of the estates ; (8) make final reports and file final accounts with the courts fifteen days before the days fixed for the final meetings of the creditors ; Sees. 13, 721. (9) pay dividends within ten days after they are declared by the referees ; Sees. 733, 1408. (10) report to the courts, in writing, the condition of the estates and the amounts of money on hand, and such other details as may be required by the courts, within the first month after their appointment and every two months thereafter, unless otherwise ordered by the court ; and Sees. 13, 721. (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. Sees. 732, 992. (6) 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. See. 717. (c) The trustee shall, within thirty days after the adjudiesltion, file a certified copy of the decree of adjudication in the ofiiee where convey^ ances of real estate are recorded in every county where the bankrupt owns real estate not exempt from^execution, and pay the fee for such filing, and he shall receive a compensation of fifty cents for each copy so filed, which, together with the filing fee, shall be paid out of the estate of the bankrupt as a part of the cost and disbursements of the proceedings; [1 July, 1898, 30 Stat. L., 557, c. 541, s. 47; 2 Supp., 858. 5 Feb., 1903, 32 Stat. L., 799, c, 487, s. 10. 25 June, 1910, 36 Stat. L., 840, c. 412, s. 8.1 Sees. 719, 841. Compensation of trustees. Sec. 48. (a) Trustees shall receive for their services, payable after they are rendered, a fee of five dollars deposi- ted 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 such com- missions on all moneys disbursed or turned over to any person, including lien holders, by them, as may be allowed by the courts, not to exceed six per centum on the first five hundred dollars or less, four per centuhi on moneys in excess of five hundred dollars and less than fifteen hundred 1434 Bbandenbubg on BANKEUPTcy dollars, two per centum on moneys in excess of fifteen hundred dollars and less than ten thousand dollars, and one per centum on moneys in excess of ten thousand dollars. And in case of the confirmation of a composition after the trustee has qualified the court may allow him, as compensation, not to exceed one-half of one per centum of the amount to be paid the creditors on such composition. Sees. 13, 31, 702-709, 712. (&) In the event of an estate being administered by three trustees in- stead of one trustee or by successive trustees, thei court shall apportion 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 any estate a greater amount than one trustee would be entitled to. See. 710. (c) The court may, in its discretion, withhold all compensation from any trustee who has been removed for cause. • Sees. 13, 711. (d) Receivers or marshals appointed pursuant to section two, sub- division three, shall receive for their services, payable after they are rendered, compensation by way of commissions upon the moneys dis- bursed or turned over to Sny person, including lien holders, by them, and also upon the moneys turned over by them or afterwards realized by the trustees from property turned over in kind by them to the trustees, as the court may allow, not to exceed six per centum on the first five hundred dollars or less, four per centum on moneys in excess of five hundred dollars and less than one thousand five hundred dollars, two per centum on moneys in excess of one thousand five hundred dollars and less than ten thousand dollars, and one per centum on moneys in excess of ten thousand dollars : Provided, That, in case of the confirmation of a com- position such commissions shall not exceed one-half- of one per centum of the amount to be paid creditors on such compositions : Provided further, That when the receiver or marshal acts as a mere custodian and does not carry on the business of the bankrupt as provided in clause five of section two, he shall not receive nor be allowed in any form or guise more than two per centum on the first thousand dollars or less, and one-half of one per centum on all above one thousand dollars on moneys disbursed by him or turned over by him to the trustee and on moneys subsequently realized from property turned over by him in kind to the trustee: Pro- vided further, That before the allowance of compensation notice of appli- cation therefor, specifying the amount asked, shall be given to creditors in the manner indicated in section fifty-eight. ^ Sees. 224-233, 1344. (e) Where the business is conducted by trustees, marshals, or receiv- ers, as provided in clause five of section two, the court may allow such officers additional compensation for such services by way of commissions upon the mon€ys disbursed or turned over to any person, including lien holders, by them, and, in cases of receivers or marshals, also upon the moneys turned over by them or afterwards realized by the trustees from property turned over in kind hy them to the trustees; sueh commissions not to exceed six per centum on the first five hundred dollars or less, four per centum on moneys in excess of five hundred dollars and less than one thousand five hundred dollars, two per centum on moneys in excess of Bankeuptcy Act of 1898i 1435 one thousand five hundred dollars and less than ten thousand dollars, and one per centum on moneys in excess of ten thousand dollars; Provided, That in case of the confirmation of a composition such commissions shall not exceed one-half of one per centum of the amount to be paid creditors on such composition : Provided further, That before the allowance of compensation notice of application therefor, specifying the amount asked, shall be given to creditors in the manner indicated in section fifty-eight. [1 July, 1898, 30 Stat. L., 557, c. 541, s. 48; 2 Supp., 858. 5 Feb., 1903^ 32 Stat. L., 799, c. 487, s. 11. 25 June, 1910, 36 Stat. L., 840, c. 412, s. 9.] Sees. 227, 232, 707, 712, 1330, 1344. Accounts and papers of trustees. Sec. 49. {a) The accounts and papers of trustees shall be open to the inspection of officers pad all parties in interest. [1 July, 1898, 30 Stat. L., 558, c. 541, s. 49; 2 Supp., 859.] Sec. 723. Bonds of referees and trustees. Sec. 50 (a) Eeferees, before assum- ing the duties of their offices, and within such time as the district courts of the United States having jurisdiction shall prescribe, shall respectively qualify by entering into bond to the United States in such sum as shall be fixed by such courts, not to exceed five thousand dollars, with such sureties as shall be approved by such courts, conditioned for the faithful performance of their official duties. Sec. 318. (6) 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 re- spectively 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. Sees. 690-695. (c) The creditors of a bankrupt estate, 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 discharge revoked, if there is a vacancy in the office of trustee, shall fix the amount of the bond of the trustee ; they may at any time increase the amount of the bond. If the creditors do not fix the amount of the bond of the trustee as herein provided the court shall do so. Sees. 441, 692. (d) The court shall require evidence as to the actual value of the property of sureties. Sees. 318, 693. (e) There shall be at least two sureties upon each bond. See. 693. (/) 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. Sees. 318, 693. (gr) Corporations organized for the purpose of becoming sureties upon bonds, or authorized by law to do so, may be accepted as sureties upon 1436 Bbandenbueg on Bankbuptcy the bonds of referees and trustees whenever the courts are satisfied that the rights of all parties in interest will be thereby amply protected. Sec. 693. (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 sued upon in the name of the United States for the use of any person injured by a breach of their conditions. Sees. 33, 318, 691, 728, 738. (i) Trustees shall not be liable, personally or on their bonds, to the United States, for any penalties or forfeitures incurred by the bank- rupts under this Act, of whose estates they are respectively trustees. Xj) Joint trustees may give joint or several bonds. Sec. 691. (k) . If any referee or trustee shall fail to give bond, as herein provided and within the time limited, he shall be deemed to have declined his appointment, and such failure shall create a vacancy in his office. Sees. 318, 694. (l) Suits upon referees' bonds shall not be brought subsequent to two years after the alleged breach of the bond. Sec. 318. (m) Suits upon trustees' bonds shall not be brought subsequent to two years after the estate has been closed. [1 July, 1898, 30 Stat. L., 558, c. 541, s. 50; 2 Supp., 859.] See. 738. Duties of cl^ks. Sec. 51. (a) Clerks shall respectively (1) account for, as for other fees received by them, the clerk's fee paid in each case and such other fees as may be received for certified copies of records which may be prepared for persons other than officers; Sec. 29. (2) collect the fees of the clerk, referee, and trustee in each case insti- tuted before filing the petition, except the petition of a proposed voluntary bankrupt which is accompanied by an affidavit stating that the petitioner is without, and cannot obtain, the money with which to pay such IGGS ' Sees. 29', 31, 32, 363, 369, 704. (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 had been used ; Sec. 29. (4) and within ten days after each case has been closed pay to the referee, if the case was referred, the fee collected for him, and to the trustee the fee collected for him at the time of filing the petition. [1 July, 1898, 30 Stat. L., 558, c. 541, s. 51 ; 2 Supp., 859.] See. 29. Compensation of clerks and marshals. Sec. 52. (a) Clerks shall respectively receive as full compensation for their service to each estate, Bankruptcy Act of 1898 1437 a filing fee of ten dollars, except when a fee is not required from a volun- tary bankrupt. Sec3. 31, 33. (6) Marshals shall respectively receive from the estate where an adju- dication in bankruptcy is made, except as herein otherwise provided, for the performance of their services in proceedings in bankruptcy, the same fees, and account for them in the same way, as they are entitled to re- ceive for the performance of the same or similar services in other cases in accordance with laws in force, or such as may be enacted, fixing the compensation of marshals. [1 July, 1898, 30 Stat. L., 559, e. 541, s. 52 ; 2 Supp., 860.] Sec. 35. Duties of Attorney-General. Sec. 53. (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 important. [1 July, 1898, 30 Stat. L., 559, e. 541, s. 53; 2 Supp., 860.] Sees. 36, 352. Statistics of bankruptcy proceedings. Sec. 54. (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. [1 July, 18^8, 30 Stat. L., 559, c. 541, s. 54 ; 2 Supp., 860.] Sees. 36, 352. CHAPTER VI Creditoes § 55. Meetings of creditors. § 58. Notice to creditors. § 56. Voters at 'meetings of creditors. § 59. Who may file and dismiss petitions. § 57. Proof and allowance of claims. § 60. Preferred creditors. Meetings of creditors. Sec. 55. (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 incon- venient as a place of meeting for the parties in interest, or if the bank- rupt 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 soon as may be thereafter, when it shall be held. Sees. 11, 393, 433, 435, 436. (6) At the first meeting of creditors the judge or referee shall preside, and, before proceeding with the other business, may allow or disallow 1438 Bkandenbubg on Bankbuptcy the claims of creditors there presented, and may publicly examine the bankrupt or cause him to be examined at the instance of any creditor. Sees. 340, 438-440, 487. (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. Sec. 446. (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. Sees. 442-445. (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 sucl^ claims, and contains a request for such meeting to be held at a desig- nated place, the court shall call such meeting at such place within thirty days after the date of the filing of the request. See. 443. (/) Whenever the affairs of the estate are ready to be dosed a final meeting of creditors shall be ordered. [1 July, 1898, 30 Stat. L., 559, c. 541, s. 55 ; 2 Supp., 860.] See*. 445. Voters at meetings of creditors. Sec. 56. {a) Creditors shall pass upon 'matters submitted to them at their meetings by a majority vote in number and amount of claims of all creditors whose claims have been allowed and are present, except as herein otherwise provided. Sees. 177, 449, 450, 452, 453, 455-457, 1202. (&) 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 credi- tors 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. [1 July, 1898, 30 Stat. L., 560, c. 541, s. 56; 2 Supp., 861.] Sees. 134, 451, 1203, 1345-1401. Proof and allowance of claims. Sec. 57. (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 so what, pay- ments have been made thereon, and that the sum claimed is justly owing from the bankrupt to the creditor. Sees. 134, 177, 592-599, 607-612, 615-617, 661, 670-674. (6) "Whenever a claim is founded upon an instrument of writing, such instrument, unless lost or destroyed, shall be filed with the proof of claim. If such instrument is lost or destroyed, a statement of such fact and of the circumstances of such loss or destruction shall be filed under oath with the claim. After the claim is allowed or disallowed, such instrument may be withdrawn by permission of tiie court, upon leaving a copy thereof on file with the claim. Sees. 602, 613. Bankruptcy Act of 1898 1439 (c) Claims after being proved may, for the purpose of allowance, be filed bj the claimants in the court where the proceedings are pending or before the referee if the case has been referred. Sees. 600-605, 733, 859, 1203. ((J) 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. Sees. 9, 592, 640-650, 660. (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 courts seem to be owing over and above the value of their securities or priorities. Sees. 9, 440, 451, 629-639, 1345-1401. (/) Objections to claims shall be heard and determined as soon as the convenience of the court and the best interests of the estates and the claimants will permit. Sees. 651-659. (g) The claims of creditors who have received preferences, voidable under section sixty, subdivision (&), or to whom conveyances, transfers, assignments, or incumbrances, void or voidable under section sixty-seven, subdivision (e), have been made or given, shall not be allow;ed unless such creditors shall surrender such preferences, conveyances, transfers, assignments, or incumbrances. Sees. 451, 618-627, 1411. (h) The value of securities held by secured creditors shall be deter- mined by converting the same into money according to the tenms of the agreement pursuant to which such securities were delivered to such creditors or by such creditors and the trustee, by agreement, arbitration, compromise, or litigation, as the oourt 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. Sees. 631, 636, 1203, 1407. (i) Whenever a creditor, whose claim against a bankrupt estate is secured by the individual undertaking of any person, fails to prove such claim, such person may do so in the creditor's name, and if h& discharge such undertaking in whole or in part he shall be subrogated to that extent to the rights of the creditor. Sees. 597, 638, 1555. ^j) Debts owing to the United States, a State, a county, a district, or a municipality as a penalty or . forfeiture shall not be allowed, except for the amount of the pecuniary loss sustained by the act, transaction, or proceeding out of which the penalty or forfeiture arose, with reason- able and actual costs occasioned thereby and such interest as may have accrued thereon according to law. Sees. 533, 566-569. 1440 Beandenbueg on Bankbuptcy (k) Claims which have been allowed may be reconsidered for cause and reallowed or rejected in whole or in part, according to the equities of the case, before but not after the estate has been closed. Sees. 9, 662-669, 1470. (l) 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. Sec. 1419. (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. See, 628. (m) Claims shall not be proved against a bankrupt estate subsequent to one year after the adjudication; or if they are liquidated by litigation and the final judgment therein is rendered within thirty days before or after the expiration of such time, then within sixty days after the rendi- tion of such judgment : Provided, That the right of infants and insane peirsons without guardians, without notice of the proceedings, may con- tinue six months longer. [1 July, 1898, 30 Stat. L., 560, c. 541, s. 57; 2 Supp., 861. 5 Feb., 1903, 32 Stat. L., 799, c. 487, s. 12.] Sees. 606, 617, 1224. Notice to creditors. Sec. 58. (a) Creditors shall have at least ten days ' notice by mail, to their respective addresses as they appear in the list of creditors of the bankrupt, or as afterwards filed with the papers in the case by the creditors, unless they waive notice in writing, of Sees. 150-152, 249, 287, 342, 1344, 1516. (1) all examinations of the bankrupt; "Sec. 485. (2) all hearings upon applications for the confirmation of composi- tions ; See. 1213. (3) all meetings of creditors ; Sees. 436, 444. (4) all proposed sales of property ; See. 727.. (5) the declaration and time of payment of dividends : See. 1410. (6) the filing of the fina,! accounts of the trustee, and the time when and the place where they will be examined and passed upon- > See. 1425. ' (7) the proposed compromise of any controversy; Sees. 1188, 1191. (8) the proposed dismissal of the proceedings; and Sees. 286, 308. Bankruptcy Act of 1898 1441 (9) there shall be thirty days' notice of all applications for the discharge of bankrupts. Sec. 1450. (6) Notice to creditors of the first meeting shall be published at least once and may be published such number of additional times as the court may direct ; the last publication shall be at least one week prior to the date fixed for the meeting. Other notices may be published as the court shall direct. Sees. 11, 303-308. (c) All notices shall be given by the referee, unless otherwise ordered by the judge. [1 July, 1898, 30 Stat. L. 561, c. 541, s. 58; 2 Supp., 862. 25 June, 1910, 36 Stat. L., 841, c. 412, s. 9^.] Sees. 286, 342. Who may file and dismiss petitions. Sec. 59. (a) Any qualified person may file a petition to be adjudged a voluntary bankrupt. Sees. 110, 113-115, 150-152, 155-162, 189-192, 249, 271. (b) Three or more creditors who have provable claims against any person which amount in the aggregate, in excess of the value of securities held by them, if any, to five hundred dollars or over; or if all of the creditors of such person are less than twelve in number, then one of such creditors whose claim equals such amount may file a petition to have him adjudged a bankrupt. Sees. 112, 117, 119-143, 150-152, 155-162, 181, 195-197, 203, 249. (c) Petitions shall be filed in duplicate, one copy for the clerk and one for service on the bankrupt. Sees. 33, 163. (d) If it be averred in the petition that the creditors of the bankrupt are less than twelve in number, and less than three creditors have joined 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 peti- tion and shall delay the liearing upon such petition for a reasonable time, to the end that parties in interest shall have an opportunity to be heard ; if upon such hearing it shall appear that a sufficient number have joined in such petition, or if prior to or during such hearing a sufficient number shall join therein, the case may be proceeded with, but otherwise it shall be dismissed. See. 152. (e) In computing the number of creditors of a bankrupt for the pur- pose 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. Sees. 124-142. (/) Creditors other than original petitioners may at any time enter Brandenburg — 91 1442 Bbandenbubg on Bankruptcy their appearance and join in the petition, or file an answer and be heard in opposition to the prayer of the petition. Sees. 138-142, 175. (fir) A voluntary or involuntary petition shall not be dismissed by the petitioner or petitioners or for want of prosecution or by consent of parties until after notice to the creditors ; and to that end the court shall, before entertaining an application for dismissal, require the bankrupt to file a list, under oath, of all his creditors, with their addresses, and shall cause notice to be sent to all such creditors of the pendency of such application, and shall delay the hearing thereon for a reasonable time to allow all creditors and parties in interest opportunity to be heard. [1 July, 1898, 30 Stat. L., 561, C..541, s. 59; 2 Supp., 862. 25 June, 1910, 36 Stat. L., 841, c. 412, s. 10. ] Sees. 116, 143, 279-286, 328. Preferred creditors. Sec. 60. (a) A person shall be deemed to have given a preference if, being insolvent, he has, within four months before the filing of the petition, or after the filing of the petition and before the adjudication, procured or suffered a judgment to be entered against himself in favor of any person, or made a transfer of any of his property, and the effect of the enforcement of such judgment or transfer will be to enable any one of his creditors to obtain a greater percentage of his debt than any other of such creditors of the same class. Where the preference consists in a transfer, such period of four months shall not expire until four months after the date of the recording or registering of the transfer, if by law such recording or registering is required. Sees. 3, 9, 621, 925-981%. (6) If a bankrupt shall have procured or suffered a judgment to be entered against him in favor of any person or have made a transfer of any of his property, and if, at the time of the transfer, or of the entrj' of the judgment, or of the recording or registering of the transfer if by law recording or registering thereof is required, and being within four months before the filing of the petition in bankruptcy or after the filing thereof and before the adjudication, the bankrupt be insolvent and the judgment or transfer then operate as a preference, and the person receiving it or to be benefited thereby, or his agent acting therein, shall then have reasonable cause to believe that the enforcement of such judgment or transfer would effect a preference, it shall be voidable by the trustee and he may recover the property or its value from such person. And, for the purpose of such recovery, any court of bankruptcy, as hereinbefore defined, and any State court which would have had jurisdiction if bankruptcy had not intervened, shall have concurrent jurisdiction. Sees. 3, 619, 724, 783, 879, 925, 926, 929, 932, 948, 967-977, 1094, 1096, 1101, 1116, 1156. (c) If a creditor has been preferred, and afterwards in good faith gives the debtor further credit without security of any kind for property which becomes a part of the debtor's estates, the amount of such new credit remaining unpaid at the time of the adjudication in bankruptcy may be set off against the amount which would otherwise be recoverable from him. See. 982. Bankkuptcy Act of 1898 1443 (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 reexam- 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 determined by the court, and the excess may be recovered by the trustee for the benefit of the estate. [1 July, 1898, 30 Stat. L., 562, c. 541, s. 60; 2 Supp., 863. 5 Feb., 1903, 32 Stat. L., 799, e. 487, s. 13. 25 June, 1910, 36 Stat. L., 842, c. 412, s. 11.] Sees. 724, 983, 1116. CHAPTER VII Estates § 61. Depositories for money. § 67. Liens. § 62. Expenses of administering estates. § 68. Set-offs and counterclaims. § 63. Debts which may be proved. § 69. Possession of property. § 64. Debts which have priority. § 70. Title to property. § 65. Declaration and payment of divi- § .71. Clerks of district cdurts to keep dends. bankruptcy records, etc. § 66. Unclaimed dividends. § 72. Compensation restricted. ' - - ■, \. ■_' ' Depositories for money. Sec. 61. (a) Courts of bankruptcy shall designate, by order, banking institutions as depositories for the money of bankrupt estates, as convenient as may be to the residences of trustees, and shall require bonds to the United States, subject to their approval, to be given by such banking institutions, and may from time to time as occasion may require, by like order increase the number of depositories or the amount of any bond or change such depositories. [1 July, 1898, 30 Stat. L., 562, c. 541, s. 61; 2 Supp., 863.] Sec. 728. Expenses of admimstering: estates. Sec. 62. (a) The actual and necessary expenses incurred by officers in the administration of estates shall, except wheve 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 thev were incurred. [1 July, 1898, 30 Stat. L.. 562, c. 541, s. 62; 2 Supp., 864.] Sees. 367, 1312-1344, 1368. Debts which may be proved. Sec. 63. (a) Debts of the bankrupt may be proved and allowed against his estate which are Sees. 135, 507-571. (1) a fixed liability, as evidenced by a judgment or an instrument in writing, absolutely owing at the time of the filing of the petition against him, whether then payable or not, with any interest thereon which would have been recoverable at that date or with' a rebate of interest upon such as were not then payable and did not bear interest ; Sees. 509, 514, 516-519, 533, 537, 538, 540-544, 561. 1444 Beandenbtjbg on Bankeuptcy (2) due as costs taxable against an involuntary bankrupt who was at the time of the filing of the petition against him plaintiff in a cause of action which would pass to the trustee and which the trustee declines to prosecute after notice; Sec. 529. (3) founded upon a claim for taxable costs ineurted in good faith by a creditor before the filing of a petition an action to recover a provable debt; Sees. 529, 1555. (4) founded upon an open account, or upon a contract express or implied; and Sees. 516-528, 550, 551. (5) founded upon provable debts reduced to judgments after the filing of the petition and before the consideration of the bankrupt's application for a discharge, less costs incurred and interest accrued after the filing of the petition and up to the time of the entry of such judgments. Sees. 533, 540-544, 606, 1042. (6) Unliquidated claims against the bankrupt may, pursuant to appli- cation to the court, be liquidated in such manner as it shall direct, and may thereafter be proved and allowed against his estate. [1 July, 1898, 30 Stat. L.* 562, c. 541, s. 63 ; 2 Supp., 864.] Sees. 570, 1048. Debts which have priority. Sec. 64. (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 public 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 determined by the court. Sees. 9, 731, 1038, 1349-1354, 1437. (&) The debts to have priority, except as herein provided, and to be paid in full out of bankrupt estates, and the order of payment shall be Sees. 507, 1345-1348, 1402-1405. (1) the actual and necessary cost of preserving the estate subsequent to filing the petition ; Sees. 1355-1359. (2) the filing fees paid by creditors in involuntary cases, and, where property of the bankrupt, transferred or concealed by him either before or after the filing of the petition, shall have been recovered for the benefit of the estate of the bankrupt, by the efforts and at the expense of one or more creditors, the reasonable expenses of such recovery ; Sees. 31, 1322, 1360. (3) the cost of administration, including the fees and mileage payable to witnesses as now or hereafter provided by the laws of the United States, and one reasonable attorney's fee, for the professional services actually rendered, irrespective of the number of attorneys employed, to the petitioning creditors in involuntary cases, to the bankrupt in invol- Bankbuptoy Act or 1898 1445 untary cases while performing the duties herein prescribed, and to the bankrupt in voluntary cases, as the court may allow ; Sees. 983, 1315-1326, 1361-1368. (4) wages due to workmen, clerks, traveling or city salesmen, or servants which have been earned within three months before the date of the commencement of proceedings, not to exceed three hundred dollars to each claimant; and Sees. 1369-1375. (5) debts owing to any person who by the laws of the States or the United States is entitled to priority. Sees. 546, 1376-1401. (c) In the event of the confirmation of a composition being set aside, or a discharge revoked, the property acquired by the bankrupt in addition to his estate at the time the composition was confirmed or the adjudica- tion was made shall be applied to the payment in full of the claims of creditors for property sold to him on credit, in good faith, 'While such composition or discharge was in force, and the residue, if any, shall be applied to the payment of the debts which were owing at the lime of the adjudication. [1 July, 1898, 30 Stat. L., 563, c. 541, s. 64; 2 Supp., 864. 5 Feb., 1903, 32 Stat. L., 800, c. 487, s. 14. 15 June, 1906, 34 Stat. L., 267, c. 3333.] Sees. 1251, 1423, 1520. Declaration and payment of dividendis. Sec, 65. (a) Dividends of an equal per centum shall be declared and paid on all allowed claims, except such as have priority or are secured. Sees. 370, 1406-1408, 1411-1425. (6) The first dividend shall be declared within thirty days after the adjudication, if the money of the estate in excess of the amount neces- sary to pay the debts which have priority and such claims as have not been, but probably will be, allowed equals five per centum or more of such allowed claims. Dividends subsequent to the first shall be declared upon like terms as the first and as often as the amount shall equal ten per centum or more and upon closing the estate. Dividends may be declared oftener and in smaller proportions if the judge shall so order: Provided, That the first dividend shall not include more than fifty per centum of the money of the estate in excess of the amount necessary to, pay the debts which have priority and such claims as probably will be allowed: And provided further, That the final dividend shall not be declared within three months after the first dividend shall be declared. Sees. 1408, 1409. (c) The rights of creditors who have received dividends, or in whose favor final dividends have been declared, shall not be affected by the proof and allowance of claims subsequent to the date of such payment or declarations of dividends ; but the creditors proving and securing the allowance of such claims shall be paid dividends equal in amount to those already received by the other creditors if the estate equals so much before such other creditors are paid any further dividends. See. 1420. {d) Whenever a person shall have been adjudged a bankrupt by a court without the United States and also by a court of bankruptcy, 1446 Bbandbnbubg on Bankbuptcy creditors residing within the United States shall first be paid a divi- dend equal to that received in the court without the United States by other creditors before creditors who have received a dividend in such court shall be paid any amounts. Sec. 1414. (e) A claimant shall not be entitled to collect from a bankrupt estate any greater amount than shall accrue pursuant to the provisions of this Act. [IJuly, 1898, 30Stat. L., 563, c. 541, s. 65;2Supp., 865. 5 Feb., 1903, 32 Stat. L. 800, c. 487, s. 15.] Unclaimed dividends. Sec. 66. (a) Dividends which remain un- claimed for SIX months after the final dividend has been declared shall be paid by the trustee into court. Sees. 733, 1421. (&) Dividends remaining unclaimed for one year shall, tinder the direction of the court, be distributed to the creditors whose claims have been alloAved but not paid in full, and after such claims have been paid in full the balance shall be paid to the bankrupt : Provided, That in case unclaimed dividends belong to minors such minors may have one year after arriving at majoritv to claim such dividends. [1 July, 1898, 30 Stat. L., 564, c. 541, s. 66 ; 2 Supp., 865.] Sec. 1421. Liens. Sec. 67. (a) Claims which for want of record or for other reasons would not have been valid liens as against the claims of the creditors of the bankrupt shall not be liens against his estate. Sees. 507, 861, 864, 866, 867, 915. (6) Whenever a creditor is prevented from enforcing his rights as against a lien created, or attempted to be created, by his debtor, who afterwards becomes a bankrupt, the trustee of the estate of such bankrupt shall be subrogated to and may enforce siich rights of such creditor for the benefit of the estate. See. 860. (c) A lien created by or obtained in or pursuant to any suit or pro- ceeding at law or in equity, including an attachment upon mesne process or a judgment by confession, which was begun against a person within four months before the filing of a petition in bankruptcy by or against such person shall be dissolved by the adjudication of such person to be a liankrupt if (l) it appears that said lien was obtained and permitted while the defendant was insolvent and that its existence and enforcement will work a preference or (2) the party or parties to be benefited thereby had reasonable cause to believe the defendant was insolvent and in con- templation of bankruptcy, or (3) that such lien was sought and permitted in fraud of the provisions of this Act ; or if the dissolution of such lien would militate against the best interests of the estate of such person the same shall not be dissolved, but the trustee of the estate of such person, for the benefit of the estate, shall be subrogated to the rights of the holder of such lien and empowered to perfect and enforce the same in his name as trustee with like force and effect as such holder might have done had not bankruptev proceedings intervened. Sees. 3, 11, 724, 868-870, 874, 876, 878-897, 925. (d) Liens given or accepted in good faith and not in contemplation of or in fra^id upon this Act, and for a present consideration, which Bankruptcy Act of 1898 1447 have been recorded according to law, if record thereof was necessary in order to impart notice, shall, to the extent of such present consideration only, not be affected by this Act. Sees. 220, 856-858, 862, 863, 873, 875-877, 899-924. (e) All conveyances, transfers, assignments, or incumbrances of his property or any part thereof, made or given by a person adjudged a bankrupt under the provisions of this Act subsequent to the passage of this Act and within four months prior to the filing of the petition, with the intent and purpose on his part to hinder, delay, or defraud his credi- tors, or any of them, shall be null and void as against the creditors of such debtor, except as to purchasers in good faith and for a present fair consideration; and all property of the debtor conveyed, transferred, assigned, or encumbered as aforesaid, shall, if he be adjudged a bankrupt, and the same is not exempt from execution and liability for debts by tbe ' law of his domicile, be and remain a part of the assets and estate of the bankrupt and shall pass to his said trustee, whose duty it shall be to recover and reclaim the same by legal proceedings or otherwise for the benefit of the creditors. And all conveyances, transfers, or incumbrances of his property made by a debtor at any time within four months prior to the filing of the petition against him, and while insolvent, which are held null and void as against the creditors of such debtor by the .laws of the State, Territory, or District in which such property is situate, shall be deemed null and void under this Act against the creditors of such debtor if he be adjudged a bankrupt, and such property shall pass to the assignee and be by him reclaimed and recovered for the benefit of the creditors of the bankrupt. For the purpose of such recovery any court of bankruptcy as hereinbefore defined, and any State court which would have had jurisdiction if bankruptcy had not intervened, shall have con- current jurisdiction. Sees. 9, 330, 783, 866, 868-870, 898, 915, 925, 1094, 1096, 1101, 1115, 1116, 1129. (/) That all levies, judgments, attachments, or other liens, obtaineid through legal proceedings against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment or other lien shall be deemed wholly discharged iand released from the same, and shall pass to the trustee as a part of the estate of the bank- rupt, unless the court shall, on due notice, order that the right under such levy, judgment, attachment or other lien shall be preserved for the benefit of the estate; and thereupon the same may pass to and shall be preserved by the trustee for the benefit of the estate as aforesaid. And the court may order such conveyance as shall be necessary to carry the purposes of this section into effect : Provided, That nothing herein con- tained shall have ,the effect to destroy or impair the title obtained by such levy, judgment, attachment, or other lien, of a bona fide purchaser for value who shall have acquired the same without notice or reasonable cause for inquiry, fl July, 1898, 30 Stat. L., 564, c. 541, s. 67 ; 2 Supp., 865. 5 Feb., 1903, 32 Stat. L., 800, c. 487, s. 16. 25 June, 1910, 36 Stat. L., 842, c. 412, s. 12.1 Sees. 3, 9, 11, 20, 724, 861, 863, 870, 878-897, 925, 1031. Set-offs and counterclaims. Sec. 68. (a) In all cases of mutual debts or mutual credits between the estate of a bankrupt and a creditor 1448 Bkandenbukg on Bankruptcy the account shall be stated and one debt shall be set off against the other, and the balance only shall be allowed or paid. Sees. 572, 573, 578, 580-589. (i) A set-off or counterclaim shall not be allowed in-favor of any debtor of the bankrupt which (1) is not provable against the estate; or (2) was purchased by or transferred to him after the filing of the peti- tion, or within four months before such filing, with a view to such use and with knowledge or notice that such bankrupt was insolvent, or had committed an act of bankruptcy. [1 July, 1898, 30 Stat. L., 565, c. 541, s. 68 ; 2 Supp., 866.] Sees. 574-577, 579. Possession of property. Sec. 69. (a) A judge may, upon satisfac- tory proof, by affidavit, that a bankrupt against whom an involuntary petition has been filed and is pending has committed an act of bank- ruptcy, or has neglected, or is neglecting, or is about to so neglect his property that it has thereby deteriorated or is thereby deteriorating or is about thereby to deteriorate in value, issue a warrant to the marshal to seize and hold it subject to further orders. Before such warrant is issued the petitioners applying therefor shall enter into a bond in such an amount as the judge shall fix, with such sureties as he shall approve, conditioned to indemnify such bankrupt for such damages as he shall sustain in the event such seizure shall prove to have been wrongfully obtained. Such property shall be released, if such bankrupt shall give bond in a sum which shall be fixed by the judge, with such sureties as he shall approve, conditioned to turn over such property, or pay the value thereof in money to the trustee, in the event he is adjudged a bankrupt pursuant to such petition. [1 July, 1898, 30 Stat. L., 565, e. 541, s. 69 ; 2 Supp., 867.1 Sees. 198-242, 305-308. Title to property. Sec. 70. (a) The trustee of the estate of a bank- rupt, upon his appointment and qualification, and his successor or suc- cessors, if he shall have one or more, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt, as of the date he was adjudged a bankrupt, except in so far as it is to property which is exempt, to all Sees. 9, 23, 198, 741-855. (1) documents relating to his property; (2) interests in patents, patent rights, copyrights, and trade-marks; See. 841. (3) powers which he might have exercised for his own benefit, but not those which he might have exercised for some other person ; Sees. 852, 853. (4) property transferred by him in fraud of his creditors ; Sees. 782-801, 847. (5) property which prior to the filing of the petition he could by any means have transferred or which might have been levied upon and sold under judicial process against him : Provided, That when any bankrupt shall have any insurance policy which has a cash surrender value payable to himself, his estate, or personal representatives, he may, within thirty days after the cash surrender value has been ascertained and stated to Bankbuptcy Act of 1898 1449 the trustee by the company issuing the same, pay or secure to the trustee the sum so ascertained and stated, and continue to hold, own, and carry such policy free from the claims of the creditors participating in the distribution of his estate under the bankruptcy proceedings, otherwise the policy shall pass to the trustee as assets ; and Sees. 751, 769, 815-824, 843, 903. (6) rights of action arising upon contracts or from the unlawful taking or detention of, or injury to, his property. Sees. 765, 766. (&) All real and personal property belonging to bankrupt estates shall be appraised by three disinterested appraisers; they shall be appointed by, and report to, the court. Real and personal property shall, when practicable, be sold subject to the approval of the court ; it' shall not be sold otherwise than subject to the approval of the court for less than seventy-five per centum of its appraised value. Sees. 1253-1311. (c) The title to property of a bankrupt estate which has been sold, as herein provided, shall be conveyed to the purchaser l)y the trustee. Sees. 23, 727, 1293. (d) Whenever a composition shall be set aside, or discharge revoked, the trustee shall, upon his appointment and qualification, be vested as herein provided with the title to all of the property of the bankrupt as of the date of the final decree setting aside the composition or revoking the discharge. Sees. 757, 1251, 1520. (e) The trustee may avoid any transfer by the bankrupt of his prop- erty which any creditor of such bankrupt might have avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date of the adjudication. Such property may be recovered or its value collected from whoever may have received it, except a bona fide holder for value. For the purpose of such recovery any court of bank- ruptcy as hereinbefore defined, and any State court which would have had jurisdiction if bankruptcy had not intervened, shall have cojucurrent , jurisdiction. / Sees. 9, 724, 782-804, 847, 1096, 1101, 1113-1116, 1153, 1404. (/) Upon the confirmation of a composition offered by a bankrupt, the title to his property shall thereupon revest in him. [1 July, 1898, 30 Stat. L., 565, c. 541, s. 70; 2 Supp., 867. 5 Feb., 1903, 32 Stat. L., 800, c. 487, s. 16.] Sees. 1234, 1235. Clerks of district courts to keep bankruptcy records, etc. Sec. 71. That the clerkg of the several district courts of the United States shaU prepare and keep in their respective offices complete and convenient indexes of all petitions and discharges in bankruptcy heretofore or here- after filed in the said courts, and shall, when requested so to do, issue cer- tificates of search certifying as to Tvhether or not any such petitions or discharges have been filed; and said clerks shall be entitled to receive for such certificates the same fees as now allowed by law for certificates 1450 Bbandenbukg on Bankbuptcy as to judgments in said courts : Provided, That said bankruptcy indexes and dockets shall at all times be open to inspection and examination by all persons or corporations without any fee or charge therefor. [5 Feb., 1903, 32 Stat. L., 800, c. 487 s. 17.1 Compensation restricteo. Sec. 72. That neither the referee, re- ceiver, marshal, nor trustee shall in any form or guise receive, nor shall the court allow him, any other or further compensation for his services than that expressly authorized and prescribed in this act. [5 Feb., 1903, 32 Stat. L., 600, c. 487, s. 18. 25 June, 1910, 36 Stat. L., 842, c. 412, s. 13.] Sees. 29, 35, 232, 371, 375, 709. (a) This Act shall go into full force and -eifeet upon its passage: Provided, hoivever. That no petition for voluntary bankruptcy shall be filed within one month of the passage thereof, and no petition for invol- untary bankruptcy shall be filed within four months of the passage thereof. (b) Proceedings commenced under State insolvency laws before the passage of this Act shall not be affected by it. [1 July, 1898, 30 Stat. L., 566.] Sec. 19. That the provisions of this amendatory Act shall not apply to bankruptcy cases pending when this Act takes effect, but such cases shall be adjudicated and disposed of conformably to the provisions of the said Act of July first, eighteen hundred and ninety-eight. [5 Feb., 1903, 32 Stat. L., 801.] Sec. 14. That the provisions of this amendatory Act shall not apply to bankruptcy eases pending when this Act takes effect, but such cases shall be adjudicated and disposed of conformably to the provisions of said Act approved July first, eighteen hundred and ninety-eight, as amended by said Act approved February fifth, nineteen hundred and three, and as further amended by said Act approved June fifteenth, nineteen hundred and six. [25 June, 1910, 36 Stat. L., 842.] JUDGMENTS OP COURT OF APPEALS FINAL — CEETIOKAEI Judgments and decrees of the circuit courts of appeals in all proceed- ings and causes arising under "An Act to establish a uniform system of bankruptcy throughout the United States," approved July first, eighteen hundred and ninety-eight, and in all controversies arising in such pro- ceedings and causes; also, in all causes arising under "An Act relating to the liability of common carriers by railroad to their employees in certain cases," approved April twenty-second, nineteen hundred and eight; also, in all causes arising under "An Act to promote the safety of employees and travelers upon railroads by limiting the hours of serv- ice of employees thereon, ' ' approved March fourth, nineteen hundred and seven; also, in all causes arising under "An Act to promote the safety of employees and travelers upon railroads by compelling common c?ir- riers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes and their locomotives with driving-wheel brakes, and for other purposes," approved March second, eighteen hun- dred and ninety- three ; and, also, in all causes arising under any amend- ment or supplement to any one of the aforementioned Acts which has been heretofore or may hereafter be enacted, shall be final, save only Act Relative to Appeals to Supreme Couet 1451 that it shall be competent for the Supreme Court to require by certiorari, upon the petition of any party thereto, that the proceeding, case, or controversy be certified to it for review and determination, with the same power and authority and with like effect as if taken to that court by appeal or writ of error. [Act 28 Jan., 1915, c. 22, § 4, as amended 6 Sept., 1916, c. 448, § 3, 38 Stat. 804. 39 Stat. — .] ^ 1 1'| THE NATIONAL BANKRUPTCY LAW OF 1867 AND AMENDMENTS An act to establish a uniform System of - Bankruptcy throughout the United States ^ Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the several District Courts of the United States be, and they hereby are, constituted courts of bankruptcy, and they shall have original jurisdiction in their respec- tive districts in all matters and proceedings in bankruptcy, and they are hereby authorized to hear and adjudicate upon the same according to the provisions of this act. The said courts shall be always open for the transaction of business under this act, and the powers and jurisdiction hereby granted and conferred shall be exercised as well in vacation as in term time, and a judge sitting at chambers shall have the same powers and jurisdiction, including the power of keeping order and of punishing any contempt of his authority, as when sitting in court. And the juris- diction hereby conferred shall extend to all cases and controversies aris- ing between the bankrupt and any creditor or creditors who shall claim any debt or demand under the bankruptcy ; to the collection of aU the assets of the bankrupt ; to the ascertainment and liquidation of the liens and other specific claims thereon; to thS adjustment of the various pri- orities and conflicting interests of all parties ; and to the marshalling and disposition of the different funds and assets, so as to secure the rights of all parties and due distribution of the assets among all the creditors; and to all acts, matters, and things to be done under and in virtue of the bankruptcy, until the final distribution and settlement of the estate of the bankrupt, and the close of the proceedings in bankruptcy. The said courts shall have full authority to compel obedience to all orders and decrees passed by them in bankruptcy, by process of contempt and~other remedial process, to the same extent that the circuit courts now have in any suit pending therein in equity. Said courts may sit, for the transac- tion of business in bankruptcy, at any place in the district, of which place and the time of holding court they shall have given notice, as well as at the places designated by law for holding such courts.^ 1 — This act, together with the act of That the court having charge of the estate June 22, ]874, and all acts in amendment of any bankrupt may direct that any of or supplementary thereto or in explana- the legal assets or debts of the bankrupt, tion thereof, were repealed by the act of as contradistinguished from equitable de- June 7, 1878, to take effect September 1, mands, shall, when such debt does not 1878 (20 St. L. 99). exceed five hundred dollars, be collected 2 — The act of June 22, 1874 (18 St. L. in the courts of the State where such bank- 178, § 2), amends this section by adding rupt resides having jurisdiction of claims thereto the following words: "Provided, of such nature and amount." 1452 Bankbuptoy Act of 1867 1453 Sec. 2. And be it further enacted, That the several circuit courts of the United States, within and for the districts where the proceedings in bank- ruptcy shall be pending, shall have a general superintendence and juris- diction of all cases and questions arising under this act; and, except when special provision is otherwise made, may, upon bill, petition, or other proper process, of any party aggrieved, hear and determine the ease in a court of equity. The powers and jurisdiction hereby granted may be exercised either by said court or by any justice thereof in term time or vacation. Said circuit courts shall also have concurrent jurisdiction with the district courts of the * same district of all suits at law or in equity which may or shall be brought by the assignee in bankruptcy against any person claiming an adverse interest,* or by such person against such assignee, touching any property or rights of property of said bankrupt transferable to or vested in such assignee ; but no suit at law or in equity shall in any case be maintainable by or against such assignee, or by or against any person claiming an adverse interest, touching the property and rights of property aforesaid, in any court whatsoever, unless the same shall be brought within two years from the time the cause of action accrued, for or against such assignee : Provided, That nothing herein con- tained shall revive a. right of action barred at the time such assignee is appointed. Of the Administration op the Law in Courts of Bankruptcy Sec. 3. And be it further enacted, That it shall be the duty of the judges of the district courts of the United States, within and for the several districts, to appoint in each Congressional district in said dis- trictSj upon the nomination and recommendation of the Chief Justice of the Supreme Court of the United States, one or more registers in bank- ruptcy, to assist the judge of the district court in the performance of his duties under this act. No person shall be eligible to such appointment unless he be a counsellor of said court, or of some one of the courts of record of the state in which he resides. Before entering upon the duties of his office, every person so appointed a register in bankruptcy shall give a bond to the United States, with condition that he will faithfully dis- charge the duties of his office, in a sum not less than one thousand dollars, to be fixed by said court, with sureties satisfactory to said court, or to either of the said justices thereof ; and he shall, in open court, take and subscribe the oath prescribed in the act entitled "An act to prescribe an oath of office, and for other purposes, ' ' approved July second, eighteen hundred and sixty-two, and also that he will not, during his continuance in office, be, directly or indirectly, interested in or benefited by the fees or emoluments arising from any suit or matter pending in bankruptcy, in either the district or circuit court in his district. Sec. 4.S And be it further enacted, That every register in bankruptcy, so appointed and qualified, shall have power, and it shaU be his duty, to 3— Section 3 of the above act of 1874 5— The act of June 22, 1874 (18 St. L. inserts the word "any" in lieu of the 185, §19), requires the register to make word "same." a report to the clerk of the court of the 4 — Section 3 of the act of June 22, business transacted by him. 1874 (18 St. L. 178), here adds the words, "or owing any debt to such bankrupt." 1454 Bkandbnbukg on Bankeuptcy make adjudication of bankruptcy, to receive the surrender of any bank- rupt, to administer oaths in all proceedings before him, to hold and pre- side at meetings of creditors, to take proof of debts, to make all compu- tations of dividends, and all orders of distribution, and to furnish the assignee with a certified copy of such orders, and of the schedules of creditors and assets filed in each case, to audit and pass accounts of assignees, to grant protection, to pass the last examination of any bankrupt in cases whenever the assignee or a creditor do not oppose, and to sit in chambers and dispatch there such part of the admin- istrative business of the court and such uncontested matters as ehall be defined in general rules and orders, or as the district judge shall in any particular matter direct ; and he shall also make short memoranda of his proceedings in each case in Tvhich he shall act, in a docket to be kept by him for that purpose, and he shall forthwith, as the proceedings are taken, forward to the clerk of the district court a certified copy of said mem- oranda, which shall be entered by said clerk in the proper minute-book to be kept in his office, and any register of the court may act for any other register thereof: Provided, however, That nothing in this section con- tained shall empower a register to commit for contempt, or to hear a dis- puted adjudication, or. any question of the allowance or suspension of an order of discharge ; but in all matters where an issue of fact or of law is raised and contested by any party to the proceedings before him, it shall be his duty to cause the question or issue to be stated by the opposing parties in writing, and he shall adjourn the same into court for decision by the judge.^ No register shall be of counsel or attorney, either in or out of court, in any suit or matter pending in bankruptcy in either the circuit or district court of his district, nor in an appeal therefrom ; nor shall he be executor, administrator, guardian, commissioner, appraiser, divider, or assignee of or upon any estate within the jurisdiction of either of said courts of bankruptcy, nor be interested in the fees or emolu- ments arising from either of said trusts. The fees of said registers, as established by this act, and by the general rules and orders required to be framed under it, shall be paid to them by the parties for whom the serv- ices may be rendered in the course of proceedings authorized by this act. Sec. 5. And he it further enacted, That the judge of the district court may direct a register to attend at any place -within the district for the purpose of hearing such voluntary applications under this act as may not be opposed, of attending any meeting of creditors, or receiving any proof of debts, and, generally^ for the prosecution of any bankruptcy or other proceedings under this act; and the travelling and incidental expenses of such register, and d^f any clerk or otherlofficer attending him, incurred 6 — The act of June 22, 1874; (18 St. L. any suit or matter pending in bankruptcy 184, §18), makes the following amend- in either the circuit or totrict court of ment: And no register or clerk of court, his district, or in an appeal therefrom, or any partner or clerk of such register. Nor shall they, or either of them, be ex- or clerk of court, or any person having ecutor, administrator, guardiali, eommis- any interest with either in any fees or sioner, appraiser, divider, or assignee of emoluments in bankruptcy, or with whom or upon any estate within the jurisdiction such register or clerk of court shall have of either of said courts of bankruptcy; any interest in respect to any matter in nor be interested, directly or indirectly, bankruptcy, shall be of counsel, solicitor, in the fees or emoluments arising from or attorney, either in or out of court, in either of said trusts. Bankeuptoy Act of 1867 1455 in so acting, shall be set [tied] by said court in accordance with the rutes prescribed under the tenth section of this act, and paid out of the assets of the estate in respect of which such register has so acted ; or, if there be no such assets, or if the assets shall be insufficient, then such expenses shall form a part of the costs in the case or cases in which the register shall have acted in such journey, to be apportioned by the judge, and such register, so acting, shall have and exercise all powers, except the power of commitment, vested in the district court for the summoning and examination of persons or witnesses, and for requiring the production of books, papers and documents : Provided, always, That all depositions of persons and witnesses taken before said register, and all acts done by him, shall be reduced to writing, and be signed by him, and shall be filed in the clerk's office as part of the proceedings. Such register shall be sub- ject to removal by the judge of the district court, and all vacancies occur- ring by such removal, or by resignation, change of residence, death or disability, shall be promptly filled by other fit persons, unless said court shall deem the continuance of the particular office unnecessary. Sec. 6. And be it further enacted, That any party shall, during the proceedings before a register, be at liberty to take the opinion of the dis- trict judge upon any point or matter arising in the course of such pro- ceedings, or upon the result of such proceedings, which shall be stated by the register. in the shape of a short certificate to the judge, who shall sign the same if he approve thereof; and such certificate, so signed, Shall be binding on all the parties to the proceeding; but every such certificate may be discharged or varied by the judge at chambers or in open court. In any bankruptcy, or in any other pro- ceedings within the jurisdiction of the court, under this act, the par- ties concerned, or submitting to such jurisdiction, may at any stage of the proceedings, by consent, state any question or questions in a special case for the opinion of the court, and the judgment of the court shall be final unless it be agreed and stated in such special case that either party may appeal, if, in such case, an appeal is allowed by this act. The parties may also, if they think fit, agree, that upon the question or questions raised by such special case being finally decided, a sum of money, fixed by the parties, or to be ascertained by the court, or in such manner as the court may direct, or any property, or the amount of any disputed debt or claim, shall be paid, delivered or transferred by one of such parties to the other of them either with or withbht costs. Sec. 7. And le it further enacted, That parties and witnesses sum- moned before a register shall be bound to attend in pursuance of such summons at the place and time designated therein, and shall be entitled to protection, and be liable to process of contempt in like manner as par- ties and witnesses are now liable thereto in case of default in attendance under any writ of subpoena, and all persons wilfully and corruptly swear- ing or affirming falsely before a register shall be liable to all the penalties, punishments, and consequences of perjury. If any person examined before a register shall refuse or decline to answer, or to swear to or sign his examination when taken, the register shall refer_ the matter to th? judge, who shall have power to order the person so acting to pay the costs thereby occasioned, if such person be compellable by law to answer such 1456 Beandenbueg on Bankbuptcy cpiestion or to sign sueh examination, and such person shall also be liable to be punished for contempt. Op Appeals and Practice Sec. 8. And he it further enacted, That appeals may be taken from the district to the circuit courts in all cases of equity, and writs of error may be allowed to said circuit courts from said district courts in cases at law under the jurisdiction created by this act, when the debt or damages claimed amount to more than five hundred dollars, and any supposed creditor, whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim may appeal from the decision of the district court to the circuit court from the same district; but no appeal shall be allowed in any ease from the district to the circuit court unless it is claimed, and notice given thereof to the clerk of the district court, to be entered with the record of the proceedings, and also to the assignee or creditor, as the case may be, or to the defeated party in equity, within ten days after the entry of the decree or decision appealed from. The appeal shall be entered at the term of the circuit court which shall be first held within and for the district next after the expiration of ten days from the time of claiming the same. But if the appellant in writing waives his appeal before any decision thereon, proceedings may be had in the district court as if no appeal had been taken ; and no appeal shall be allowed unless the appellant at the time of claiming the same shall give bond in man[ner] now required by law in eases of such appeals. No writ of error shall be allowed unless the party claiming it shall comply with the statutes regulating the granting of such writs. Sec. 9. And he it further enacted, That in eases arising under this act no appeal or writ of error shall be allowed in any case from the circuit courts to the Supreme Court of the United States, unless the matter in dispute in sueh case shall exceed two thousand dollars. Sec. 10. And he it further enacted, That the Justices of the Supreme Court of the United States, subject to the provisions of this act, shall frame general orders for the following purposes : For regulating the practice and procedure of the district courts in bankruptcy,, and the several forms of petitions, orders, and other proceed- ings to be used in said courts in all matters under this act ; For regulating the duties of the various officers of said courts ; For regulating the fees' payable and the charges and costs to be allowed, except such ^ as are established by this act or by law, with respect to all proceedings in bankruptcy before said courts, not exceeding the rate of fees now allowed by law for similar services in other proceedings ; For regulating the practice and procedure upon appeals ; For regulating the filing, custody, and inspection of records ; And generally for carrying the provisions of this act into effect. After such general orders shall have been so framed, they or any of them may be rescinded or varied, and other general orders may be framed in manner aforesaid; and all such general orders so framed shall from time to time be reported to Congress, with such suggestions as said jus- tices may think proper. 7 — See note 1 to sec. 47. 184, S 18), repeals the words " except such 8 — The act of June 22, 1874 (18 St. L. as are established by this act or by law." Bankbuptoy Act of 1867 1457 Voluntary Bankruptcy — Commencement of Proceedings Sec. 11. And be it further enacted, That if any person residing within the jurisdiction of the United States, owing debts provable under this act exceeding the amount of three hundred dollars, shall apply by peti- ■ tion addressed to the judge of the judicial district in which such debtor has resided or carried on business for the six months next immediately preceding the time of filing of such petition, or for the longest period dur- ing such six months, setting forth his place of residence, his inability to pay all his debts in full, his willingness to surrender all his estate and effects for the benefi.t of his creditors and his desire to obtain the benefit of this act, and shall annex to his petition a schedule, verified by oath before the court or before a register in bankruptcy, or before one of the commissioners of the circuit court of the United States, containing a full and true statement of all his debts, and, as far as possible, to whom due, with the place of residence of each creditor, if known to the debtor, and if not known the fact to be so stated, and the sum due to each creditor ; also, the nature of each debt or demand, whether founded on written security, obligation, contract, or otherwise, and also the true cause and consideration of such indebtedness in each case, and the place where such indebtedness accrued, and a statement of any existing mortgage, pledge, lien, judgment, or collateral or other security given for the payment of the same; and shall also annex to his petition an accurate inventory,^ verified in like manner, of all his estate, both real and personal, assignable under this act, describing the same and stating where it is situated, and whether there are any, and if so, what encumbrances thereon, the filing of such petition shall be an act of bankruptcy, and such petitioner shall be adjudged a bankrupt: Provided, That all citizens of the United States petitioning to be declared bankrupt shall on filing such petition, and be- fore any proceedings thereon, take and subscribe an oath of allegiance and fidelity to the United States, which osith shall be filed and recorded with the proceedings in bankruptcy. And the judge of the district court, or, if there be no opposing party, any register of said court, to be desig- nated by the judge, shall forthwith, if he be satisfied that the debts due from the petitioner exceed three hundred dollars, issue a ■warrant, to be signed by such judge or register, directed to the i" marshal of said dis- trict, authorizing him forthwith, as messenger, to publish notices in such newspapers as the warrant specifies ; ^^ to serve written or printed notice, by mail or personally, on all creditors upon the schedule filed with the debtor's petition, or whose names may be given to him in addition by the 9— The act of June 22, 1874 (18 St. and inserting after the word " specifies, " L 182 § 15) , adds the words ' ' and valua- where it last occurs, the words ' ' but when- tiou" after the word "inventory." ever the creditors of the bankrupt are so 10— The act of 1874, above, § 19, pro- numerous as to make any notice now vides for the making of a report by the required by law to them, by mail or other- marshal to the clerk. wise, a great and disproportionate ex- 11— Section 5 of the act of 1874, above pense to the estate, the court may, in lieu referred to, makes the following amend- thereof, in its discretion, order such ment: That section 11 of said act be notice to be given by publication in a amended by striking out the words "as newspaper or newspapers, to all such the warrant specifies," where they first creditors whose claims, as reported, do occur, and inserting the words "as the^ not exceed the sums, respectively, ot lilty marshal shall select, not exceeding two ; " ^ dollars. ' ' Brandenburg — 92 1458 Bbanpenbueg on Bankbuptcy debtor, and to give such personal or other notice to any persons concerned as the warrant specifies, which notice shall state : — First. That a warrant in bankruptcy has been issued against the estate of the debtor. Second. That the pajTnent of any debts and the delivery of any prop- erty belonging to such debtor to him or for his use, and the transfer of any property by him, are forbidden by law. Third. That a meeting of the creditors of the debtor, giving the names, residences, and amounts, so far as known, to prove their debts and choose one or more assignees of his estate, will be held at a court of bankruptcy, to be holden at a time and place designated in the warrant, not less than ten nor more than ninety days after the issuing of the same. Op Assignments and Assignees Sec. 12. And be it further enacted, That at the meeting held in pur- suance of the notice, one of the registers of the court shall preside, and the messenger shall make return of the warrant and of his doings thereon ; and if it appears that the notice to the creditors has not been given as re- quired in the warrant, the meeting shall forthwith be adjourned, and a new notice given, as required. If the debtor dies after the issuing of the warrant, the proceedings may be continued and concluded in like manner as if he had lived. Sec. 13. And be it further enacted, That the creditors shall, at the first meeting held after due notice from the messenger, in presence of a register designated by the court, choose one or more assignees of the estate of the debtor; the choice to be made by the greater part in value and in number of the creditors who have proved their debts. If no choice is made by the creditors at said meeting, the judge, or if there be no opposing interest, the register, shall appoint one or more assignees. If an assignee, so chosen or appointed, fails within five days to express in writing his acceptance of the trust, the judge or register may fill the vacancy. All elections or appointments of assignees shall be subject to the approval of the judge; and when in his judgment it is for any cause needful or expedient, he may appoint additional assignees, or order a new election. The judge at any time may, and upon the request in writing of -any creditor who has proved his claim shall, require the assignee to give good and sufficient bond to the United States, with a condition for the faithful performance and discharge of his duties; the bond shall be approved by the judge or register by his indorsement thereon, shall be filed with the record of the case, and inure to the benefit of all creditors proving their claims, and may be prosecuted in the name and for the benefit of any injured party. If the assignee fails to give the bond within such time as the judge orders, not exceeding ten days after notice to him of such order, the judge shaU remove him and appoint another in his place. Sec. 14. And be it further enacted, That as soon as said assignee is appointed and qualified, the judge, or, where there is no opposing inter- est, the register, shall, by an instrument under his hand, assign and convey to the assignee all the estate, real and personal, of the bankrupt, with all his deeds, books, and papers relating thereto, and such assign- ment shall relate back to the commencement of said proceedings in bank- Bankbuptcy Act of 1867 1459 ruptcy, and thereupon, by operation of law, the title to all such prop- erty and estate, both real and personal, shall vest in said assignee, although the same is then attached on mesne process as the property of the debtor, and shall dissolve any such attachment made within four months next preceding the commencement of said proceedings: Pro- vided, however, yh&i there shall be excepted from the operation of the provisions of this section the necessary household and kitchen furniture, and such other articles and necessaries of such bankrupt as the said assignee shall designate and set apart, having reference in the amount to the family, condition, and circumstances of the bankrupt, but alto- gether not to exceed in value, in any case, the sum of five hundred dol- lars; and also the wearing apparel of such bankrupt, and that of his wife and children, and the uniform, arms and equipments of any person who is or has been a soldier in the militia, or in the service of the United States ; and such other property as now is, or hereafter shall be, exempted from attachment, or seizure, or levy on execution by the laws of the United States, and such other property not included in the foregoing exceptions as is exempted from levy and sale upon execution or other process or order of any court by the laws of the State in which the bankrupt has his domicile at the time of the commencement of the pro- ceedings in bankruptcy, to an amount not exceeding that allowed by such State exemption laws in force in the year ^^ eighteen hundred and sixty-four: Provided, That the foregoing exception shall operate as a limitation upon the conveyance of the property of the bankrupt to his assignees ; and in no case shall the property hereby excepted pass to the assignees, or the title of the bankrupt thereto be impaired or affected by any of the provisions of this aet| and the determination of the assignee in the matter shall, on exception taken, be subject to the final decision of the said court : And provided further, That no mortgage of any vessel or of any other goods or chattels, made as security for any debt or debts, in good faith and for present considerations and otherwise valid, and duly i-eeorded, pursuant to any statute of the United States, or of any State, shall be invalidated or affected hereby; and all the property conveyed by the bankrupt in fraud of his creditors; all rights in equity, choses in action, patents and patent rights and CQpyrights; all debts due him, or any person for his use, and all liens and securities therefor ; and all his rights of action for property or estate, real or per-, sonal, and for any cause of action which the bankrupt had against any person arising from contract or from the unlawful taking or deten- tion, or of injury to the property of the bankrupt, and all his rights of redeeming such property or estate, with the like right, title, power, and authority to sell, manage, dispose of, sue for and recover or defend the same as the bankrupt might or could have had if no assignment had been made, shall, in virtue of the adjudication of bankruptcy and the appointment of his assignee, be at once vested in such assignee ; and he may sue for and recover the said estate, debts and effects, and may prosecute and defend all suits at law or in equity, pending at the time of the adjudication of bankruptcy, in which such bankrupt is a party in his own name, in the same manner and with the like effect as they 12— The act of June 8, 1872 (17 St. L. 334), changes this year from "1864" to "1871." 1460 Beandenbueg on Bankeuptcy might have been i^ presented or defended by such bankrupt ; and a copy, duly eerttfied by the clerk of the court, under the seal thereof, of the assignment made by the judge or register, as the case may be, to him as assignee, shall be conclusive evic(ence of his title as such assignee to take, hold, sue for, and recover the property of the bankrupt, as herein- before mentioned ; but no property held by the bankrupt in trust shall pass by such assignment. No person shall be entitled to maintain an action against an assignee -in bankruptcy for anything done by him as such assignee, without previously giving him twenty days ' notice of such action, specifying the cause thereof, to the end that such assignee may have an opportunity of tendering amend, should he see fit to do so. No person shall be entitled, as against the assignee, to withhold from him possession of any books of account of the bankrupt, or claim any lien thereon; and no suit in which the assignee is a party shall be abated by his death or removal from office; but the same may be prosecuted and defended by his successor, or by the surviving or remaining assignee, as the case may be. The assignee shall have authority, under the order and direction of the court, to redeem or discharge any mortgage or conditional contract, or pledge or deposit, or lien upon any property; real or personal, whenever payable, and to tender due performance of the condition thereof, or to sell the same subject to such mortgage, lien or other encumbrances. The debtor shall also, at the request of the assignee and at the expense of the estate, make and execute any instru- ments, deeds, and writings which may be proper to enable the assignee to possess himself fully of all the assets of the bankrupt. The assignee shall immediately give notice of his appointment, by publication at least once a week for three successive weeks in such newspapers as shall for that purpose be designated by the court, due regard being had to their general circulation in the district or in that portion of the district in which the bankrupt and his creditors shall reside, and shall, within six months, cause the assignment to him to be recorded in every registry of deeds or other office within the United States where a conveyance of any lands owned by the bankrupt ought by law to be recorded; and the record of such assignment, or a duly certified copy thereof, shall be evidence thereof in all courts. Sec. 15.1* j^^g jg if fiirther enacted. That the assignee shaU demand and receive, from any and all persons holding the same, all the estate assigned, or intended to be assigned, under the provisions of this act; 13— The act of July 27, 1868 (15 St. L. the court shall be satisfied that it is 228, § 2), changes the word "presented" approved by a majority in value of the to "prosecuted." creditors." 14 — The act of June 22, 1874 (St. 1/. Section 4 provides: That unless other- 178, § 1), provides: " That the court may, wise ordered by the court, the. assignee in its discretion, on sufficient cause showil, shall sell the property of the bankrupt, and upon notice and hearing, direct the whether real or personal, at public aue- receiver or assignee to take possession of tion, in such parts or parcels and at such the property, and carry on the business times and places as shall be best calcu- of the debtor, or any part thereof, under lated to produce the greatest amount with the direction of the court, when, in its the least expense. All notices of public judgment, the interest of the estate as sales under this act ty any assignee or well as of the creditors wil be promoted officer of the court shall be published thereby, but not for a period exceeding once a week for three consecutive weeks nine months from the time the debtor shall in the newspaper or newspapers, to'' be have been declared a bankrupt: Provided, designated by the judge, which, in his that such order shall not be made until opinion, shall be best calculated to give Bankbuptoy Act of 1867 1461 and he shall sell all such unencumbered estate, real and personal, which comes to his hands, on such terms as he thinks most for the interest of the creditors ; but upon petition of any person interested, and for cause shown, the court may make such order concerning the time, place, and manner of sale as will, in its opinion, prove to the interest of the cred- itors; and the assignee shall keep a regular account ^^ of all money received by him as assignee, to which every creditor shall, at reasonable times, have free resort. ^ Sec. 16. And he it further enacted, That the assignee shall have the like remedy to recover all said estate, debts and effects in his own name, as the creditor might have had if the decree in bankruptcy had not heen rendered and no assignment had been made. If, at the time of the commencement of proceedings in bankruptcy, an action is pending in the name of the debtor for the recovery of a debt or other thing which might or ought to pass to the assignee by the assignrjent, the assignee shall, if he requires it, be admitted to prosecute the action in his own name, in like manner and with like effect as if- it had been originally commenced by him. No suit pending in the name of the assignee shall be abated by his death or removal; but upon the motion of the surviving or remaining or new assignee, as the case may be, he shall be admitted to prosecute the suit in like manner and with like effect as if it had been originally commenced by him. In suits prosecuted by the assignee a certified copy of the assignment made to him by the judge or register shall be conclusive evidence of his authority to sue. Sec. 17. And he it further enaofed, That the assignee shall, as soon as may be after receiving any money belonging to the estate, deposit the same in some bank in his name as assignee, or otherwise keep it distinct and apart from all other money in his possession ; and shall, as far as practicable, keep all goods and effects belonging to the estate general notice of the sale. And the court, on the application of any party in interest, shall have complete supervisory power over such sales, including the power to set aside the same and to order a resale, so that the property sold shall realize the largest sum. And the court may, in its discretion, order any real estate of the bankrupt, or any part thereof, to be sold for one-fourth cash at the time of sale, and the residue within eighteen months in such instalments as the court may direct, bearing interest at the rate of seven per centum per annum, and se- cured by proper mortgage or lien upon the property so sold. And it shall be the duty of every assignee to keep a regular account of all moneys received or ex- pended by him as such assignee, to which account every creditor shall, at reasonable' times, have free access. [Here follows the penalty for failure to properly dis- charge his duties, etc.] That the assignee shall report, under oath, to the court, at least as often -as once in three months, the condition of the estate in his charge, and the state of his accounts in detail, and at all other times when the court, on motion or otherwise, shall so order. And on any settlement of the accounts of any assignee, he shall be required to account for all interest, benefit or advantage re- ceived, or in any manner agreed to be received, directly or indirectly, from the use, disposal or proceeds of the bank- rupt's estate. And he shall be required, upon such settlement, to make and file in court an affidavit declaring, according to the truth, whether he has or has not, as the case may be, received, or is or is not, as the case may be, to receive, directly or indirectly, any interest, benefit or ad- vantage from the use or deposit of such funds; and such assignee may be exam- ined orally upon the same subject, and if he shall wilfully swear falsely, either in such affidavit or examination, or to his report provided for in this section, he shall be deemed to be guilty of perjury, and on conviction thereof, he punished by im- prisonment in the penitentiary not less than one and not more than five years. 15— The act of June 22, 1874 (18 St. L. 185, §19), requires the assignee to make a report of the business transacted by him, and of the fees received, etc. 1462 Bkandenbueg on Bankruptcy separate and apart from all other goods in his possession, or designated; by appropriate marks, so that they may be easily and clearly distin- guished, and may not be exposed or liable to be taken as his property or for the payment of his debts. When it appears that the distribution of the estate may be delayed by litigation or other cause, the court may direct the temporary investment of the money belonging to such estate in securities to be approved by the judge or a register of said court, or may authorize the same to be deposited in any convenient bank upon such interest, not exceeding the legal rate, as the bank may contract with the assignee to pay thereon. He shall give written notice to all known creditors, by mail or otherwise, of all dividends, and such notice of meetings, after the first, as may be ordered by the court. He shall be allowed, and may retain out of the money in his hands, all the necessary disbursements made by him in the discharge of his duty, and a reason- able compensation for his services, in the discretion of the court. He may, under the direction of the court, submit any controversy arising in the settlement of demands against the estate, or of debts due to it, to the determination of arbitrators, to be chosen hy him, and the other party to the controversy, and may, under such direction, compound and settle any such controversy, by agreement with the other party, as he thinks proper and most for the interest of the creditors. Sec. 18. And be it further enacted, That the court, after due notice and hearing, may remove an assignee for any cause which, in the judg- ment of the court, renders such removal necessary or expedient. At a meeting called by order of the court in its discretion for the purpose, or which shall be called upon the application of a majority of the creditors in number and value, the creditors may, with consent of [the] court, remove any assignee by such a vote as is hereinbefore provided for the choice of assignee. An assignee may, with the consent of the judge, resign his trust and be discharged therefrom. Vacancies caused by death or otherwise^in the office of assignee may be filled by appointirient of the court, or at its discretion by an election by the creditors, in the manner hereinbefore provided, at a regular meeting, or at a meeting called for the purpose, with such notice thereof in writing to all known creditors, and by such person, as the court shall direct. The resignation or removal of an assignee shall in no way release him from performing all things requisite on his part for the proper closing up of his trust and the transmission thereof to his successors, nor shall it affect the liability of the principal or surety on the bond given by the assignee. When, by death or otherwise, the number of assignees is reduced, the estate of the debtor not lawfully disposed of shall vest in the remaining assignee or assignees, and the persons selected" to fill vacancies, if any, with the same powers and duties relative thereto a'S if they were originally chosen. Any former assignee, his executors or administrators, upon request, and at the expense of the estate, shall make and execute to the new assignee all deeds, conveyances, and assurances, and do all other lawful acts requisite to enable him to recover and receive all the estate. And the court may make all orders which it may deem expedient to secure the proper fulfillment of the duties of any former assignee and the rights and interests of all persons interested in the estate. No person who has received any preference contrary to the provisions of this act shall vote for or be eligible as assignee ; but no title to property, real or Bankeuptcy Act of 1867 1463 personal, sold, transferred, or conveyed by an assignee, shall be affected or impaired by reason of his ineligibility. An assignee refusing or un- reasonably neglecting to execute an instrument when lawfully required by the court, or disobeying a lawful order or decree of the court in the premises, may be punished as for a, contempt of court. Of Debts and Proof of Claims Sec. 19. And ie it further enacted, That all debts due and payable from the bankrupt at the time of the adjudication of bankruptcy, and all debts then existing but not payable until a future day, a rebate of interest being made when no interest is payable by the terms of the contract, may be proved against the estate of the bankrupt. All demands against the bankrupt for or on account of any goods or chattels wrong- fully taken, converted, or withheld by him may be proved and allowed as debts to the amount of the value of the property so taken or withheld, with interest. If the bankrupt shall be bound as drawer, indorser, surety, bail, or guarantor upon any bill, bond, note, or any other specialty or contract, or for any debt of another person, and his liability shall not have become absolute until after the adjudication of bank- ruptcy, the creditor may prove the same after such liability shall have become fixed, and before the final dividend shall have been declared. In all cases of contingent debts and contingent liabilities contracted by the bankrupt, and not herein otherwise provided for, the creditor may make claim therefor, and have his claim allowed, with the right to share in the dividends, if the contingency shall happen before the order for the final dividend; or he may at any time apply to the court to have the present value of the debt or liability ascertained and liquidated, which shall then be done in such manner as the court shall order, and he shall be allowed to prove for the amount so ascertained. Any person liable as bail, surety, guarantor, or otherwise for the bankrupt, who shall have paid the debt, or any part thereof, in discharge of the whole, shall be entitled to prove such debt or to stand in the place of the creditor if he shall have proved the same, although such payment shall have been made after the proceedings in bankruptcy were commenced. And any person so liable for the bankrupt, and who has not paid the whole of said debt, but is still liable for the same or any part thereof, may, if the creditor shall fail or omit to prove such debt, prove the same either in the name of the creditor or otherwise, as may be provided by the rules, and subject to such regulations and limitations as may be estab- lished by such rules. Where the bankrupt is liable to pay rent or other debt falling due at fixed and stated periods, the creditor may prove for a proportionate part thereof up to the time of the bankruptcy, as if the same grew due from day to day, and not at such fixed and stated periods. Jf any bankrupt shall" be liable for unliquidated damages arising out of any contract or promise, or on account of any goods or chattels wrongfully taken, converted, or withheld, the court may cause such damages to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate. No debts other than those above specified shall be proved or allowed against the estate. Sec. 20. And he it further enacted, That, in all cases of mutual debts or mutual credits, between the piarties, the account between them shall 1464 Bbandenbueg on Bankeuptcy be stated, and one debt set off against the other, and the balance only shall be allowed or paid, but no set-off shall be allowed of a claim in its nature not provable against the estate :^^ Provided, That no set-off shall be allowed in favor of any debtor to the bankrupt of a claim purchased by or transferred to him after the filing of the petition. "When a creditor has a mortgage or pledge of real or personal property of the bankrupt, or a lien thereon for securing the payment of a debt owing to him from the bankrupt, he shall be admitted as a creditor only for the balance of the debt after deducting the value of such property, to be ascertained by agreement between him and the assignee, or by a sale thereof, to be made in such manner as the court shall direct ; or the creditor may release or convey his claim to the assignee upon such property, and be admitted to prove his whole debt. If the value of the property exceeds the sum for which it is so held as security, the assignee may release to the creditor the bankrupt's right of redemption therein on receiving such excess; or he may sell the property, subject to the claim of the creditor thereon ; and in either case the assignee and creditor, respectively, shall execute all deeds and writings necessary or proper to consummate the transae tion. If the property is not so sold or released and delivered up, the creditor shall not be allowed to prove any part of his debt. Sec. 21. And ie it further enacted, That no creditor proving his debt or claim shall be allowed to maintain any suit at law or in equity therefor against the bankrupt, but shall be deemed to have "waived all right of action and suit against the bankrupt, and all proceedings alrieady com- menced or unsatisfied judgments already obtained thereon, shall be deemed to be discharged and surrendered thereby ; ^'^ and no creditor whose debt is provable under this act shall be allowed to prosecute to final judgment any suit at law or in equity therefor against the bank- rupt, until the question of the debtor's discharge shall have been deter- mined ; and any such suit or proceedings shall, upon the application of the bankrupt, be stayed to await the determination of the court in bank- ruptcy on the question of the discharge, provided there be no unreason- able delay on the part of the bankrupt in endeavoring to obtain his discharge, and provided, also, that if the amount due the creditor is in dis- pute, the suit, by leave of the court in bankruptcy, may proceed to judg- ment for the purpose of ascertaining the amount due, which amount may be proved in bankruptcy, but execution shall be stayed as aforesaid. If any bankrupt shall, at the time of adjudication, be liable upon any bill of exchange, promissory note, or other obligation in respect of distinct contracts as a member of two or more firms carrying on separate and dis- tinct trades, and having distinct estates to be wound up in bankruptcy, or as a sole trader and also [as] a member of a firm, the circumstance that such firms are in whole or in part composed of the same individuals, or that the sole contractor is also one of the joint contractors, shall not pre- 16— The act of June 22, 1874 (18 St. L. 179, §7), amends this section by in- L. §6), amends this section by adding serting, immediately after the word after the word "estate" the words "or "thereby," "But a creditor proving his in cases of compulsory bankruptcy, after debt or claim shall not be held to have the act of bankruptcy upon or in respect waived his right of action or suit against of which the adjudication shall be made, the bankrupt where a discharge has been and with a view of making such set-ofE. ' ' refused or the proceedings have been de- 17 — The act of June 22, 1874 ■(18 St. termined without a discharge." Bankbuptoy Act of 1867 1465 vent proof and receipt of dividend in respect of such distinct contracts against the estates respectively liable upon such contracts. Sec. 22.1* And be it further enacted, That all proofs of debts against the estate of the bankrupt, by or in behalf of creditors residing within the judicial district where the proceedings in bankruptcy are pending, shall be made before one of the registers of the court in said district, and by or in behalf of non-resident i* debtors before any register in bankruptcy in the judicial district where such creditors or either of them reside, or before any commissioner of the circuit court authorized to administer oaths in any district. To entitle a claimant against the estate of a bank- rupt to have his demand allowed, it must be verified by a deposition in writing on oath or solemn affirmation before the proper register or com- missioner setting forth the demand, the consideration thereof, whether any and what securities are held therefor, and whether any and what pay- ments have been made thereon ; that the sura claimed is justly due from the bankrupt to the claimant ; that the claimant has not, nor has any other person, for his use, received any security or satisfaction whatever other than that by him set forth, that the claim was not procured for the purpose of influencing the proceedings under this act, and that no bar- gain or agreement, express or implied, has been made or entered into, by or on behalf of such creditor, to sell, transfer, or dispose of the said claim or any part thereof, against such bankrupt, or take or receive, directly or indirectly, any money, property, or consideration whatever, whereby the vote of such creditor for assignee, or any action on the part of such creditor, or any other person in the proceedings under this act, is or shall be in any way affected, influenced, or controlled, and no claim shall be allowed unless all the statements set forth in such deposition shall appear to be true. Such oath or solemn affirmation shall be made by the claimant, testifying of his own knowledge, unless he is absent from the United States or prevented by some other good cause from testifying, in which eases the demand may be verified in like manner by the attor- ney or authorized agent of the claimant testifying to the best of his knowledge, information, and belief, and setting forth his means of knowl- edge ; or if in a foreign country, the oath of the creditor may be taken before any minister, consul, or vice-consul of the United States ; and the court may, if it shall see fit, require or receive further pertinent evidence either for or against the admission of the claim. Corporations may verify their claims by the oath or solemn affirmation of their president, cashier, or treasurer. If the proof is satisfactory to the register or commissioner, it shall be signed by the deponent, and delivered or sent by mail to the assignee, who shall examine the same and compare it with the books and accounts of the bankrupt, and shall register, in a book to be kept by him for that purpose, the names of creditors who have proved their claims, in the order in which such proof is received, stating the time of receipt of such proof, and the amount and nature'of the debts, which books shall 18 — Section 20 of the act of June 22, notary and attested hj his signature and 1874 (18 St. L. 186), provides "that in oflSeial seal." By the act of July 27, addition to the officers now authorized to 1868 (15 St. L. 228, § 3), this right to take proof of debts against the estate take proof was extended to United States of a bankrupt, notaries public are hereby commissioners. authorized to take such proof in the man- 19 — The act of July 27, 1868 (15 St. L. ner and under the regulations provided 228, §2), changes this word "debtors" by law; such proof to be certified by the to "creditors." 1466 Beandenbubg on Bankbuptcy be opened to the inspection of all the creditors. The court may, on the application of the assignee, or of any creditor, or. of the bankrupt, or without any application, examiue upon oath the bankrupt, or any person tendering or who has made proof of claims, and may summon any person capable of giving evidence concerning such proof, or concerning the debt sought to be proved, and shall reject all claims not duly proved, or where the proof shows the claim to be founded in fraud, illegality, or mistake. Sec. 23. And he it further enacted. That when a claim is presented for proof before the election of the assignee, and the judge entertains doubts of its validity or of the right of the creditor to prove it, and is of the opinion that such validity or right ought to be investigated by the assignee, he may postpone the proof of the claim until the assignee is chosen. Any person who, after the approval of this act shall have ac- cepted any preference, having reasonable cause to believe that the same was made or given by the debtor, contrary to any provision of this act, shall not prove the debt or claim on account of which the preference was made or given, nor shall he receive any dividend therefrom until he shall first have surrendered to the assignee all property, money, benefit, or advantage received by him under such preference. The court shall allow all debts duly proved, and shall cause a list thereof to be made and certi- fied by one of the registers ; and any creditor may act at all meetings by his duly constituted attorney the same as though personally present. Sec. 24. And ie it further enacted, That a supposed creditor who takes an appeal to the circuit court from the decision of the district court, re- jecting his claim in whole or in part, shall, upon entering his appeal in the circuit court, file in the clerk's office thereof a statement in writing of his claim, setting forth the same, substantially, as in a declaration for the same cause of action at law, and the assignee shall plead or answer thereto in like manner, and like proceedings shall thereupon be had in the plead- ings, trial, and determination of the cause, as in action at law commenced and prosecuted, in the usual manner, in the courts of the United States, except that no execution shall be awarded against the assignee for the amount of a debt found due to the creditor. The final judgment of the court shall be conclusive, and the list of debts shall, if necessary, be altered to conform thereto. The party prevailing in the suit shall be en- titled to costs against the adverse party, to be taxed and recovered as in suits at law ; if recovered against the assignee, they shall be allowed out of the estate. A bill of exchange, promissory note, or other instrument, used in evidence upon the proof of a claim, and left in court or deposited in the clerk's office, may be delivered, by the register or clerk having the custody thereof, to the person who used it, upon his filing a copy thereof, attested by the clerk of the court, who shall indorse upon it the name of the party against whose estate it has been proved, and the date and amount of any dividend declared- thereon. Of Property Perishable and in Dispute Sec. 25. And he it further enacted, That when it appears to the satis- faction of the court that the estate of the debtor, or any part thereof is of a perishable nature, or liable to deteriorate in value, the court may order the same to be sold, in such manner as may be deemed most expedient, Bankruptcy Act of 1867 1467 under the direction of the messenger or assignee, as the case may be, who shall hold the funds received in place of the estate disposed of ; and when- ever it appears to the satisfaction of the court that the title of any portion of the estate, real or personal, which has come into possession of the assignee, or which is claimed by him, is in disjpute, the court may, upon the petition of the assignee, and after such notice to the claimant, his agent or attorney, as the court shall deem reasonable, order it to be sold, under the direction of the assignee, who shall hold the funds received in place of the estate disposed of ; and the proceeds of the sale shall be con- sidered the measure of the value of the property in any suit or contro- versy between the parties in any courts. But this provision shall not prevent the recovery of the property from the possession of the assignee by any proper action commenced at any time before the court orders the sale. Examination op Bankrupts Sec. 26. And he it further enacted, That the court may, on the applica- tion of the assignee in bajikruptcy, or of any creditor, or without any application, at all times require the bankrupt, upon reasonable notice, to attend and submit to an examination, on oath, upon all matters relating to the disposal or condition of his pi^operty, to his trade and dealings with others, and his accounts concerning the same, to all debts due to or claimisd from him, and to all other matters concerning his property and estate and the due settlement thereof aceordiiig to law, which examination shall be in writing, and shall be signed by the bankrupt and filed with the other proceedings ; and the court may, in like manner, require thfe attendance of any other person as a witness, and if such person shall fail to attend, on being summoned thereto, the court may compel his attendance by war- rant directed to the marshal, commanding him to arrest such person and bring him forthwith before the court, or before a register in bankruptcy, for examination as such witness. If the bankrupt is imprisoned, absent, or disabled from attendance, the court may order him to be produced by the jailer, or any officer in whose custody he may be, or may direct the examination to be had, taken, and certified at such time and place and in such manner as the court may deem proper, and ■wdth like effect as if such examination had been had in court. The bankrupt shall at all times, until his discharge, be subject to the order of the court, and shall, at the expense of the estate, execute all proper writings and instruments, and do and perform all acts required by the court touching the assigned prop- erty or estate, and to enable the assignee to demand, recover, and receive all the property and estate assigned, w'herever situated ; and for neglect or refusal to obey any order of the court, such bankrupt may be com- mitted and punished as for a contempt of court. If the bankrupt is with- out the district, and unable to return and personally attend at any of the times or do any of the acts which may be specified or required pursuant to this section, and if it appears that such absence was not caused by wil- ful default, and if, as soon as may be after the removal of such impedi- ment, he offers to attend and submit to the order of the court in all re- spects, he shall be permitted so to do, with like effect as if he had not been in default. He shall also be at liberty, from time to time, upon oath to at- tend and correct his schedule of creditors and property, so that the same 1468 Beandenburg on Bankkuptcy shall conform to the facts. For goo"a cause shown, the wife of any bank- rupt may be required to attend before the court, to the end that she may be examined as a witness; and if such wife do not attend at the time and place specified in the order, the bankrupt shall not be entitled to a discharge unless he shall prove to the satisfaction of the court that he was unable to procure the attendance of his wife. ,No bankrupt shall be liable to arrest during the pendency of the proceedings in bank- ruptcy in any civil action, unless the same is founded on some debt or claim from which his discharge in bankruptcy would not release him. 20 Of the Distribution op the Bankrupt's Estate Sec. 27. And be it further enacted, That all creditors whose debts are duly proved and allowed shall be entitled to share in the bankrupt's prop- erty and estate pro rata, without any priority or preference whatever, except that wages due from him to any operative, or clerk, or house servant, to an amount not exceeding fifty dollars, for labor performed within six jnonths next preceding the adjudication of bankruptcy, shall be entitled to priority, and shall be first paid in full : Provided, That any debt proved by any person liable, as bail, surety, guarantor, or other- wise, for the bankrupt, shall not be paid to the person so proving the same until satisfactory evidence shall be produced of the payment of such debt by such person so liable, and the share to which such debt would be entitled may be paid into court, or otherwise held for the benefit of the party entitled thereto, as the court may direct. At the expiration of three months from the date of the adjudication of bankruptcy in any case, or as much earlier as the court maj^ direct, the court, upon request of the assignee, shall call a general meeting of the creditors, of which due notice shall be given, and the assignee shall then report, and exhibit to the court and to the creditors just and true accounts of all his receipts and payments, verified by his oath, and he shall also produce and file vouchers for all payments for which vouchers shall be required by any riile of the court; he shall also submit the schedule of the bankrupt's creditors and property as amended, duly verified by the bankrupt, and a statement of the whole estate of the bankrupt as then ascertained, of the property recovered and of the property outstanding, specifying the cause of its being outstanding, also what debts or claims are yet undetermined, and stating what sum remains in his hands. At such meeting the major- ity in value of the creditors present shalL determine whether any and what part of the net proceeds of the estate, after deducting and retaining a sum sufficient to provide for all undetermined claims which, by reason of the distant residence of the creditor, or for other sufficient reason, have not been proved, and for other expenses and contingencies, shall be divided among the creditors ; but unless at least one half in value of the creditors shall attend such meeting, either in person or by attorney, it shall be the duty of the assignee so to determine. In case a dividend is ordered, the register shall, within ten days after such meeting, prepare a list of cred- itors entitled to dividend, and shall calculate and set opposite to the 20 — This section is amended by the act arising or ordered under this act, the of June 22, 1874, § 8 (18 St. L. 180), by alleged bankrupt, and any party thereto, adding the following words at the end shall be a competent witness." thereof: "That in all causes and trials Bankbuptcy Act of 1867 1469 name of eaclj creditor who has proved his claim the dividend to which he is entitled out of the net proceeds of the estate set apart for dividend, and shall forward by mail to every creditor a statement of the dividend to which he is entitled, and such creditor shall be paid by the assignee in su'ch manner as the court may direct. Sec. 28. And be it further enacted, That the like proceedings shall be had at the expiration of the next three months, or earlier, if practicable, and a third meeting of the creditors shall then be called by the court, and a final dividend then declared, unless any action at law or suit in equity be pending, or unless some other estate or effects of the debtor afterwards come to the hands of the assignee, in which case the assignee shall, as soon as may be, convert such estate or effects into money, and within two months after the same shall be so converted, the same shall be divided in manner aforesaid. Further dividends shall be made in like manner as often as occasion requires; and after the -third meeting of creditors no further meeting shall be called, unless ordered by the court. If at any time there shall be in the hands of the assignee any outstanding debts or other property, due or belonging to the estate, which cannot be collected and received by the assignee without unreasonable or inconvenient delay or expense, the assignee may, under direction of the court, sell and assign such debts or other property in such manner as the court shall order. No dividend already declared shall be disturbed by reason of debts being subsequently proved, but the creditors proving such debts shall be en- titled to a dividend equal to those already received by the other creditors before any further payment is made to the latter. Preparatory to the final dividend, the assignee shall submit his account to the court and file the same, and give notice to the creditors of such filing, and shall also give notice that he 'will apply for a settlement of his account, and for a discharge from all liability as assignee, at a time to be specified in such notice, and at such time the court shall audit and pass the accounts of the assignee, and such assignee shall, if required by the court, be exam- ined as to the truth of such account, and if found correct he shall thereby be discharged from all liability as assignee to any creditor of the bank- rupt. The court shall thereupon order a dividend of the estate and effects, or of such part thereof as it sees fit, among such of the creditors as have proved their claims, in proportion to the respective amount of their said debts. In addition to all expenses necessarily incurred by him in the execution of his trust, in any case, the assignee shall be entitled to an allowance for his services in such case on all moneys received and paid out by him therein, for any sum not exceeding one thousand dol- lars, five per centum thereof; for any larger sum, not exceeding five thousand dollars, two and a half per centum on the excess over one thou- sand dollars; and for any larger sum, one per centum on the excess over five thousand dollars, and if, at any time, there shall not be in his hands a sufficient amount of money to defray the necessary expenses required for the further execution of his trust, he shall not be obliged to proceed therein until the necessary funds are advanced or satisfactorily secured to him. If by accident, mistake, or other cause, without fault of the assignee, either or botb of the said second and third meetings should not be held within the times limited, the court may, upon motion of an inter- ested party, order such meetings, with like effect as to the validity of the proceedings as if the meeting had been duly held. In the order for a divi- 1470 Bbandenbueg on Bankeuptcy dend, under this section, the following claims shall be entitled to priority or preference, and to be first paid in full in the following order : — First. The fees, costs and expenses of suits, and the several proceed- ings in bankruptcy under this act, and for the custody of property, as herein provided. Second. All debts due to the United States, and all taxes and assess- ments under the laws thereof. Third. All debts due to the state in which the proceedings in bank- ruptcy are pending, and all taxes and assessments made under the laws of such state. Fourth. Wages due to any operative, clerk, or house servant, to an amount not exceeding fifty dollars, for labor performed within six months next preceding the first publication of the notice of proceedings in bankruptcy. Fifth. All debts due to any persons who, by the laws of the United States, are or may be entitled to a priority or preference, in like manner as if this act had not been passed : Always provided, That nothing con- tained in this act shall interfere with the assessment and collection of taxes by the authority of the United States or any State. Of the Bankrupt's Discharge and Its Effect Sec. 29. And he it further enacded, That at any time after the expira- tion of six months from the adjudication of bankruptcy, or if no debts have been proved against, the bankrupt, or if no assets have come to the hands of the assignee, at any time after the expiration of sixty days, ^^ and within one year from the adjudication of bankruptcy, the bankrupt may apply to the court for a discharge from, his debts, and the court shall thereupon order notice to be given by mail to all creditors who have proved their debts, and by publication at least once a week in such news- papers as the court shall designate, due regard being had to the general circulation of the same in the district, or in that portion of the district in which the bankrupt and his creditors shall reside, to appear on a day ap- pointed for that purpose, and show cause why a discharge should not be granted to the bankrupt. No discharge shall be granted, or, if granted, be valid, if the bankrupt has wilfully sworn falsely in his affidavit an- nexed to his petition, schedule, or inventory, or upon any examination in the course of the proceedings in bankruptcy, in relation to any material fact concerning his estate or his debts, or to any other material fact ; or if he has concealed any part of his estate or effects, or any books or writ- ings relating thereto, or if he has been guilty of any fraud or negligence in the care, custody, or delivery to the assignee of the property belonging to him at the time of the presentation of his petition and inventory, ex- cepting such property as he is permitted to retain under the provisions of this act, or if he has caused, permitted, or suffered any loss, waste, or destruction thereof ; or if, within four months before the commencement of such proceedings, he has procured his lands, goods, money or chattels to be attached, sequestered, or seized on execution ; or if, since the passage of this act, he has destroyed, mutilated, altered, or falsified any of his 21— The act of July 26, 1876 (19 St. L. from the adjudication of bankruptcy" 102), amends this section by substituting the words "before the final disposition in lieu of the words ' ' and within one year of the cause. ' ' Bankruptcy Act of 1867 1471 books, documents, paj)ers, writings, or securities, or has made or been privy to the making of any false or fraudulent entry in any book of account or other document, with intent to defraud his creditors ; or has removed or caused to be removed any part of his property from the dis- trict, with intent to defraud his creditors ; or if he has given any fraudu- lent preference contrary to the provisions of this act, or made any fraudulent payment, gift, transfer, conveyance, or assignment of any part of his property, or has lost any part thereof in gaming, or has ad- mitted a false or fictitious debt against his estate ; or if, having acknowl- edged that any person has proved such false or fictitious debt, he has not disclosed the same to his assignee within one month after such knowl- edge ; or if, being a merchant or tradesman, he has not, subsequently to the passage of this act, kept proper books of account ; or if he, or any per- son in his behalf, has procured the assent of any creditor to the discharge, or influenced the action of any creditor at any stage of the proceedings, by any pecuniary-coiisideration or obligation ; or if he has, in contempla- tion of becoming bankrupt, made any pledge, payment, transfer, assign- ment or conveyance of any part of his property, directly or indirectly, absolutely or conditionally, for the purpose of preferring any creditor or person having a claim against him, or who is or may be under liability for him, or for the purpose of preventing the property from coming into the hands of the assignee, or of being distributed under this act in satis- faction of his debts; or if he has been convicted of any misdemeanor under this act, or has been guilty of any fraud whatever contre^ry to the true intent of this act ; and before any discharge is granted, the bank- rupt shaU take and subscribe an oath to the effect that he has not done, suffered, or been privy to any act, matter, or thing specified in this act as a ground for withholding such discharge, or as invalidating such dis- charge if granted. Sec. 30. And he it further enacted, That no person who shall have been discharged under this act, and shall afterwards become bankrupt, on his own application shall be again entitled to a discharge whose estate is in- sufficient to pay seventy per centum of the debts proved against it, unless the assent in writing of three fourths in value of his creditors who have proved their claims is filed at or before the time of application for dis- charge; but a bankrupt who shall prove to the satisfaction of the court that he has paid all the debts owing by him at the time of any previous bankruptcy, or who has been voluntarily released therefrom by his cred- 'itors, shall be entitled to a discharge in the same manner and with the same effect as if he had not previously been bankrupt. Sec. 31. And be it further enacted, That' any creditor opposing the discharge of any bankrupt may file a specification in writing of the grounds of his opposition, and the, court may in its discretion order any question of fact so presented to be tried at a stated session of the district court. Sec. 32. And 6e it further enacted, That if it shall appear to the court that the bankrupt has in all things conformed to his duty under this act, and that he is entitled, under the provisions thereof, to receive a dis- charge, the court shall grant him a discharge from all his debts except as hereinafter provided, and shall give him a certificate thereof under the seal of the court, in substance as follows : 1472 Bkandenbubg on Bankruptcy District Court of the United States, District of Whereas, has been duly adjudged a bankrupt under the act of Congress establishing a uniform system of bankruptcy throughout the United States, and appears to have conformed to all the requirements of law in that behalf, it is therefore ordered by the court that said be forever discharged from all debts and claims which by said act are made provable against his estate, and which existed on the day of , on which day the petition for adjudication was filed by (or against) him ; excepting such debts, if any, as are by said act excepted from the operation of a discharge in bankruptcy. Given under my hand and the seal of the court at , in the said district, this day of , A. D. . , Judge. [Seal] Sec. 33. And be it further enacted, That no debt created by the fraud or embezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary character, shall be discharged under this act; but the debt may be proved, and thei dividend thereon shall be a payment on account of said debt ; and no discharge granted under this act shall release, discharge, or affect any person liable for the same debt for or with the bankrupt, either as partner, joint contractor, indorser, surety, or otherwise. And in all proceedings in bankruptcy commenced after one year from the time this' act shall go into operation, no discharge sliaU be granted to a. debtor whose assets do not pay fifty ^^ per centum of the claims against his estate, unless the assent in writing of a majority in number and value of his creditors who have proved their claims is filed in the case at or before the time of application for discharge. Sec. 34. And he it further enacted, That a discharge duly granted under this act shall, with the exceptions aforesaid, release the bankrupt from all debts, claims, liabilities, and demands ■which were or might have been proved against his estate in bankruptcy, and may be pleaded, by a simple averment that on the day of its date such discharge was granted to him, setting the same forth in haec verba, as a full and complete bar to all suits brought on any such debts, claims, liabilities, or demands, and the certificate shall be conclusive evidence in favor of such bankrupt of the fact and [the] regularity of such discharge : Always provided, That any creditor or creditors of said bankrupt, whose debt was proved or provable against the estate in bankruptcy, who shall see fit to contest the validity of said discharge on the ground that it was fraudulently ob- 22— The act of June 22, 1874 (18 St. such per centum of his debts, or as if the L. 180, § 9), amends this section as required proportion of his creditors had amended by the act of July 27, 1868 (15 assented thereto. And in cases of volun- St. L. 228, § 1), as follows: That in cases tary bankruptcy, no discharge shall be of compulsory or involuntary bankruptcy, granted to a debtor whose assets shall not the provisions of said act, and any amend- be equal to thirty per centum of the ment thereof, or of any supplement claims proved against his estate, upon thereto, requiring the payment of any which he shall be liable as principal proportion of the debts of the bankrupt, debtor, without the assent of at least one- or the assent of any portion of his credi- fourth of his creditors in number, and tors, as a condition of his discharge from one-third in value; and the provision in his debts, shall not apply; but he may, section thirty-three of said act of March if otherwise entitled thereto, be discharged second, eighteen hundred and sixty-seven, by the court in the same manner and requiring fifty per centum of such assets, with the same effect as if he had paid is hereby repealed. Bankruptcy Act of 1867 1473 tained, may, at any time within two years after the date thereof, apply to the court which granted it to set aside and annul the same. Said application shall be in writing, shall specify which, in particular, of the several acts mentioned in section twenty-nine it is intended to give evi- dence of against the bankrupt, setting forth the grounds of avoidance, and no evidence shall be admitted as to any other of the said acts ; but said application shall be subject to amendment at the discretion of the court. The court shall cause reasonable notice of said application to be given to said bankrupt, and order him to appear and answer the same, withiii such time as to the court shall seem fit and proper. If, upon the hearing of said parties, the court shall find that the fraudulent acts, or any of them, set forth as aforesaid by said creditor or creditors against the bankrupt, are proved, and that said creditor or creditors had no knowledge of the same until after the granting of said discharge, judg- ment shall be given in favor of said creditor or creditors, and the dis- charge of said bankrupt shall be set aside and annulled. But if said court shall find that said fraudulent acts and all of them, set forth as aforesaid, are not proved, or that they were known to said creditor or creditors before the granting of said discharge, then judgment shall be rendered in favor of the bankrupt, and the validity of his discharge shall not be aifected by said proceedings. Peepeeences and Fraudulent Conveyances Declared Void Sec. 35.23 j^fi,} jg if fiirther enacted, That if any person, being in- solvent, or in contemplation of insolvency, within four months before the filing of the petition by or against him, with a view to give a preference to any creditor or person having a claim against him, or who is under any liability for him, procures any part of his property to be attached, sequestered, or seized on (Execution, or makes ajiy payment, pledge, assign- ment, transfer, or conveyance of any part of his property, either directly or indirectly, absolutely or conditionally, the person receiving such pay- ment, pledge, assignment, transfer, or conveyance, or to be benefited thereby, or by such attachment, having reasonable cause to believe such person is insolvent, and that such attachment, payment, pledge, assign- ment, or conveyance is made in fraud of the provisions of this act, the same shall be void, and the assignee may recover the property, or the value of it, from the person so receiving it, or so to be benefited ; and if any 23 — The act of June 22, 1874 (18 St. It is further amended as follows: L. 180, §§ 10, 11), makes the following "First. After the word 'and,' in line change with reference to this section: eleven, insert the word 'knowing.' "That in cases of involuntary or com- "Secondly. After the word 'attach- pulsory bankruptcy, the period of four ment, ' in the same line, insert the words months mentioned in section thirty -five 'sequestration, seizure.' of the act to which this is an amendment, ' ' Thirdly. After the word ' and, ' in is hereby changed to -two months; but line twenty, insert the word 'knowing.' this provision shall not take effect until And nothing in said section thirty-five two months after the passage of this act. shall be construed to invalidate any loan And in the cases aforesaid, the period of of actual value, or the security therefor, six months mentioned in, said section made in good faith, upon a security taken thirty-five is hereby changed to three in good faith on the occasion of the months; but this provision shall not take making of such loan." effect until three months after the passage of this act. ' ' Brandenburg — 93 1474 Bbandenbubg on Bankbuptct person being insolvent, or in contemplation of insolvency or bankruptcy, within six months before the filing of the petition by or against him, makes any payment, sale, assignment, transfer, conveyance, or other dis- position of any part of his property to any person who then has reason- able cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and that such payment, sale, assignment, transfer, or other conveyance is made with a view to prevent his property from coming to his assignee in bankruptcy, or to prevent the same from being distrib- uted under this act, or to defeat the object of, or in any way impair, hinder, impede, or delay the operation and effect of, or to evade dny of the provisions of this act, the sale, assignment, transfer, or conveyance shall be void, and the assignee may recover the property, or the value thereof, as assets of the bankrupt. And if such sale, assignment, transfer, or conveyance is not made in the usual and ordinary course of business of the debtor, the fact shall be prima facie evidence of fraud. Any con- tract, covenant, or security made or given by a bankrupt or other person with, or in trust for, any creditor, for securing the payment of any money as a consideration for or with intent to induce the creditor to forbear opposing the application for discharge of the bankrupt, shall be void; and if any creditor shall obtain any sum of money or other goods, chat- tels, or security from any person as an inducement for forbearing to oppose, or consenting to such application for discharge, every creditor so offending shall forfeit all right to any share or dividend in the estate of the bankrupt, and shall also forfeit double the value or amount of such money, goods, chattels, or security so obtained to be recovered by the assignee for the benefit of the estate. Bankruptcy of Partnerships and of Corporations Sec. 36. And be it further enacted, That where two or more persons who are partners in trade shall be adjudged bankrupt, either on the petition of such partners, or any- one of them, or on the petition of any creditor of the partners, a warrant shall issue in the manner provided by this act, upon which all the joint stock and property of the copartnership, and also all the separate estate of each of the partners, shall be taken, excepting such parts thereof as are hereinbefore excepted; and aU the creditors of the company, and the separate creditors of each partner, shall be allowed to prove their respective debts ; and the assignee shall be chosen by the creditors of the company, and shall also keep separate accounts of the joint stock or property of the copartnership and of the separate estate of each member thereof; and after deducting out of the whole amount received by such assignee the whole of the expenses and disbursements, the net proceeds of the joint stock shall be appropriated to pay the creditors of the copartnership, and the net proceeds of the separate estate of each partner shall be appropriated to pay his separate creditors; and if there shall be any balance of the separate estate of any partner, after the payment of his separate debts, such balance shall be added to the joint stock for the payment of the joint creditors; and if there shall be any balance of the joint stock after payment of the joint debts, such balance shall be divided and appropriated to and among the separate estates of the several partners according to their respective right and interest therein, and as it would have been if the partnership had Bankhuptcy Act of 1867 1475 been dissolved without any bankruptcy ; and the sum so appropriated to the separate estate of each partner shall be applied to the payment of his separate debts; and the certificate of discharge shall be granted or refused to each partner as the same would or ought to be if the proceedings had been against him alone under this act ; and in all other respects the pro- ceedings against partners shall be conducted in the like manner as if they had been commenced and prosecuted against one person alone. If such copartners reside in different districts, that court in which the petition is first filed shall retain exclusive jurisdiction over the case. Sec. 37. And he it further enacted, Tha,t the provisions of this act shall apply to all moneyed business or commercial corporations and joint stock companies, and that upon the petition of any offlcer of any such corpora- tion or company, duly authorized by a vote of a majority of the corpora- tors of any legal meeting called for the purpose, or upon the petition of any creditor or creditors of such corporation or company, made and pre- sented in the manner hereinafter provided in respect to debtors, the like proceedings shall be had and taken as are hereinafter provided in the case of debtors; and all the provisions of this act which apply to the debtor, or set forth his duties in regard to furnishing schedules and in- ventories, executing papers, submitting to examinations, disclosing, mak- ing over, secreting, concealing, conveying, assigning, or paying away his money or property, shall in like manner, and with like force, effect, and penalties, apply to each and every officer of such corporation or company in relation to the same matters concerning the corporation or company, and the money and property thereof. All payments, conveyances, and assignments declared fraudulent and void by this act when made by a debtor, shall in like manner, and to the like extent, and with like rem- edies, be fraudulent and void when made by a corporation or company.' No allowance or discharge shall be granted to any corporation or joint stock company, or to any person or officer or member thereof : Provided, That whenever any corporation by proceedings under this act shall be declared bankrupt, all its property and assets shall be distributed to the creditors of such corporations in the manner provided in this act in respect to natural persons. Of Dates and Depositions Sec. 38. And be it further enacted, That the filing of a petition for adjudication in bankruptcy, either by a debtor in his own behalf, or by any creditor against a debtor; upon which an order may be issued by the court, or by a register in the manner provided in section four, shall be deemed and taken to be the commencement of proceedings in bankruptcy under this act; the proceedings in all cases of bankruptcy shall be deemed matters of record, but the same shall not be required to be re- corded at large, but shall be carefully filed, kept, and numbered in the office of the cferk of the court, and a docket only, or short memorandum thereof, kept in books to be provided" for that purpose, which shall be open to public inspection. Copies of such records, duly certified under the seal of the court, shall in all cases be prima facie evidence of the facts therein stated. Evidence or examination in any of the proceedings under this act may be taken before the court, or a register in bankruptcy, viva voce or in writing, before a commissioner of the circuit court, or by affi- 1476 Brandenbueg on Bankeuptcy davit, or on eommission, and the court may direct a reference to a re^ster in bankruptcy, or other suitable person, to take and certify such examina- tion, and may compel the attendance of witnesses, the production of books and papers, and the giving of testimony in the same manner as in suits in equity in the circuit court. Involuntary Bankruptcy Sec. 39. And he it further enacted, That any person residing and owing debts as aforesaid, who, after the passage of this act, shall depart from the State, district, or Territory of which he is an inhabitant, with intent to defraud his creditors, or, being absent, shall, with such intent, remain absent ; or shall conceal himself to avoid the service of legal proc- ess in any action for the recovery of a debt or demand provable under this act ; or shall conceal or remove any of his property to avoid its being attached, taken, or sequestered on legal process ; or shall make any assign- ment, gift, sale, conveyance, or transfer of his estate, property, rights, or credits, either within the United States or elsewhere, with intent to delay, defraud, or hinder his creditors; or who has been arrested and held in custody under or by virtue of mesne process or execution, issued out of any court ^* of any State, district, or Territory, within which such debtor resides or has property founded upon a demand in its nature provable against a bankrupt's' estate under this act, and for a sum exceeding one hundred dollars, and. such process is remaining in force and not dis- charged byj payment, or in any other manner provided by the law 2* of such State, district, or Territory applicable thereto, for a period of ^' seven days ; or has been actually imprisoned for more than ^s seven days 'in a civil action, founded on contract, for the sum of one hundred dollars or upwards; or who, being bankrupt or insolvent, or in contemplation of bankruptcy or insolvency, shall make any payment, gift, grant, sale, conveyance, or transfer of money or other property, estate, rights, or credits,^® or give any warrant to confess judgment ; or procure or suffer his property to be taken on legal process, with intent to give a preference to one or more of his creditors, or to any person or persons who are or may be liable for him as indorsers, bail, sureties, or otherwise, or with the intent, by such dissposition of his property, to defeat or delay the opera- tion of this act; 2'' or who, being a banker ,2s merchant, or trader, has 24 — The act of June 22, 1874 (18 St. a period of forty days, of his commercial L. 180, § 12), amends this section by here paper (made or passed in the course of inserting the words "of the ITnited his business as such), or who, being a States or." bant or banker, shall fail for forty days 25 — Section 12 of the act of 1874, to pay any depositor upon demand of above, changes "seven" to "twenty." payment lawfully made, shall be deemed 26 — Section 12 of the act of 1874 here to have committed an act of bsmkruptcy, adds the words "or confess judgment." and, subject to the conditions herein- 27— The act of June 22, 1874 (18 St. after prescribed, shall be adjudged a L. 180, § 12), amends this section by in- bankrupt on the petition of one or more sorting the following in lieu of the balance of his creditors, who shall constitute one- of this paragraph : " Or who being a bank, fourth thereof, at least, in nimxber, and banker, broker, merchant, trader, manu- the aggregate of whose debts provable facturer, or miner, has fraudulently under this act amounts to at least one- stopped payment, or who, being a bank, third of the debts so provable: Provided, banker, broker, merchant, trader, manu- That such petition is brought within six facturer, or miner, has stopped or sus- months after such act of bankruptcy shall pended and not resumed payment, within have been committed. ' ' [The act of July Bankruptcy Act of 1867 1477 fraudulently stopped or suspended and not resumed payment of his com- mercial paper, within a period of fourteen days, shall be deemed to have committed an act of bankruptcy, and, subject to the conditions herein- after prescribed, shall 'be adjudged a bankrupt, on the petition of one or more of his creditors, the aggregate of whose debts provable under this act amount to at least two hundred and fifty dollars, provided such petition is brought within six months after the act of bankruptcy shall have been committed. And if such person shall be adjudged a bankrupt, the as- signee may recover back the money or other property so paid, conveyed, sold, assigned, or transferred contrary to this act, provided the person receiving such payment or conveyance had reasonable cause to believe that a fraud on this act was intended, or 2» that the debtor was insolvent, and such creditor shall not be allowed to prove his debt in bankruptcy. 26, 1876 (19 St. L. 102), here inserts a provision to the effect that an assignment made by a debtor of all his property, in good faith, for the benefit of his credi- tors, without creating a preference and valid under the state laws, shall not be a bar to the discharge of such debtor.] "And the provisions of this section shall apply to all eases of compulsory or in- voluntary bankruptcy commenced since the first day of December, eighteen hun- dred and seventy-three, as well as to those commenced herekfter. And in all cases commenced since the first day of Decem- ber, eighteen hundred and seventy-three, and prior to the passage of this act, as well as those commenced hereafter, the court shall, if such allegation as to the number or amount of petitioning creditors be denied by the debtor, by a statement in writing to that effect, require him to file in court forthwith a full list of his creditors, with their places of residence ^ and the sums due them respectively, and shall ascertain, upon reasonable notice to the creditors, whether one-fourth in num- ber and one-third in amount thereof, as aforesaid, have petitioned that the debtor be adjudged a bankrupt. But if such debtor shall, on the filing of the petition, admit in writing that the requisite num- ber and amount of creditors have peti- tioned, the court (if satisfied that tlje admission was made in good faith) shall so adjudge, which judgment shall be final, and the matter proceed without further steps on that subject. And if it shall appear that such number and amount have not so petitioned, the court shall grant reasonable time, not exceeding, in cases heretofore commenced, twenty days, and, in cases hereafter commenced, ten days, within which other creditors may join in such petition. And if, at the ex- piration of such time so limited, the num- ber and amount shall comply with the requirements of this section, the matter of bankruptcy may proceed; but if, at the expiration of such limited time, such number and amount shall not answer the requirements of this section, the proceed- ings shall be dismissed, and, in eases here- after commenced, with costs. And if such person shall be adjudged a bankrupt, the assignee may recover back the money or property so paid, conveyed, sold, as- signed, or transferred contrary to this act: Provided, That the person receiving such payment or conveyance had reason- able cause to believe that the debtor ■fras insolvent, and knew that a fraud on this act was intended; and such person, if a creditor, shall no*;, in cases of actual fraud on his part, be allowed to prove for more than a moiety of his debt; and this limitation on the proof of debts shall apply to oases of voluntary as well as in- voluntary bankruptcy. And the petition of creditors under this section may be sufficientl;?- verified by the oaths of the first five signers thereof, if so many there be. And if any of said first five signers shall not reside in the district in which such petition is to be filed, the same may be signed and verified by the oath or oaths of the attorney or attorneys, agent or agents, of such signers. And in com- puting the number of creditors, as afore- said, who shall join in such petition, creditors whose respective debts do not exceed two hundred and fifty dollars shall not be reckoned. But if there be no creditors whose debts exceed said sum of two hundred and fifty dollars, or if the requisite number of creditors holding debts exceeding two hundred and fifty dollars fail to sign the petition, the credi- tors having debts of a less amount shall be reckoned for the purposes aforesaid." 28— The act of July 14, 1870 (16 St. L. 276, § 2), amends this clause by adding the words "broker, manufacturer or miner. ,' ' 29~By the act of July 27, 1868 (15 St. L. 228, §2), this word "or" is changed to "and."' 1478 Beandenbtjbg on Bankbuptcy Sec. 40.* And he it further enacted, That upon the filing of the petition authorized by the next preceding section, if it shall appear that sufiScient grounds exist therefor, the court shall direct the entry of an order re- quiring the debtor to appear and show cause, at a court of bankruptcy to be holden at a time to be specified in the order, not less than five days from the service thereof, why the prayer of the petition should not be granted; and may also, by its injunctions, restrain the debtor, and any other person, in the meantime, from making any transfer or disposition of any part of the debtor's property not excepted by this act from the operation thereof and from any interference therewith; and if it shall appear that there is probable cause for believing that the debtor is about to leave the district, or to remove or conceal his goods and chattels or his evidence of property, or make any fraudulent conveyance or disposition thcKeof, the court may issue a warrant to the marshal of the district, commanding him to arrfest the alleged [bankrupt] and him safely keep, unless he shall give bail to the satisfaction of the court for his appearance from time to time, as required by the court, until the decision of the court upon the petition or the further order. of the court, and forthwith to take possession provisionally of all the property and effects of the debtor, and safely keep the same until the further order of the court. A copy of the petition and of such order to show cause shall be served on such debtor by delivering the same to him personally, or leaving the same at his last or usual place of abode; or, if such debtor cannot be found, or his place of residence ascertained, service shall be made by publication in such manner as the judge may direct. No further proceedings, unless the debtor appear and consent thereto, shall be had until proof shall have been given, to the satisfaction of the court, of such service or publication ; and if such proof be not given on the return day of such order, the pro- ceedings shall be adjourned and an order made that the notice be forth- with so served or published."-' SEa 41. And be it further enacted, That on such return day or ad- journed day, if the notice has been fully served or published, or shall be waived by the appearance and consent of the debtor, the court shall pro- ceed summarily to hear the allegations of the petitioner and debtor, and may adjourn the proceedings from time to time, on good cause shown, and shall, if the debtor on the same day so demand in writing, order a trial by jury at the first term of the court at which a jury shall be in at- tendance, to ascertain the fact of such alleged bankruptcy; *i and if upon 30— The act of June 22, 1874 (18 St. iudge, which judgment shall be final; L. 182, §13), amends this section by otherwise it shall dismiss the proceedings, adding at the end thereof the following and, in cases hereafter commenced, with words: "And if, on the return-day of costs." the order to show cause as aforesaid, the 31 — The act of June 22, 1874 (18 St. court shall be satisfied that the require- L. 182, §14), amends this section by ment of section thirty-nine of said act as striking out all of said section after the to the number and amount of petitioning word "bankruptcy" and inserting the creditors has been complied with, or if, words, "Or, at the election of the debtor, within the time provided for in section the court may, in its discretion, award a thirty-nine of this act, creditors sufScient venire facias to the marshal of the dis- in number and amount shall sign such triet, returnable within ten days before petition so as to make a total of one- him for the trial of the facts set forth in fourth in number of the creditors and his petition, at which time the trial shall one-third in the amount of the provable be had, unless adjourned for cause. And debts against the bankrupt, as provided unless, upon such hearing or trial, it shall in said section, the court shall so ad- appear to the satisfaction of said court, Bankkuptcy Act of 1867 1479 such hearing or trial, the debtor proves to the satisfaction of the court or of the jury, as the case may be, that the facts set forth in the petition are not true, or that the debtor has paid and satisfied all liens upon his property, in case the existence of such liens were the pole ground of the proceeding, the proceedings shall be dismissed and the respondent shall recover costs. Sec. 42. And be it further enacted, That if the facts set forth in the petition are found to be true, or if default be made by the debtor to appear pursuant to the order, upon due proof of service thereof being made, the court shall adjudge the debtor to be a bankrupt, and, as such, subject to the provisions of this act, and shall forthv^ith issue a warrant to take possession of the estate of the debtor. The warrant shall be directed, and the property of the debtor shall be taken thereon, and shall be assigned and distributed in the same manner and with similar proceed- ings to those hereinbefore provided for the taking possession, assignment, and distribution of the property of the debtor upon his own petition. The order of adjudication of bankruptcy shall require the bankrupt forth- with, or within such number of days, not exceeding five after the date of the order or notice therepf, as shall by the order be prescribed, to make and deliver, or transmit by mail, post-paid, 'to the messenger, a schedule of the creditors and an inventory ^2 of his estate in the form and verified in the manner required of a petitioning debtor by section ^ 3 thirteen. If the debtor has failed to appear in person, or by attorney, a certified copy of the adjudication shall be forthwith served on him by delivery or publication in the manner hereinbefore provided for the service of the order to show cause ; and if the bankrupt is absent or cannot be found, such schedule and inventory shall be prepared by the messenger and the assignee from the best information they can obtain. If the petitioning creditor shall not appear and proceed on the return day, or adjourned day, the court may, upon the petition of any other creditor, to the re- quired amount, proceed to adjudicate on such petition, without requiring a new service or publication of notice to the debtor. Op Superseding the Bankrupt Proceedings by Arrangement Sec. 43. And be it further enacted, That if at the first meeting of credi- tors, or at any meeting of creditors to be specially called for that purpose, and of which previous notice shall have been given for such length of time and in such manner as the court may direct, three fourths in value or of the jury, as the case may be, that be ordered and entered; and all parties the facts set forth in said petition are shall be remitted, in either case, to the true, or if it shall appear that the debtor same rights and duties existing at the has paid and satisfied all liens upon his date of the filing of the petition for property, in case the existence of such bankruptcy, except so far as such estate liens was the sole ground of the proceed- shall have been already administered and ing, the proceeding shall be dismissed, and disposed of. And the court shall have the respondent shall recover costs; and power to make all needful orders and all proceedings in bankruptcy may be decrees to carry the foregoing provision discontinued on reasonable notice and into effect." hearing, with the approval of the court, 32 — The act of June 22, 1874 (18 St. and upon the assent, in writing, of such L. 182, § 15), adds the words "and valua- debtor, and not less than one-half of his tion, ' ' after the word ' ' inventory. ' ' creditors in number and amount; or, in 33 — The act of July 27, 1868 (15 St. L. ease all the creditors and such debtor 228, §2), changes the word "thirteen" assent thereto, such discontinuance shall to "eleven." 1480 Beandenbukg on Bankruptcy of the creditors whose claims have been proved shall determine and re- solve that it is for the interest of the general body of the creditors that the estate of the bankrupt should be wound up and settled, and distribu- tion made among the creditors by trustees, under the inspection and direc- tion of a committee of the creditors, it shiall be lawful for the creditors to certify and report such resolution to the court, and to nominate one or more trustees to take and hold and distribute the estate, under the direction of such committee. If it shall appear to the court, after hearing the bankrupt and such creditors as may desire to be heard, that the resolution was duly passed, and that the interests of the creditors will be promoted thereby,* it shall confirm the same ; and upon the execution and filing, by or on behalf of three fourths in value of all the creditors whose claims have been proved, of a consent that the estate of the bank- rupt be wound up and settled by said trustees according to the terms of such resolution, the bankrupt, or his assignee in bankruptcy, if appointed, as the case may be, shall, under the direction of the court, and under oath, convey, transfer, and deliver all the property and estate of the bankrupt to the said trustee or trustees, who shall, upon such convey- ance and transfer, have and hold the same in the same manner, and with the same powers and rights, in all respects, as the bankrupt would have had or held the same if no proceedings in bankruptcy had been taken, or as the assignee in bankruptcy would have done had such resolution not been passed; and such consent and the proceedings thereunder shall be as binding in all respects on any creditor whose debt is provable, who has not signed the same, as if he had signed it, and on any creditor whose debt, if provable, is not proved, as if he had proved it ; and the court, by order, shall direct all acts and things needful to be done to carry into eifect such resollition of the creditors, and thb said trustees shall proceed to wind up and settle the estate under the direction and inspection of such committee of the creditors, for the equal benefit of all such 'creditors, and the winding up and settlement of any estate under the provisions of ' this section shall be deemed to be proceedings in bankruptcy under this act ; and the said trustees shall have all the rights and powers of assignees in bankruptcy. The court, on the application of such trustees, shall have power to summon and examine, or [on] oath or otherwise, the bankrupt and any creditor, and any person indebted to the estate, or known or sus- pected of having any of the estate in his possession, or any other person whose examination may be material or necessary to aid the trustees in the execution of their trust, and to compel the attendance of such persons and the production of books and papers in the same manner as in other proceedings in bankruptcy under this act ; and the bankrupt shall have the like right to apply for and obtain a discharge after the passage of such resolution and the appointment of such trustees as if such resolution had not been passed, and as if all the proceedings had continued in the man- ner provided in the preceding sections of this act. If the resolution shall not be duly reported, or the consent of the creditors shall not be duly filed, or if, upon its filing, the court shall not think fit to approve htereof, the bankruptcy shall proceed as though no resolution had been passed, and the court may make all necessary orders for resuming the proceedings. And the period of time which shall have elapsed between the date of the resolution and the date of the order for assuming proceed- Bankbuptcy Act of 1867 1481 ings shall not be reckoned in calculating periods of time prescribed by this act.** 34— The act of June 22, 1874 (18 St. L. 182, §17), here adds the following provisions: That in all cases of bank- ruptcy now pending, or to be hereafter pending, by or against any person, whether an adjudication in bankrup'tey shall have been had or not, the creditors of such alleged bankrupt may, at a meet- ing called under the direction of the court, and upon not less than ten days ' notice to each known creditor of the time, place and purpose of such meeting, such notice to be personal or otherwise, as the court may direct, resolve that a, composition pro- posed by the debtor shall be accepted in satisfaction of the debts due to them from the debtor. And such resolution shall, to be operative, have laeen passed by a majority in number and three-fourths in value of the creditors of the debtor assembled at such meeting either in per- son or by proxy, and shall be confirmed by the signatures thereto of the debtor and two-thirds in number and one-half in value of all the creditors of the debtor. And in calculating a majority for the purposes of a composition under this section, creditors whose debts amount to sums not exceeding $50 shall be reckoned in the majority in value, but not in the majority in niunber; and the value of the debts of secured creditors above the amount of such security, to be determined by the court, shall, as nearly as circum- stances admit, be estimated in the same way. Aild creditors whose debts are fully secured shall not be entitled to vote upon or sign such resolution vrithout first re- linquishing such security for the benefit of the estate. The debtor, unless prevented by sick- ness or other cause satisfactory to such meeting, shall be present at the same, and shall answer any inquiries made of him; and he, or, if he is so prevented from be- ing at such meeting, some one in his be- half, shall produce to the meeting a statement showing the whole of his assets and debts, and the names and addresses of the creditors to whom such debts re- spectively are due. Such resolution, together with the state- ment of the debtor as to his assets and debts, shall be presented to the court; and the court shall, upon notice to all the creditors of the debtor of not less than five days, and upon hearing, inquire whether such resolution has been passed in the manner directed by this section; and if satisfied that it has been so passed, it shall, subject to the provisions here- inafter contained, and upon being satis- fied that the same is for the best interest of all concerned, cause such resolution to be recorded and statement of assets and debts to be filed; and until such record and filing shall have taken place, such resolution shall be of no validity. And any creditor of the debtor may in- spect such record and statement at all reasonable times. The creditors may, by resolution passed in the manner and under the circumstances aforesaid, add to, or vary the provisions of, any composition previously accepted by them, without prejudice to any persons taking interests under such provisions who do not assent to such addition or varia- tion. And any such additional resolution shall be presented to the court in the same manner, and proceeded with in the same way, and with the same consequences, as the resolution by which the composition was accepted in the first instance. The provisions of a composition accepted by such resolution in pursuance of this sec- tion shall be binding on all the creditors whose names and addresses and the amounts of the debts due to whom are shown in the statement of the debtor produced at the meeting at which the resolution shall have 'been passed, but shall not affect or prejudice the rights of any other creditors. Where a debt arises on a bill of ex- change or promissory note, if' the debtor shall be ignorant of the holder of any such bill of exchange or promissory note, he shall be required to state the amount of such bill or note, the date on which it falls due, the names of the acceptor and of the person to whom it is payable, and any other particulars within his knowl- edge respecting the same; and the inser- tion of such particulars shall be deemed a suflficient description by the debtor in respect to such debt. Any mistake made inadvertently by a debtor in the statement of liis debts may be corrected upon reasonable notice, and with the consent of a general meeting of his creditors. Every such composition shall, subject to priorities declared in said act, provide for a pro rata payment or satisfaction, in money, to the creditors of such debtor in proportion to the amount of their un- secured debts, or their debts in respect to which any such, security shall have been duly surrendered and given up. The provisions of any composition made in pursuance of this section may be en- forced by the court, on motion made in a summary manner by any person inter- 1482 Bbandenbueg on Bankruptcy Penalties Against Bankrupts Sec. 44. And be it further enaoted, That from and after the passage of this act if any debtor or bankrupt shall, after the commencement of pro- ceedings in bankruptcy, secrete or conceal any property belonging to his estate, or part with, conceal, or destroy, alter, mutilate, or falsify, or cause to be concealed, destroyed, altered, mutilated, or falsified, any book, deed, document, or writing relating thereto, or remove, or cause to be re- moved, the same or any part thereof out of the district, or otherwise dis- pose of any part thereof, with intent to prevent it from coming into the possession of the assignee in bankruptcy, or to hinder, impede, or delay either oi'them in recovering or receiving the same, or make any payment, gift, sale, assignment, transfer, or conveyance of any property belonging to his estate with the like intent, or spends any part thereof in gaming ; or shall, with intent to defraud, wilfully and fraudulently conceal from his assignee or omit from his schedule any property or effects whatsoever; or if, in case of any person having, to his knowledge or belief, proved a false or fictitious debt against his estate, he shall fail to disclose the same to his assignee within one month after coming to the knowledge or belief thereof ; or shall attempt to account for any of his property by fictitious losses or expenses; or shall, within three months before the commence- ment of proceedings in bankruptcy, under the false color and pretense of carrying on business and dealing in the ordinary course of trade, obtain on credit from any person any goods or chattels with intent to de- fraud ; or shall, with intent to defraud his creditors, within three months next before the commencement of proceedings in bankruptcy, pawn, pledge, or dispose of, otherwise than by bona fide transactions in the ordi- nary way of his trade, any of his goods or chattels which have been ob- tained on credit and remain unpaid for, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof in any court of the United States, shall be punished by imprisonment, with or without hard labor, for a term not exceeding three years. Penalties Against Officers Sec. 45. And he it further enacted, That if any judge, register, clerk, marshal, messenger, assignee, or any other ofi&cer of the several courts of bankruptcy shall, for anything done or pretended to be done under this act, or under color of doing anything thereunder, wilfully demand or take, or appoint or allow any person whatever to take for him or on his account, or for or on account of any other person, or in trust for him or ested, and on reasonable notice; and any legal difficulties, or for tmy sufficient disobedience of the order of the court cause, proceed without injustice or undue made on such motion shall be deemed to delay to the creditors or to the debtor be a contempt of court. Bules and regu- the court may refuse to accept and confirm' lations of court may be made in relation such composition, or may set the same to proceedings of composition herein pro- aside; and, in either case, the debtor shall vided for in the same manner and to the be proceeded with as a bankrupt in con- same extent as now provided by law in formity with the provisions of law, and relation to proceedings in bankruptcy. proceedings may be had accordingly; and If it shall at any time appear to the the time during which such composition court, on notice, satisfactory evidence shall have been in force shall not, in such and hearing, that a composition under case, be computed in calculating' periods this section cannot, in consequence of of time prescribed by said act Bankruptcy Act of 1867 1483 for any other person, any fee, emolument, gratuity, sum of money, or anything of value whatever, other than is allowed by this act, or which shall be allowed under the authority thereof, such person, when convicted thereof, shall forfeit and pay the sum of not less than three hundred dol- lars and not exceeding five hundred dollars, and be imprisoned not ex- ceeding three years. Sec. 46. And ie'it further enacted, That if any person shall forge the signature of a judge, register, or other officer of the court, or shall forge or counterfeit the seal of the courts, or knowingly concur in using any such forged or counterfeit signature or seal for the purpose of authenti- cating any proceeding or document, or shall tender in evidence any such proceeding or document with a false or counterfeit signature of any such judge, register, or other officer, or a false or counterfeit seal of the court, subscribed or attached thereto, knowing such signature or seal to be false or counterfeit, any such person shall be guilty of felony, and upon con- viction thereof shall be liable to a fine of not less than five hundred dol- lars, and not more than five thousand dollars, and to be imprisoned not exceeding five years, at the discretion of the court. Fees and Costs Sec. 47.^ And be it further enacted, That in each ease there shall be allowed and paid, in addition to the fees of the clerk of the court as now established by law, or as may be established by genferal order, under the provisions of this act, for fees in bankruptcy, the following fees, which shall be applied to the payment for the services of the registers : — For issuing every warrant, two dollars. For each day in which a meeting is held, three dollars. For each order for a dividend, three dollars. For every order substituting an arrangement by trust deed for bank- ruptcy, two dollars. For every bond with sureties, two dollars. For every application for any meeting in any matter under this act, one dollar. For every day's service whUe actually employed under a special order of the court, a sum not exceeding five dollars, to be allowed by the court. For taking depositions the fees now allowed by law. For every discharge when there is no opposition, two dollars. Such fees shall have priority of payment over all other claims out of 35 — The act of June 22, 1874 (18 St. United States shall make and promulgate li. 184, § 18), makes the loUowing amend- new rules and regulations in respect to ment of this section: "That from and the matters aforesaid, under the powers 'after the passage of this act. the fees, conferred upon them by sections ten and cominissions, charges, and allbivances, ex- f^rty-seven of said act, and no longer, cepting actual and necessary disburse- -which duties they shall perform, as soon ments, of, and to be .made by the officers, as may be. And_ said justices shall have agents, marshals, messengers, assignees, power under said sections, by general and registers in cases of bankruptcy, shall regulations, to simplify and, so far as in be reduced to one-half of the fees, com- their judgment will conduce to the benefit missions, charges, and allowances hereto- of creditors, to consolidate the duties of fore provided for or made in like cases: the register, assignee, marshal, and clerk. Provided, That the preceding provision and to reduce fees, costs, and charges, to shall be and remain in force until the the end that prolixity, delay, and un- justices of the Supreme Court of the necessary expense may be avoided. " 1484 Bbandenbukg on Bankruptcy the estate, and, before a warrant issues, the petitioner shall deposit ^^ with the senior register of the court, or with the clerk, to be delivered to the register, fifty dollars as security for the payment thereof ; and if there are not sufficient assets for the payment of the fees, the person upon whose petition the warrant is issued, shall pay the same, and the court may issue an execution against him to compel payment to the register. Before any dividend is ordered, the assignee shall p*ay out of the estate to the messenger the following fees, and no more : — First. For service of warrant, two dollars. Second. For all necessary travel, at the rate of five cents a mile each way. Third. For each written note to creditor named in the schedule, ten cents. Fourth. For custody of property, publication of notices, and other services, his actual and necessary expenses upon returning the same in specific items, and making oath that they have been actually incurred and paid by him, and are just and reasonable, the same to be taxed or adjusted by the court, and the oath of the messenger shall not be con- clusive as to the necessity of said expenses. For cause shown, and upon hearing thereon, such further allowance may be made as the court, in its discretion, may determine. The enumeration of the foregoing fees shall not prevent the judges, who shall frame general rules and orders in accordance with the pro- visions of section ten, from prescribing a tariff of fees for all other serv- ices of the officers of courts of bankruptcy, or from reducing the fees prescribed in this section in classes of cases to be named in their rules and orders. ^ Op Meaning of Terms and Computation op Time Sec. 48. And he it further enacted, That the word "assignee" and the word "creditor" shall include the plural also; and the word "messen- ger" shall include his assistant or assistants, except in the provision for the fees of that officer. The word "marshal" shall include the marshal's deputies; the word "person" shall also include "corporation"; and the word "oath" shall include "affirmation." And in all cases in which any particular number of days is prescribed by this act, or shall be men- tioned in any rule or order of court or general order which shall at any time be made under this act, for the doing of any act, or for any other purpose, the same shall be reckoned, in the absence of any expression ta the contrary, exclusive of the first, and inclusive of the last day, unless the last day shall fall on a Sunday, Christmas day, or on any day ap- pointed by- the President of the United States as a day of public fast or than^sgiviag, or on the fourth of July, in which case the time shall be reckoned exclusive of that day also. Sec. 49. And he it further enacted, That all the jurisdiction, power. and authority conferred upon and vested in the District Court of the United States by this act in cases in bankruptcy are hereby conferred upon and vested in the Supreme Court of the District of Columbia, and in I 3ft— The act of July 27, 1868 (15 St. or" and "to be delivered to the reg- L. 228, § 2), amends this section by omit- ister." ting the words "with the senior register Bankruptcy Act of 1867 1485 and upon the ^^ supreme courts of the several Territories of the United States,^^ when the bankrupt resides in the said District of Columbia or in either of the said Territories. And in those judicial districts which are not within any organized circuit of the United States, the power and jurisdiction of a circuit court in bankruptcy may be exercised by the district judge. Sec. 50. And be it further enacted, That this act shall commence and take effect as to the appointment of the officers created hereby, and the promulgation of rules and general orders, from and after the date of its approval : Provided, That no petition or other proceeding under this act shall be filed, received, or commenced before the first day of June, Anno Domini, eighteen hundred and sixty-seven. Approved, March 2, 1867. 37 — The act of June 22, 1874 (18 St. inserts here the .words "subject to the L. 182, § 16), amends this section by sub- general superintendence and jurisdiction stituting the words "District Court" in conferred upon circuit courts by section lieu of "Supreme Courts." two of said act." 38 — Section 16 of the above act of 1874 '/-■if,: TABLE OF CASES Aarons & Co., In re Sol., 193 Fed. 646, 28 A. B. E. 399 619 Abbe, In re, 2 N. B. R. 26, Fed. Cas. No. 4 192, 1047, 1130 Abbey Press, In re, 134 Fed. 51, 13 A. B. R. 11 15S, 354, 355 Abbott V. Anderson, 31 A. B. R. 877, 184 in. App. 598 923, 925 V. Summers, 116 Fed. 687 972, 991 Abendroth v. Van Dolsen, 131 U. S. 66 1126, 1128 Ablowich, In re, 2 N. B. N. R. 386, 99 Fed. 81, 3 A. B. R. 586 1084, 1186 Ablowich V. Stursburg, IDS Fed. 751, 5 A. B. R., 403 1085 Abraham, In re, 1 N. B. N. 281, 93 Fed. 767, 2 A. B. R. 266 588, 837, 843, 880, 898, 1230, 1233, 1234 Abraham Steers Lumber Co., In re, 110 Fed. 738, 6 A. B. R. 315, aff'd 7 A. B. R. 332, 112 Fed. 406 470, 472, 474, 475, 729, 743 Abrahamson & Bretstein, In re, 1 N. B. N. 23, 1 A. B. R. 44 195, 201, 359 Abram, In re, 3 N. B. N. R. 28, 103 Fed. 272, 4 A. B. R. 575 532, 969 Abrams, In re, 200 Fed. 1005, 29 A. B. R. 590 605, 1012 Abrams & Rubins, In re, 173 Fed. 430, 23 A. B. R. 25 929 Acheson Co., In re, 170 Fed. 427, 22 A. B. R. 338 626 Acker, In re, 66 Fed. 290 1159 Acme Food Co. v. Meier, 153 Fed. 74, 18 A. B. R. 550 61, 67, 69, 76, 97 Acme Harvester Co. v. Beekman Lumber Co., 222 U. S. 300, 27 A. B. R. 262 28, 43. 540, 546, 638, 803, 814, 1239, 1241 Acretelli, In re, 173 Fed. 121, 21 A. B. R. 537 940, 957 Adam v. Collier, 122 U. S. 382 582 Adamant Plaster Co., In re, 137 Fed. 251, 14 A. B. R. 815 . 677 Adams, In re,^ 104 Fed. 72, 2 N. B. N. R. 1034, 4 A. B. R. 696 596, 1055, 1060, 1067, 1073, 1076, 1096, 1185 In re, 171 Fed. 599, 22 A. B. R. 613 1060, 1078, 1184, 1188, 1189 In re, 1 N. B. N. 503, 97 Fed. 188, 2 A. B. R, 415 636, 672, 674, 839 In re, 130 Fed. 788, 12 A. B. R. 368 379, 394, 879 In re, 2 N. B. R. 33, 2 Ben. 503, Fed. Cas. No. 39 354 In re, 2 N. B. R. 92, 3 Ben. 7, Fed. Cas. No. 40 362 In re, 134 Fed. 142, 14 A. B. R. 23 274, 601 In re, 1 N. B. N. 167, 1 A. B. R. 94 274, 522, 526, 573, 642, 795, 807, 865 Adams v. Boston, H. & E. R. Co., Fed. Cao. No. 47, Holmes 30 116, 117 V. Declcers Valley Lumber Co., 202 Fed. 48, 29 A. B. R. 42 1037 V. Lumber Co., 202 Fed. 48, 29 A. B. , R. 42 1201 V. *Myers, 8 N. B. R. 214, 1 Sawy. 306, Fed. Cas. No. 62 477, 551 V. Terrell, 4 Fed. 796 299 [HKFBBENC15S ABB TO PAGES] Adams Cloak, Suit & Fur House, In re, 199 Fed. 337, 28 A. B. R. 923 978, 996 Adams Sartorial Art Co., In re, 2 N. B. N. R. 535, 101 Fed. 215, 4 A. B. R. 107 213 Adams & Hoyt Co., In re, 164 Fed. 489, 21 A. B. R. 161 117 Addis V. Knight, 2 Mer. 117 305 Adler, In re, 144 Fed. 659, 16 A. B. R. 414 403, 804, 1144 In re, 152 Fed. 422, 18 A. B. R. 240 799, 800, 1142, 1143 In re, 129 Fed. 502, 12 A. H. R. 19 889, 894 In re, 170 Fed. 634, 21 A. B. R. 371 1163, 1164 In re, 3 N. B. N. R. 15, 103 Fed. 444, 4 A. B. R. 583 1203i 1212, 1229 In re, 2 Woods 511, Fed. Cas. No. 82 1230 Adler v. Hammond, 1 N. B. N. R. 58, 104 Fed. 862, rev'g 3 N. B. R. 15, U)3 Fed. 444, 4 A. B. R. S83 928, 1204 V. Jones, 109 Fed. 967, 6 A. B. R. 245 916 Adler & Co., In re, 21 A. B. R. 302 355 Aetna Cotton Mills, In re, 171 Fed. 994, 22 A. E. R. 629 387, 395 Agins, In re, 1 N. B. N. 133 649, 796 Agnew, In re, 178 Fed. 478, 23 A. B. R. 360 558 Ahl V. Thome, 3 N. B. R. 118 582 Aiello V. Crampton, 201 Fed. 891, 29 A. B. R. 1 723 Aiken v. Edrington, IS N. B. R. 271, Fed. Cas. No. Ill 521, 526, 545, 760 Aiken, Lambert & Co. v. Haskins, 48 App. Div. (N. Y.) 638, 6 A. B. R. 46 1139 Akron Twine & Cordage Co., In re, 11 A. B. R. 321 392 Alabama Coal & Coke Co., In ro, 210 Fed. 940, 31 A. B. R. 387 637, 638 Alabama & Chat. R. R. Co., In re, 6 N. B. R. 107, 5 Blatch. 390, Fed. Cas. No. 124 117 Alabama & Chat. R. R. Co. \r. Tones, 5 N. B. R. 97, Fed. Cas. No. 126 116, 117, 158, 161, 1234 Alaska- American Fish Co., In re, 162 Fed. 498, 20 A. B. R. 712 34, 114 Alaska Fishing & Development Co., In re, 167 Fed. 875, 21 A. B. R. 685 679, 991, 993, 1009 Albrecht, In re, 17 N. B. R. 287, Fed. Cas. No. 145 1126, 1128, 1138 In re, 3 N. B. N. R. 335, 104 Fed. 974, 5 A. B. R. 223 1056, 1057 In re, 15 Ohio Fed. Dec. 120, 16 A. B.' R. 362 541, 700, 710, 734, 939 In re, 16 N. E. R. 39, Fed. Cas. No. 151 953 Alden, In re, 205 Fed. 145, 30 A. B. R. 48 270, 1234 Alderdice v. Bank, 11 N. B. R. 398, 1 Hughes 47, Fed. Cas. No. 154 733 Alderson, In re, 98 Fed. 588, 3 A. B. R. 554 403, 1136 Aldine Trust Co. v. Smith, 182 Fed. 449, 25 A. B. R. 608, rev'g 176 Fed. 652, 23 A. B. R. 907 550 Aldred, In re, 3 N. B. R. 61, Fed. Cas. No. 4328 581 Aldrich v. Campbell, 70 Mass. 284 446 1487 1488 Bbandenburg on Bankkuptcy Alex, In re, 141 Fed. 483, IS A. B. R. 450 780 Alexander, In re, 1 Lowell 470, 4 N. B. R. 45, Fed. Cas. No. 161 65, 145 In re, 2 N. B. N. R. 997, 102 Fed. 464, 4 A. B. R. 376 471, 728 In re, 3 N. B. R. 6, Chase 295, Fed. Cas. No. 160 1231 Alexander v. Union Surety & Guaranty Co., 89 App. Div. (N. Y.) 3, 11 A. B. - R. 32 535 Alfred, In re, 1 N. B. N. 136, 1 A. B. R. 243 775 Alkon V. United States, 163 Fed. 810, 22 A. B. R. 489 1192. 1196 Allcman, In re, 162 Fed. 693, 20 A. B. R. 745 1102 Alleman v. Booth, 21 How. 506 835 Allen, In re, 96 Fed. 512, 3 A. B. R. 38 401, 402, 650, 991, 992 In re, 183 Fed. 172, 25 A. B. R. 722 560 In re, 178 Fed. 879, 24 A. B. R. 574 696 In re, 17 N. B. R. 157, Fed. Cas. No. 210 , 928 In re, 13 Blatch. 271 1162, 1180 Allen V. Central Wisconsin Trust Co., 143 Wis. 381, 25 A. B. R. 126 ' 600 V. Commercial Nat. Bank, 191 Fed. 97, 27 A. B. R. 33 429^ V. Ferguson, 18 Wall. 1 1126 V. Grant, 122 Ga. 552, 14 A. B.R. 349 858, 859 v. Gray, 63 Misc. (N. Y.) 219, 21 A. B. R. 828 575, 735, 874 V. Grar, 201 N. Y. 504, 25 A. B. R. 423, rev'g 139 App. Div. (N. Y.) 428, 24 A. B. R. 642 873 V. Hollander, 128 Fed. 159, 11 A. B. R. 753 541 V. McMannes, 156 Fed. 615, 19 A. B. R. 276 737, 867, 875, 876 V. Massey, 4 N. B. R. 75, Fed. Cas. No. 231 75, 526 V. Montgomery, 10 N. B. R. 503 20, 542, 816 V. Oxnard, 152 Pa. St. 621 986 V. Thompson, 10 Fed. 116 277 V. W.ird, 10 N. B. R. 285 500 Allen & Co., In re, 134 Fed. 620, 31 A. B. R. 518 751, 776, 779, 1070 Allendorf, In re, 129 Fed. 981, 12 A. B. R. 320 1083, 1090 Allert, In re, 173 Fed. 691, 23 A. B. R. 101 285, 296, 955, 956, 968, 1030 Allgair v. Fisher & Co., 143 Fed. 962, 16 A. B. R, 278 . 285, 944 Ailing V. Eagan, 11 Rob. (La.) 244 1154 Allison Lumber Co., In re, 137 Fed. 643, 14 A. B. R. 78 10, 984, 991 Alper, In re, 162 Fed. 207, 19 A. B. R. . 612 1168 Alphin & Lake Cotton Co., In re, 131 Fed. 824, 12 A. B. R. 653 351, 895 In re, 134 Fed. 477, 14 A. B. R. 194 889, 892 Alsberg, In re, 16 N. B. R. 116, Fed. Cas. No. 261 319, 322, 695, 1145 Alston V. Robinett, 9 N. B. R. 74 43, 1107, 1118 Altenheim, In re. Fed. Cas. No. 268 336 Altieri, In re, 19 A. B. R. 459 1235 Altman, In re, 1 N. B. N. 358, 1 A. B. R 689 129, 138, 181, 189, 237, 250, 1038, 1129 In re, 1 N. B. N. 407, 95 Fed. 263, 2 A. B. R. 407 181, 189, 237 Alton Mfg. Co., In re, 158 Fed. 367, 19 A. B. R. 805 203 Altonwood Park Co., In re, 160 Fed. 448, 20 A. B. R. 31 112. 249, 250 Alvord, In re, 135 Fed. 236, 14 A. B. R. 264 1082 Ambler, In re, 8 Ben. 176, Fed. Cas. No. 271. 990 American Agricultural Chemical Co. v. Berry, 110 Me. 528, 31 A. B. R.' 142 1141, 1143 [EBrERBNCE.S AEE TO PAGES] American Agricultural Chemical Co. v. Brinkley, 194 Fed. 411, 27 A. B. R. 438 122, 123 American Architects Tube Co., In re, 184 Fed. 694, 25 A. B. R. 651 938, 941 American Brewing Co., In re, 112 Fed. 752, ,7 A. ,B. /R. 463 80, 240 .American Elec. Tel. Co., In re, 211 Fed. 88, 31 A. B. R. 612 1032 American Graphophone Co. v. Leeds & Catlin Co., 174 Fed. 158, 23 A. B. R. 337 24. 821 American Guarantee & Security Co. of California, In re, 192 Fed. 405, 27 A. B. R. 640 91, 92 American Lumber & Mfg. Co. v. Taylor, 137 Fed. 321 14 A. B. R. 231 729 American Mach. Works, In re, 174 Fed. 805, 23 A. B. R. 483 558,' 563 American Specialty Co., In re, 191 Fed. 807, 27 A. B. R. 463 380, 381 American Steel & Wire Co. v. Coover, 27 OWa. 131, 25 A. B. R. 58 239, 612, 657 American Trust Co. v. Wallis, 126 Fed. 464, 11 A. B. R. 360 549, 1164 American Vacuum Cleaner Co., In re, 192 Fed. 939, 26 A. B. R. 621 379, 398 American Waterproof Cloth Co., In re, 3 N. B. R. 74, 1 Ben. 526, Fed. Cas. No. 318 505 American Wood Working Mach. Co. v. Norment, 157 Fed. 801, 19 A. B. R. 679 577, 686 Ames, Ex parte, 7 N. B. R. 230, 1 Lowell 561, Fed. Cas. No. 323 419, 687 Ames V. Moir, 138 U. S. 306 1140, 1145 Amly V. Lye, 15 East. 7 421 Amoratis, In re, 178 Fed. 919, 24 A. B. R. 565 401, 1006 Amos, In re, 19 A. B. R. 804 761 Amsin'ck v. Bean. 11 N. B. R. 495, 22 Wall. 395, 10 Blatch. 361, 8 N. B. R. 228 128 192 238, 247, 503, 1037, 1041, 1042, 1043, 'l047 Anders Push Button Tel. Co., In re, 136 Fed. 995, 13 A. B. R. 643 983 Anderson, In re, 134 Fed. 319, 14 A. B. R. 221 1050 In re, 2 N. B. N. R. 567, 101 Fed. 698, 4 A. B. R. 231 1003 In re, 103 Fed. 854, 4 A. B. R. 640 767, 782, 965, 1162, 1163 In re, 3 A. B. R! 544, 98 Fed. 588 1144 In re, 12 N. B. R. 502, 7 Biss. 233, Fed. Cas. No. 350 480 In re, 110 Fed. 141, 6 A. B. R. 555 10, 762 In re, 2 N. E. N. R. 1000 80 In re, 97 Fed. 321, 5 A. B. R. 858 381, 1136 Iii re, 23 Fed. 482, s. c. 9 N. B. R. 360, 2 Hughes 378, Fed. Cas. No. 351 350, 588, 1220 Anderson v. Hampton, 1 B. & A. 308 330 V. How, 116 N. Y. 342 1149 V. Strassbergcr, 6 Ben. 672 720 Andrae & Co., In re, 117 Fed. 561, 9 A. B. R. 135 659 In re, 117 F«d. 561, 9 A. B. R. 135 634, 667, 673, 1016 Andre, In re, 135 Fed. 736, 13 A. B. R. 132 879, 881 Andrews, In re, 144 Fed. 922, 16 A. B. R. 387, aff'g 135 Fed. 599, 14 A. B. R. 247 468, 705, 734 In re, 130 Fed. 383, 12 A. B. R. 267 353 In re, 19 A. B. R. 441 1002 Andrews v. Mather, 134 Ala. 358, 9 A. B. R. 296 850 V. Partridge, 228 U. S. 479, 30 A. B. R. 4, rev'g 191 Fed. 325, 27 A. B. R. 388 597, 601 V. Pond, 13 Pet. 65, 77 860 V. Thum, 64 Fed. 149 1220 Andrews & Jones, In re, 11 N. B. R. 59, Fed. Cas. No. 370 966 Table of Cases 1489 [REFBBBNCBS Andrews & Simonds, In re, 193 Fed. 776, 27 A. B. R. 116 754, 755, 759, 788 Angier, In re, 4 N. B. R. 199, Fed. Cas. No. 388 591 Ankeny, In re, 1 N. B. N. 511, 2 N. B. N. E. 349, 100 Fed. 614. 4 A. B. R. 72 308, 312, 391. 456, 485, 486, 489, 496 Anketell, In re, 19 N. B. R. 268. Fed. Cas. No. 394 HI, 1087 Anniston Iron & Supply Co. v. Anniston Rolling Mill Co., 125 Fed. 974, 11 A. B. R. 200 74, 83 Anonymous, 1 N. B. N. 376, 2 A. B. R. 527, 95 Fed. 120 52 Anonymous, 1 N. B. N. 252 269 Anonymous, 1 N. B. N. 239 310 Anonymous, 1 N. B. N. 2 505 Anonymous, 1 N. B. N. 204 943 Ansley Bros., In re, 153 Fed. 983, 18 A. N. R. 457 759, 760, 783, 790 Anson, In re, 101 Fed. 698, 2 N. B. N. R. 567, 4 A. B. R. 231 479, 1001 Anson Mercantile Co., In re, 185 Fed. 993, 25 A. B. R. 429 509 Anthony v. Sturdivant, 174 Ala. 521, 27 A. B. R. 356 1123, 1125 Antisdel, In re, 18 N. B. R. 289, Fed. Cas. No. 490 581, 1051, 1055, 1057, 1086, 1087 Antrim v. Kelly, 4 N. B. R. 189, Fed. Cas. No. 404 581 Antrines v. Kelly, 4 N. B. R. 189 72 '^ppel. In re, 163 Fed. 1002, 20 A. B. R. 890 326 In re, 2 N. B. N. R. 907, 103 Fed. 931, 4 A. B. R. 722 37, 41, 94, 158, 168, 547 Appel Suit & Cloak Co., In re, 198 Fed. 322, 28 A. B. R. 818 561, 619, 620 ' Appletpn V. Bowles. 9 N. B. R. 354 845 V. Stevers, 10 N. B. R. 515 £56 Appold, In re, 1 N. B. R. 178, Fed. Cas. ^o. 499 542, 682 Archenbrown, In re, 11 N. B. R. 149, Fed. Cas. No. 504 20, 246, 311, 815, 1123 In re, 12 N. B. R. 17, Fed. Cas. No. 505 1080 In re, 8 N. B. R. 429, Fed. Cas. No. 503 405, 968 Arctic Ice Mach. Co. v. Armstrong Coun- ty Trust Co., 192 Fed. 114, 27 A. B. R. 562 544 Arden, In re, 188 Fed. 475, 26 A. B. R. 684 807, 936 Arenson, In re, 195 Fed. 609, 28 A. B. R. 113 1091, 1092, 1093 Argonaut Shoe Co., In re, 187 Fed. 784, 26 A. B. R. 584 640, 1032 Arledge, In re, 1 N. B. N. 195, Fed. Cas. No. 533 667 Armour & Co. v. Miller, 209 Fed. 784, 31 A. B. R. 356 175 Armstrong, In re, 16 N. B. R. 275, 9 Ben. 212, Fed. Cas. No. 539 61 In re, 145 Fed. 202, 16 A. B. R. 583 700, 731 Armstrong v. Fernandez, 208 U. S. 324, 19 A. B. R. 746 172, 187 V. Rickey Bros., 2 N. B. R. 150, Fed. Cas. No. 546 631, 733 Amat V. Wright, 55 Hun 561 161 Arndt, In re. 104 Fed. 234, 3 N. B. N. R. 101, 4 A. B. R. 773 469, 471, 472, 726, 728 Amett, In re, 112 Fed. 770, 7 A. B. R. 522 532, 689, 1191 Arnold, In re, 1 N. B. N. 334, 94 Fed. 1001, 2 A. B. R. 180 653, 656, 720 In re, '2 N. B. R. 61, Fed. Cas. No. 551 404, 405 In re, 169 Fed. 1000. 22 A. B. R. 392 789 Arnold v. Greene Gold-Silver Co., 68 Misc. (N. Y.) 449, 24 A. B. R. 846 953 Arnold Grocery Co. v. Shackleford, 140 Ga. 585, 31 A. B. R. 119 864 AmcJd & Co., In re, 133 Fed. 789, 13 A. B. R. 320 497, 615 Brandenburg — 94 AltK ;i-0 FAGB8] Arnstein, In re, 101 Fed. 706, 4 A. B. R. 246, ^'g 2 N. B. N.' R. 106 380, 413, 414, 416, 433, 1150 Arnstein & Bonn, In re, 2 N. B. N. R. 106 681 Arrington v. Arrington, 132 Fed. 200, 13 A. B. R. 89 1111 Arrington Co., In re, 113 Fed. 498, 8 A. B. R. 64 910, 914, 916 Arsen, In re, 188 Fed. 475, 26 A. B. R. 684 538 Aschenbach Co., Charles W., In re, 183 Fed. 305, 25 A. B. R. 502 257 Ash, In re, 17 N. B. R. 19, Fed. Cas. No. 571 353 Ashland Steel Co., In re, 168 Fed. 679, 21 A. B. R. 834 1018 Ashley, In re, 19 N. B. R. 237, Fed. Cas. No. 581 657 Aspinwall, In re, 11 Fed. 146 148 In re, 10 N. B. N. 448, Fed. Cas. No. 591 358 Asten, In re, 14 N. B. R. 7, 8 Ben. 350, Fed. Cas. No. 594 915 Atcherley, In re, 25 A. B. R. 827 284 Atherton v. Green, 179 Fed. 806, 24 A. B. R. 650 704 Atkins V. Wilcox, 105 Fed. 595, 5 A. B. R. 313 413, 414, 489, 521 V. Wilcox, 3 N, B. N. R. 497 603 V. Equitable Life Assurance Society, 132 Mass. 395 598 Atkinson v. Kellogg, 10 N. B. R. 535, Fed. Cas. No. 613 503, 979, 1029 Atlanta News Pub. Co., In re, 160 Fed. 519, 20 A. B. R. 193 564, 1034 Atlanta Skirt Mfg. Co. v. Jacobs, 8 Ga. App. 299, 25 A. B. R. 895 1145 Atlantic Dynamite Co. v. Reger, 200 Fed. -1002, 29 A. B. R. 659 ^ 1107 Atlantic Mutual Ins. Co., In re, 16 N. B. R. 541, 9 Ben. 280, Fed. Cas. No. 628 249 Atston V. Robinett, 9 N. B. R. 74 1112 Attorney-General v. Alston, 2' Mod. 248 1129, 1135 V. Chelsea Water Wks., Fitzgibbon, 195 653 Audubon v. Shufeldt, 181 U. S. 575, 5 . A. B.'R. 829 7, 381, 1116, 1136 Auerbach, In re, 202 Fed. 192, 29 A. B. R. 791 879, 881 Augenstein, In re, 16 N. B. R. 252 1109, 1113 Augspurger, In re, 181 Fed. 174, 25 A. B. R. 83 1090, 1093 August, In re, 19 N. B. R. 161, Fed. Cas. No. 645 926 Augusta Grocery Co. v. Southern Moline Plow Co., 213 Fed. 786, 31 A. B. R. 677 565, 580 Augustine v. McFarland, Fed. Cas. No. 648 809 Austin, In re, 16 N. B. R. 518, Fed. Cas. No. 662 152, 154 In re, 13 A. B. R. 136 670 Austin V. Markham, 10 N. B. R. 548 1125 V. O'Reilly, 12 N. B. R. 329, 2 Woods 670, Fed. Cas. No. 665, s. c. 8 N. B. R. 129, Fed. Cas. No. 664 1012 Automatic Musical Co., In re, 204 Fed. 334, 30 A. B. R. 328 3S5, 376, 1172 Automobile Livery Service Co., In re, 176 Fed. 792, 23 A. B. R. 799 693, 718 Averill, In re, 1 N. B. N. 544 963, 971 Avery v. Hackley, 11 N. B. R. 241, 20 Wall. 407 576 i V. Johnson, 3 N. B. R. 36, 4 N. B. R. 143, Fed. Cas. No. 675 25 Ayres v. Cone, 138 Fed. 935, 14 A. B. R. 739 247, 488, 490 Azule Nat. Bank Seltzer Water Co., In re, 2 N. B. N. R. 639 934 B B. R. Electric & Telephone Mfg. Co. v. Aetna Life Ins. Co., 206 Fed. 885, 30 A. B. R. 424 239, 1203, 1226 1490 Bkandbnbxjbg on Bankbtjptcy [BEFERENCES Babbett v. Burgess. 7 N. B. R. 561, 2 Dill. 169, Fed. Cas. No. 693 568, 615, 1229 Babbitt V. Dutcher, 216 U. S. 102, 23 A. B. R. 519 29, 30, 568, 8?9, 880 V. Kelly, 9 A. B. R. 335 735 V. Read, 173 Fed, 712, 23 A. B. R. 254 856, 858 V. Walbrun & Co., 4 N. B. R. 30, Fed. Cas. No. 694, 6 N. B. R. 359, 1 Dill. 19 66, 585, 587 Babcock, In re. Fed. Cas. No. 696 480 Baber, In re, 119 Fed. 520 532 Bachman, In re, 12 N. B. R. 223, Fed. Cas. No. 707 859 Back Bay Automobile Co., In re, 158 Fed. 679, 19 A. B. R. 835, rev'g 19 A. B. R. 33 904 Backus V. Fort Street Co., 169 U. S. 557 1240 Bacon, In re, 132 Fed. 157, 12 A. B. R. 730 645 In re, 210 Fed. 129, 31 A. B. R. 777, aff'g 196 Fed. 986, 28 A. B. R. 565 , 838, 879 In re, 196 Fed. 986, 28 A. B. R. 565 882 In re, 159 Fed. 424, 20 A. B. R. 107 886 In re, 205 Fed. 545, 30 A. B. R.; 584 1066 Bacon v. Buffalo Cold Storage Co., 193 Fed. 34, 27 A. B. R. 736 1053; 1104 V. Heathcote, 1 A. B. R. 160 541 V. Roberts, 146 Fed. 729, 17 A. B. R. 421 288 Baden v. Bertenshaw, 68 Kan. 32, 11 A. B. R. 308 / 874 Badger v. United States, 93 U. S. 599 262 Baerncopf, In re, 117 Fed. 975, 9 A. B. R. 133 188, 1062, 1063, 1066 Baginsky, Michel & Co., In re, 1 N. B. N. 360, 2 A. B. R. 243 979 Bahl's Ice Cream & Baking Co., In re, 195 Fed. 986, 28 A. B. R. 139 570 Bailes, In re, 176 Fed. 460, 23 A. B. R. 789 782 Bailey, In re, 1 N. B. R. 177, 2 Ben. 437, Fed. Cas. No. 753 162 In re, 15 N. B. R. 48, Fed. Cas. No. 727 347 In re, 144 Fed. 214. 16 A. B. R. 289 660, 661. 731, 891 In re, 151 Fed. 953, 18 A. B. R. 226 848 In re, 156 Fed. 691, 19 A. B. R. 470 888 In re. 176 Fed. 990, 24 A. B. R. 201 469, 472, 477, 726, 768, 786 In re, 176 Fed. 628, 23 A. B. R. 876 564 Bailey v. Comings, 16 N. B. R. 382, Fed. Cas. No. 733 763, 767 V. Loeb, 11 N. B. R. 271, 2 Woods 578, Fed. Cas. No. 739 681, 1150 V. Nicholas, 2 N. B. R. 151, Fed. Cas. No. 741 387 V. Reeves, 59 So. 802, 28 A. B. R. 850 1128 Baird, In re, 112 Fed. 960, 7 A. B. R. 448 848 In re, 126 Fed. 845, 11 A. B. R. 435 656, 664 In re, 154 Fed. 215, 18 A. B. R. 655 459 In re, 116 Fed. 765, 8 A. B. R. 649 831 881 Baird & Co., In re, 18 A. B. R. 228 ' 459 Baker, In re, 1 N. B. N. 547, 3 A. B. R. 101, 96 Fed. 954 319, 320, 412, 1137 In re, 96 Fed. 954. 3 A. B. R. 101 1149 In re 1 N. B. N. 212, 1 A. B. R. 526 554 In re, 14 N. B. R. 433, Fed. Cas. No. 763 720, 721 In re, 2 N. B. N. R. 195 474, 700, 728. 740 In re, 1 N. B. N. 212, 1 A. B. R. 526 752 In re, 182 Fed. 392, 24 A. B. R. 411 755, 766 In re, 1 N. B. N. 325 803 In re, 1 N. B. N. 212, 1 A. B. R. 526 791, 986, 990 In re, 14 N. B. R. 433, Fed. Cas. No. 763 874 In re, 3 N. B. N. R. 104, 104 Fed. 287, 4 A. B. R. 778 1233, 1234 ABB TO PAGES] Baker Ice Mach. Co. v. Bailey, 209 Fed. 844. 31 A. B. R. 513 , 1214, 1248 Baker Notion Co.. In re, 180 Fed. 922, 24 A. B. R. 808 285, 459, 474 Baker-Ricketson Co., In re, 2 N. B. N. R. 133, 97 Fed. 489, 4 A. B. R. 605 84, 85, 93 Balcomb v. Old Nat. Bank, 201 Fed. 679. 29 A. B. R. 329 " 736 Baldwin, In re, 19 N. B. R. 52, Fed. Cas. No. 796 478 Baldwin v. Hale, 1 Wall. 223 13. 14 Balke v. Francis-Valentine Co^ 89 Fed. 691, 1 N. B. N. 47, 1 A. B. R. 372 353 Ball, In re, 156 Fed. 682, 19 A. B. R. 609 70, 161, 188 In re, 118 Fed. 672, 9 A. B. R. 276 808 Ballance, In re, 206 Fed. 505, 30 A. B. R. 689 929 Ballon, In re, 3 N. B. R. 177, 4 Ben. 135, Fed. Cas. No. 818 829 Baltimore Co. Dairy Ass'n, In re, 11 N. B. R. 253, 2 Hughes 250, Fed. Cas. No. 8281 250 Bamberg v. Stem, 18 N. B. R. 74 324 Bamberger, In re, 2 N. B. N. R. 95 77, 1080, 1088 Bank v. Bank, 10 N. B. R. 44 545 V. Bank, 11 N. B. R. 49 810, 951, 952, 1121 V. Blackmore, 75 Fed. 771 1007 v. Brady's Bend Iron Co., 5 N. B. R. 491, Fed. Cas. No. 9018 198 V. Campbell, 6 N. B. R. 353, 14 WaU. 87 76, 721 V. Carpenter, 119 N. Y. 550 773 V. Cass, 18 N. B. R. 279, Fed. Cas. . No. 2732 177, 189 V. Comstock, 11 N. B. R. 235 481 V. Conway, 14 N. B. R. 175, 1 Hughes 37, Fed. Cas. No. 1037 717 V. Cook, 95 U. S. 343, 346, 16 N. B. R. 391 733 V. Cooper, 9 N. B. R. 529, 20 Wall. 171 1225, 1231, 1242' V. Dewey, 19 N. B. R. 314, Fed. Cas. No. 897 385 V. Fowler, 12 N. B. R. 289 822 V. Graham, 1 N. B. N. 59 1170 V. Harris, 14 N. B. R. 510, Fed. Cas. No. 4595 717 V. Hunt, 4 N. B. R. 198, 676, 733 V. Jones, 11 N. B. R. 38. 21 WaU. 325 721 V. McKey, 102 Fed. 662 689 V. Millboume Mills Co.'s Trustee, 172 Fed. 177, 22 A. B. R. 442, aff'g 162 Fed. 988, 20 A. B. R. 746 850 V. Ober, 13 N. B. R. 328, 1 Woods 80, Fed. Cas. No. 2731 528. 950 V. Overstreet, 13 N. B. R. 154 656 V. Pierce, 137 N. Y. 444 454 V. Porter, 18 N. B. R. 329 391 V. Shuler, 153 N. Y. 172 649 V. Slagle, 106 U. S. 558 1225, 1229 V. Title & Trust Co., 198 U. S. 280, 14 A. B. R. 102, rev'g 125 Fed. 169, 11 A. B. R. 79 1212 V. United States, 19 Wall. 227 1129, 1135 V. Warren, 17 N. B. R. 75, 96 U. S. 539 76 Bank of Clinton v. Kondert, 159 Fed. 703, 20 A. B. R. 178 1206 Bank of Commerce v. Elliott, 109 Wis. 648, 6 A. B. R. 409 819 Bank of Dillon v. Murchison, 213 Fed. 147, 31 A. B. R. 740 20, 671, 673. 676 Bank of Madison, In re, 9 N. B. R. 184. 5 Biss. 515, Fed. Cas. No. 890 556, 616 Bank of Nez Perce v. Pindel, 193 Fed. 917, 28 A. B. R. 69 568, 590, 751, 754, 758. 760, 767 Bank of North America v. Penn Motor Car Co., 235 Pa. 194, 31 A. B. R. 395 544 723 Bank of North Carolina, In re, 12 N. BI R. 130. Fed. Cas. No. 895 410, 1030 Table of Cases 1491 [BEFISBENCKS Bank of Ravenswood v. Johnson, 143 Fed. 463, 16 A. B. R. 206 375, 376, U7S Bank of United States v. Moss, 6 How. 31 1182 Bank of Wayne v. Gold, 146 App. Div. (N. Y.) 296, 26 A. B. R. 722 392, 703, 724, 741 "Bankrupt A," In re, 2 N. B. R. 100 508 Banks, In re, 207 Fed. 662, 31 A. B. R. 270 418 Banks v. Manchester, 128 U. S. 244 185 Banner, In re, 149 Fed. 936, 18 A. B. R. 61 477. 1007 Banzai Mfg. Co., In re, 183 Fed. 298, 25 A. B. R. 497 285, 1176 Barber, In re, 1 N. B. N. 559, 97 Fed. 547, 2 A. B. R. 307 278, 294, 985, 986, 1022, 1023 Barber v. Coit, 144 Fed. 381, 16 A. B. R. 419 474 Barbour v. Priest, 19 N. B. R. 518, 103 U. S. 293 684, 733 Barbusch, In re, 9 N. B. R. 478, Fed. Cas. No. 1086 343 Barclay v. Barclay, 2 N. B. N. R. 552, 184 111. 375 321, 381. 1136 Bard, In re, 108 Fed. 208, S A. B. R. 810 365 Barde & Leivitt, In re, 207 Fed. 654, 31 A. B. R. 161 914, 917 Barden, In re, 2 N. B. N. R. 741, 101 Fed. 553, 4 A. B. R. 31 50, 189, 239 Bardes v. Bank, 178 U. S. 524, 2 N. B. N. R. 725, 4 A. B. R. 163, 3 A. B. R. 680 21, 22, 26, 198, 827, 831, $35, 841, 845, 847, 880 V. First Nat. Bank of Hawarden, 122 Iowa 443, 12 A. B. R. 771 732 Barker, In re. 111 Fed. 501, 7 A. B. R. 132 291, 294 In re, 2 N. B. N. R. 353 363 In re, 20 A. B. R. 674 633, 634 Barker v. Barker, Fed. Cas. No. 986 573 V. Barker's Ass'n, 12 N. B. R. 474, 2 Woods 87, Fed. Cas. No. 986 526, 636 V. Franklin, 37 Misc. (N. Y.) 292, ' 8 A. B. R. 468 865 V. Sniith, 12 N. B. R. 474, 2 Woods 87, Fed. Cas. No. 986 72, 579, 580, 722 Barlington, In re, 163 Fed, 385, 20 A. B. R. 800 696 Barman, In re, 14 N. B. R. 125, Fed. Cas. No. 999 674, 675 Barnard v. N. & W. R. R., 14 N. B. R. 469, 4 Cliff. 351, Fed. Cas. No. 1007 584 V. R. R. Co., 14 N. B. R. 469, 4 Cliff. 351, Fed. Cas. No. 1007 545 Barnes v. Moore. 2 N. B. R. 174 311, 1151 V. Pampel, 1^2 Fed. 525, 27 A. B. R. 192 1201, 1211, 1226, 1231 V. Rattew, Fed. Cas. No. 1019 667 V. United States. 12 N. B. R. 526, Fed. Cas. No. 1023 1016 Barnes Mfg. Co. v. Norden, 67 N. J. L. 493, 7 A. B. R. 553 807, 854 Barnes' Appeal, 13 N. B. R. 543 681, 1012 Bamewall v. Tones, 14 N. B. R. 278, Fed. Cas. No. 1027 246, 850 Baron's Estate, In re, 144 Fed. 540, 16 A. B. R. 569 1034 Barr Pumping Engine Co., In re, 11 A. B. R. 312 988 Barrager, In re, 191 Fed. 247, 27 A. B. R. 366 1054, 1056 Barrett, In re, 132 Fed. 362, 12 A. B. R. 626 217 In re, 2 N. B. R. S33, 2 Fed. Cas. No. 909 507, 514 In re, 6 A. B. R. 48 686, 687, 726 In re, 140 Fed. 569, 16 A. B. R. 46 787 788 In re, 132 Fed. 362. 12 A. B. R. 626 ' 876 In re, 2 N. B. R. 165, 2 Hughes 444, Fed. Cas. No. 1043 340, 508 ABE TO PAOES] Barrett v. Prince, 143 Fed. 302, 16 A, B. R. 64 323, 1141 Barrett Pub. Co., In re, 2 N. E. N. R. 80 143, 160, 244 Barron v. Morris, 14 N. B. R. 371, Fed. Cas. No. 1055 631 V. Morris, 14 N, B. R. 371, Fed. Cas. No. 9828 1218 Barrow, In re, 1 N. B. R. 125, Fed. Cas, No. 1057 20, 845, 938 In re, 3 N. B. N. R. 95, 98 Fed. 582, 3 A. B. R. 414 568, 991 Barry v. Abbott, 100 Mass. 396 185 V. Mercein, 5 How. 103 1238 Bartenbach, In re, 11 N. B. R. 61, Fed. Cas. No. 1068 395, 410, 591, 955, lOU Bartheleme, Jacob L., In re, 11 A. B. R. 67 724 Bartholomew v. West, 8 N. B. R. 12, Fed. Cas. No. 1071 758, 768, 772, 780 Bartholow v. Bean, 10 N. B. E. 241, 18 Wall. 635 582 Bartlett, In re, 172 Fed. 679, 22 A. B. R. 981 691 Bartlett v. Bramhall, 3 Gray 257 992 V. United States, 106 Fed. 884, 5 A. B. R. 678 1196 Bartley, In re, 110 Fed. 928, 7 A. B. R. 26 743 Barton v. Barbour, 104 U. S. (14 Otto) 126 231, 486 Barton Bros., In re, 149 Fed. 620, 18 A. B. R. 98 889 Barton Bros. v. Texas Produce' Co., 136' Fed. 355, 14 A. B. R. 502 4, 1073 Barton Hotel Co., In re, 12 A. B. R. 335 111; 112, 113 Barton's Estate, In re, 144 Fed. 540, 16 A. B. R. 569 549, 817, 1106 Basch, In re, 2 N. B. N. R. 122, 3 A. B. R. 235, 97 Fed. 761, 3 A. B. R. 235 1143 Basha & Son, In re, 200 Fed. 951, 29 A. B. R. 225 466 Bashford, In re, 2 N. B. R. 26, Fed. Cas. No. 1090 1103 Bashinski v. Tajbott, 119 Fed. 337 779 Bashline, In re, 109 Fed. 965, 6 A. B. R. 194 ' 471, 705 Bashore v. Rhoads. 16 N. B. E. 72 442 Bass, In re, 15 N. B. R. 453, 3 Woods 382, Fed. Cas. No. 1091 751, 760, 776, 787, 789 Bassett, In re, 8 Fed. 266 HI In re, 189 Fed. 410, 26 A. B. R. 800 762 Bassett v.. Baird, 17 N. B. R. 177 481 V. Parsons, 140 Mass. 169 597 V. Thackara, 72 N. J. L. 81, 16 A. B. R. 786 ■ 940, 1121 Batchelder, In re, 3 N. B. R. 37, 1 Lowell 313, Fed. Cas. No. 1098 704, 722 Batchelder V. Low, 8 N. B. R. 571 1151 V. Putnam, 13 N. B. R. 404 644 Bates, In re, 100 Fed. 263, 4 A. B. R. 56 420, 451, 1039 In re, 2 N. B. N. R. 208 425, 1028 Bates Mach. Co., In re, 1 N. B. N. 135, 1 A. B. R. 129, 91 Fed. 625 92, 118 Batten, In re, 170 Fed. 688, 22 A. B. R. 270 ■ 776 Battey, In re, 16 N. B. R. 397, 2 Lowell 409, Fed. Cas. No. 14,169 317 Battle V. Gardner, 4 N. B. R. 106, Fed. Cas. No. 1195 ' 720 Baudouine, In tei 1 N. B. N. 506, 96 Fed. 536, 3 A. B. R. 55, 101 Fed. 574, 3 A. B. R. 651 525, 545, 548, 606, 762, 837, 842, 879, 1187 Baughman, In re, 183 Fed. 668, 25 A. B. R. 167 749, 757, 758 In re, 138 Fed. 742, 15 A. B. R. 23 807 In re, 163 Fed. 669, 20 A. B. R. 811 956 Baum, In re, 1 N. B. N, 7, 1 Ben. 274, Fed. Cas. No. 1116 363 In re, 169 Fed. 410, 22 A. B. R. 295 896, 1176, 1178, 1230 1492 Bbandenbubg on Bankeuptcy [BEFEBEKCES Bauman v. Feist, 107 Fed. 83, 5 A. B. R. 703 1077, 1079, 1082, 1188 Bauman Diamond Co. v. Hart, 192 Fed. 498, 27 A. B. R. 632 159, 200, 201, 202, 1206 Baumann, In re, 96 Fed. 946, 3 A. B. R. 196 61 Baumblatt, In re, 153 Fed. 485, 18 A. B. R. 720 402, 618, 937, 1005 In re, 156 Fed. 422, 19 A. B. R. 500 998 Baumhauer v. Austin, 186 Fed. 260, 26 A. B. R. 385 283, 492 Bausman v. Dixon, 173 U. S. 113 1240 Baxter, In re, 18 N. B. R. 62, Fed. Cas. No. 1119 423 In re, 19 N. B. R. 295, Fed. Cas. No. 1122 532 Baxter & Co., In re, 154 Fed. 22, 18 A. B. R. 450 997 Bayley, In re, 177 Fed. 522, 22 A. B. R. 249 533, 1013 Baylor v. Rawlings, 200 Fed. 131, 28 A. B. R. 773 1080, 1085 Bayly, In re, 19 N. B. R. 73, Fed. Cas. No. 1144 922 Bazemore, In re, 189 Fed. 236, 26 A. 'B. R. 494 635 Bazinslcy, Mitcliell & Co., In re, 1 N. B. N. 360, 2 A. B. R. 243 523 v. Macon Grocery Co., 125 Fed. 513, 11 A. B. R. 104 219 Beach v. Macon Grocery Co., 116 Fed. 143, 8 A. B. R. 751 201, 255, 794, 937 Beachy & Co., In re, 170 Fed. 825, 22 A. B. R. 538 855, 856 Beal, In re, 2 N. B. R. 178, Fed. Cas. No. 1156, 1 Lowell 323 623, 1085 BeaU V. Harrell, 7 N. B. R. 400, Fed. Cas. No. 1163 585 Beals, In re, 116 Fed. 530, 8 A. B. R. 639 28, 656 In re, 17 N. B. R. 108, 9 Ben. 223, Fed. Cas. No. 1165 162 Bean, In re, 100 Fed. 262, 4 A. B. R. 53 52, 313, 773, 784 Bean v. Amsinck, 8 N. B. R. 228, 10 Blatch. 361, Fed. Cas. No. 1167 918 V. Broolcmire, 4 N. B. R. 57, Fed. Cas. No. 1168 864 V. Brookmire, 7 N. B. R. 568, 2 Dill. 108, Fed. Cas. No. 1170 908, 918, 920 V. LaSin, S N. B. R. 333, Fed. Cas. No. 1172 557 V. Laflin, 10 N. B. R. 333 582 v. Orr, 182 Fed. 599, 25 A. B. R. 400 642, 685 V. United States, 192 Fed.. 859, 27 A. B. R. 759 - 1197 Bean-Chamberlain Mfg. Co. v. Standard Spoke & Nipple Co., 131 Fed. 215, 12 A. B. R. 610 65 Bear, In re, 5 Fed. S3, aff'd 7 Fed. 583 168, 479 In re, 11 N. B. R. 46, Fed. Cas. No. 1178 598 Bear v. Chase, 99 Fed. 920, 3 A. B. R. 746 _^ 649, 656, 663, 793, 797 Bear Gulch Elacer Min. Co. v. Walsh, 198 Fed. 351, 28 A. B. R. 724 879 Beardsley, In re, 1 N. B. R. 52, Fed. Cas. No. 1183 161, 1058 In re, 1 N. B. R. 121, Fed. Cr.s. No. 1184 567 Beams, In re, 18 N. B. R. 500, Fed. Cas. No. 1191 696 Beasley v. Coggins, 48 Fla. 215, 12 A. B. R. 355 638, 860 Beattie v. Gardner,. 4 N. B. R. 106, Fed. Cas. No. 1195 65 Beatty, In re, 150 Fed. 293, 17 A. B. R. 738 86 Beattys v. Straiton, 142 App. Div. (N. Y.) 369, 25 A. B. R. 808 865 Beauchamp, In re, 101 Fed. 106, 4 A. B. R. ISl 754, 771, 773 ABB TO PAGES] Beaver Coal Co., In re, 110 Fed. 630, 6 A. B. R. 404 657, 661 In re, 113 Fed. 889, 7 A. B. R. 542 657 In re, 107 Fed. 98, 5 A. B. R. 787 1006 Beaver Knitting Mills, In re, 154 Fed. 320,, 18 A. B. R. 528 ,453, 480 Becher Bros., In re, 139 Fed. 366, 15 A. B. R. 288 439, 442 Beck, In re, 110 Fed. 140, 6 A. B. R. 554 336, 503 In re, 1 N. B. N. 564, 1 A. B. R. 535, 92 Fed. 889 961, 962, 963 In re, 31 Fed. 554 1112 Beck Provision Co., In re, 2 N. B. N. R. 532 640, 684, 810, 1010 Becker, In re, 2 N. B. N. R. 241, 98 Fed. 407, 3 A. B. R. 412 208, 588, 617 In re, 2 N. B. N. R. 202 778 In re, 31 A. B. R. 596 998 In re, 106 Fed. 54, 5 A. B. R. 438 594, 1095, 1189 Becker v. Torrance, 31 N. Y. 631 649, 806 Becker Co. v. Gill, 206 Fed. 36, 30 A. B. R. 429 619, 1017 Beckerford, In re, 4 N. B. R. 203. 1 Dill. 45, 4 N. B. R. 59, Fed. Cas. No. 1209 8, 9, 756, 757, 789, 790 Becket, In re, 12 N. B. R. 201, 2 Woods 173, Fed. Cas. No. 1210 924 Beckhaus, In re, 177 Fed. 141, 24 A. B. R. 380 716 Beddinglield, In re, 1 N. B. N. 385, 2 A. B. R. 355, 96 Fed. 190 154 Beebe, In re, 116 Fed. 48, 8 A. B. R. 597 1058 Beebe v. Pyle, 18 N. B. R. 162 313, 315, 905 Beecher v. Clark, 10 N. B. R. 385, Fed. Cas. No. 1223 577 Beede, In re, 138 Fed. 441, 14 A. B. R. 697 22, 673 In re, 19 N. B. R. 68, Fed. Cas. No. 1226 790 Beeg. In re, 184 Fed. 522, 25 A. B. R. 572 686 Beel v. Arledge, 192 Fed. 837, 27 A. B. R. 773 1209 Beerman, In re, 112 Fed. 663, 7 A. B. R. 434 313. 419, 722, 1151 Beers v. Hanlin, 99 Fed. 695, 3 A. B. R. 745 71. 146, 412, 432 V. Place, 4 N. B. R. 150, Fed. Cas. No. 1233 854 Beeson v. Howard. 11 N. B. E. 486 1156 Beiber, In re, 2 N. B. N. R. 943 471, 474 Beiermeister Bros. Co., In re, 208 Fed. 945, 31 A. B. R. 474 32, 33 Beihl, In re, 197 Fed. 870, 28 A. B. R. 310 590 In re, 176 Fed. 583, 23 A. B. R. 905 675 Belcher, In re, 1 N. B. R. 202, 2 Ben. 463, Fed. Cas. No. 1237 162 Belden, In re, 4 N. B. R, 57, Fed. Cas. No. 1241 353 In re, 2 N. B. R. 14, Fed. Cas. No. 1240 1072 In re, 6 N. B. R. 443, 5 Ben.- 476, Fed. Cas. No. 1239 799, 1123 BeWen v. Smith, 16 N. B. R. 302, Fed. Cas. No. 1242- 662 Bering, In re, 116 Fed. 1016, 8 A. B. R. Belding-Hall Mfg. Co. v. Mercer & Fer- don Lumber Co., 175 Fed. 335, 23 A. B. R. S9S 866, 937 Belfast Mesh Underwear Co., In re, 153 Fed. 224, 18 A. B. R. 620 86 Belknap, In re, 129 Fed. 646, 12 A. B. R. 326 64, 66, 79, 654 Bell V. Arledge, 192 Fed. 837, 27 A. B. R. 773 1204 V. Carey, 8 C. B. 87 438 V. Dawson Grocery Co., 120 Ga. 628, 13 A. B. R. 159 776 V. Leggett, 7 N. Y. 176 1076, 1109 Table of Ca^es 1493 (RBFIIRISNCISS Bell Piano Co., In re, ISS Fed, 272, 18 A. B. R. 183 1024 Bellah, In re, 116 Fed. 69, 8 A. B. R. 310 65, 136, 165, 168, 170, 173, 174, 185, 1195 Bellamy. In re, 1 N. B. R. 64, 1 Ben. 390, Fed. Cas. No. 1266 354 Bellevue Pipe & Foundry Co., 22 A. B. R. 97 640, 675, 1019 Bellingbam Bay v. New Whatcom, 172 U. S. '314 1239 Bellis, In re, 3 N. B. R., 65, Fed. Cas. No. 1276 350 In re, 3 N. B. R. 49, 3 Ben. 386, Fed. Cas. No. 1274 358 In re, 3 N. B. R. 124, 4 Ben. 53, Fed. Cas. No. 1275 1086, 1087 Dement, In re, 172 Fed. 98, 22 A. B. R. 616, rev'g 158 Fed. 885, 20 A. B. R. 317 564 Bemis. In re, 3 N. B. N. R. 49, 104 Fed. 672, 5 A. B. R. 36 1079 In re, 5 A. B. R. 36, 104 Fed. 672 1058 Bemis v. Smith, 10 Met. 194 447 Bendall, In re, 183 Fed. 816, 25 A. B. R. 698 619 Bender, In re, 106 Fed. 873, 5 A. B. R. 632 198 In re, IS Ohio Fed. Dec. 253, 17 A. B. R. 895 788, 936 Bendheim, In re, 180 Fed. 918, 24 A. B. R. 254 367, 368 Benedict, In re, 140 Fed. 55, 15 A. B. R. 232 28, 29, 30, 31, 204, 220 In re, 75 N. Y. S. 165, 8 A. B. R. 463, 37 Misc. (N. Y.) 230 654, 660, 1141, 1143 In re, 18 A. B. R. 604 925, 1126 Benedict v. Deshel, 177 N. Y. 1, 11 A. B. R. 20, rev'g 77 App. Div. (N. Y.) 276 70S Benedict Tea & Coffee Co., In re, 192 Fed. 1011, 27 A. B. R. 409 397, 1014 Benhain, In re, 8 N. B. R. 94 234 Benjamin, In re, 140 Fed. 320, 15 A. B. R. 351 - 274, 584 In re, 136 Fed. 175, 14 A. B. R. 481, aff'g 13 A. B. R. 18 946 Benjamin v. Chandler, 142 Fed. 217, 15 A. B. R. 439 707, 721, 875 V. Hart, 4 N. B. R. 138, 4 Ben. 454, Fed. Cas, No. 1302 1218 V. New Orleans, 169 U. S. 161 1237 Benner v. Bluraauer-Frank Drug Co., 198 Fed. 362, 28 A. B. R. 798 736 Bennet, In re, 153 Fed. 673, 18 A. B. R. 320 1010 Bennett, In re, 12 N. B. R. 181, 2 Lowell 400, Fed. Cas. No. 1314 63, 132, 188 In re, 12 N. B. R. 257, 2 Hughes 156, Fed. Cas. No. 1313 621 Bennttt v. Alexander, 1 Cranch, C. C. 90 1129 BennMt Shoe Co., C. H., In re, 140 Fed. 687, 15 A. B. R. 497 89 In re, 162 Fed. 691, 20 A. B. R. 704 387 Bennington v. Lowenstein, 1 N. B. R. 157, Fed. Cas. No. 10938 656. Benson, In re, 16 N. B. R. 377, 8 Bfss. * - 116, Fed. Cas. No. 1328 S90 Bentley v. Young, 210 Fed. 202, 31 A. B.' R. 506 586 Benwood Brew. Co., In re, 202 Fed. 326, 29 A. B. R. 759 20, 40, 992 Berg, In re, 183 Fed. 885, 25 A. B. R. 170 620 Berger, In re, 200 Fed. 325, 29 A. B. R. 712 1077, 1082 Bergman, In re, 2 N. B. N. R. 806 772 Berkebile, In re, 144 Fed. 577, 16 A. B. R. 277 1220 Berkowitz, In re, 173 Fed. 1012, 22 A. B. R 231 39, 326, 868, 883, 966 In re, 143 Fed. 598, 16 A. B. R. 251' 274 Berman, In re, 15 Ohio Fed. Dec. 110, 15 A. B. R. 463 314, 758 ABE TO PAGES] Berman v. Smith, 171- Fed. 735, 22 A. B. R. 662 534 V. Smith, 8 Ga. App. 262, 24 A. B. R. 849 534 Bernard v. Abel, 156 Fed. 649, 19 A. B. R. 383 225, 243 V. Fromme, 132 Aop. Div. (N. Y.) 922, 22 A. B. R. 585 140, 241 V. Lea, 210 Fed. 583, 31 A. B. R. 436 1017, 1209, 1210, 1220, 1221, 1223 Berner, In re, 2 N. B. N. R. 330, 3 A. B. R. 325 35, 37, 250 In re, 2 N. B. N. R. 268, 3 A. B. R. 325 627, 1066 1067, 1094, 1095, 1099, 1100, 1102, 1186 Hemes, In re, 3 N. B. N. R. 49, 104 Fed. 672 1095 Bernhisel v. Firman, 11 N. B. R. 505, 22 Wall. 170 711 Berry v. Hanks, 28 111. App. 57 779 Berry Bros. v. Sheehan, 115 App. Div. (N. Y.) 488, 17 A. B. R. 322 1130 Berry & Co., In re, 174 Fed. 409, 23 A. B. R. 27 500 In re, 147 Fed. 208, 16 A. B. R. 564, s. c. 17 A. B. R. 491 614 In re, 146 Fed. 623, 15 A. B. E. 360 1101 Berryman v. Allen, 15 N. B. R. 113 68 Bertenshaw, In re, 157 Fed. 363, 17 L. R. A. (N. S.) 886, 19 A. B. R. 577 63, 612, 881, 1130 Berthold v. Goldsmith, 24 How. 536 126, 127 Beswick, In re, 2 N. B. N, R. 808 469, 471, 472, 475, 728 Betton V. Valentine, 1 Curt. 176 5 Betterlein, 20 Fed. 109 1016 Betts, In re, IS N. B. R. 536, 4 Dill. 93, Fed. Cas. No. 1371 750 Beutel's Sons, 2 N. B. N. R. 1011, 7 A. B. R. 768, 943 Bevier Wood Pavement Co., In re, 156 Fed. 583, 19 A. B. R. 462 428 Bevins, .In re, 165 Fed. 434, 21 A. B. R. 344 141 Bick, In re, 155 Fed. 908, 19 A. B. R. 68 1172, 1177 Bickfor'd v. Barnard. 8 Allen 314 1134 Bidwell, In re, 2 N. B. R. 78, Fed. Cas. No. 1392 129, 1047, 1130 Biesenthal, In re, 15 N. B. R. 228, .3 Fed. Cas. No. 76 667 Big Cahaba Coal Co., In re, 183- Fed. 662, 25 A. B. R. 761 284 In re, 190 Fed. 900, 26 A. B. R. 910 285, 567, 568, 879 Big Four Implement Co. v. Wright, 207 Fed. 535, 31 A.'B. R. 125 544, 565, 7.17, 723 Big Meadows Gas Co., In re, 113 Fed. 974, 7 A. B. R. 697 146, 432, 433 Bigelow, In re, 2 N. B. R. 121, 3 Ben. 146, Fed. Cas. No. 1397 422, 424, 963 In re, 2 N. B. R. 170, 3 Ben. 198, Fed. Cas. No. 1398 407, 445 In re, 1 M. B. R. 186, 2 Ben. 480, Fed. Cas. No. 1396 480, 483 In re, 1 N. B. R. 202, 2 Ben. 469y Fed. Cas. No. 1395 631 Bill V. Beckwith, 2 N. B. R. 82, Fed Cas. No. 1406 840, 895 Billing, In re, 145 Fed. 395, 17 A: B. R. 80 19, 28, 43, 137. 159, 239, 240, 248, 250, 251, 284 Bills V. Schliep, 127 Fed. 103, 11 A. B. R. 607 555 Bingham, In re, 94 Fed. 796, 2 A. B. R. 223, 1 N.'B. N. 351 389, 392, 439, 443, -454, 480, 1025 Bingham v. Claflin, 7 N. B. R. 412 843 V. Richmond & Gibbs, 6 N. B. R. 127, Fed, Cas. No. 1415 473 Bininger, In re. Fed. Cas. No. 1420 85, 667 Birch V. Steele, 165 Fed. 577, 21 A. B. R. 539 260, 265, 1230 Birck & Co., In re, 142 Fed. 438, 15 A.^ B. R. 694 678 1494 Brandenburg on Bankruptcy [BEFEBENCES Bird, In re, 180 Fed. 229, 25 A. B. R. 23 718 Birkett v. Columbia Bank, 195 U. S. 345, 12 A. B. R. 691 1152, 1153 Birmingham Coal & Iron Co. v. Southern Steel Co., 160 Fed. 212, 20 A. B. R. 151 218, 507 Birmingham Fertilizer Co. v. John A. Cox & Son, 10 Ga. App. 699, 28 A. B. R. 934 1128, 1134 Bishop, In re, 153 Fed. 304, 18 A. B. R. 635 682, 1011 Bishop V. Hart, 28 Vt. 71 992 Bjournstad, In re. 18 N. B. R. 282 772 Black, In re, 1 N. B. R. 81, 2 Ben. 196, Fed. Cas. No. 1457 60, 76, 663, 720 In re, 97 Fed. 493, 4 A. B. R. 471n 1103 In re, 17 N. B. R. 399, Fed. Cas. No. 1459 404 Black V. Blayo, 13 N. B. R. 195 43 V. MoCIelland, 12 N. B. R. 481, Fed. Cas. No. 1462 410 Blackstaff Eng. Co., In re, 200 Fed. 1019, 29 A. B. R. 663 1001 Blackstone v. Everybody's Store, 207 Fed. 752, 30 A. B. R. 497 85, 152, 185, 229 Blackwell v. Claywell, IS N. B. R. 300 247 • In re, 17 N. B. R. 492, Fed. Cas. No. 1481 171 Blair, In re, 99 Fed. 76, 2 N. B. N. R. 364, 3 A. B. R. 588 63. 172, 188, 192, 193, 612, 1038 In re, 108 Fed. 529, 6 A. B. R. 206 657, 661 In re, 102 Fed. 987, 2 N. B. N. R. 890, 4 A. B. R. 220 662, 733, 837 In re, 106 Fed. 662, 5 A. B. R. 793 1224 Blair v. Allen, 3 Dill. 101, Fed. Cas. No. 1483 236 Blaisdell, In re, 6 N. B. R. 78, 5 Ben. 420, Fed. Cas. No. 1488 524 Blake, In re, 2 N. B. R. 10, Fed. Cas. No. 1492 351, 352 In re, 150 Fed. 279, 17 A. B. R. 668 541, 838 In re, 171 Fed. 298, 22 A. B. R. 612 867 Blake v. Alabama & Chatt. R. R. Co., 6. N. B. R. 331, Fed. Cas. No. 1493 843 V. Francis-Valentine Co., 1 N. B. N. 47, 1 A. B. R. 372, 89 Fed. 691 10 .. Nesbet, 144 Fed. 279, 16 A. B. R. 269 1168, 1174 V. Openhym & Sons, 216 U. S. 322, 23 A. B. R. 616 1242 Blake, Moffitt & Towne v. Valentine Co.', 89 Fed. 691, 1 A. B. R. 372 638 Blakely v. Bank, 1 N. B. N. 411, 2 A. B. R. 460, 95 Fed. 267 471, 728, 740 Blalock, In re, 118 Fed. 679, 9 A. B. R. 266 1058, 1077. 1082, 1096, 1098 Blanchard, In re, 161 Fed. 793, 20 A. B. R. 417 771, 1037 Blanchard v. Ammons, 183 Fed. 556, 25 A. B. R. 590 44, 1232 Blanchard Shingle Co., In re, 164 Fed. 311, 21 A. B. R. 142 1205, 1225, 1226 Blanchard & Howard, In re, 161 Fed. 797, 20 A. B. R. 422 750, 758, 777 Blandin, In re, 5 N. B. R. 39, 1 Lowell 543, Fed. Cas. No. 1527 407 Blankfein, In re, 2 N. B. N. R. 49, 97 Fed. 91, 3 A. B. R. 165 331, 339, 340 Blasdel v. Fowie, 120 Mass. 447 1076, 1109 Bleek, In re, 12 N. B. R. 215, 8 Ben. 93, Fed. Cas. No. 1822 1150 Blick V. Nimmo, 30 A. B. R. 770 805, 821, 850, 851, 866 Bliss. In re. Fed. Cas. No. 1543 507 Bloch, In re, 109 Fed. 790, 6 A. B. R. 300 62, 227 In re, 142 Fed. 674, 15 A. B. R. 748 468, 574 In re, 18 N. B. R. 328, Fed. Cas. No. 1551 915 In re, 18 N. B. R. 328, Fed. Cas. No. 1551 907 AKD TO PAGES] Block, In re, 17 Fed. 674, 15 A. B. R: 748 705 Block V. Rice, 167 Fed. 693, 21 A. B. R. 691 624 Blodgett, In re, 5 N. B. R. 472, Fed. Cas. No. 1552 513 In re, 10 N. B. R. 145, Fed. Cas. No. 1555 771 Bloodworth-Stembridge Co.,. In re, 178 Fed. 372, 24 A. B. R. 156 904, 911, 913 Bloomer v. Statljr^ 5 McLean 158 757 Bloomingdale v. Empire Rubber Mfg. Co., 114 Fed. 1016, 8 A. B. R. 74 619, 695 Bloomsburg Brewing Co., In re, 172 Fed. 174, 22 A. B. R. 625 111, 114 Bloss, In re, 4 N. B. R. 37, Fed. Cas. No. 1562 147, 149, 479, 481, 814 Blount, In re, 142 Fed. 263, 16 A. B. R. 97 4, 141 Blue Grass Canning Co. v. Steward, 175 Fed. 537, 23 A. B. R. 726 823 Blue Mountain Iron & Steel Co. v. Port- ner, 131 Fed. 57, 12 A. B. R. 559 86, 88, 90 Blue Ridge Packing Co., In re, 125 Fed. 619, 11 A. B. R. 36 340, 342, 461, 462, 508 Blue Ridge R. R. Co., In re, 13 N.' B. R. 315, 2 Hughes 224, Fed. Cas. No. 1570 956 Bluestone Bros., In re, 174 Fed. 53, 23 A. B. R. 264 808 Blum, In re, 193 Fed. 304, 28 A. B. R. 60 1137 In re, 202 Fed. 883, 29 A. B. R. 332 1226 Blumberg, In re, 1 N. B. N. 259, 1 A. B. R. 633, 94 Fed. 476 1121 Blumberg v. Bryan, 107 Fed. 673, 6 A. B. R. 20 844 Blumenthal, In re, 18 N. B. R. 555, Fed. Cas. No. 1576 127, 1059. 1078, 1086, 1088 Bluthenthal v. Jones, 208 U. S. 64, 19 A. B. R. 288, aff'g 51 Fla. 396 1055 Board of Com'rs v. Gorman, 19 Wall. 662 1218 Board of County CoraVs v. Hurley, 169 Fed. 92, 22 A. B. R. 209 386, 1025, 1209 Boardman, In re, 103 Fed. 783, 2 N. B. N. R. 82i; 4 A. B. R. 620 597 Boasberg, In re, 1 N. B. N. 133, 1 A. B. R. 353 1066, 1081, 1084 Bodek, In re, 188 Fed. 817, 26 A. B. R. 476 79 Boden & Haac v. Lovell, 203 Fed. 234, 30 A. B. R. 353 468, 722 Boese v. King, 108 U. S. 385 667 Bogen, In re, 134 Fed. 1019, 13 A. B. R. 529 94 Bogen & Trummell v. Protter, 129 Fed. 533, 12 A. B. R. 288 81, 98. 229 Bogert, In re, 3 N. B. R. 161, Fed. Cas. No. 1600 509 Bolinger, In re. 1 N. B. N. 254 793, 795 In re, 108 Fed. 374. 6 A, B. R. 171 789, 1009 Boiling, In re, 147 Fed. 786, 17 A. B. R. 399 554 Bologh, In re, 185 Fed. 825, 25 A. B. R. 726 530, 893 Bolton, In re, 1 N. B. R. 83, 2 Ben. 189, Fed Cas. No. 1614 338, 478 Bond, In re, 3 N. B. R. 2, Fed. Cas. No. 1618 375 Bond V. Milliken, 134 Iowa 447, 17 A. B. R. 811 1147, 1148, 1153 Boner, In re, 169 Fed. 727, 22 A. B. R. 151 1094, 1100 In re, 189 Fed. 93, 26 A. B. R. 321 284 Bonesteel, Iii re, 2 N. B. R. 106, Fed. Cas. No. 1628 363 In re. 3 N. B. R. 127, 7 Blatch. 175, Fed. Cas. No. 1627 840, 880 Bonner v. Bonner, 17 Beav. 86 1154 Book, In re, 3 McLean 317, Fed. Cas. No. 1637 120, 1054 Boonville Nat'l Bank v. Blakey, 107 Fed. 891, 6 A. B. R. 13 217, 839, 1205, 1213, 1217, 1218 Table of Cases 1495 [BEFBBENCES Boorstin, In re, 114 Fed. 696, 8 A. B. R. >89 284, 780 Booss, In re, 154 Fed. 494, 18 A. B. R. 658 357 598 Booth, In re, 2 N. B. N. R. 377, 98 Fed! 975, 3 A. B. R. 574 525, 542, 579, 634, 636, 673, 852 In re, 96 Fed. 943, 2 A. B. R. 770, 1 N. B. N. 476 274, 483, 836, 842, 844 In re, 14 N. B. R. 232, Fed. Cas. No. 1645 553 Booth V. Meyer, 14 N. B. R. 575 615 V. Nickerson, 1 N. B. N. 476, 96 Fed. 943, 2 A. B. R. 770 649, 799, 806 V. Prete, 81 Conn. 636, 22 A. B. R. 579 444, 709 Boothe V. Brooks, 12 N. B. R. 398, Fedi Cas. No. 1650 733 Boothroyd, In re, 14 N. B. R. 223, Fed. Cas. No. 1652 771 Borden, In re, 2 N. B. N. R. 741, 4 A. B. R. 31, 101 Fed. 553 237 Borg, In re, 184 Fed. 640, 25 A. B. R. 189 1095 Borgeson Co., In re, 151 Fed. 780, 18 A. B. R. 178 214, 215, 972, 973, 980 Borst, In re, 2 N. B. N. 62, Fed. Cas. No. 1665 319 In re, II N. B. R. 96, Fed. Cas. No. 1666 1054 Boschelli, In re, 183 Fed. 864, 25 A. B. R. 528 566, 570 Boston, In re, 2 N. B. N. R. 19, 98 Fed. 587, 3 A. B. R. 388 766, 782 BostonCerrillos Mines Corp., In re, 206 Fed. 794, 30 A. B. R. 739 28, 883, 886 Boston Dry Goods Co., In re, 125 Fed. 226, 11 A. B. R. 97 1234 Boston, H. & E. R. R. Co., In re, 6 N. B. R. 209, 9 Blatch. 101, Fed. Cas. No. 1678 26, 44, 223 Boston & Oaxaca Mining Co., In re, 181 Fed. 422, 24 A. B. R. 923 85, 86, 90, 99 Boston, etc., R. R. Co., In re. 5 N. B. R. 232, Fed. Cas. No. 1679, 9 Blatch. 139 176 Bostwick V. Foster, 18 N. B. R. 123, 14 Blatch. 436, Fed. Cas. No. 1682 852 Boswell Nat. Bank v. Simmons, 190 Fed. 735. 26 A, B. R. 865 700 Bouck, In re, 199 Fed. 453, 28 A. B. R. 378 1073, 1102 Bound, In re, 4 N. B. R. 164, Fed. Cas. No. 1697 1079 Bourlier Cornice & Roofing Co., In re, 133 Fed. 958, 13 A. B. R. 585 938, 984, 995 Bousfield & Poole Mfg. Co., In re, 17 N. B. R. 153, Fed. Cfas. No. 1704 410, 430, 846 In re, 16 N. B. R. 489, Fed. Cas. No. 1703 700 Boutelle, In re, 2 N. B. R. 51, Fed. Cas. No. 1705 501, 1054 Bowen & Thomas v. Keller, 130 Ga. 31, 22 A. B. R. 727 751, 784, 787, 1070, 1131 Bower v. Holzworth, 138 Fed. 28, 15 A. B. R. 22 1216 Bowie, In re, 1 N. B. R. 185, Fed. Cas. No. 1725 ^ , 26 Bowman v. Alpha Farms, 153 Fed. 380, 18 A. B. R. 700 , 844 Bowne, 12 ,N. B. R. 529, Fed. Cas. No. 1741 681 Boyce V. U. S. Fidelity & Guaranty Co., Ill Fed. 138, 7 A. B. R. 6 145 Boyd, In re, 15 N. B. R. 199, 2 Hughes 349, Fed. Cas. No. 1745 556, 849 Boyd V. Arnold, Loucheim & Co., 149 Fed. 187, 17 A. B. R. 839 „ 1069 V. Glucklich, 116 Fed. 131, 8 A. B. R. 393 1158, 1161, 1163, 1164, 1165, 1174, il75, 1176, 1177, 1179, 1197 V. Lemon & Gale Co., 114 Fed. 647, 8 A. B. R. 81 „ 68 Boyden, In re, 132 Fed. 991, 13 A. B. R. 269 , 10?9 Boyle V. Zaeharie, 6 Pet. 635 14 ABE TO PAOBS] Boynton, In re, 10 Fed. 277 1185 Boynton v. Ball, 121 U. S. 457 413, 799. 815, 1135 Bozeman, In re, 1 N. B. N. 479, 2 A. B. R. 809 542, 563, 579, 634, 640, 852 Bozemore, In re, 189 Fed. 236, 26 A. B. R. 494 565 Bracken v. Johnson, 15 N. B. R. 106, 4 Dill. 518, Ted. Cas. No. 1761 815 V. Milner, 104 Fed. 522, 5 A. B. R. 23 1141, 1143 Bracklee Co. v. O'Connor, 67 Misc. (N. Y.) 599, 24 A. B. R. 499 540, 925, 926 Bradford, In re, 2 N. B. R. 26, Fed. Cas. No. 1090 1141 Bradin, In re, 179 Fed. 768, 24 A. B. R. 793 1059, 1061 . Bradley, Alderson & Co. v. McAfee, 149 Fed. 254, 17 A. B. R. 495 563 Bradley Clark & Co. v. Benson, 93 Minn. 91, 13 A. B. R. 170 717 Bradley Timber Co. v. White, 121 Fed. 779, 10 A. B. R. 329, aff'g 119 Fed. 989, 9 A. B. R. 441 76, 77 Bradshaw v. Klein, Fed. Cas. No. 1790, 1 N. B. R. 146, 2 Biss. 20 526. 573, 636 Brady, In re, 169 Fed. 152, 21 A. B. R. 364 308, 1223 Britdy v. Bernard & Kittinger, 170 Fed. 576, 22 A. B. R. 342 1203, 1211, 1215, 1218, 1219, 1225, 1226 Braentigan, In re, 3 N. B. N. R. 461 606 Bragassa, In re, 2 N. B. N. R. 837, 103 Fed. 936, 4 A. B. R. 519 1081 Bragassa v. St. Louis Cycle Co., 107 Fed. 77, 5 A. B. R. 700 296, 976, 1083 Bragg, In re, 2 N. B. N. R. 82 398, 749, 778 Brake v. Callison, 129 Fed. 201, 11 A. B. R. 797 69 Braley v. Boomer, 12 N. B. R. 303 1123, 1128 Braman v. Snider, 21 Fed. 871 1135 Bramlett, In re, 161 Fed. 588, 20 A. B. R. 402 1053 Brand, In re, 3 N. B, R. 85, Fed. Cas. No. 1809 479, 485 Brandon Nat. Bank v. Hatch, 16 N. B. R. 468 321, 1124 Brandt, In re, 5 Biss. 217, Fed. Cas. No. 1811 591 In re, 2 N. B. R. 76, Fed. Cas. No. 1812 359, 362 In re, 2 N. B. R. 109, Fed. Cas. No. 1813 354, 363 Braselton, In re, 169 Fed. 960, 22 A. B. R. 419 284, 558 Brass Crosby, In re, 3 Wilson 188 ' 1159 Bratton v. Anderson, 14 N. B. R, 99 8q6 Braverman, In re, 199 Fed. 863, 28 A. B. R. 513 1090, 1091 Bray, In re, 2 N. B. R. 53, Fed. Cas. No. 1818 290 Bray v. Cobb, 1 N. B. N. 209, 1 A. B. R. 153, 91 Fed. 102 50, 82, 96, 180, 184, 222, 232, 235, 240 ' 261, 262, 266, 267 V. Cobb, 2 N. J3. N. R. 586, 100 Fed. 270, 3 A. B. R. 788 395, 413, 414, 457, 603, 605, 996, 1149, 1150 V. Johnson, 166 Fed. 57, 21 A. B. R. 383 295 Breck, In re, 12 N. B. R. 215,| 8 Ben. 93, Fed. Cas. No. 1822 996 Breck v. Brewster, 138 N. Y. S. 821, 31 A. B. R. 842 532, 856 * Breckons v. Snyder, 211 Pa. 176. 15 A. B. R. 112 557, 874 Breiner, In re, 129 Fed. 155, 11 A. B. R. 684 1077, 1094 Breitling, In re, 133 Fed. 146, 13 A. B. R. 126 1096, 1102 Brener, In re, 166 Fed. 930, 20 A. B. R. 644 1091, 1092 Brenner, In re, 190 Fed. 209, 26 A. B. R. 646 26, 27, 269, 281, 284 Brent, In re, 8 N. B. R. 444, 2 Dill. 129, Fed. Cas. iio. 1832 1054 1496 Bbandenbubg on Bankbuptcy [KBPEttBNCBS Brett, In re, 130 Fed. 981, 12 A. B. R. 492 • 163, 164, 172 Brett V. Carter, 14 N. B. R. 301, 2 Lowell 458, Fed. Cas. No. 1844 712 Brewster v. Goff, 164 Fed. 127, 21 A. B. R. 239 737 V. Goff Lumber Co., 164 Fed. 124, 21 A. B. R. 106 705, 732 Brewster & Co., In re, 180 Fed. 109, 24 A. B. R. 838 402 Brice. In re, 93 Fed. 942, 2 A. B. R. 197, 1 N. B. N. 310 38, 105, 132 In re, 102 Fed. 114, 4 A. B. R. 355 1080, 1082, 1085 Brick, In re, 19 N. B. R. 508 555, 1047 1130 Brick & Schermerhorn, In re, 12 N. B. R. 215, 8 Ben. 93, Fed. Cas. No. 1822 602 Bridgman, In re, 2 N. B. R. 84, Fed. Cas. No. 1867 1032 In re, 1 N. B. R. 59, Fed. Cas. No. 1866 478 Briggs, Ex parte, 3 Dea. & Ch. 367 427 Ex parte, 2 Lowell 389, Fed. Cas. No. 1868 1109 In re, 3. N. B. R. 157, Fed. Cas. No. 1869 254 Briggs V. Walker, 171 U. S. 466 1240 Brignam v. Home Life Ins. Co., 131 Mass. 319 597 Brightman, In re, 15 N. B. R. 213, 14 Blatch. 130, Fed. Cas. No. 1878 1049 Brinckmann, In re, 103 Fed. 65, 4 A. B. R. 551 146 Brinker, In re, 128 Fed. 634, 12 A. B. R. 122 954, 988, 990 In re, 19 N. B. R. 195, Fed. Cas. No 1882 970 Brinkley v. Smithwick, 126 Fed. 686, 11 A. B. R. 500 91, 184 Brinkman, In re, 6 N. B. R. 541, Fed. Cas. No. 1883 810 In re, 7 N. B. R. 421, Fed. Cas. No. 1884 810, 816 Brisco, In re, 2 N. B. R. 78, Fed. Cas. No. 1886 336 Brisenden v. Chamberlain, 53 Fed. 311 35 Briskman, In re, 132 Fed. 201, 13 A. B. R. 57 884 Bristol V. Sanford, 1'3 N. B. R. 78, 12 Blatch. 341, Fed. Cas. No. 1893 1026 Brittain Dry Goods Co. v, Bertenshaw, ■ 68 Kan. 734 700 Britannia Mjn. Co., In re, 203 Fed. 450, 29 A. B. R. 472, rev'g 197 Fed. 459, 28 a; B. R. 651 29, 934, 941, 945 British & American Mortgage Co. v. Stuart, 210 Fed. 425, 31 A. B. R. 465 380, 385 Broadway Savings Trust Co., In re, 152 Fed. 152, 18 A. B. R. 254 164, 170, 172, 175, 176, 222 Broadway Trust Co. v. Manheim, 47 Misc. (N. Y.) 415, 14 A. B. R. 122 903, 924,'927, 1151, 1155 Brock V. Terrell, 2 N. B. R. 190, Fed. Cas. No. 1914 722 Brockman, In re, 168 Fed. 1015, 21 A. B. R. 251 1063, 1067, 1083 Brockton Ideal Shoe Co., In re, 193 Fed. 233, 27 A. B. R. 577 220 In re, 200 Fed. 745, 29 A. B. R. 76 « 308, 309 In re, 202 Fed. 199, 29 A. B. R. 846 894 In re, 27 A. B. R. 576 210 Brockway, In re, 7 N. B. R. 595, 16 Ben.. 326, Fed. C.is. No. 1917 1086 Brod, In re, 166 Fed. 1011, 21 A. B. R. 426 1059 Brodbine, In re, 1 N. B. N. 279, 326, 93 Fed. 643, 2 A. B. R. 53 198, 617, 618, 801, 837, 84?, 879 Broich, In re, 15 N. B. R. 11, 7 Biss. 303, Fed. Cas. No. 1921 146, 147, 177, 409, 477, 700 ABB TO PAGES] Bromley, In re, 152 Fed. 493, 18 A. B. R. 2zi 1062 In re, 3 N. B. R. 169 359, 361 Bromley v. Smith, 5 N. B. R. 152, 2 Biss. 511; Fed. Cas. No. 1922 542 Bronstein, In re, 182 Fed. 349, 24 A. B. R. 524 1172, 1173 Brooke, In re, 2 N. B. N. R. 680, 100 Fed. 432, 4 A. B. R. 50 503, 505, 506 Brooke v. McCraken, 10 N. B. R. 461, Fed. Cas. No. 1932 733 Brooklyn Improveme'nt Co. v. Lewis. 136. App, Div. (N. Y.) 861, 24 A. B. R. 1^ 205, 206 Brookmire V. Bean, 12 N. B. R. 217, 3 Dill. 136, Fed. Cas. No. 1942 393, 920 Brooks, In re., 1 N. B. N. 240, 2 A. B. R. 531, 91 Fed. 508 837, 842, 844 Brooks V. Ahrens, 68 Md. 212 628 V. Bank of Beaver City, 82 Kan. 597, 25 A. B. R. 890 722 V. Davis, Fed. Cas. No. 1950 737 Broome, In re, 3 N. B. R, 343, 3 Ben. 488 787 Brousfield, In re, 16 N. B. R. 481, Fed. Cas. No. 1703 949 Browder & Co. v. Hill, 136 Fed. 821, 14 A. B. R. 619 646, 1010 Browley, In re, 3 N. B. R. 169 366 Brown, In re, 1 N. B. N. 240, 91 Fed. 358. 1 A. B. R. 107 572, 573, 654, 658, 741 In re, 100 Fed. 441, 1 N. B. N. 511, 4 A. B. R. 46 760, 790 In re, 104 Fed. 762 479, 648 In re. 111 Fed. 979, 7 A. B. R. 102 145, 151 In re, 112 Fed. 49, 7 A. B. R. 252 ' 1062 In re, 132 Fed. 706, 13 A. B. R. 140 124 In re, 140 Fed. 383, 15 A. B. R. 350 1102 In re, 164 Fed. 673, 21 A. B. R. 123 144, 429 In re, 174 Fed. 339, 23 A. B. R. 93 1232 1233 In re, 199 Fed. 356, 29 A. B. R. h 1065, 1080, 1083 In re, 2 N. B. N. R. 590 290, 336, 340, S03, 508, 509 In re, 3 N. B. R. 60, Fed. Cas. No. 1980 768 In re, 3 N. B. R. 177, 4 Ben. 142, Fed. Cas. No. 1974 382, 1003 In re, 3 N. B, R. 250 790 In re, 19 N. B. R. 312, Fed. Cas. No. 1983 nil Brown V. Bank, 6 Bush. (Ky.) 198 447 V. Barker, 68 App. Div. (N. Y.) 592, 8 A. B. R, 450 ■ 627 V. Case, 180 Mass. 45, 6 A. B. R. 744 , 654 V. City National Bank, 72 Misc. (N. Y.) 201, 26 A. B. k. 638 337, 645, 700 v. Gibbons, 13 N. B. R. 407 844, 1121 V. Guichard. 37 Misc. (N. Y.) 78, 7 A. B. R. SIS 733 V. Hannagan, 210 Mass. 246, 27 A. B. R. 294 1132, 1141, 1144 V. Mortgage Co., 110 III. 235 185 V. O'Connell, 200 Fed. 229, 29 A. B. R. 653 466 V. Smart, 145 U. S. 454 13 V. Treat, 1 Hill 225 1134 Brown & Adams v. United Button Co., 149 Fed. 48, 17 A. B. R. 565, aiT'g 140 Fed. 495, 15 A. B. R. 390 432 Brown & Brown Coal Co. v. Antezak, 164 Mich. 110, 25 A. B. R. 898 1128 Brown & Co., In re, 183 Fed. 861, 25 A. B. R. 800 1005 In re, 204 Fed. 63, 30 A. B. R. 305 1087 Brown & Co.. Albert O., In re, 171 Fed. 281, 22 A. B. R. 496 999 Brown & Fleming Co., In re, 21 A. B. R. 662 670 Browne & Ten Eyck, In re, 12 N. B. R. 529, Fed. Cas. No. 1741 415 Brownlee v. Fenwick, 103 Mo. 420 35q Table of Oases 1497 [BIIFEIIBNCES Bruce, In re. 16 N. B. R. 318, 9 Ben. 236, Fed. Cas. No. 2045 569 In re, 19 N. B. R. 287, Fed. Cas. No. 2069 907 Brumbaugh, In re, 128 Fed. 971, 12 A. B. R. 204 760, 1070, 1073, 1094 Brumelkamp, In re, 1 N. B. N. 360, 2 A. B. R. 318, 95 Fed. 814 169, 173, 187, 279, 284, 311, 312, 348, 464 Brumley v. Jones, 141 Fed. 318, 15 A. B. R. 578 15, 21, 27 Brundage, In re, 100 Fed. 613, 4 A. B. R. 47 357, 363, 365 Brundin, In re, 112 Fed. 306, 7 A. B. R. 296 960, 963, 964, 976 Brunquest, In re, 14 N. B. R. 529, 7 Biss. 208. Fed. Cas. No. 2055 460, 633, 678 Brunsing, ToUe & Postel, In re, 169 Fed. 668, 22 A. B. R. 129 < 625 Bruss-Ritter Co., In re, 1 N. B. N. 39, 1 A. B. R. 58, 90 Fed. 651 10, 20, 667, 794 Bryan, Ex parte, 14 N. B. R. 71, 2 Hughes 273, Fed. Cas. No. 2061 950 Bryan v. Bernheimer, 181 U. S. 188, 5 A. B. R. 623, 3 N. B. N. R. 482 39, 199, 663, 831, 839, 846, 879, 880 V. Curtis, 30 App. Cas. (D. C.) 234, 19 A. B. R. 894, aff'g 18 A. B. R. 90 866 V. Madden, 109 App. Div. (N. Y.) 876, 15 A. B. R. 388, aff'g 38 Misc. (N. Y.) 638, 11 A. B. R. 763 953 Bryant, In re, 2 N. B. N. R. 1058 879, 888 In re. 2 N. B. N. R. 1061, 104 Fed. 789 1078, 1096, 1097, 1102 In re, 188 Fed. 530, 26 A. B. R. 504 361, 862 Bryant v. Kinyon, 127 Mich. 152, 6 A. B. R. 237 1128, 1141 V. Swofford Bros. Dry Goods Co., 214 U. S. 279, 22 A. B. R. Ill, aff'g 153 Fed. 841, 18 A. B. R. 567 558 Bryce, In re, 19 N. B. R. 287, Fed. Cas. No. 2069 928 Buchan's Soap Corp., In re, 169 Fed. 1017, 22 A. B. R. 382 432 Buchanan, In re, 10 N. B. R. 97, Fed. Cas. No. 2073 152, 222 Buchanan v. Smith, 4 N. B. R. 397, 8 Blatch. 153 720 V. Smith, 16 Wall. 277, 7 N. B. R. 513 733 Buchner, In re, 199 Fed. 99, 29 A. B. R. 179 1011 Buchstein, In re, 17 N. B. R. 1, 9 Ben. 215, Fed. Cas. No. 2076 1108, 1110, nil, 1112 Buck, In re, 3 N. B. R. 76, Deady, 425, Fed. Cas. No. 2156 1075 Buck V. Winters, 15 N. B. R. 140 246 Buckingham, In re, 2 N. B. N. R. 617 753, 779, 789, 790 Buckingham r. Estes, 128 Fed. 584, 12 A. B. R. 182 283, 466, 867, 1248 v. First Nat. Bank, .131 Fed. 192, 12 A. B. R. 465 422, 1039 V. McLean, 13 How. 151 1081 Bucknam v. Dunn, 16 N. B. R. 470, 2 Hask. 215, Fed. Cas. No. 2096 20, 25, 429, 957 V. Goss, 13 N. B. R. 337, 1 Hask. 630, Fed. Cas. No. 2097 733 Buckner v. Jewell, 14 N. B. R. 286, 2 .Woods 220, Fed, Cas. No. 3060 873, 996 r. .Street, 7 N. B. R. 255, Fed. Cas. No. 2098 395 Bucyrus Mach. Co., In re, 5 N. B. R. 303, Fed. Caa. No. 2100 421 Buder v. Columbia Distilling Co., 9 A. B. R. 331 853 Buelow, In re, 98 Fed, 86, 3 A. B. R. 389, 2 N. B. N. R. 26, 230 594, 596, 597 756, 765 Buffalo Milling Co. v. Lewisburg Dairy Co., 159 Fed. 319, 20 A. B. Ri 279 233 ABD TO PAGES] Buffalo Mirror & Beveling Co., In re, 15 A. B. R. 122 395 Buffum V. Seaver, 16 N. H. 160 138 Buffum'B Case, 13 N. H. 14 1124 Bugbee, In re, 9 N. B. R. 258, Fed. Cas. No. 2115 482, 499, 1018, 1026 Buggs, Ex parte, 3 Dea. & Ch. 36 1042 Builders' Lumber Co., In re, 148 Fed. 244, 17 A. B. R. 449 403, 619 Buildmg & Loan Ass'n v. Price, 169 U. „S 45 ' 1236 Bulhs, In re, 68 App. Div. (N. Y.) 508, „ 7 A. B. R. 238 1133, 1134, 1141 Bulhs V. O'Beirne, 195 U. S. 606, 13 A. B. R. 108 1133 Bullock, In re, 8 A. B. R. 646 474 BuUwinkle, In re. 111 Fed. 364, 6 A. B. „R. 756 1077, 1095 Bulow, In re, 2 N. B. N. R. 230, 98 Fed. 86, 3 A. B. R. 389 775 Bumberg, In rfe, 133 Fed. 845, 13 A. B. R. 343 161 Bunster, In re, 5 N. B. R. 82, 5 Ben. 242, Fed.- Cas. No. 2136 1049 Buntrock Clothing Co., In re, 1 N. B. N. 291, 92 Fed. 886, 1 A. B. R. 454 198 837 879 Burbank v. Bigelow, 92 U. S. 179 ' ' 829 Burbank Co., In re, 168 Fed. 719, 21 A. B. R. 838 92 Burdette v. Jackson, 179 Fed. 229, 24 A. B. R. 127 764 Burdick v. Jackson, 15 N. B. R. 318 643, 687 Burfee v. Bank, 9 N. B. R. 314 733 Burgess, In re, 3 N. B. R. 47, Fed. Cas. No. 2153 • 728, 1086 Burgin, In re, 173 Fed. 726, 22 A. B. R. 574 123 Burgoyne v. McKillip, 182 Fed. 452, 25 A. B. R. 387 400, 704, 713 Burk, In re, 3 N. B. R. 76, Deady, 425, Fed. Cas. No. 2156 1054 Burk's Case, 13 C. CIs. R. 241 628 Burka, In re, 104 Fed. 326, 5 A. B. R. 12 380, 546 In re, 107 Fed. 674, 5 A. B. R. 843 159, 178, 3.02, 303 Burke, In re, 6 A. B. R. 502 995 In re, 155 Fed. 703^ 19 A. B. R. 51 806 In re, 168 Fed. 994, 22 A. B. R, 69 558 In re, 3 N. B. R. 76, Deady, 425, Fed. Cas. No. 2156 501 Burke v. Guarantee title & Trust Co., 134 Fed. 235, 14 A. B. R. 31 757 Burke & Co., In re, 140 Fed. 971, 15 A. B. r: 495 ' 695 Burkhalter & Co., C. M., In re, 179 Fed; 403, 24 A. B. R. 553 207, 893 In re 182 Fed. 353, 25 A. B. R. 378 206, 207 Burkhart v. German-American Bank, 137' Fed. 958, 14 A. B. R. 222 108, 121 Burkholder v. Stumph, 4 N. B. R. 191, 597, Fed. Cas. No. 2165 992 BuAle, In re, 116 Fed. 766, 8 A. B. R. 542 634 Burlage Bros., In re, 169 Fed. 1006, 22 A. B.' R. 410 405, 579 Burleigh v. Foreman, 125 Fed. 170, 11 A. B. R. 74 26, 1214 V. Foreman, 130 Fed. 13, 12 A. B. R. 88, rev'g 118 Fed. 348, 9 A. B. R. 237 607 Burlingame v. tarce, 17 N. B. R. 246 844, 847 Burlingham v. Grouse, 228 U. S. 459, 30 A. B. R. 6,- aff'g 181 Fed. 479, 24 A. B. R. 632 595, 596, 601 Burlington Malting Co., In re, 109 Fed. 777, 6 A.. B. R. 369 146, 148 Burnett v. Mercantile Co., 1 N. B. N. 138, 91 Fed. 365, 1 A. B. R. 229 837, 843 V. Morris Mercantile Co., 1 A. B. R. 229, 91 Fed. 365, / N. B. N. 138 898 1498 Bbandenbxjbg on Bankeuptcy [BKFEBENCES Burnham, In re, 140 Fed. 926, IS A. B. R. 548 541, 676 In re, 202 Fed. 762, 30 A. B. R. 270 754, 758, 759 Burnham v. Pidcock. S A. B. R. 42, aff'd 58 App. Div. (N. y.) 273, 5 A. B. R. 590 1133, 1134 Burns, In re, 97 Fed. 926, 3 A. B. R. 296 656 In re, 175 Fed. 633, 23 A. B. R. 640 1011 Burns v. O'Gorman, 150 Fed. 226, 17 A. B. R. 815 856, 872 Burnstine, In re, 131 Fed. 828, 12 A. B. R. 596 555, 556 Burow V. Grand Lodge, 133 Fed. 708, 13 A. B. R. 542 767, 1204, 1209 Burr, In re, 9 Morrell 133 915 Burrell et al.. In re, 9 A. B. R. 178 88 Burrell v. State, 194 U. S. 572, 12 A. B. R. 132, affg 27 Mont. 282 1184 Burrill v. Lawry, 18 N. B. R. 367, Fed. Cas. No. 2199 583 Burrus, In re, 97 Fed. 926,. 3 A. B. R. 296 636, 653, 720, 961, 962 Burstein, In re, 160 Fed. 765, 20 A. B. R. 399 1083 Burt, In re, 155 Fed. 267, 19 A. B. R. 123 559 In re, 1 Dillon 440, Fed. Cas. No. 2210 667 Burt & Towne, In re, 13 N. B. R, 137, 12 Blatch. 252, Fed. Cas. No. 2209 631 Burtis, In re, 188 Fed. 527, 26 A. B. R. 680 591 Burton. In re, 17 N. B. R. 212, 9 Ben. 324, Fed. Cas. No. 2214 177 In re. 29 Fed. 637 1139 Burton Bros. Mfg. Co., In re, 134 Fed. 157, 14 A. B. R. 218 660, 1010 Busey, In re, 6 A. B. R. 603 382, 972 Bush, In re, 6 N. B. R. 179, Fed. Cas. No. 222 153 In re, 126 Fed. 878, 11 A. B. R. 415 602 Bush V. Crawford, 7 N. B. R. 299, Fed. Cas. No. 2224 420 V. Elliott, 202 U. S. 477, IS A. B. R. 656 828, 829, 831, 841 T. Export Storage Co., 136 Fed. 918, 14 A. B. R. 138 541, 573, 574, 575, 691, 851 V. Lester, 15 N. B. R. 36 756, 789 Bushey, In re, 3 N. B. R. 167, Fed. Cas. No. 2227 1033 Bushnell, In re, 1 N. B. N. 528 1078, 109^, 1102, 1188 Butcher v. Werksman, 204 Fed. 330, 30 A. B. R. 332 740 Butler, Ex parte, 1 Atk. 210 617 In re, 6 N. B. R. 501, Fed. Cas. No. 2236 682, 996. 1012 Butler V. Baudouine, 84 App. Div. (N. Y.) 215, aff'd 177 N. Y. S30, 16 A. B. R. 238n 606 V. Gorley, 146 U. S. 303, 314 11 V. Ives, 139 Mass. 202 407 Butler-Kyser Mfg. Co., Ex parte, 174 Ala. 237, 27 A. B. R. 419 804, 1070 Butler Paper Co. v. Goembel, 143 Fed. 295, 16 A. B. R. 26 707, 733, 738, 874 Butler & Co. v. Palmenberg, 207 Fed. 705, 30 A. B. R. 502 89, 90, 152, 185, 225 Butt v. MacNichol Const. Co., 140 Fed. 840, 15 A. B. R. 515, aff'g 134 Fed. 979, 14 A. B. R. 188 114 In re, 6 N. B. R. 257 188 Butterfield, In re, 5 Biss. 120, Fed. Cas. No. 2247, 14 N. B. R. 147 161, 1058, 1060 Butterwick, In re, 131 Fed.' 371, 12 A. B. R. 536 541, 560 Byerly, In re, 128 Fed. 637, 12 A. B. R. 186 . 969, 973 Byers v. McAuley, 149 U. S. 608 796 Byrd v. Harrold, 18 N. B. R. 433, Fed. Cas. No. 229 25 Byrne, In re, 1 N. B. R. 122, Fed. Cas. No. 2270 576, 1036. 1037 ABB TO FAQKS] Byrne, In re, 2 N. B. N. R. 246, 3 A. B. R. 268. 97 Fed. 762 2i, 27, 647, 983, 986, 1001, 1010, 1012 Byms, In re, 1 N. B. N. 464 1040 C. H. Bennett Shoe Co., In re, 140 Fed. ; 687, 15 A. B. R. 497 %9 Cadenos & Co., In re, 178 Fed. 158, 24 A. B. R. 135 533 Cagliostro v. Indelle, 53 Misc. (N. Y.) •44, 17 A. B. R. 685 1152 Cahill, In re, 30 A. B. R. 794 459 Cain, In re, 1 N. B. N. 389, 2 A. B. R. 378 148, 149, 728 Caldwell, In re, 178 Fed. 377, 24 A. B. R. 495 944, 946 In re, 164 Fed. 515, 21 A. B. R. 236 998 Cale. In re, 182 Fed. 439, 25 A. B. R. 367 478, 787 Calendar, In re. Fed. Cas. No. 2308 797 Calhoun County Bank v. Cain, 152 Fed. 983, 18 A. B. R. 509 874 Calhoun Supply Co., In re, 189 Fed. 537, 26 A. B. K 528 565, 635 California Bank v. Stateler, 171 U. S. 447 1239 California Pac. R. R. Co., In re, 11 N. B. R. 193, 3 Sawy. 240, Fed. Cas. No. 2315 33. 102, 117, 147, 149, 162 Callison, In re, 130 Fed. 987, 12 A. B. R. 344 142, 164 Calnan Co., J. W. v. Doherty, 174 Fed. 222, 23 A. B. R. 297 69, 117 v. Doherty, 224 U. S. 145, 27 A. B. R. 880 1201, 1205, 1242, 1247 Caloris Mfg. Co., In re, 179 Fed. 722, 24 A, B. R. 609 415 Calvi, In re, 185 Fed. 642, 26 A. B. R. 206 578 Cambridge, In re, 136 Fed. 983, 14 A. B. R. 168 214, 517 Camelo. In re, 195 Fed. 632, 28 A. B. R. 353 400, 799, 1123, 1142 Cameron v. United States, 231 U. S. 710, 31 A. B. R. 604, rev'gi 192 Fed. 548, 27 A. B. R. 657 360, 367, 368, 1197, 1198, 1199 Cameron, Currie & Co., In re, 20 A. B. R. 790 41, 667 Cameron Town Mut. Fires, Lightning & Windstorm Ins. Co., In re, 96 Fed. 756, 2 A. B. R. 372 111, 113 Camp, In re. Fed. Cas. No. 2346 797 In re. 1 N. B. R. 142, 1 A. B. R. 165, 91 Fed. 745 609, 755, 760, 771, 776 Camp V. Zellars, 94 Fed. 799 837 Campbell, In re, 17 N. B. R. 4, 3 Hughes 276, Fed. Cas. No. 2348 278, 336, 337, 350, 368, 589, 840 In re, 102 Fed. 686, 4 A. B. R. 535 1003 Campbell v. Balcomb, 183 Fed. 766, 25 A. B. R. 538 736 v. Boyreau, 21 How. 223 236 V. Finck, 2 Duv. 107 113 V. Waite, 16 N. B. R. 93, 9 Ben. 166, Fed. Cas. No. 2374 586, 685 Campbell's Case, 28 C. Cls. R. 512 628 Canby v. McLear, 13 N. B. R. 22, Fed. Cas. No. 2378 359, 407, 497 Canfield, In re. Fed. Cas. No. 2380 137 Canner, In re, 21 A. B. R. 199 151 Canner v. Webster Tapper Co., 168 Fed. 519, 21 A. B. R. 872 83. 151, 284 Cannon, In re, 133 Fed. 837, 14 A. B. R. 114 487, 491 Cannon v. Prude, 181 Ala. 629, 30 A. B. R. 276 554 Cantelo Mfg. Co., In re, 185 Fed. 276, 26 A. B. R. 57 614 In re, 201 Fed. 158, 29 A. B. R. 704 884 Canton Iron & Steel Co., In re, 197 Fed. 767, 28 A. B. R. 791 395, 490, 496, 97.5 Cantor, In re, 26 A. B. R. 859 890 Capelle v. Trinity M. E. Church, II N. B. R. 536, Fed. Cas. No. 2392 400 Table op Cases 1499 [RGFBRENCES Capital Bank v. Cadiz Bank, 172 U. S. 425 1239 Capital Pub. Co., The, In re, 18 N. B. R. 319 lis, 163 Caponigri, In re, 183 Fed. 307, 25 A. B. R. 509 1230 In re, 193 Fed. 291, 27 A. B. R. 513 386 Carbone, In re, 13 A. B. R. 55 237 Cardweli v. Ins. Co., 12 N. B. R. 253, Fed. Cas. No. 2396 409 Carew v. Stubbs, 155 Mass. 459 986 Carey ▼. Donohue, 209 Fed. 328, 3.1 A. B. R. 210 368, 717, 734, 870, 1213 V. Houston & T. Ry., 150 U. S. 170 1237 v. Houston & T. Ry., 161 U. S. 115 1238 V. Mayer, 79 Fed. 926 1122 Carleton, In re, 115 Fed. 246, 8 A. B. H. 270 176, 181, 238, 249 In re, 131 Fed. 146, 12 A. B. R. 475 1103 Carley, In re, 106 Fed. 862, 5 A. B.. R. 554 352, 356 In re, 117 Fed. 130, 8 A. B. R. 720 171. 1229 Carlile, In re, 199 Fed. 612, 29 A. B. R. 373 216, 272, 285, 286, 468, 699, 734, 874, 879, 887, 1169 Carling v. Seymour Lumber Co., Il3 Fed. 483, 8 A. B. R. 29 10, 797 Carlon, In re, 189 Fed. 815, 27 A. B. R. 18 597, 598, 765 Carmichael, In re, 108 Fed. 789, 5 A. B. R. 551 767 In re, 96 Fed. 594, 2 A. B. R. 815, 421, 427, 1080, 1084, 1103, 1146 Carolina Cooperage Co., In re, 1 N. B. N. 534, 3 A. B. R. 154, 96 Fed. 604 991, 997, 1171 In re, 2 N. B. N. R. 23, 3 A. B. R. 154, 96 Fed. 950 293, 961, 965, 970, 999 Carothers & Co., In re, 192 Fed. 691, 27 A. B. R. 603 ^ 514 In re, 193 Fed. 687, 27 A. B. R. 921 208, 218, 533 Carow, In re, 4 N. B. R. 178, Fed. Cas. No. 2426 20, 196, 592, 818 Carpenter, In re, 1 N. B. R. 51, Fed. Cas. No. 2427 307, 1169 In re, 109 Fed. 558, 6 A. B. R. 465 771 In re, 125 Fed. 841, 11 A. B. R. 147 563 In re, 25 A. B. R. 161 137, 963 Carpenter v. Cudd, 174 Fed. 603, 23 A. B R. 463, 123, 125; 232, 236 V. Dexter, 8 Wall. 513, 19 L. Ed. 426 349 V. Karnow, 193 Fed. 762, 28 A. B. R. 21 578 V. Southworth, 165 Fed. 428, 21 A. B. R. 390 527, 614 Carpenter Bros. v. O'Connor, 1 N. B. N. 132, 1 A. B. R. 381 20 Carr, In re, 116 Fed. 556, 8 A. B. R. 635 282, 523, 529, 962, 979 In re, 117 Fed. 572, 9 A. B. ^. 58 9507961, 966 Carr v. Fife, 156 U. S. 494 262 V. Myers, 211 Pa. 349, 15 A, B. R. 116 871 V. Phillips, 18 N. B. R. 527 196, 254 Carriage Co. v. Stengel, 1 N. B. N. 387, 95 Fed. 637, 2 A. B. R. 383 836 Carrier, In re, 13 N. B. R. 208, Fed. Cas. No. 2443 250, 1109 Carriger v. Maokey, 15 Ind. App. 392 986 Carson, In re. 5 N. B. R. 290, 5 Ben. 277, Fed. Cas. No. 2460 314 Carson, Pirie Scott & Co. v. Chicago Title & Trust Co., 182 U. S. 438, 5 A. B. R. 814 68. 470, 472, 475, 726 Carter, In re, 1 N. B. N. 162, 1 A. B. R. 160 187, 269, 270, 521, 838, 865 In re, 138 Fed. 846, 15 A. B. R. 126 388, 461, 487 Carter v. Hobbs, 1 N. B. N. 191, 1 A. B. R. 215, 92 Fed. 594, s. c. 1 N. B. N. 529, 94 Fed. 108, 2 A. B. R. 224 25, 42, 167, 246, 576, 796, 816, 836, 842, 843, 898, 1117 ABD TO TAGES] Carton & Co., In re, 148 Fed. 63, 17 A. B. R. 343 393, 495, 1053, 1065, 1088, 1090, 1153 Cartwright v. West, 173 Ala. 198. 26 A. B. R. 831 847, 851, 872 Carver, In re, 113 Fed. 138, 7 A. B. R. - 539 287, 289 Cary, In re, 9 Fed. 754 370 Casey, In re, 1 N. B. N. 166 320 In re, 8 N. B. R. 71, 10 Blatch. 376," Fed. Cas. No. 2495 1232, 1234 In re, 195 Fed. 322, 28 A. B. R. 359 1050, 1051 Cash-Papworth, In re, 210 Fed. 24, 31 A. B. R. 709 214, 974 Cash Register Co. v. Woodbury, 70 Conn. 321 563 Cashman, In re, 2 N. .B. N. R. 980, 103 Fed. 67, 4 A. B. R. 326 1066, 1082 In re, 168 Fed. 1008, 21 A. B. R. 284 1173, 1177 Cason, In re, 27 A. B. R. 903 1065, 1076, 1093, 1145 Cass, In re, 6 A. B. R. 721 621 Castillo V. McConnico, 168 U. S. 674 1240 Castle, In re, 2 N. B. N. R. 9»5, 4 A. B. R. 357n 469, 471,. 472, 728, 853 Castle Braid Co., In re, 145 Fed. 224, 17 A. B. R. 143 397, 487, 491 Castleberry, In re, 143 Fed. 1018, 16 A. B. R. 159 749, 750, 782 In re, 143 Fed. 1021, 16 A. B. R. 430 516, 790, 977 Catchings v. Chatham Nat. Bank, 180 Fed. 103, 24 A. B. R. 843 723 Caten v. Eagle, etc., Ass'n, 177 Fed. 996, 23 A. B. R. 130 877 Cater v. Hobbs, 1 N. E. N. 191, 92 Fed. 599, 1 A. B. R. 215 588 Catlin V. Foster, 3 N. B. R. 134, 1 Sawy. 37, Fed. Cas. No. 2519 439, 443 V. Foster. 3 N. B. R. 540 992 V. Hoffman, 9 N. B. R. 342, 2 Sawy. 486, Fed. Cas. No. 2521 584, 639, 662, 721, 722 Cavagnaro, In re, 143 Fed. 668, 16 A. B. R. 320 564 Cavan, In re, 19 N. B. R. 303, Fed. Cas. No. 2528 904, 910 Ceballos & Co., In re, 161 Fed. 445, 20 A. B. R. 467 106, 190, 192, 309 Central Bank, of Washington v. Hume, 128 U. S. 195 ' 598 Central Nat. Bank, In re, 6 N. B. R. 207. Fed. Cas. No. 2547 843, 846 Central Nat. Bank v. Graham, 1 N. B. N. 59 804 Central Trust So. v. New York, C. & N. R. R., 110 N. Y. 250 982 V. Waba.sh R. R., 30 Fed. 332 986 Century Sav. Bank v. Robert Moody & Son, 209 Fed. 775, 31 A. B. R. 586 1204, 1214, 1248 Challoner, In re, 2 N. B. N. R. 105, 98 Fed. 82, 3 A. B. R. 442 321, 381, 1136 Chalmers, In re, 206 Fed. 143, 30 A. B. R, 521 560 Chamberlain, In re, 180 Fed. 304, 25 A. B. R. 37 1066, 1067, 1072, 1077, 1092 In re, 125 Fed. 629, 11 A. B. R. 95 1065, 1079 In re, 3 N. B. R. 173, Fed. Cas. No. 2574 343 In re, 17 N. B. R. 50, 9 Ben. 149, Fed. Cas. No. 2580 145, 911, 1013, 1014 Chambers, In re, 2 N. B. N. R. 388, 98 Fed. 865, 3 A. B. R. 537 551, 796, 797, 805 Chambers, Calder & Co., In re, 2 N. B. N. R. 388, 98 Fed. 865, 3 A. B. R. 537 28 In re, 2 N. B. N. R. 864 380, 390 In re, 6 A. B. R. 707 495 In re, 6 A. B. R. 709 288 Chambersburg Silk Mfg. Co., In re, 190 Fed. 411, 26 A. B. R. 107 956, 984 Champion, In re, 7 A. B. R. 560 475 1500 Brandenbukg on Bankruptcy [REFERENCES Champion Wagon Co., In re, 193 Jed. 1004. 28 A. B. R. 51 218 Chandler, In re, 4 N. B. R. 213, 1 Lowell 478, Fed. Cas. No 2591 111 In re 9 N. B. R. 514, Fed. Cas. No. 2590 387, 395 In re, 135 Fed. 893, 13 A. B. R. 614 322 In re, 138 Fed. 637, 14 A. B. R. 512 nil, 1113 In re, 184 Fed. 887, 25 A. B. R. 865 1038 In re, 194 Fed. 944, 28 A. B. R. 89 947 Chandler v. Siddle, 10 N. B. R. 236, Fed. Cas. No. 2594 10, 12 Chantler Cloak & Suit Co., In re, 151 Fed. 952, 18 A. B. R. 498 67S Chapin v. James, 11 R. I. 87 796 Chaplin, In re, 115 Fed. 162, 8 A. B. R. 121 727, 850, 919, 920 Chapman, In re, 99 Fed. 395, 3 A. B. R. 607 79 In re, 105 Fed. 901, 5 A. B. R. 570 408 Chapman v. Bowen, 207 U. S. 89, 18 A. B. R. 844 1242, 1248 V. Brewer, 114 U. S. 158 42, 794 V. Forsyth, 2 How. 202 1143 Chappel, In re, 4 N. B. S. 176> Fed. Cas. No. 2612 161 In re 113 Fed. 545, 7 A. B. R.608 707 Charles Town Light & Power Co., In re, 183 Fed. 160, 25 A. B. R. 687 115, 153 154 In re, 199 Fed. 846, 29 A. B. R. 721 284, 448, 543, 673,. 1016 Charles W. Aschenbach Co., In re, 183 Fed. 305, 25 A. B. R. 502 257 Charman v. Cha'rman, 14 Ves. 580 607 Chase, In re, 133 Fed. 79, 13 A. B. R. 294 621, 622 Chase v. Farmers' & Merchants' Nat. Bank of Baltimore, 202 Fed. 904, 30 A. B. R. 200 795 Chasnoff, In re, 3 N. B. N. R. 1 462, 963 Chatfield v. O'Dwyer, 101 Fed. 797, 4 A. B. R. 313 2107 Chattanooga v. Hill, 139 Fed. 600, 15 A. B. R. 195 987 Chattanooga Nat. Bank v. Rome. Iron Co., 99 Fed. 82, 3 A. B. R. 582 796, 838 V. Rome Iron Co., In re, 102 Fed. 755, 4 A. B. R. 441 541, 690, 691 Chaudron & Peyton, 180 Fed. 841, 24 A. B. R. 811 1012 Chavez, In re, 149 Fed. 73, 17 A. B. R. . 641 1017 Cheatham, In re, 210 Fed. 370, 31 A. B. R. 520 750 Chemy, In re, 19 N. B. R. 16, Fed. Cas. No. 2637 331 Cheney, In re, 5 Law. Rep. 19, Fed. Cas. No. 2636 320 Chequasset Lumber Co., In re, 112 Fed. 56, 7 A. B. R. 87 186, 187 Chesapeake Oyster & Fish Co., In re, 112 Fed. 960, 7 A. B. R. 173 113 Chestertown Bank of Maryland v. Walker, 163 Fed. 510, 20 A. B. R. 840 1226 Chetwood, In re, 165 U. S. 443 1246 Chicago, B. & Q. R. R. Co. v. Chicago, 166 U. S. 226 1240 V. Hall, 229 U. S. 511, 30 A. B. R. 619, aff'g 88 Neb. 20, 25 A. B. R. 53 751, 785 Chicago Car Equipment Co., In re, 211 Fed. 638, 31 A. B. R. 617 700, 706, 731 Chicago Toplin Lead & Zinc Co., In re, 104 Fed. 67 115 Chicago Motor Vehicle Co, v. American Oak Leather Co., 141 Fed. 518, 15 A. B. R. 804 69, 173, 175, 235, 284 Chicago Ry. Equip. Co. v. Bank, 136 U. S. 268, 280 559 Chicago Title & Trust Co. v. National Storage Co., 174 lU. App. 365, 31 A. B. R. 410 21, 863 V. Roebling's Sons Co., 107 Fed. 71, 5 A. B. R. 368 721 ABB TO PAGES] Chicago ."i N. W. R. Co. v. Chicago, 164 U. S. 454 1239 Chiles, In re, 22 Wall. 157, 168 1160, 1180 Chisholm v. Cowles, 42 Ala. 179 238 V. Earle Ore Sampling Co., 144 Fed. 670, 16 A..B. R. 423 558 Chism V. Bank of Friars Point, 27 So. 610, 5 A. B. R. 56 847, 862 Chistley, In re, 10 N. B. R. 268, Fed. Cas. No. 272 340 Chodowski v. United States, 194 Fed. 858, 28 A. B. R. 62 1197 Christ V. Zehner, 212 Pa. 188, 16 A. B. R. 788 718 Christensen, In re, 101 Fed. 243, 4 A. B. R. 99 231, 486 In re, 2 N. B. N. R. 670 695 In re, 2 N. B. N. R. 695 471, 475, 728 In re, 101 Fed. 802, 2 N. B. N. R. 1094, 4 A. B. R. 202 437, 438, 453, 454, 475 In re, 175 Fed. 867, 23 A. B. R. 710 960, 963, 976 Christman v. Haynes, 8 N. B. R. 528, Fed. Cas. No. 2703 720 Christopher Bailey & Son, In re, 166 Fed. 982, 21 A. B. R. 911 703 Christy, Ex parte, 3 How. 292 273, 483, 794 Church Const. Co., In re, 157 Fed. 298, 19 A. B. R. 549 114, 219 Churchill, In re, 197 Fed. Ill, 28 A. B. R. 607 1050, 1051 In re, 197 Fed. 114, 28 A. B. R. 603 1054, 1055 In re, 209 Fed. 766, 31 A. B. R. 1, rev'g 198 Fed. 711, 29 A. B. R. 153 596, 770 Citizens' Bank v. Ober, 13 N. B. R. 328, 1 Woods 80, Fed. Cas. No. 2731 947 Citizens' Bank of Douglas v. Hargraves, 164 Fed. 613, 21 A. B. R. 323, rev'g 160 Fed. 758, 20 A. B. R. 186 789 Citizens' Bank of Salem v. DePauw Co., 105 Fed. 926, 5 A. B. R. 345 65 V. De Pauw Co., 3 N. B. N. R. 244 1094,1186 Citizens' Loan Ass'n t. Boston & Maine R. Co.. 196 Mass. 528, 124 Am. St. 584, 19 A. B. R. 650 629, 669, 1119, 1125 Citizens' Nat. Bank v. Cass, 18 N. B. R. 279, Fed. Cas. No. 2732 153, 181, 189 Citizens' Sav. Bank, In re, 9 N. B: R. 152, Fed. Cas. No. 2735 10, 813 City Bank, In re, 6 N. B. R. 71, Fed. Cas. No. 2742 439 City Bank < of Dowagiac, In re, 186 Fed. 250, 25 A. B. R. 236 625 In re, 186 Fed. 413, 25 A. B. R. 276 626 City Bank of New Orleans, Ex parte, 3 How. 292 938 City Con. & B. Co., In re, 29 A. B. R. 171 128 In re, 30 A. B. R. 133 50, 189, 309, 310 City National Bank v. Bruce, 109 Fed. 69, 6 A. B. R. 311 686 City Nat. Bank of Dallas v. Doolitttle, 107 Fed. 236, 5 A. B. R. 736 912, 914, 928, 929, 931 ClafF, In re. 111 Fed. 506, 7 A. B. R. 128 1117 Claflin V. E&son, 1 N. B. N. 360, 2 A. B. R- 263 • loig, 1023, 1141 V. Houseman, 15 N. B. R. 50, 93 U. S. 130 835. 842, 843 Claiborne, In re, 109 Fed. 74, 5 A. B. R. 812, 3 N. B. N. R. 622 321, 323 Clairmont, In re, 1 N. B. R. 276, S Fed. Cas. No. 810 507, 514 In re, 1 N. B. R. 42, 1 Lowell 230, Fed. Cas. No. 2781 508 Clancy, In re, 10 N. B. R. 215, Fed. Cas. No. 2782 415 Clansky, In re, 163 Fed. 428, 20 A. B. R. 780 1101 , Table of Cases 1501 [KErEKENCBS Clap, In re, 2 Lowell 168, Fed. Cas. No. 2/83 305 Clapp, In re, 14 N. B. R. 191, 2 Lowell 468, Fed. Cas. No. 278S 926 Clapp V. Otoe County, Neb., 104 Fed. 473 797 Clark, In re, 102 Fed. 602 789 In re, HI Fed. 893, 7 A. B. R. 96 190, 428 In re, 176 Fed. 955, 24 A. B. R. 388 459, 468, 474 In re, 21 A. B. R. 776 375, 395 In re, 2 N. B. R. 44, Fed. Cas. No. 2844 1103 In re, 3 N. B. R. 3, 2 Biss. 73, Fed. Cas. No. 2800 1049 In re, 3 N. B. R. 123, 4 Den. 88, Fed. Cas. No. 2798 848 In re, 4 N. B. R. 70, Fed. Cas. No. 2805 365 In re, 5 N. B. R. 255, Fed. Cas. No. 2806 485 In re, 6 N. B. R. 202, Fed. Cas. No; 2808 489 In re, 9 N. B. R. 67, Fed. Cas. No. 2810 278, 523 In re, 19 N. B. R. 301, Fed. Cas. No. 2812 728, 1055 In re, 9 Blatch. 372, Fed. Cas. No. 2801 794 Clark V. American Mfg. Co., 101 Fed. 962, 4 A. B. R. 351 84, 267 v. Bininger, 3 N. B. R. 489, 7 Blatch. 165, Fed. Cas. No. 2815 1215 T. Equitable Life Assurance Soc, 143 Fed. 175, 16 A. B. R. 137 594 V. Henne & Meyer, 127 Fed. 288, II A. B. R. 583 150, 161 T. Hezekiah, 24 Fed. 663 591 V. Iselin, 9 N. B. R. 19, 10 Blatch. 204, 11 N. B. R. 337, 21 Wall. 360, Fed. Cas. No. 2825 73, 74, 76, 584, 662, 685, 715 V. Kansas City, 172 U. S. 334 1239 V. Marks, 6 Ben. 275 992 V. Milliken, 70 Misc. (N. Y.) 492, 25 A. B. R. 680 1142 V. Pidcock, 129 Fed. 745, 12 A. B. R. 309 504. 1233 V. Sawyer, 151 Mass. 64 992 V. Snelling, 205 Fed. 240, 30 A. B. R. 50, aff'g 202 Fed. 259, 29 A. B. R. . BIS 543, 569 Clark Coal & Coke Co., In re, 173 Fed. 658, 23 A. B. R. 273, rev'g 22 A. B. R. 843 286, 956 Clark & Beninger, In re, 5 N. B. R. 255, Fed. Cas. No. 2806 465 Clarice, In re, 2 N. B. R. 44, Fed. Cas. No. 2844 1141 Clarke v.' Hawkins, 5 R. I. 219 446 V. Larremore, 188 U. S. 486, 9 A. B. R. 476 660, 661, 663 V. Ray, 1 Harr. & J. (Md.) 318 12 V. Rogers, 183 Fed. 518,- 26 A. B. R. 413, afi'd 228 U. S. 534, 30 A. B. R. 39 400, 702, 703, 729 Clary v. Smith, 3 Pet. 411 14 Classen v. Schoenemaw, 16 N. B. R. 98 1145 Claugh, In fe, 2 N. B. R. 59, 2 Ben. 508, Fed. Cas. No. 2905 433 Clausen v. Schoeneman, 16 N. B. R. 98 112S Clay, In re, 192 Fed. 830, 27 A. B. R. 715 289, 505, 506, 509 Clay V. Smith, 3 Pet. 411 1133 V. Waters, 161 Fed. 815, 20 A. B. R. 561 557 V. Waters, 178 Fed. 385. 24 A. B. R. 293 21, 879, 1167, 1179 Clayton v. Exchange Barik of Macon, 121 Fed. 630. 10 A. B. R. 173 • 1016 Cleage v. Laidley, 149 Fed. 346, 17 A. B. R. 598 122, 1210 Cleland, In re, L. R. 2 Ch. App. 465 111 Clcland V. Anderson, 66 Neb. 275, 11 A. E. R. 605 555, 556 Clemens, In re, 9 N. B. R. 57, 2 Dill. 533. Fed. Cas. No. 2877 120 ABB TO FAGES] Cleminshaw v. International Shirt & Col- lar Co., 165 Fed. 797, 21 A. B. R. 616 22 23 Clemmons v. Brinn, 36 Misc. (N. Y.) 157,' 7 A. B. R. 714 1129, 1131 Clendening v. Red River Valley Nat. Bank of Fargo, 12 N. D. 51, 11 A. B. R. 245 281, 863 Clevenger v. Moore, 71 N. T. L. 148, 12 A. B. R. 738 858 Clifle, In re, 97 Fed. 540. 3 A. B. R. 257 351, 352 In re, 1 N. B. N. 509, 2 A. B. R. 317, 94 Fed. 354 165, 167, 173, 234. 720 Clifford. In re, 136 Fed. 475. 14 A. B. R. 281 674. 712 Clifton V. Foster, 3 N. B. R. 162 810 Clingman v. Miller, 160 Fed. 326, 20 A. B. R. 360 400 Clinton v. Mayo, 12 N. B. E. 39, Fed. Cas. No. 2899 149, 176, 235, 307, 365 Clipper Mfg. Co., In re, 179 Fed. 843, 24 .A. B. R. 683 812, 1139 Clisdell, In re, 2 N. B. N. 638, 2 A. B. R. 424, 101 Fed. 246 32, 35. 36. 162 In te, 101 Fed. 246, 4 A. B. R. 95 42, 277, 1046, 1072, 1075 Clothier, In re, 108 Fed. 199, 6 A. B. R. 203 1057 Clough. In re, 197 Fed. 185. 28 A. B. R. 828 677 In re. 2 N. B. R. 59, 2 Ben. 508, Fed. Cas. No. 2905 312 Clover Creamery Ass'n. In re. 176 Fed. 907, 23 A. B. R. 884 459 Clowe V. Seavey, 31 A. B. R. 830 577, 588 Clute, In re, 1 N. B. N. 386, 2 A. B. R. 376 588, 854 Clute v. Clute, 4 Den. (N. Y.) 244 1005 Coal City House Furnishing Co. v. Hogue. 197 Fed. 1, 28 A. B. R. 258 941, 947 Coan & Ten Brocke Car Mfg. Co., In re, 12 N. B. R. 203. 6 Biss. 315. Fed. Cas. No. 2915 . ' 477, 631 Cobb, In re, 1 N. B. N. 557, 96 Fed. 821, 3 A. B. R. 129 576, 623, 693, 740, 842. 843, 855 In re, 7 A. B. R. 104 355, 966 In re, 112 Fed. 655, 7 A. B. R. 202 529 Cobb V. Oberman, 109 Fed. 65, £ A. B. R. 324 394 Cochran, In re, Fed. Cas. No. 606 485 In re, 185 Fed. 913, 26 A. B. R. 459 754, 780 Cocks. In re. 3 Ben. 260, Fed. Cas. No. 2933 111 Coddington. In re, 118 Fed. 281, 9 A. B. R. 243 62, 98 ' In re, 126 Fed. 891,, 11 A. B. R. 122 781 Coder v. Arts, 213 U. S. 223, 22 A. B. R. 1. aff'g 152 Fed. 943. 18 A. B. R. 513, mod'fg 145 Fed. 206. 16 A. B. R. 583 22, 410, 574, 576, 722, 731, 1030, 1204. 1209, .1212, 1214. 1225, 1242, 1248 v. McPherson, 152 Fed. 951, 18 A. B. R. 523 733 Codori, In re. 207 Fed. 784, 30 A. B. R. 453 301, 940, 958 Coe, In re, 154 Fed. 162, 18 A. B. R. 715 490, 503, 508 In re, 157 Fed. 308, 19 A. B. R. 618 130, 304 In re, 169 Fed. 1002. 22 A. B. R. 384, aff'd 183 Fed. 745, 26 A. B. R. 352 423, 426, 909 Coe V. Rosene, 66 Wash. 73, 27 A. B. R. 175 1125, 1126 Coe, Powers! & Co.. In re. 1 N. B. N. 294. 1 A. B. R. 275 338 In re. 109 Fed. 550. 6 A. B. R. 1 683 Coel, In re, 133 Fed. 414, 13 A. B. R. 300 1171 Coffey, In re. 19 A. B. R. 148 580 Coffin, In re, 1 N. E. N. 507, 2 A. B. R. 344 294, 482, 483, 688, 952, 984, 1023 1502 Brandenbtjeg on Bankruptcy Coffman, In re, 1 N. B. N. 402, 1 A. B. R. 530, 93 Fed. 422 568, 764 Coggan V. Ward, 215 Mass. 13, 31 A. B. R. 844 580 Coggin, In re, 1 N. B. N. 507, 2 A. B. R. 344 690 Cogley, In re, 107 Fed. 73, 5 A. B. R. 731 937, 939 Cohen, In re, 131 Fed. 391, 11 A. B. R. 439 506 In re, 136 Fed. 999, 14 A. B. R. 355 39 325 In re, 149 Fed. 908, 18 A. B. R. 84 918, 1106 In re. 206 Fed. 457, 30 A. B. R. 653, rev'g 201 Fed. 188, 29 A. B. R. 698 1065 Cohen v. American Surety Co., 192 N. Y. 227, 20 A. B. R. 65, aff'g 123 App. Div. fN. Y.) 519, 19 A. B. R. 901 666, 667 V. American Surety Co., 132 App. Div. (N. Y.) 917, 22 A. B. R. 909 49 V. Budd, 17 A. B. R. 329 727 V. Lachenmaier, 147 Wis. 649, 27 A. B. R. 416 925 V. Pecharsky, 67 Misc. (N. Y.) 72, 23 A. B. R. 754 390, 1131 V. Pinkus, 126 App. Div. (N. Y.) 792, 20 A. B. R. 787 ' 1152 V. United States, 157 Fed. 651, 19 A. B. R. 8, aff'g 142 Fed. 983, 15 A. B. R. 357 1184, 1186, 1192 V. United Stales, 170 Fed. 715, 22 A. B. R. 333 315, 1199 " Cohn, In re, 1 N. B. N. 330, 1 A. B. R. 655 1079, 1102, 1185 In re, 2 N. B. N. R. 299, 98 Fed. 75, 3 A. B. R. 421 567, 838, 847, 879 In re, 6 N. B. R. 379, Fed. Cas. No. 2966 992 In re, 18 A. B. R. 786 272, 656, 695, 879, 881 In re, 104 Fed. 328 350 In re, 171 Fed. 568, 22 A. B. R. 761 3, 5, 762, 777 Cohn V. Small, 120 App. Div. (N. Y.) 211, 18 A. B. R. 817 861 Colaluca, In re, 133 Fed. 255, 13 A. B. R. 292 237, 1138 Cole, In re, 106 Fed. 837, 5 A. B. R. 780 799 In re, 135 Fed. 439. 14 A. B, R. 389 890 In re, 144 Fed. 392, 16 A. B. R. 302 890, 891, 1166, 1176, 1228 In re, 163 Fed. 180, 20 A. B. R. 761 1164, 1176, 1179 Coleman, In re, 2 V. B. R. 172, 7 Blatch. 192, Fed. Cas. No. 2979 473 In re, 136 Fed. 818, 14 A. B. R. 461 594, 596, 599 Colemar v. Decatur Egg Case Co., 186 Fed. 136, 26 A. B. R. 24» 730 Colgan V. Finck, 30 A. B. R. 535 822 College Clothes Shop, In re, 192 Fed. 80, 27 A. B. R. 10 220 Coller, In re. 111 Fed. 503, 7 A. B. R. 131 774 Collett V. Bronx Nat. Bank, 205 Fed. 370, 30 A. B. R. 598, aff'g 200 Fed. Ill, 29 A. B. R. 454 708, 724, 735, 736 Collier, In re, 1 N. B. N. 257, 1 A. B. R. 182, 93 Fed. 191 51, 784 In re, 12 N. B. R. 266, Fed. Cas. No. 3002 131, 424, 1039, 1040 Collignon, In re, 2 N. B. N. R. 660, 4 A. B. R. 250 414, 433, 1140 Collins, In re, 1 N. B. N. 132 52, 1075 In re, 1 N. B. N. 290, 2 A. B. R. 1 653, 654, 720, 1004 In re, 1 N. B. R. 153, Fed. Cas. No. 3008 J56 In re, 10 N. B. R. 325, 3 Biss. 415 121 In re, 12 N. B. R. 379, 12 Blatch. 548, Fed. Cas. No. 3007 573, 579, 636 In re, 157 Fed. 120, 19 A. B. R. 688 1053 Collins V. Bell, 3 N. B. R. 587, Fed. Cas. No. 3010 587, 735 ABE TO PAGES] Collins V. Hood, 4 McLean 186, Fed. Cas. No. 3015 72, 1036 Coleman Co. v. Withoft, 195 Fed. 250, 28 A. B. R. 328 380, 390, 414, 415 Colonial Trust Co. v. Thorpe, 194 Fed. 390, 27 A. B. R. 451 560 Colston V. Austin Run Min. Co., 194 Fed. 929, 28 A. B. R. 92 77, 79 Colt. V. Sears, 38 Atl. 1056 853 Columbia Bank v. Birkett, 174 N. Y. 112, 9 A. B. R. 481 1152, 1153 v. Birkett, 36 Misc. (N. Y.) 391, 7 A. B. R. 222 1153 Columbia Fireproof Door Trim Co., In re, 168 Fed. 159, 21 A. B. R. 714 674 Columbia Iron Works, In re, 142 Fed. 234, 14 A. B. R. 526 337, 338, 342, 343, 345, 492, 507, 521, 527, 532, 944, 945 Columbia Iron Works v. National Lead Co., 127 Fed. 99, 11 A. B. R. 340 110, 114, 1203, 1222 Columbia Metal Works, In re, 3 N. B. R. 18, Fed. Cas. No. 3039 614 Columbia Real Estate Co., In re, 101 Fed. 965, 4 A. B. R. 411 19, 42, 136, 164, 248, 249, 251 In re, 112 Fed. 643, 7 A. B. R. 441 176, 249, 1215 In re, 205 Fed. 980, 30 A. R. R. 471 70, 86 Columbia Water Power Co. v. Railway Co., 172 U. S. 475 1249 Columbus Buggy Co., In re, 143 Fed. 859, 16 A. B. R. 759 559 Colwell, In re, 15 N. B. R. 93 969 In re, 165 Fed. 828, 21 A. B. R. 614 766 Comer & Co., In re, 171 Fed. 261, 22 A. B. R. 558 210 Commercial Bank of Manchester v. Buck- ncr, 20 How. 108 1107 Commonwealth v. Ensign, 40 Pa. Super. Ct. 157, 22 A. B. R. 797 315, 1199 v. Slifer, 1 Casey 23 265 v. Williams, 110 Mass. 401 1149 Commonwealth of Pennsylvania v. York Silk Mfg. Co., 192 Fed. 81, 27 A. B. R. 525, aiFg 188 Fed. 735, 26 A. B. R. 650 404, 989 Comstock, In re, 9 N. B. R. 88, Fed. Cas. No. 3075 55, 966 In re, 13 N. B. R. 193, 3 Sawy. 517, Fed. Cas. No. 3080 355, 1170 In re, 154 Fed. 747, 19 A, B. R. 65 912, 917 Comstock V. Bechtel, 63 Wis. 656 780 Comstock & Co., In re, 12 N. B. R. 110, 3 Sawy. 320, Fed. Cas. No^ 3079 473 Conboy v. First Nat. Bank of New Jersey, 203 U. S. 141, 16 A. B. R. 773 1243, 1249 Concord Motor Car Co., In re, 173 Fed. 445, 23 A. B. R. 73 109, 110, 115 Condict, In re, 19 N. B. R. 142, Fed. Cas. No. 3094 1060 Condon, In re, 9 Ch. App. 609 689 In re, 209 Fed. 800, 31 A. B. R. 754, aff'g 198 Fed. 947, 29 A. B. R, 907 64, 70. 95, 165, 183, 225 Coney Island Lumber Co., In re, 199 Fed. 197, 29 A. B. R. 91 961, 966 Congdon, In re, 129 Fed. 478, 11 A. B. R. 219 382 384 Conhaim. In re, 2 N. B. N. R. 148. 9^ Fed. 923, 3 A. B. R. 249 149, 471, 472, 554, 705 In re, 2 N. B. N. R. 148, 97 Fed. 923, 3 A. B. R. 249 709, 728, 740 In re, 2 N. B. N."R. 521, 100 Fed. 268, 4 A. B. R. 58 986 Conley, In re, 162 Fed. 806, 19 A. B. R. 200 774, 775 Conn, In re, 108 Fed. 525, 6 A. B. R. 217 1065, 1096 Connell. In re, 3 N. B. R. 113, Fed. Cas. No. 3110 1095 ' Connelly, 204 Fed. 479, 30 A. B. R. 340 619 Table of Cases 1503 [llISVigRENCES Conner v. Long, 104 U. S. 228 880 Connolly, In re, 2 N. B. N. R. 564, 100 Fed. 620, 3 A. B. R. 842, aff'g 2 N. B. N. R. 557 837, 839 Connor v. Long, 104 U. S. 228 854 V. Southern Exp. Co., 9 N. B. R. 138 824 Conover v. Dumuhaut, 17 N. B. R. 558 926 Conrader v. Cohen, 121 Fed. 801, 9 A. B. R. 619, aff'g 118 Fed. 676, 9 A. B. R. 85 1039 Conroy, In re, 134 Fed. 764, 14 A. B. R. 249 1053, 1077, 1078, 1188, 1189 Consolidated Rubber Tire Co. v. Vehicle Equipment Co., 121 App. Div. (N. Y.) 764, 19 A. B. R. 862 927 Constam v. Haley, 206 Fed. 260, 30 A. B. R. 650 736 Consumer's Coffee Co., In re, 162 Fed. 786, 20 A. B. R. 835 216, 220 In re, 151 Fed. 933, 18 A. B. R. 500 1012 Conti V. Sunseri, 18 A. B. R. 891 269, 272, 664, 863 V. Sunseri (Pa, Ct. Com. PI.) 18 A. B. R. 898 852 Continental Bank v. Katz, 1 N. B. N. 165, 1 A. B. R. 19 805 Continental Building & Loan Ass'n v. Superior Court, 163 Cal. 579, 28 A. B. R. 873 4, 10 Continental Corporation, In re, 14 A. B. R. 538 28, 247, 488 Continental & Commercial Trust & Sav- ings Bank v. Chicago Title & Trust Co., 229 U. S. 435, 30 A. B. R. 624 441, 442, 709 Conway v. German, 166 Fed. 67, 21 A. B. R. 577 91, 164, 172 Cook, In re, 3 Biss. 116, Fed. Cas. No. 3151 684, 1040 Cook V. Robinson, 194 Fed. 785, 28 A. B. R. 182 225, 652, 655, 656 V. Shearman, 103 Mass. 21 1126 V. Tullis, 9 N. B. R. 433, 18 Wall. 332 « 74, 712 v. Waters, 9 N. B. R. 155 25, 836, 851 V. Whipple, 55 N. Y. 150 573, 636 Cook Inlet Coal Fields Co. v. Caldwell, 147 Fed. 475, 17 A. B. R. 135 1222, 1230, 1234 Cooke, In re, 10 N. B. R. 126, Fed. Cas. No. 3168 365 In re, 12 N. B. R. 30, Fed. Cas. No. 3170 428 In re, 109 Fed. 631, 5 A. B. R. 434 1068 Cooke V. United States, 91 U. S. 389 1016 Cookingham v. Morgan, 5 N. B. R. 16 582 Coolev V. Cook, 125 Mass. 406 714 Coolidge Refrigerator & Car Co., In re, 190 Ped. 908, 27 A. B. R. 209 110 Cooney v. Collins, 176 Fed. 189, 23 A. B. R. 840 879 Cooper, In re, 16 N. B. R. 178, Fed. Cas. No. 3190 953 In re, 135 Fed. 196, 14 A. B. R. 320 337 Cooper V. Miller, 203 Fed. 383, 30 A. B. R. 194 1204 Cooper Bros., In re, 159 Fed. 956, 20 A. B. R. 392 180, 182 In re, 166 Fed. 932, 20 A. B. R. 634 923, 929 Cooper Grocery Co. v. Bryan, 127 Fed. 815, 11 A. B. R. 754 990 V. Gaddy, 141 S. W. 825, 27 A. B. R. 422 1145 Co-operative Knitting Mills, In re, 202 Fed. 1016, 30 A. B. R. Hi 457 Cqpeland v. Martin, 182 Fed. 805, 25 A. B. R. 268 882 Copper King, Ltd., In re, 143 Fed. 649, 16 A. B. R. 148 1006 Corbett, In re, 1 N. B. N. 326 842, 843 In re, 104 Fed. 872, 5 A. B. R. 224 746 Corbett v. Craven, 215 U. S. 125, 23 A. B. R. 516 1240 AJID TO FAOES] Corbett v. Riddle, 209 Fed. 811, 31 A. B. R. 330 245, 248, 527, 540, 567, 796 Corcoran, In re, 14 Ohio Fed. Dec. 294, 12 A. B. R. 283 1039 Cordes v. Arts, 213 U. S. 233, 22 A. B. R. 1, aff'g 152 Fed. 943, 18 A. B. R. 513 64 Cordick, In re, 19 N. B. R. 142, Fed. Cas. No. 3094 1059 Corey v. Blackwell Lumber Co., 24 Idaho 642, 31 A. B. R. 135 574, 657, 871 v. Perry, 17 N. B. R. 147 1047, 1130 V. Ripley, 4 N. B. R. 163 43, 1107, 1118 V. Ripley, 4 N. B. R. 503 1112 Corn, In re, 106 Fed. 143, 5 A. B. R. 478 1065, 1080, 1082 Corn Ex. Bank, In re, 15 N. B. R. 431, 7 Biss. 400, Fed. Cas. No. 3242, rev'g 15 N. B. R. 212, Fed. Cas. No. 3243 1013 Cornell, In re, 97 Fed. 29, 3 A. B. R. 172 1071, 1099, 1186 Cornell Co., In re, 186 Fed. 859, 26 A. B. R. 252 899, 910 Corner v. Miller, IN. B. R. 98 644 Cornforth v. Rivett, 2 M. & S. 510 446 Cornwall, In re, 4 N. B. R. 134, Fed. Cas. No. 3251 147 In re, 6 N. B. R. 305, 9 Blatch. 114, Fed. Cas. No. 3250 71, 225, 388, 417, 582 Corse, In re. Fed. Cas. No. 3254 236 Corwin, In re, 19 N. B. R. 422, Fed. Cas. No. 3259, Fed. Cas. No. 847 1110 Corwin Mfg. Co., In, re, 185 Fed. 976, 26 A. B. R. 269 145 Coswell-Massey Co., In re, 208 Fed. 571, 31 A. B. R. 426 413 Cote, In re, 14 N. B. R. 503, 2 Lowell 374, Fed. Cas. No. 3267 1080 Cotton, In re, 2 N. Y. Leg. Obs. 370 120 In re. Fed. Cas. No. 3269 1137, 1149 In re, 115 Fed. 158 472 In re, 209 Fed. 124, 31 A. B. R. 568 879, 883 Cotton & Preston, In re, 23 A. B. R. 586 1097 In re, 183 Fed. 181, 25 A. B. R. 517 1091, 1092 In re, 183 Fed. 190, 25 A. B. R. 532, s. c. 23 A. B. R. 586 762, 780, 781 Cottrell V. Pierson, 12 Fed. 805 1016 Coulter, In re. 5 N. B. R. 64, 2 Sawy. 42, Fed. Cas. No. 3276 684 In re, 206 Fed. 906, 30 A. B. R. 75 457, 1024 Counselman v. Hitchcock, 142 U. S. 547 366 Counts v. Columbus Buggy Co., 210 Fed. 748, il A. B. R. 312 122 Courier Journal Job Printing Co. v. Brew- - ing Co., 101 Fed. 699, 4 A. B. R. 183 687 v. Schaefer-Meyer Co., 101 Fed. 699, 4 A. B. R. 183 454, 541, 1203, 1204, 1209, 1210, 1232, 1234 .Courtenay Mercantile Co. v; Finch, 194 Fed. 368, 27 A. B. R. 688, aff'g 186 Fed. 352, 26 A. B. R. 365 82, 83 Couts V. Townsend, 126 Fed. 249, 11 A. B. R. 126 122, 284 Coventry Evans Furniture Co., In re, 166 Fed. 516, 22 A. B. R. '272 462, 463, 487 In re, 171 Fed. 673, 22 A. B. R. 623 459, 518, 968, 975 Covington, In re, 110 Fed. 143, 6 A. B. R. 373 284, 1069 In re, 132 Fed. 884, 13 A. B. R. 150 970 Cowan V. Burchfield, 180 Fed. 613. 25 A. B. R. 293 583, 765, 767, 780 Cowart V. Caldwell, 134 Ga. 544, 24 A. B, R. 546 640 Cowles, In re, 1 N. B. R. 42, Fed. Cas. No. 3927, 3 Starkie 56, 2 Car. & P. 135, 1 Term R. 572 65, 111 Cowley V. Railroad Co., 159 U. S. 569, , 575 998 1504 Beandenbueg on Bankbuptcy [BBFERGNCES Cox, In re, 199 Fed. 952, 29 A. B. R. 456 284, 408 Cox V. State Bank of Chicago, 125 Fed. 654, 11 A. B. R. 112 639 V. Wall, 2 N. B. N. R. 572, 99 Fed. 546, 3 A. B. R. 664 27. 836, 843 V. Wilder, 7 N. B. R. 241, 2 Dill. 45, Fed. Cas. No. 3308, rev'g 5 N. B. R. 443, Fed. Cas. No. 3309 301, 591, 768, 780 Coxe V. Hale, 8 N. B. R. 562, Fed. Cas. No. 3310 76, 137, 534 Cozart, In re, 3 N. B. R. 126, Fed. Cas. No. 3313 633, 1009 Craddock-Terry Co. v. Kaufman, 175 Fed. 303, 23 A. B. R. 724 287, 290, 354 Craft, In re, 1 N. B. R. 89, 2 Ben. 214, Fed. Cas. No. 3316 76, 171, 720 In re.. 2 N. B. R. 44, 6 Blatch. 177, Fed. Cas. No. 3317 171, 1081 Craft V. Pyke, 3 P. Williams, 180 305 Crafts-Riordan Shoe Co., In re, 185 Fed. 931, 26 A. B. R. 449 77, 79, 657, 703, 704, 705 Cragin v. Thompson, 12 N. B. R. 81, 2 Dill. 513, Fed. Cas. No. 3320 84 Craig, In re, 4 N. B. R. SO, Fed. Cas. No. 3323 350, 3«5 Craine v, Craine, 19 A. B. R. 16 1137, 1157 Cram, In re, 1 N. B. R. 133, 1 Hask. 189, Fed. Cas. No. 3343 480 Cramer, In re, 13 N. B. R. 225, Fed. Cas. No. 3345 473 In re, 175 Fed. 879, 23 A. B. R. 637 888 Cramond, In re, 145 Fed. 966, 17 A. B, R. 22 294, 516, 542, 567, 984 Crancer & Co. v. Wade, 26 Okla. 757, 25 A. B. R. 880 707 Crandall v. Coats, 133 Fed. 965, 13 A. B. R. 712 69, 703, 705, 732 Crane, In re, 15 N. B. R. 120, Fed. Cas. No. 3352 283 Crane Co. v. Smythe, 94 App. Div. (N. Y.) 53, 11 A. B. R. 747 683 Crawford, Ex parte, 154 Fed. 769, 18 A. B. R. 618 12 In re, 5 N. B. R. 301, Fed. Cas. No. 3364 1127 Crawford v. Burke, 195 U. S. 176, 12 A. B. R. 659, rev'g 201 111. 581 — 401, 404, 1140, 1141, 1142 Creasinger, In re, 17 A. B. R. 538 385, 462, 466 Credit Co. >r. Arkansas Central R. Co., 128 U. S. 258 1218 Creditors v. Williams, 4 N. B. R. 187, Fed. Cas. No. 3379 1054, 1068 Crenshaw, In re, 2 A. B. R. 623, 95 Fed. 632 1078, 1096, 1186 In re, 155 Fed. 271, 19 A. B. R. 266 360 In re, 156 Fed. 638, 19 A. B. R. '502 61, 67, 97, 150, 153, 154, 172 Crescent Lumber Co., In re, 154 Fed. 724, 19 A. B. R. 112 411 Cress-McCormick Co., In re, 25 A. B. E. 464 413, 414, 682 Cresson & Clearfield Coal & Coke Co. v. Stauffer, 148 Fed. 981, 17 A. B. R. 373, aff'g 143 Fed. .665, 16 A. B. R. 309 91, 92 Criblier, In re, 184 Fed. 338, 25 A. B. R. 765 603 Crim V. Woodford, 136 Fed. 34, 14 A. B. R. 302 286, 287, 288, 631, 712, 739 Crist, In re, 9 A. E. R. 1, 116 Fed. 1007 1058, 1061, 1099, 1100 Criterion Watch Case Mfg. Co., In re, 8 A. B. R.-206 916 Crittenden v. Barton, 59 App. Div. (N. Y.) 555, 5 A. B. R. 775 733, 738 Crockett, In re, 2 N. B. R. 75, 2 Ben. 514, Fed. Cas. No. 3402 129, 190 Crofts Bros., In re, 17 N. B. R. 324, 8 Biss. 188, Fed. Cas. No. 3404 84, 771 ABB TO PAGES] Crompton v. Conkling, 15 N. B. R. 417, 420. 9 Ben. 225. Fed. Cas. No. 3407,- 3408 192, 1047, 1130 Cromwell, In re, 6 N. B. R. 305, Fed. Cas. No. 3250 146 Cronin, In re, 98 Fed. 584, 3 A. B. R. 552 241 Cronson, In re, 1 N. B. N. 474 413, 680, 1012, 1149 Crook-Homer Co. v. Gilpin, 112 Md. 1, 23 ^A. B. R. 350 658, 1128 Crooker Co., In re, 27 A. B. R. 241 340, 509 Crooks v. Bank, 3 A. B. R. 238, rev'g 1 N. B. N. 530 576, 684, 711 V. Bank, 34 Misc. (N. Y.) 450, 5 A. B. R. 754 735, 736 V. People's Nat. Bank, 46 App. Div. (N. Y.) 335, 3 A. B. R. 243 870 Crosby v. Miller, 16 A. B. R. 805 541, 847, 1008 v. Spear, 98 Me. 542, 11 A. B. R. 613 796 Cross, In re, 16 N. B. R. 294, Fed. Cas. No. 3427 1049 Crossette, In re, 17 N. B. R. 208, Fed. Cas. No. 3455 147 Crouch V. Kerr, 38 Fed. 549 185 Crouse, In re, 196 Fed. 907, 28 A. B. R. 540 936 Crow, In re, 116 Fed. Ill, 7 A. B. R. 545 1004 Crowe V. Baumann, 190 Fed. 399, 27 A. B. r; 100 540 Crowell, In re, 199 Fed. 659, 29 A. B. E. 308 943, 954 Crown Point Brush' Co., In re, 200 Fed. 882, 29 A. B. R. 638 999, 1002, 1020 Cruchet v. Red Rover Mining Co., 155 Fed. 486, 18 A. B. R. 814 805 Crucible Steel Co. of America v. Holt, 174 Fed. 127, 23 A. B. R. 302 558, 1248 Crump V. Chapman, 15 N. B. R. 571, 1 Hughes 183, Fed. Cas. No. 3455 586 Crystal Springs Bottling Co., In re, 3 A. B. R. 194, 96 Fed. 945 525, 837, 842, 857 In re, 104 Fed. 265, 4 A. B. R. 55, 439, 443 Culhnane v. State Bank of Waverly, 123 Iowa 340, 12 A. B. R. 776 708, 731 Culpepper, In re, 31 A. B. R. 762 659 Cumming v. Clegg, 14 N. B. R. 49 789 Cummings, In re, 186 Fed. 1020, 26 A. B. R. 130 1164 In re, 188 Fed. 767, 26 A. B. R. 477 1181 Cummings v. Synnott, 184 Fed. 718, 25 A. B. R. 859 891 .Cummins, In re, 196 Fed. 224, 28 A. B. R. 385 745, 747 Cummins Grocery Co. v. Talley, 187 Fed. 507, 26 A. B. R. 484 98, 141, 184, 229, 244 Cunningham v. Cady, 13 N. B. R. 525, Fed. Cas. No. 3480 477/ v. German Ins. Bank, 101 Fed. 977, 4 A. B. R. 363 397 V. German Ins. Bank, 103 Fed. 932, a N. B. N. R. 689, 4 A. B. R. _ . J92 1204, 1210 Currie, In re, 23 A. B. R. 539 1083, 1084 In re, 185 Fed. 263, 26 A. B. R. 34^ 617 In re, 197 Fed. 1012, 28 A. B. R. 834 503 ''",Ti'=''v,I? "• " N. B. R. 68, 2 Lowell 436, Fed. Cas. No. 3492 146, 149, 473 In re, 192 Fed. 695, 27 A. B. R. 597 ^ w ^ . 418, 1009 Curry v. McCauIey, 20 Fed. 583 687 Curtis, In re, 100 Fed. 784, 4 A B R ^? . xr «^*\ '*•• '^2, 966, 1205, 1208 In re, 1 N. B. N. 163, 1 A. B. R. 440, 91 Fed. 737 10, 150, 151, 405, 666 In re, 33 So. 125, 9 A. B. R. 286 605 Custard v. Wigderson, 130 Wis. 412 17 A. B. R. 337 43 mg Cuthbertson, In re, 202 Fed. 266 29 A B R. 823 40, 1107 1108, 1112, 1114 Cutter v. Dingee, 14 N. B. R 294. 8 Ben. 469, Fed. Cas. No. 3518 810 Table of Cases 1505 Cutter V. Evans, U N. B. R. 448 815, 115S Cutting, In re, 145 Fed. 388, 16 A. B. R. 751 73, 586 Cyclopean Co., In re, 167 Fed. 971, 21 A. B. R. 679 645 D Dacovich v. Schley, 134 Fed. 72, 13 A. B. R. 752 423 Daggett, In re, 8 N. B. R. 433, Fed. Cas. No. 3536 129, 238, 613 Daly, In re, 205 Fed. 1002, 30 A. B. R. 475 1050 Damare, In re, 28 A. B. R. 297 1040 Dambmann v. White, 12 N. B. R. 438 822 843 Damon, In re, 104 Fed. 775, 5 A. B. rI 133 55, 57 Dana, In re, 68 Fed. 886 ' 327 In re, 167 Fed. 529, 21 A. B. R. 683 808 Dancy Hardware & Furniture Co., In re, 198 Fed. 336, 28 A. B. R. 444 543, 564, 565, 632, 641 Dandridge & Pugh, In re, 209 Fed. 838, 31 A. B. R. 15 152. 154, 1208 Daniel, In re, 29 A. B. R. 284 457, 460, 466 Daniel Sully & Co., In re, 142 Fed. 895, 15 A. B.i R. 304 374 Daniels, In re, 13 N. B. R. 46, 6 Biss. 405. Fed. Cas. No. 3566 387 In re, 110 Fed. 745, 6 A. B. R. 699 426, 1004 In re, 130 Fed. 597, 12 A. B. R. 446 291 293 Daniels v. United States, 196 Fed. 459,' 27 A. B. R. 790 367, 1196, 1197, 1198 Dann, In re, 129 Fed. 495, 12 A. B. R. 27 614 Darby, In re, 4 N. B. R. 98, Fed. Cas. , No. 70 520 Darby v. Boatman's Sav, Inst., 4 N. B. R. 195, Fed. Cas. No. 3571 684, 711, 860 Darby v. Lucas, 5 N. B. R. 437, Fed. Cas. No. 3572 702 Darevski, In re, 171 Fed. 288, 22 A. B. R. 571 1091 Darling v. Berry, 13 Fed. 659 750 Darlington, In re, 163 Fed. 385, 20 A. B. R. 805 1167 Darsey v. Mumford, 17 N. B. R. 181 761 Darwin, In re, 117 Fed. 407, 8 A. B. R. ^ 703 660 Daterson Pub. Co., In re, 188 Fed. 64, 26 A. B. R. 582 416 Daubner, In re, 1 N. B. N. 520, 3 A. B. R. 368, 96 Fed. 805 568, 764 Dauchy, In re, 130 Fed. 532, aff'g 122 Fed. 688, 10 A. B. R. 527 1065, 1099 Dauglish v. Tennent. L. R. 2 Q. B. 49 919 Davenport, In re, 3 N. B. R. 18, Fed. Cas. No. 3587 969 Davidson, In re, 2 N. B. R. 49, 2 Ben. 506, Fed. Cas. No. 3598 813 In re, 3 N. B. R. 106, 4 Ben. 10, Fed. Cas. No. 3599 473 In re, 109 Fed. 882, 5 A. B. R. 528 685, 686 711 In re, 158 Fed. 678, 19 A. B. ,R. 833 360 Davidson & Cd. v. Fiedman, 140 Fed. 853, 15 A. B. R. 489 1215, 1225, 1229 Davis, In re, 2 N. B. R. 125, Fed. Cas. No. 3618 ,, 647 In re, 8 N. B. R. 167, Fed. Cas. No. 361^ 845 In re, 112 Fed. 129, 7 A. B. R. 258 583 In re, 147 Fed. 556, 23 A. B. R. 446, aff'g 23 A. B. R. 156 484 In re, 155 Fed. 671, 19 A. B. R. 98 446 In re, 179 Fed. 871, 24 A. B. R. 667 ,400 In re, 180 Fed. 148, 25 A. B. R. 1 622 Davis V. Anderson, 6 N. B. R. 146, Fed. Cas. No. 362.3 , 499, 539 V. Armstrong, 3 N. B. R. 7, Fed. Cas. No. 3624 , 737 Brandenburg — 95 ABD TO PAGES] Davis V. Bohle, 34 C. C. A. 372, 1 N. B. N. 216, 1 A. B. R. 412, 92 Fed. 325 10, 82, 353, 666, 836, 842, 846, 1228 V. Crompton, 158 Fed. 735, 20 A. B. R. 53 , 558, 666, 1234 V. Hanover Savings Fund Society, 210 Fed. 768, 31 A. B. R. 368 579 v. Louisville Trust Co., 181 Fed. 10, 25 A. B. R. 621 409 V. Planters' Trust Co., 196 Fed. 970, 28 A. B. R. 495 868 v. Railroad Co., 12 N. B. R. 253, 1 Woods 661, Fed. Cas. No. 3648 689, 951 v. Stevens. 104 Fed. 235, 3 N. B. N. R. 131, 4 A. B. R. 763 63, 85, 108, 131, 188, 192 Davis Tailoring Co., In re, 144 Fed. 285, 16 A. B. R. 486 883 Davison, In re, 143 Fed. 673, 16 A. B. R. 337 1164 In re, 179 Fed. 750, 24 A. B. R. 460 409, 482, 600, 623 Dawley, In re, 1 N. B. N. 528, 70 Vt. 528, 94 Fed. 795, 2 A. B. R. 496 763, 765, 766 Day, In re, 176 Fed. 377, 23 A. B. R. 785 599 Day V. Beck & Gregg Hardware Co., 114 Fed. 834, 8 A. B. R. 175 82, 179, 232,' 235, 239 Day & Co., In re, 174 Fed. 164, 23 A. B. R. 56 339 Dayville Woolen Co., In re, 114 Fed. 674, 8 A. B. R. 85 339, 34U 507 Dea, Ex parte, 1 Ch. D. 514 305 Dean, In re, 3 N. B. R. 188, Fed. Cas. No. 3701 . 361, 1157 Dean V. Davis, 212 Fed. 88, 31 A. B. R. 808 578, 713 V. Justices, 1 N. B. N. R. 336, 172 Mass. 453, 2 A. B. R. 163 1131 Deane, In re, 2 N. B. R. 29, Fed. Cas. No. 3700 587 Deane & Garret, In re, 2 N. B. R. 29, Fed. Cas. No. 3700 75 Dearborn, Bank of v. Matney, 132 Fed. 75, 12 A. B. R. 482 ' 124 Debus V. Yates, 193 Fed. 427, ,30 A. B. R. 823 700, 702, 705, 712, 732 Deckert, In re. 2 Hughes 183 8, 756 In re, 10 N. B. R. 1, Fed. Cas. No. 3728 8, 756, 787 Deer Creek Water & Water Power Co., In re, 205 Fed. 205, 29 A. B. R. 356 77, 165 Deere Plow Co. v. Anderson, 174 Fed. 815, 23 A. B. R. 480 558, 564 V. Edgar Farmer Store Co., 143 N. W. 194, 31 A. B. R. 156 565 V. McDavid, 137 Fed. 802, 14 A. B. R. 653 560, 1005, 1213 Deford V. Hewlet, 18 N. B. R. 518 1120 De Forrest, In re, 9 N. B. R. 278, Fed. Cas. No. 3745 6, 236 DeGottardi, In re, 114 Fed. 328, 7 A. B. R. 723 316, 371, 375, 890, 1095, 1163, 1174 Deighton v. Kelsey, 4 N. B. R. 155 1122 De Lancey Stables Co., ;rn re, 170 Fed. 860, 22 A. B. R. 406 208 Deland v. ' Miller & Cheney Bank, 119 Iowa 368, 11 A. B. R. 744 633, 712, 851, 870 De Leeuw, In re, 2 N. B. N. R. 267, 3 A. B. R. 418, 98 Fed. 408 1082, 1102, 1187 Delmour, In re, 161 Fed. 589, 20 A. B. R. 40^ ^ 1066 DeLong, In re, 1 N. B. N. 26, 1 A. B. R 66 806, 1126, 1127, 1128 DeLong Furn. Co., In re, 188 Fed. 686, 26 A. B. R. 469 568 Delta Nat. Bank v. Easterbrook, 133 Fed. 521, 13 A. B. R. 338 1205, 1213 1506 Bbandbnbubg on Bankruptcy tBEFEBENCES DeLue, In re, 1 N. B. N. 5SS, 1 A. B; R. 387, 91 Fed. 510 654, 656 Demarest, In re, 110 Fed. 638, 6 A. B. R. 232 771 Dempster, In re, 172 Fed. 353, 22 A. B. R. 751 29, 30, 42, 43, 196, 199, 203, 217, 248 Denney v. Bennett, 128 U. S. 489, 497 13, 14 Denning, In re, 114 Fed. 219, 8 A. B. R. 133 420, 427, 1036 Denny v. Bennett, 128 U. S. 489 13 Denson, In re, 195 Fed. 854, 28 A. B, R. 158 549, 884, 892 In re, 195 Fed. 857, 28 A. B. R. 162 779, 783, 784 Dept. Store, In re. 1 N. B. N. 300 10 Derby, In re,^ 8 N. B. R. 106, 6 Ben. 232, Fed. Cas. No. 3815 119, 132, 158, 176, 250 Desha & Willfong, In re, 30,A. B. R. 130 229 Des Moines Nat. Bank v. Council Bluffs Sav. Bank, 150 Fed. 301, 18 A. B. R. 108 680 V. Morgan Jewelry Co., 123 Iowa 432, 12 A. B. R. 781 700, 707, 708, 734, 737, 823 Desmond & Co., In re, 198 Fed. 581, 28 A. B. R. 4S6 ' 415 Desrochers, In re, 183 Fed. 991, 25 A. B. R. 703 208, 215, 960, 971 Detert, In re, 11 N. B. R. 293, Fed. Cas. No. 3829 591, 768, 780 Detroit Trust Co. v, Pontiac Savings Banky 196 Fed. 29, 27 A. B. R. 821 24, 633, 667, 838 Deuell, In re, 2 N. B. N. 597, 100 Fed. 633, 4 A. B. R. 60 39, 890, 1162 Deutschle & Co., Thomas, In re, 182 Fed. 435, 25 A. B. R: 348 70S, 735 In re, 182 Fed. 430, 25 A. B. R. 343 999. 1000 Devlin, In re, 180 Fed. 170, 24 A. B. R. 863 300, 1014 Devoe, In re, 2 N. B. R. 11, 27, 1 Lowell 251, Fed Cas. No. 3843 320, 322, 358 Devore, In re, 16 N. B. R. 56, Fed. Cas. No. 3847 844, 955, 998 Devries v. Orem, 104 Md. 648, 17 A. B. R. 876 518 Deweese v. Reinhard, 165 U. S. 386 390, 805 Dewey, In re, 16 N. B. R. 1 1155 In re, 4 N. B. R. 139, Fed. Cas. No. 3849 514 Dewey v. Des Moines, 173 U. S. 193 1240 v. Moyer, 16 N. B. R. 1 1155 v. Moyer, 18 N. B. R. 114 1125, 1157 Dews, In re, 1 N. B. N. 140 374' In re, 1 N. B. N. 411, 96 Fed. 181, 2 A. B. R. 283 598, 1083, 1097 In re, 2 N. B. N. R. 437, 3 A. B. R. 691, 101 Fed. 549 1078, 1095, 1189 Dey, In re, 9 Blatch. 285, Fed. Cas. No. 3871 684 Diack, In re, 2 N. B. N. R. 664, 100 Fed. 770, 3 A. B. R. 723 599 Diamond, In re, 149 Fed. 407, 17 A. B. S. 563 1107 In re, 158 Fed. 370, 19 A. B. R. 811 780 In re, 204 Fed. 137, 30 A. B. R. 363 1099 Dibble, In re, 2 N. B. R. 185, 3 Ben. 203, Fed. Cas. No. 3884 76, 721, 728 Dibblee. In re, 2 N. B. R. 617, -3 Ben. 283, Fed. Cas. No. 3884 720 In re, 3 N. B. R. 17, 3 Ben. 354, Fed. Cas. No. 3885 899 Dickas v. Barnes, 140 Fed. 849, 15 A. B. R. 566 893, 1225, 1228 Dickens, In re, 175 Fed. 808, 23 A. B. R. 660 1164, 1177 Dickerson v. Spaulding, 15 N. B. R. 213 802 Dickinson, In re, 7 A. B. R. 679 472, 474 In re, 18 N. B. R. 514, Fed. Cas. No. 3895 331 Dickinson v. Adams, 17 N. B. R. 380, 4 Sawy. 257, Fed. Cas. No. 3896 75 ABB TO pages] Dicks, In re, 198 Fed. 293, 28 A. B. R. 845 301 Dickson, In re. 111 Fed. 726, 7 A. B. R. 186 472, 1231 v. Wyman, 7 A. B. R. 186, 111 Fed. 726 „ 475 Dietz, In re, 2 N. B. N. R. 125, 3 A. B. R. 316, 97 Fed. 563 1075, 1076, 1108, 1109 Dietzsch v. Huidekoper, 103 U. S. 494 794 Dight V. Chapman, 44 Ore. 265, 12 A. B. R. 743 429, 1152 Dillard, In re, 9 N. B. R. 8, 2 Hughes 190, Fed. Cas. No. 3912 246, 632, 756, 768, 787 Diller, In re, 100 Fed. 931 790 Dillon, In re, 100 Fed. 627, 4 A. B. R. 63 428, 439, 447, 453, 454 Dimm & Co., In re, 146 Fed. 402, 17 A. B. R. 119 517, 969 Dimock v. Revere Copper Co., 117 U. S. 559 927 Dingee v. Becker, 9 N. B. R. 508, Fed. Cas. No. 3919 499, 1123, 1132 Dinglehoef, In re, 109 Fed. 866, 6 A. B. R. 242 768 Disler v, McCauley, 66 App. Div. (N. Y.) 42, 7 A. B. R. 138, rev'g 6 A. B. R. 491 1148 Dismal Swamp Contracting Co.. In re, 135 Fed. 415, 14 A. B. R. 175 717 Ditsch, In re, 17 A. B. R. 912 675 Dix, In re, 176 Fed. 582, 23 A. B. E. 889 484 Dixon, In re, 12 A. B. R. 191 562 In re, 114 Fed. 675, 8 A. B. R. 14S 291 Dixon V. Barnum, 3 Hughes 207, Fed. Cas. No. 3928 1121 Dixon's Case, 3 Op. Atty. Genl. 623 1158 Doan V. Compton, 2 N. B. R. 607 224 Dobbs, In re, 172 Fed. 682, 22 A. B. R. 801 780 Dobson, In re, 2 N. B. R. 514 358, 388, 396, 420, 451 In re, 98 Fed. 86, 3 A. B. R. 420 654 Docker-Foster Co., In re, 123 Fed. 190, 10 A. B. R. 584 99 Dockery's Case, 26 C. CIs. R. 148 628 Doddy Jourdan & Co., In re, 127 Fed. 771, 11 A. B. R. 344 75, 78 Dodge, In re, 4 Dill. 532, Fed. Cas. No. 3949 1013 Dodge V. Kaufman, 46 Misc. (N. Y.) 248, 15 A. B. R. 542 1129 v. Kenwood Ice Co., 204 Fed. 577, 29 A. B. R. 586 103, 139 V. Norlin, 133 Fed. 363. 13 A. B. R. 176 26, 672, 676, 1212, 1221 Dqggett V. Emerson, 1 Woodb. & M. 195, Fed. Cas. No. 3962 1127 Dokken v. Page, 147 Fed. 438, 17 A. B. R. 228 578 Dol V. Goodbehen, 3 M. & S. 353 602, 603 Dolan, In re, 182 Fed. 949, 25 A. B. R. 145 597 Dole, In re, 7 N. B. R. 538, Fed. Cas. No. 3965 352, 361, 1111, 1114, 1117, 1172 In re, 9 N. B. R. 193, 11 Blatch. 499, Fed. Cas. No. 3964 1157 In re, 110 Fed. 926, 7 A. B. R. 21 621, 622 Doll V. Harlow, 11 N. B. R. 350 254 Domenig, In re, 128 Fed. 146, 11 A. B. R. 552 407 Donahey, In re, 176 Fed. 458, 23 A. B. R- 796 753, 754, 759, 776, 789 Donaldson v. Farwell, 15 N. B. R. 277 541, 695 V. Farwell, 93 U. S. 631 619, 620 Donnelly, In re, 188 Fed. 1001, 26 A. B. R- 304 38, 808 In re, 193 Fed. 755, 27 A. B. R. 504 68 98 228 Donohoe, In re, 8 N. B. R. 453. Fed! Cas. No. 3979 55 Table of Cases 1507 [BBFEUBNCGS Doody, In re, 2 N. B. R. 74, Fed. Cas. No. 3995 1103, 1141 Doran, In re, 154 Fed. 467, 18 A. B. R. 760, mod'fg 148 Fed. 327, 17 A. B. R. 799 672, 1204, 1214, 1231 Doroshow v. Ott, 134 Fed. 740, 14 A. B. R. 34 1231 Dorr, In re, 21 A. B. R. 752 434. 624, 626. lOOS In re, 186 Fed. 276, 26 A. B. R. 408 395 In re, 196 Fed. 292, 28 A. B. R. 505 283, 625, 70S Doschen, In re, 120 Fed. 408, 9 A. B. R. 547 61 Doty, In re, 5 A. B. R. 58 497 In re. 16 N. B. R, 202, Fed. Cas. No. 4017 417 Dougherty v. First Nat. Bank of Canton, 197 Fed. 241, 28 A. B. R. 263 672, 702, 705, 706, 707, 731, 732, 874 Dougherty Co., In re, 109 Fed. 480, 6 A. B. R. 457 681 Douglas, In re, 11 Fed. 403, 406 1109 Douglass Coal & Coke Co., In. re, 131 : Fed. 769, 12 A. B. R. 339 70, 85, 88 Douglass, In re, 14 Fed. 403 1076 Dow, In re, 6 N. B. S. 10, Fed. Cas. No. 4036 541, 542, 714, 1209 In re, 14 N. B. R. 307, 2 Law. 472, Fed. Cas. No. 17573 446 In re, 105 Fed. 889, 5 A. B. R. 405 1190 Dowie, In re, 202 Fed. 816, 29 A. B. R. 338 804 Downing, In re, 3 N. B. R. 182, 1 Dill. 33, Fed. Cas. No. 4044 131, 192, 1037, 1039, 1040, 1130 In re, 3 N. B. R. 748 131 In re, 148 Fed. 120, IS A. B. R. 423 656, 754 In re, 192 Fed. 683, 27 A. B. R. 309, affd 201 Fed. 93, 29 A. B. R. 228 543, 574, 938, 953 In re, 199 Fed. 329, 28 A. B. R. 778 1110, 1112 Downing v. Bank, 11 N. B. R. 372, Fed. Cas. No. 4046 „ , a ''^'* Doyle, In re, 3 N. B. R. 158, Fed. Cas. No. 4051 ^ . ^ „ '2* In re, 3 N. B. R. 190, Fed. Cas. No. 4052 1075 In re, 199 Fed. 247, 29 A. B. R. 102 284, 1066, 1095, 1102 In re, 205 Fed. 543, 30 A. B. R. 58 1201 Doyle V. Heath, 22 R. I. 213, 4 A. B. R. 705 661 Doyle-Kidd Dry Goods Co. v. Sadler-Lusk Trading Co., 206 Fed. 813, 30 A. B, R. __ 604 87, 89 Doyle & Son, In re, 209 Fed. 1, 31 A. B. R. 571, rev'g 20S Fed. 543, 30 A. B. R. 58 316, 618 Drake, In re, 114 Fed. 229, 8 A. B. R. 137 124 Drake v. McQuade, 66 N. H. 303 911, 927 V. RoUo, 3 Biss. 273, Fed. Cas. No. 406fe 439 ,. Vernon, 26 S. D. 354, 25 A. B. R. 69 1131. 1139 Drayton, In re, 135 Fed. 883, 13 A. B. R. 602 ^'V °° Drayton & Sear's Case, S Op. Atty. Genl. 579 1"8, 1182 Ereeben, In re, 101 Fed. 110. 4 A. B. R. 14^ 572 Drees v. Waldron, 212 Fed. 93, 31 A. B. R. 722 1112 Dreher Co. v. Nat. Surety Co., 174 Ala. 490, 27 A. B. R. 486 ^ ^,1223 Dressel v. North State Lumber Co.. 107 Fed. 255, 5 A. B. R. 744 „ , '' V. North State Lumber Co., 119 Fed. 531 286, 296, 375, 490 Dresser, In re, 3 N. B. R. 138, Fed. Cas. No. 4077 -1162. 1163 In re, 146 Fed. 383, 16 A. B. R. 561 109,0, 1105 AltE TO PAGES] Dresser & Co., In re, 14 A. B. R. 41 ' 1223 1250 Dreyer, In re, 2 N. B. R. 76, Fed. Cas. No. 4082 1058 Dreyfus. Ex parte, 13 N. E. R. 43, 2 Lowell 305, Fed. Cas. No. 8043 452 Drew V. Myers, 81 Neb. 750, 22 A. B. R. 656 871 Driggs, Ex parte, 2 Lowell 389 1076 In re, 171 Fed. 897, 22 A. B. R. 621 629, 669, 809 Driggs V. Russell, 3 N. B. R. 39, Fed. Cas. No. 4084 589 Drisco, In re, 14 N. B. R. S51, Fed. Cas. No. 4086 138 Driske, In re, 13 N. B. R. 112, 2 Lowell 430, Fed. Cas. No. 4090 138 Drolesbaugh, In re, 2 N. B. N. R. 1079 640, 654, 684, 810, 1011 Drozda v, Galbraith, 195 Fed. 926, 27 ■ A. B. R. 882 430 Drumgoole, In re, 140 Fed. 208, IS A. B. E. 261 954 Drummond, In re, 1 N. B. R. 10, Fed. Cas. No. 4093 64 Ducker, In re, 134 Fed. 43, 13 A. B. R. 760 1016 Duddy V. Willis, 99 Mo. 132 767 Duerson, In re, 13 N. B. R. 183, Fed. Cas. No. 4117 8, 753, 756, 766 Duff V. Carrier, 55 Fed. 433, aff'g SI Fed. 906 1242 Duffield V. Horton, 16 N. B. R. 59, s. c. 19 N. B. R. 13 615. 656 Duffy, In re, 118 Fed. 926, 9 A. B. R. 358 ' 757, 780 Duggan, In re; 183 Fed. 405, 25 A. E. R. 479, aff'g 182 Fed. 252, 25 A. B. R. 105 671, 672 DugUid, In re, 100 Fed. 274, 2 N. B. N. R. , 607, 3 A. B. R. 794 105, 119, 132, 609, 663 Duke, In re, 9 N. B. R. 430, Fed. Cas. No. 4227 633 Duke V. Clark, 58 Miss. 465 1005 Duke & Son, In re, 28 A. B. R. 195 61, 62, 63, 107, 123, 133, 208, 611 In re, 199 Fed. 199, 29 A. B. R. 93 ,133,612 Dulany v. Morse, 39 App. Cas. (D.' C.) 523, 29 A. B. R. 275 716, 866 V. Waggaman, 37 Wash. L. Rep. 370, 22 A. B. R. 36 731 Dunavant, In re, 1 N. B. N. 542, 3 A. B. R. 41, 96 Fed. 542 627, 629, 644, 735 Dunbar v. Dunbar, 190 U. S. 340, 10 A. B. R. 139 408 1137 Duncan, In re, 1 N. B. N. 340, 2 A. B. R 321 997 in re, 14 N. B. R. 18, 8 Ben. 365. Fed. Cas. No. 4131 142, 251, 526, 573, 636 In re, 139 U. S. 449 323 In re, 148 Fed. 464, 17 A. B. R. 283 540, 548, 549 Duncan v. Ferguson-McKinney Dry Goods Co., 150 Fed. 269. 18 A. B. R. 155 754, 767 V. Landis, 105 Fed. 839, S A. B. R. 649 61, 80, 232, 235, 1216 Dundas, In re, 111 Fed. 500, 7 A. B. R. 129 '33 Dutidon V. Coats, 6 N. B. R. 304, Fed. Cas. No. 4142 255 Dundore, In re, 26 A. B. R. 100 715 Dundore v. Coats, 6 N. B. R. 304, Fed. Cas. No. 4142 965 Dunfee, In re, 206 Fed. 745, 30 A. 3. R. , 721 1089, 1138, 1145, 1146, 1150 Dunham, In re, 1 Hask. 495, Fed. Cas. No, 4144 1037 Dunkerson & Co., In re, 12 N. B. R. 413, 4 Biss. 253, Fed. Cas. No. 4157 391, 421 In re, 12 N. B. R. 391, 4 Ben. 423, Feii. Cas. No. 4159 ■ 1042 1508 Brandenbubg on Bankeuptcy [iii:ferenc£s Dunkle, In re, 7 N. B. R. 107, Fed. Cas. No. 4161 421 In re, 7 N. E. R. 72, Fed. Cas. No. 4160 720 Dunlap V. Goodman, etc., Co. (Fa. Ct. Com. PI.), 31 A. B. R. 504 601 Dunlap Carpet Co., In re, 163 Fed. 514, 20 A. B. R. 882 434 In re, 171 Fed. 532, 22 A. B. R. 788 455 In re, 206 Fed. 726, 30 A. B. R. 664 457, 490, 1031 Dunlap Hardware Co. t. Huddleston, 167 Fed. 433, 21 A. B. R. 731 214, 789 Dunlop, In re, 156 Fed. 545, 19 A. B. R. 361 558, 559, 564 Dunn, I-' re, 11 N. B. R. 270, 2 Hughes 169, Fed. Cas. No. 4172 40, 1009 In re, 53 Fed. 341 931 In re, 181 Fed. 701, 25 A. B. R. 103 463 Dunn V. Cans, 129 Fed. 750, 12 A. B. R. 316 474 Dunn Hardware & Furniture Co^ In re, 132 Fed. 719, 13 A. B. R. 147 461 In re, 134 Fed. 997, 14 A. B. R. 186 53, 980 Dunn Salmon Co. v. Fillmore, 55 Misc. IN. Y.) 546, 19 A. B. R. 172 500, 659, 847 Dunn & Co., M. E., In re, 193 Fed. 212, 28 A. B. R. 127 204, 624, 625, 678 Dunnigan, In re, 2 N. B. N. R. 755 390, 392 In re, 1 N. B. N. 528, 2 A. B. R. 628, 95 Fed. 428 119, 132 Dunning, In re, 8 A. B. R. 133 1043 In re, 94 Fed. 709 1220 Dunseath & Son Co., In re, 168 Fed. 973, 21 A. B. R. 742, 22 A. B. R. 75 29, 30, 204, 216, 217, 220 Dunshane v. Beall, 161 U. S. 513 552 Dupee, In re, 6 N. B. R. 89, 2 Lowell 18, Fed. Cas. No. 4183 1108 Duplan Silk Co. v. Spencer, 115 Fed. 689, 8 A. B. R. 367 541, 634,684 Duplex Radiator Co., In re, 142 Fed. 906, 15 A. B. R. 324 34, 91, 226 Dupree, In re, 1 N. B. N. 513, 97 Fed. 28 95, 167, 168, 714 Duquesne Brew. Co., In re, 177 Fed. 609, 24 A. B. R. 44 HI, 114 Duquesne Incandescent Light Co., In re, 176 Fed. 785, 24 A. B. R 419 / 394, 399, 432, 434 Duran Merc. Co., In re, 199 Fed. 961, 29 A. B. R. 450 962, 963 Durant v. Mass. Hospital Life Ins. Co., 16 N. B. R. 324, Fed. Cas. No. 4188 627, 751 Durham, In re, 2 N. B. N. R. 1101 471, 472, 726 In re, 2 N. B. N. R. 1104 53 In re, 104 Fed. 231, 4 A. B. R. 760 782 In re, 114 Fed. 750, 8 A. B. R. 115 673, 686, 839 Durham v. Wick, 210 Pa. 128, 14 A. B. R. 385 615 Durham Paper Co. v. Seaboard Knitting Mills, 121 Fed. 179, 10 A. B. R. 29 150 Duryea, In re, 17 N. B. R. 495, Fed. Cas. No. 1196 809, 810, 816 Duryea Power Co., In re, 159 Fed. 783, 20 A. B. R. 219 343 Duryea Power Co. v. Stembergh 218 U. S. 299, 25 A. B. R. 66 1242, 1243 Dusenbury v. Hoyt, 10 N. B. R. 213 1125, 1131 Dushane v. Beall, 161 U. S. 513 312 Dulcher v. Bank, 11 N. B. R. 457, 12 Blatch, 435, 436, Fed. Cas. No. 4203 520, 540, 856 V. Wright, 94 U. S. SS3, 16 N. B. R. 331 95, 714, 733, 848 Dvorak, In re, 107 Fed. 76, 6 A. B. R^ 66 1052. 1154 Dwyer, In re, 112 Fed. 777, 7 A. B. R. 532 137. 224 In re, 184 Fed. 880, 25 A. B. R. 913 124 AKE TO PAGES] Dyke, In re, 9 N. B. R. 430, Fed. Cas. No. 4227 1017 Eades, In re, 143 Fed. 293, 16 A. B. R. 30 1084 Eady, In re, 3 N. B.. N. R. 434 395 Eagan State Bank V. Rice, 119 Fed. 107 686 Eagle Steam Laundry Co., In re, 184 Fed. 949, 25 A. B. R. 868 113, 969 Eagles & Crisp, In re, 2 N. B. N. R. 462, 3 A. B. R. 733, 9 Fed. 696 277, 282, 306, 330, 331, 336, 337, 338, 339, 340, 344, 471, 493, 503, 1204 Eames, Ex parte, 2 Story 322, Fed. Cas. No. 4237 11 Earl V. Jacobs, 142 N. W. 1079, 31 A. B. R. 90 823 Earle, In re. Fed. Cas. Ho. 4244 356 Earle v. Library Pub. Co., 95 Fed. 544 1040 Eash, In re, 157 Fed. 996, 19 A. B. R. 738 749, 761 Easley, In re, 1 N, B. N. 230, 93 Fed. 419, 1 A. B. R. 715 654, 806 East End Mantel & Tile Co., In re, 202 Fed. 275, 29 A. B. R. 793 , 543, 573, 579, 691; 704, 730 Eastern Commission & Importing Co., In re, 129 Fed. 847, 12 A. B; R. 305 802, 1128 Eastlack, In re, 145 Fed. 68, 16 A. B. R. 529 507 Eastman, In re, 2 N. B. N. R. 86 568, 764 Eastman v. Hibbard, 13 N. B. R. 360 1138, 1150 Easton Furniture Mfg. Co. v. Caminez, 146 App. Div. (N. Y.) 436, 27 A. B. R. 29 925. 1126 Eaton, In re, 110 Fed. 731, 6 A. B. R. 531 1187 1189 Eau Claire Nat. Bank v. Jackman, 204 U. S. 522, 17 A. B. R. 675 474,^861, 1239, 1240 Ebersole v. Adams, 13 N. B. R. 141 12 Ecfort V. Greely, 6 N. B. R. 433, Fed. Cas. No. 4260 60 Ecker v. McAllister, 17 N. B. R. 42 149, 873 Ed. W. Wright Lumber Co., In re, 114 Fed. 1011, 8 A. B. R. 345 73 Eddleman, In je, 154 Fed. 160, 19 A. B. R. 45 1163 Edelman, In re, 130 Fed. 700, 12 A. B. R. 238 68, 70, 94, 98 Edelstein, In re, 1 N. B. N. 168 69, 95. 728 Edelstein v. United States, 149 Fed. 636, 17 A. B. R. 649 19, 42, 332, 367, 1188, 1190, 1198 Edens & Co., In re, 151 Fed. 940, 18 A. B. R. 643 384 Edes, In re, 135 Fed. 395, 14 A. B. R. 382 8, 943 Edinburg Coal Co. v. Humphreys, 134 Fed. 839, 13 A. B. R. 593 202,. 1217 Edniglon v. Masson, 177 Fed. 209, 24 AJ'. B. R. 183 606 "Edith," Ship, In re, 6 N. B. R 449, S Ben. 432, Fed. Cas, No. 4282 955 Edmondson v. Hyde, 7 N. B. R. 1, 2 Sawy. 205, Fed. Cas. No. 4285 579, 670 Edward Ellsworth Co., In re, 173 Fed. 699, 23 A. B. R. 284 85, 86, 88, 90 Edward G, Milbury Co., Ltd., The, In re, 11 A. B. R. 523 85, 90 Edwards, Ex parte, Il.Fla. 184 1159 In re, 156 Fed. 794, 19 A. B. R. 632 7S1, 776 In re, 2 N. B, R. 109 790 Edwards v. Drake, 15 Fla. 666 185 V. Hutting Mfg. Co., 160 Fed. 619, 20 A. B. R. 349 247 V. Kearzey,,96 U. S. (6 Otto) S9S, 603 14 Effinger, In re, 184 Fed. 724, 25 A. B. R. 924 495 Effinger, In re, 184 Fed. 728 1042 Egan V. Hart, 165 U. S. 188 1239. 1241 Egbert, In re, 1 A. B. R. 340 735 Table of Oases 1509 [SEFBRENCES Eggert, In re, 2 N. B. N. R. 185, 2 N. B. N. R. 390, 98 Fed. 843, 3 A. B. R. 541, aff'd 102 Fed. 735, 4 A. B. R. 449 576, 733, 740, 1230 In re, 2 N. B. N. R. 44 754 Ehle, In re, 109 Fed. 625, 6 A. B. R. 476 606, 607 Eichholz V. Polack, 140 App. Div. (N. Y.) 551, 25 A. B. R. 243 666, 724, 875 Eideniiller, In re, 105 Fed. 595, 5 A. B. R. 570 119, 146 Eidom, In re, 3 N. B. R. 39, Fed. Cas. No. 4315 968 In re, 3 N. B. R. 27, Fed. Cas. No. 4314 1058 Eisenberg, In re, 117 Fed. 786, 8 A. B. R. 551 105, 120, 302 In re, 148 Fed. 325, 16 A. B. R. 776 930 Eland v. Karr, 1 East 175 446 Elby, In re, 157 Fed. 935. 19 A. B. R. 734 270, 1053, 1063, 1064 Elder, In re, 3 N. B. R. 165, 1 Sawy. 73, Fed. Cas. No. 4326 462 Eldred, In re, 3 N. B. R. 61, Fed. Cas. No. 4328 72 In re, 155 Fed. 686, 19 A. B. R. 52 1025 Eldridge, In re, 12 N. B. R. 540, 2 Hughes 256. Fed. Cas. No. 4331 418, 539 In re, 4 N. B. R. 162, Fed. Cas. No. 12610 579 In re, 4 N. B. R. 162, Fed. Cas. No. 4330 998 Electoral College's Case, 1 Hughes 571, Fed. Cas. No. 4336 322 Electric Supply Co., In re, 175 Fed. 612, 23 A. B. R. 647 86 Electron Chemical Co., In re, 208 Fed. 954, 31 A. B. R. 471 228 Elfelt V. Snow, 6 N. B. R. 57, 2 Sawy. 94, Fed. Cas. No. 4342 920, 929 Eliowich, In re, 148 Fed. 510, 17 A. B. R. 419 891 Elizabeth J. Harris, In re, 11 A. B. R. 649 • 32 £lk, In re, 2 N. B. N. R. 360, 3 A. B. R. 564, 98 Fed. 967 1149 Elk V. Wilkins, 112 U. S. 112 104 Elk Park Mining & Milling Co., In re, 101 Fed. 422, 4 A. R. B. 131 115 Elk Val. Min. Co., In re, 210 Fed. 386, 31 A. B. R. 545 497, 498, 975 Elkind & Schwartz, In re, 175 Fed. 64, 23 A. B. R. 166 1074 Ellenbecker, In re, 205 Fed. 396, 30 A. B. R. 537 119, 772 EUerbee, In re, 198 Fed. 952, 29 A. B. R. 87 1091 Ellerhorst, In re, 7 N. B. R. 49, 2 Sawy. 218, Fed. Cas. No. 4380 648 Ellerhorst & Co., In re, 5 N. B. R. 144, Fed. Cas. No. 4381 389, 454, 480, 1026 Ellet-Kendall Shoe Co. ,. Ward, 187 Fed. 982, 26 A. B. R. 114 620 Ellctson Co., In re, 174 Fed. 859, 23 A. B. R. 530, aff'd 183 Fed. 715,' 24 A. B. R. 893 272 In re, 193 Fed. 84, 28 A. B. R. 434 391, 1026 Ellett Elec. Co., In re, 196 Fed. 400, 28 A. B. R. 453 292, 961 Ellinger, In re, 18 N. B. R. 222, Fed. Cas. No. 4543 315 Elliot, In re, 2 N. B. N. R. 350 128, 129, 177, 181, 189, 190, 238, 1047, 1130 In re, 2 N. B. R. 44, Fed. Cas. No. 4391 1103 Elliott V. Toeppner, 187 U. S. 327, 9 A. B. R. 50 97, 229, 236, 1203; 1216, 1224 Ellis, In re, 143! Fed. 103, 16 A. B. R. 221 147, 380, 1227 , In re, .2 N. B. N. R. 360, 98 Fed. 967, 3 A. B. R. 564 414 In re, 107 Mass. 1 621 In re, 1 N. B. R. 154, Fed. Cas. No. 4400 656i 779, 789 A.BB TO PAGES] Ellis, In re, 5 Ben. 421, Fed. Cas. No. 4399 1043 Ellis V. Krulewitch, 141 Fed. 954, 15 A. B. R. 615 894: 1226 V. Rafferty, 199 Fed. 80, 29 A. B. R. 192 416, 954 Ellis Bros. Printing Co., In re, 156 Fed. 430, 19 A. B. R. 472 881, 887 Ellithorpe, In re. 111 Fed. 163, 7 A. B. R. 18, aff'g 5 A. B. R. 681 773 Ells, In re, 2 N. B. N. R. 357, aff'd 2 N. B. N. R. 360, 98 Fed. 967, 3 A. B. R. 564 414, 551, 601, 602, 604, 1149 Ellsworth Co., Edward, In re, 173 Fed. 699. 23 A. B. R. 284 13, 85, 86, 88, 90 Elm Brewing Co., 132 Fed. 299, 12 A. B. R. 623 693 Elmira Steel Co., In re, 109 Fed. 456, 5 A. B. R. 484 15, 33, 47. 80, 136, 164, 180, 547 Elsasser, In re, 7 A. B. R. 215 444 Elsbree v. Burt, 24 R. I. 322, 9 A. B. R 87 1122 Embry v. Bennett, 162 Fed. 139, 20 A. B. R. 651 409, 440, 491 Emerson v. Hall, 13 Peters R. 409, 415 628 Emerson, Marlow & Co., In re, 199 Fed. 95, 29 A. B. R. 173 633 Emery v. Bank, 7 N. B. R. 217, 3 Cliff. 507, Fed. Cas. No. 4446 422, 1039, 1042 Emison, In re, 2 N. B. R. 179, Fed. Cas. No. 4459 456 Emly, Ex parte, ,1 Rose 61 421 Empire Const. Co., In re, 157 Fed. 495, 19 A. B. R. 704 978 Empire Metallic Bedstead Co., In re, 1 N. B. N. 386, 2 A. B. R. 329. 2 N. B. N. R. 304, 95 Fed. 957, 98 Fed. 981, rev'g 1 N. B. N. 301, 1 A. B. R. 136 84, 85, 93, 668 Emrich, In re, 2 N. B. N. R. 656, 101 Fed. 231, 3 A. B. R. 89 42, 277, 617 Emslie, In re, 2 N. B. N. R. 992, 102 Fed. 291, 4 A. B. R. 126, rev'g 2 N. B. N. R. 324, 98 Fed. 716, 3 A. B. R. 516, 2 N. B. N. R. 171, 97 Fed. 929, 3 A. B. R. 282 634, 640, 684, 810, 1010 Endl, In re, 99 Fed. 915, 3 A. B. R. 813 884 Engle, In re, 105 Fed. 893, 5 A. B. R. 372 639, 660 English, In re, 127 Fed. 940, 11 A. B. R. 674, rev'g 122 Fed. 113, 10 A. B. R. 133 40, 668 English V. Ross, 140 Fed. 630, 15 A. B. R. 370 716 Ennis & Stoppani, In re, 183 Fed. 859, 25 A. B. R. 383 905, 911, 922 In re, 171 Fed. 755, 22 A. B. R. 679 1134, 1141, 1142 Ensign v. Commonwealth of Pennsyl- vania, 227 U. S. 592, 30 A. B. R. 408 315 1198 Enslie, In re, 102 Fed. 290, 2 N. B. N. R. 992 845 Epstein, In re, 109 Fed. 878, 6 A. B. R. 60 518, 619, 620, 694, 887 In re, 15 A. B. R. 711 890 In re, 206 Fed. 568, 30 A. B. R. 387 1166 Epstein v. Handverker, 29 Okla. 337, 26 A. B. R. 712 556, 822 v. United States, 196 Fed. 354, 28 A. B. R. 561 1190, 1197 , Equitable Life Assur. Soc. of United States V. Miller, 185 Fed. 98, 25 A. B. R. 560 596, 597 Equitable Loan & Security Co. v. Moss & Co., 125 Fed. 609, 11 A. B. R. Ill 552 Equitable Trust Co. of New York v. Vanderbilt Realty Improvement Co., 140 N Y. S. 1008, 31 A. B. R. 834 938, 944 Erben, In re, 2 N. B. R. 66, Fed. Cas. No. 1315 762 1510 Brandenburg on Bankruptcy Erdmari v. Moore & Co., 58 N. J. L. 445 986 Erie Lumber Co., In re, .150 Fed. 817, 17 A. B. R. 689 205, 207, 215, 983, 986, 993, 1001, 1010, 1018, 1169 Erie E. Co. V. Dial, 140 Fed. 689, 15 A. B. R. 559 625 Ernst V. Mechanic's & Metals Nat. Bank^ 201 Fed. 664, 29 A. B. R. 289 711. 725, 732 Ervin, In re, 109 Fed. 135, 6 A. B. R. 356 . 193 Erwin V. U. S., 19 N. B. R. 172, 97 U. S. 392 628, 629 Eschwege, In re. 8 A. B. R. 282 961, 965 Etherbridge v. Sperry, 139 U. S. 266 672 Etlieridge Furn. Co., In re. 1 N. B. N. 139, 1 A. B. R. 112, 92 Fed. 329 10, 20, 198. 352, 842 Ethier, In' re, 118 Fed. 107, 9 A. B. R. 160 949 Euclid Nat. Bank v. Union Trust & De- posit Co., 149 Fed. 975, 17 A. B. R. 834, aff'g 142 Fed. 588, 16 A. B. R. 91 1037, 1206, 1227 Eureka Anthracite Coal Co., In re, 197 Fed. 216, 28 A. B. R. 758 92, 176, 184 Eurich's Ft, Hamilton Brewery, In re, 158, Fed. 644, 19 A. B. R. 798 199 Evans, In re, 116 Fed. 909, 8 A. B. R. 730 780 In re, 161 Fed. 590, 20 A. B. R. 406 130 In re, 117 Fed. 574 970 In re, 3 N. B. R. 62, Fed. Cas. No. 4552 963 Evans v. Carey, 29 Ala. 99 1126 V. Eaton. Peters C. C. R. 323 757 V. RounsaVille, 115 Ga. 684, 8 A. B. R. 236 1121 V, Staalle, 88 Minn. 253, 11 A. B. R. 182 1121 Evans & Co., In re, 158 Fed. 153, 19 A. B. R.'7S2 755, 774 Evening Standard Pub. Co., In re, 164 Fed. 517, 21 A. B. R. 156 331 Everett, In re, 9 N. B. R. 90, Fed. Cas. No. 4579 9, 11, 652, 750, 751, 752, 757, 768, 789 Everett v. Judson, 228 U. S. 474, 30 A. B, R. 1, aff'g 192 Fed. 834, 27 A. B. R. 704, 188 Fed. 702, 26 A. B. R. 775 540, 546, 597, 601 Everieth, In re, 129 Fed. 620, 12 A. B. R. '236 774 Everyl5ody's Grocery & Meat Market, In re, 173 Fed. 492, 21 A. B. R. 925 ' 63, 192, 1130 Ewald & Brainard, In re, 135 Fed. 168, 14 A. B. R. 267 405, 1008 Ewing, In re, 115 Fed. 707 166 Excelsior Cafe Co., In re, 175 Fed. 294, 23 A. B. R. 701 109, 113, 182, 230 Exploration Mercantile Co. v. Pacific Hardware & Steel Co., 177 Fed. 825, 24 A. B. R. 216 87, 89, 166, 182, 1207, 1217 Exum, In re, 209 Fed. 716, 31 A. B. R. 691 754, 757, 758, 777 Eyster v. Gaff, 91 U. S. (1 Otto) 521, 13 N. B. R. 546 658, 809, 810, 815, 841, 881 Fabacher, In re, 193 Fed. 556, 27 A. B. R. 534 955, 957 Fagan, In re, 140 Fed. 758, 15 A. B. R. 520 459 Fahy, In re, 8 A. B. R. 354, 116 Fed. 239 1048 Fairlamb v. Smedley Construction' Co., 36 Pa. Super. Ct. 17, 22 A. B. R. 824 661 Fairiamb Co., In re, 199 Fed, 278, 28 A. B. R. 515 458, 465 Falconer, In re, 110 Fed. Ill, 6 A. B. R. 557 780, 781 ABE TO PAGES] Falkenburg, In re, 206 Fed. 835, 30 A. B. R. 718 214, 961, 971, 972, 974 Falkner, In. re, 16 N. B. R. 503, Fed. Cas. Nb. 4624 336, 503 Fallon, In re, 2 N. B. R. 92, Fed. Cas. No. 4628 488 Falls City Shirt Mfg. Co., In re, 1 N. B. N. 565, 98 Fed. 592, 3 A. B. R. 437 460, 641. 678, 1002, 1004, 1010, 1012 Falter v. Reinhard, 104 Fed. 292, 2 N. B. N. R. 1119 340, 342, 506 Family Laundry Co., In re, 193 Fed. 297, 27 A. B. R. 517 416 Famous Clothing Co., In re, 179 Fed. 1015, 24 A. B. R. 780 272, 891, 892 Faneway, In re, 4 N. B. R. 26 477, 625 Fanning, In re, 155 Fed. 701, 19 A. B. R. 55 1106 Farish, In re, 2 N. B. R. 168, Fed. Cas. No. 4647 752, 765 Farkas, In re, 204 Fed. 343, 30 A. B. R. 337 1173. 1174 Farley, In re, 115 Fed. 359, 8 A. B. R. 266 189, 239 Fariey v. Moog, 79 Ala. 148 305 Farley & Co., In re, 115 Fed. 359, 8 A. B. R. 266 50 Farmer, In re, 116 Fed. 763, 9 A. B. R. 19 411, 417 In re, 18 N. B. R. 207, Fed. Cas. No. 4650 608 Farmer v. Taylor, 15 N. B. R. 515 752 Farmers' Co-operative Co. of Barlow, In re, 202 Fed. 1008, 30 A. B. R. 190 543, 544, 565, 1016, 1019 In re, 202 Fed. 1005, 30 A. B. R. 187 717, 723 Farmers' Supply Co., In re, 196 Fed. 990. 28 A. B. R. 535 543. 564 Farmers' & Mechanics' Nat. Bank v. Dear- ing, 91 U. S. 29 860 Farmers' & Merchants' Bank v. Akron Machine Co., 14 Ohio Fed. Dec. 188, 12 A. B. R. 6 ■ 392 Farmers' & Merchants' State Bank of Waco, Tex. v. Park, 209 Fed. 613. 31 A. B. R. 696 445 In re, 170 Fed. 502, 22 A. B. R. 460 „ 684, 686 Famsworth, In re, 14 N. B. R. 148 444 Farrar v. Walker, 13 N. B. R. 82, 3 Dill. 506, Fed. Cas. No. 4679 859 Farrell, In re, 176 Fed. 505, 23 A. B. R. 826 667 In re, 5 N. B. R. 125, Fed. Cas No. ^ 4680 1052 In re, 176 Fed. 505, 23 A. B. R. _ .826 1212, 1214, 1228 Farrm v. Crawford, 2 N. B. R. 181, Fed. Cas. No. 4686 84 728 Farris v. Richardson, 6 Allen (Mass.) 118 119 132 Farthing, In re, 202 Fed. 557, 29 A b' R. 732 82, 163, 172, 173, 187 Fatnam v. Hefner, 79 Cal. 580, s. c. 92 Cal. 543 603 Faulhaber Stable Co., In re, 170 Fed. 68, 22 A. B. R. 381 678 Faulk & Co., T. S. v. Steiner, 165 Fed. 861, 21 A. B. R. 623 197^ 200 Faulkner, In re, 161 Fed. 900, 20 A B R. 542 466 In re, 181 Fed. 981, 25 A. B. R. 416 563 Fay, In re, 3 N. B. R. 860 1170 Fayetteville Wagon-Wood & Lumber Co., In re, 197 Fed. 180, 28 A. B. R. 307 QjQ 952 Fechter v. Postel, 114 App. Div. (N Y.) 776, 17 A. B. R. 316 400 1141 Federal Biscuit Co., In re, 203 Fed. 37, 29 A B. R. 393 711, 797, 800 Federal Lumber Co., In re, 195 Fed. 926. 26 A. B. R. 438 g3 Fehling v. Goings, 67 N. J. Eq. 375, 13 A. B. R. 154 683 Table of Cases 1511 Feigenbaum, In re, 7 A. B. R. 339 1048 Feinberg, In re, 2 N. B. R. 137, 3 Ben. 162, Fed. Cas. No. 4716 351 In re, 2 N. B. R. 425 1170 Feinberg Sons, In re, 187 Fed. 283, 26 A. B. R. 587 ' 473 Feldser, In re, 134 Fed. 307, 14 A. B. R. 216 892 Feldstein. In re, US Fed. 259, 8 A. B. R. 160, aS'g 108 Fed. 794, 6 A. B. R. 458 1081, 1088 Fell, Ex parte, 10 Ves. 348 610 Fellerath, In re, 1 N. B. N. 292, 2 A. B. R. 40, 95 Fed. 121 10, 95, 483, 636, 654, 658, 663, 836, 842 Fellerman, In re, 149 Fed. 244, 17 A. B. < R. 785 1168, 1172, 1176 1177 Fellheimer v. Durham, In re, 3 N. S. N. R. 30 782 Fellows V. Blacksmith, 19 Howard 355 104 V. Freudenthal, 102 Fed. 731, 4 A. B. R. 490 275, 296, 589, 1064, 1078, 1097, 1190 V. Hall, 3 McLean 281, Fed. Cfas. No. 4722 1127 Felson, In re, 139 Fed. 275, 15 A. B. R. 185 518, 967, 971, 994 Felstein, In re, 108 Fed. 794, 6 A. B. R. 458, aff'd 115 Fed. 259, 8 A. B. R. 160 1083 Feltstein, In re, 4 A. B. R. 321 366 Fendley, In re, 10 N. B. R. 250, Fed. Cas. No. 4728 26, 840 Fenn. In re, 177 Fed. 334, 24 A. B. R. 130, rev'g 172 Fed. 620, 22 A. B. R. 833 395 Ferguson, In re, 95 Fed. 429, 2 A. B.' R. 586 79, 80, 81, 644, 660, 714 In re, 16 N. B. R. 530, 2 Hughes, 286, Fed. Cas. No. 4738 ' 1127 Ferguson v. Peckham, 6 N. B. R. 569, Fed. Cas. No. 4741 648 Ferrer, In re, 5 Porto Rico Fed. Rep. 184, 22 A. B. R. 785 495 Ferreri, In re, 188 Fed. 675, 26 A. B. R. 658 962,, 968 Ferris, In re, 105 Fed. 356, 5 A. B. R. 246 1101 Feurelicht, In re, 8 A. B. R. 550 726 Fidelity Ins. Trust & T. D. Co. v. Iron Co., 81 Fed. 439, 453 986 Fidelity Trust Co. v. Gaskell, 195 Fed. 865, 28 A. B. R. 4 24, 26, 29, 30, 31, 886, 1227 V. Robinson, 192 Fed. 562, 27 A. B. R. 784 1222 Fidler & Son, In re, 172 Fed. 632, 23 A. B. R. 16 519, 960 Field V. Commonwealth, 32 Pa. St. 478 264 V. United States, 9 Pet. 182 1016 V. United States, 137 Fed. 6, 14 A. B. R. 507 1095 Fielding, In re, 2 N. B. N. R. 735, 96 Fed. 800, 3 A. B. R. 135 294, 1022, 1023, 1032 Fielding v. Phillips, 210 Fed. 889, 31 A. B. R. 542 294 Fields V. Karter, 115 Fed. 950, 8 A. B. R. 351 1097 Fife, In re, 109 Fed. 880, 6 A. B. R. 258 319,323,412, 1148 File Co. V. Qarrett, 110 U. S. 288 551 Filer, In re, 108 Fed. 209, 5 A. B. R. 332, 3 N. B. N. R. 366 36, 66 Fillingin v. Thornton, 12 N. B. R. 92 102, 796 Filmar, In re, 177 Fed. 170, 24 A. B. R. 194 1040 Finan, In re, 2 N. B. N. R. 872 1066, 1078, 1083, 1096 Finch, Ex parte, 1 Dea. & Ch. 274 611 Findlay, In re. 9 N. B. R. 83, 5 Biss. 480, Fed. Cas. No. 4789 235 Fininger, In re, 1 N. B. N. 132 52 ARE TO PAGES] Fink, In re, 163 Fed. 135, 20 A. B. R. 897 1000 Finkelstein, In re, 101 Fed. 418, 2 N. B. N. R. 839, 3 A. B. R. 800 1066, 1099, 1186 In re, 192 Fed. 738, 27 A. B. R. 229 759, 789 Finklea, In re, 153 Fed. 492, 18 A. B. R. 738 763 Finjay, In re, 104 Fed. 675, 3 A. B. R. 738, 3 N. B. N. R. 78 331, 340 Finn, In re, 8 N. B. R. 525, Fed. Cas. No. 4795 728 Finnegan v. Hall 6 A., B. R. 648 1148 Firemen's Ins. Co., In re, 8 N. B. R. 123, Fed. Cas. No. 4796 409 Firestone v. Harvey, 17'4 Fed. 574, 23 A. B. R. 468 1091, 1093 Firestone Tire & Rubber Co. v. Agnew, 194 N. Y. 165, 21 A. B. R. 292' 1122 First Nat. Bank v. Aultman, Miller & Co., 14 Ohio Fed. Dec. 188, 12, A. B. R. 12 987 V. Connett, 142 Fed. 33, 15 A. B. R. 662 715 V. .Hopkins, 199 Fed. 873, 29 A. B. R; 434 f ■' 883 ,. Lanz, 202 Fed. 117, 29 A. B. R. 247 690, 691, 712, 717, 726, 751, 786, 7^1 V. Lasater, 196 U. S. 115, 13 A, B.M. 698 552, 555 First Nat. Bank of Amsterdam v. Shuler, 153 N. Y. ;63 806 First Nat. Bank of Atlanta, Tex. v. Cameron, 209, Fed. 611; 31 A. B. R. 209, 695 '•■■.■ 460 First Nat. Bank of Baltimore v. Staake, 202 U. S. 141, 15 A. B. R. 639, aif'g 133 Fed. 717, 13 A. B. R. 281 655, 665 First Nat. Bank of Beaumont v. Eason, 149 Fed. 204, 17 A. B..R. 593 480 First Nat. Bank of Belle Fo'urche, In re, 152 Fed. 64, 18 A. B. R. 265 19, 20, 42, 114, 164, ,172, 248 First Nat. Bank of Buchanan Cp. v. Con- nett, 142 Fed. 33, 15 A. B. R. 662 716 First Nat. Bank of Canton, In re, 135 Fed. 62, 14 A. B. R. 180 , 672, 676, 1214 First Nat. Bank of Chicago, Ex parte, 207 U. S. 61, 19 A. B. R. 542, rev'g , 146 Fed. 742, 16 A. B. R.- 848 1250 First Nat. Bank of Chicago v. Chicago title & Trust Co., 198 U. S. 280; 14 A. . B. R. 102, rev'g 125 Fed. 169, 11 A. B. R. 79 , 7, 21, 840, 881, 882, 1206, 1211 1213, 1228 First Nat. Bank of Denver v. Klug, 186 U. S. 202, 8 A. B. R. 12 1211, 1236, 1246 First Nat. Bank of Louisville, In re, 155 Fed. 100, 18 A. B. R. 766 ,705. 734, 1214, 1227 First iSTat. Bank of Miles City v. State Nat. Bank of Miles City, 131 Fed. 422, 12 A. B. R. 429 420 V. State Nat. Bank of Miles City, 131 Fed. 430, 12 A. B. R. ,440 496, 1223 First Nat. Bank of Philadelphia v. Abbott, 165 Fed. 852, 21 A. B. R. 436 26, 27, 284, 286, 375, 734, 735 First Nat. Bank of Pittsburgh v. Guar- aritee Title & Trust Co.,' 178'Fed. 187, 24 A. B. R. 330 573,' 579, 653,- 655, 664, 665 First Nat. Bank of Sijyre v. Bartlett, 35 Pa. Super. Ct. 593, 21 A. B. R.' 88 751 First Nat. Bank of Troy v. Cooper, 9 N. B. R. 529. 20 Wall. 171 490, 521 First Nit. Bank of Wilkesbarre v. Bar- num. 160 Fed. 245, 20 A. B. R. 439 125 v. Wyoming Valley Ice Co., 136 Fed. 466, 14 A. B. R. 448 . 62, 109, 111 First State Bank of Corwith v. Haswell, 174 Fed. ,209; 23 A. B. R. 330 95, 175 Fischer' V. Hayes, 6 Fed. 63 , 1182 Fish V. Fiske, 154 Mass. 302 617 Fish Bros. Wagon Co., In re, 164 Fed. 553, 21 A. B. R. 149 667 1512 Bbandenbukg on Bankruptcy Fisher, In re, 142 Fed. 205, 15 A. B. R. 652 314 In re, 142 Fed. 205, 15 A. B. R. 652 758 In re, 193 Fed. 104, 26 A. B. R. 793 340 In re, 1 N. B. N. 206, 1 A. B. R. 557, aff'd 2 N. B. N. R. 221, 98 Fed. 89, aff'd 103 Fed. 860, 4 A. B. R. 646 596, 617, 693, 1201, 1206, 1229 Fisher v. Hayes, 6 Fed. 63 1181 V. Henderson, 8 N. B. R. 175, Fed.- Cas. No. 4820 581 V. Tifft, 127 Mass. 313 1139 V. Zollinger, 149 Fed. 54, 17 A. B. R. 618, aff'g 140 Fed. 679, 15 A. B. R. 524 718 Fisher & Co., In re, 135 Fed. 223, 14 A. B. R. 366 272, 512, 513. 912, 935 In re, 148 Fed. 907, 17 A. B. R. 404, aff'd 153 Fed. 281, 18 A. B. R. 503 988, 1030 Fishblate Clothing Co., In re, 125 Fed. 986, 11 A. B. R. 204 149 Fisk, Ex parte, 113 U. S. 713, 718 1158, 1178, 1181 Fiske & Co., In re, 209 Fed. 982, 31 A. B. R. 736 971 Fitch V. Bank of Grand Rapids, 146 Wis. 439, 26 A. B. R. 879 719 V. McGie, 2 N. B. R. 164, Fed. Cas. No. 4835 721 V. McGill, 2 Biss. 163 720 V. Richardson, 147 Fed. 197, 16 A. B. R. 835 477, 882 Fitchard, In re, 2 N. B. N. R. 1075, 103 Fed. 742. 4 A. B. R. 609 590, 106.5, 1073, 1094, 10p6, 1097 Fite, In re, 31 A. B. R. 308 936 Fite V. Fite, 110 Ky. 197, 5 A. B. R. 461 • 1136 Fitzgerald, In re, 191 Fed. 95, 26 A. B. R. 773 ■ 152, 432 In re, 188 Fed. 763, 26 A. B. R. 710 579 Fitzpatrick v. Flannagan, 106 U. S. 648 1040 Fitzsimmons, In re, 2 N. B. N. R. 453 765 Fixen & Co., In re, 1 N. B. N. 568, 2 A. B. R. 822, 96 Fed. 748, s. c. 2 N. B. N. R. 885, 102 Fed. 295, 4 A. B. R. 10 39, 353, 354, 355, 356, 373, 386, 469, 471, 709, 728, 842, 1172 Flaherty, In re, 184 Fed. 962, 25 A. B. R. Flanagan, Ex parte, 12 N. B. R. 230, 2 Hughes 264, Fed. Cas. No. 4855 477 In re, 18 N. B. R. 439, Fed. Cas. No. 4850, 5 Sawy. 312 137, 142 Flanagan v. Pearson, 14 N. B. R. 37 233, 801, 815, 1133, 1144 Flanders, In re, 134 Fed. 560, 14 A. B. R. 27 ' 560 Flanders v. MuUin, 80 Vt. 124, 18 A. B. R. 708. 1147 Flatau & Stem, In re, 21 A. B. R. 352 458, 1040 Flatland, In re, 196 Fed. 310, 28 A. B. R. 476 677, 1227 Flatt V. Stadler & Co., 16 Lea 371 590 Fleischer, In re, 151 Fed. 82, 18 A. B. R. 194 39, 360 Fleitas v. Mellen, 39 Fed. 129 1122 V. Richardson, 147 U. S. 550, aff'g 39 Fed. 129 1122, 1144 Flesh V. Lindsay, 115 Mo. 1 998 Fletcher, In re, 15 Ohio Fed. Dec. 210, 16 A. B. R. 491 539, 540, 753 Fletcher v. Morey, 2 Story 555, Fed. Cas. No. 4864 641 Flick, In re, 105 Fed. 503, 5 A. B. R. 465, 3 N. B. N. R. 71 405, 472, 736, 998, 1000 Flickinger v. First Nat. Bank of Vandalia, 145 Fed. 162, 16 A. B. R. 678 122 1221 1223 FUnt V. Chaloupka, 78 Neb. 594, 18 X. B. R. 293 1156 ABE Tp PAGES] Flint Hill sieve & Const. Co., In re, 149 Fed. 1007,. 18 A. B. R. 81 69, 166 Flodd-Pratt Dairy Co., In re, 23 A. B. R. 148 856 Florcken, In re, 107 Fed. 241, 5 A. B. R. 802 270,- 271 Floyd, In re, 154 Fed. 757, 18 A. B. R. 827 773 Floyd, Crawford & Co., In re, 15 A. B. R. 277 804, 1140, 1142, Floyd & Bohr Co., In re, 200 Fed. 1016, 29 A. B. R. 149 1027 Floyd & Co.. W. J., In re, 156 Fed. 206, 19 A. B. R. 438 427, 726 Fly, In re, 110 Fed. 141, 6 A. B. R. 550 776 Flynn, In re, 134 Fed. 145, 13 A. B. R. 720 911, 987 Flynn & Co., In re, 126 Fed. 422, 11 A. B. R. 318 879 Foerst, In re, 1 N. B. N. 258, 93 Fed. 190, 1 A. B. R. 259 356, 377 Foerstner v. Citizens' Sav. & Trust Co., 186 Fed. 1, 26 A. B. R. 377 687 Fogarty, In re, 187 Fed. 773, 26 A. B. R. 568 975 Fogelman, In re, 204 Fed. 351, 30 A. B. R. 348 1163, 1172 In re, 188 Fed. 755, 26 A. B. R. 742 892 1173 Fogerty, In re, 4 N. B. R. 143, 1 Sawy. 233, Fed. Cas. No. 4895 32 Folb, In re, 1 N. B. N. 134, 91 Fed. 107, 1 A. B. R. 22 149, 150, 338, 714 Folger V. Putnam, 194 Fed. 793, 28 A. B. R. 173, aff'g 193 Fed. 464, 27 A. B. R. 923 75, 78, 80 Folkstad, In re, 199 Fed. 363, 29 A. B. R. 77 122 Fonda, Ex parte, 117 U. S. 516 323 Foot, In re, 11 N. B. R. 158, 11 Blatch. 530 695 In re, 12 N. B. R. 337, 8 Ben. 228, Fed:. Cas. No. 4906 423, 426, 482, 1018 Forbes, In re, 128 Fed. 137, 11 A. B. R. 787 4, 190, 191, 233, 237, 238 In re, 186 Fed. 79, 26 A. B. R. 355 655, 785 In re, 7 A. B. R. 42 301, 995 Ford, In re, 18 N. B. R. 426, Fed. Cas. No. 4932 388, 451 Ford V. State Board of Education, 166 Mich. 658, 27 A. B. R. 236 567 Foreman v. Bigelow, 18 N. B. R. 457, Fed. Cas. No. 9434 864 V. Burleigh, 109 Fed. 313, 6 A. B. R. 230 1207 Forse & Roseboom, In re, 182 Fed. 212, 25 A. B. R. 134 562 Forsith v. Merritt, 3 N. B. R. 48, 1 Lowell 336 247 Forsyth, In re, 7 N. B. R. 174, Fed. Cas. No. 4948 420, 480, 720, 728, 968 Forsyth v. Hammond, 166 U. S. 506 1246 . V. Vehmeyer, 177 U. S. 177, 3 A. B. R. 807 1133, 1134, 1140, 1145 .. Woods, Fed. Cas. No. 17'992, 11 Wall. 484, 486 138 Fort Wavne Electric Corporation, In re, 1 N. B. N. 356, 94 Fed. 109, 1 A- B. R. 706 278, 294, 1022 In re, 2 N. B. N. R. 434, 99 Fed. 400, 3 A. B. R. 634 149, 471, 728, 733, 740 In re, 2 N. B. N. R. 891 460, 1010 Forth, In re, 151 Fed. 951, 18 A. B. R. 186 1069 Fortune, In re, 3 N. B. R. 83 452 Foss, In re, 147 Fed. 790, 17 A. B. R. '>39 288, 407, 581 Foster, Ex parte, 2 Story 131, Fed. Cas. No. 4950 1122 In re, 3 N. B. R. 57, 3 Ben. 386, Fed. Cas. No. 4962 36 In re, 126 Fed. 1014, 11 A. B. R. 131 71 Table of Cases 1513 [BEFISRENCISS Foster, In re, 18 N. B. R. 64, Fed. Cas. No. 4964 73, 676 In re, 2 N. B. R. 81, Fed. Cas. No. , 4961 728 In re, 181 Fed. 703, 25 A. B. R. 96 939 In re, 186 Fed. 254, 24 A. B. R. 368 1090 Foster V. Ames, 2 N. B. R. 147, Fed. Cas. No. 4965 938 V. Hackley, 2 N. B. R. 131, Fed. Cas. No. 497 722 V. Inelee, 13 N. B. N. 239, Fed. Cas. No. 4973 988 V. Rhodes, 10 N. B. R. 533, Fed. Cas. No. 4981 621 Foster Paint & Varnish Co., In re, 210 Fed. 652, 31 A. B. R. 548 60, 102, 103 Fouche V. Shearer, 172 Fed. 592, 22 A. B. R. 828 284 Fourth Nat. Bank of Chicago v. Bank, 10 N. B. R. 44 1006 Fourth Street Nat. Bank v. Milbourne Mill Co.'s Trustee, 172 Fed. 177, 22 A. B. R. 442, aff'g 162 Fed. 988, 20 A. B. R. 746 678, 691 Fowler, In re, 1 N. B. N. 265, 93 Fed. 417, 1 A. B. R. 555 198, 350, 351 In re, 1 N. B. N. 265, 1 A. B. R. 555, 93 Fed. 417 588 In re, 1 N. B. N. 215, 1 A. B. R. 637 838, 847, 879 In re, 2 Lowell 122, Fed. Cas. No. 4999 1111 Fowler v. Tenks, 90 Minn. 74, 11 A. B. R. 255 512, 1034, 1120 Fowler & Co., In re, 145 Fed. 270, 16 A. B. R. 580 772 Fox, In re, 6 A. B. R. 525 911 Fox V. Eckstein, 4 N. B. R. 123, Fed. Cas. No. 5009 71, 74 V. Gardner, 12 N. B. R. 137, 21 Wall. 475 852 Foxall V. Levi, 1 Cranch C. C. 139, Fed. Cas. No. 5015 320 Francis, In re, 7 N. B. R. 359, 2 Sawy. 286 127 In re, 136 Fed. 974, 14 A. B. R. 676 201 Francis v. McNeal, 228 U. S. 695, L. R. A. 1915 E. 706, 30 A. B. R. 244, aff'g 186 Fed. 481, 26 A. B. R. 555 63, 132, 239. 611, 621 V. McNeal, 170 Fed. 445, 22 A. B. R. 337 1203 Francis-Valentine Co., In re, 1 N. B. N. 529, 94 Fed. 793, 2 A. B. R. 522, aff'g 1 N. B. N. 532, 93 Fed. 9S3, 2 A. B. R. 188 80, 382, 649, 653, 656, 663, 664, 797( 806, 836, 842, 854, 880, 991, 1228 Frank, In re, S N. B. R. 194, 5 Ben. 164, . Fed. Cas. No. 5050 337, 343, 493 In re, 95 Fed. 635, 2 A. B. R. 634 854 ; In re, 182 Fed. 794, 25 A. B. R. 486 888, 894, 895, 1226 Frank v. Dickey, 139 Fed. 744, 15 A. B. R. 155 966, 967 V. Mercantile Nat. Bank, 182 N. Y. 264, 14 A. B. R. 125 444, 876 V. Michigan Paper Co., 179 Fed. 776, 24 A. B. R. 261 1092, 1116, 1146 V. Musliner, 78 N. Y. S. 369, 9 A. B. R. 229 722 V. Vollkommer, 205 U. S. 521, 17 A. B. R. 806, aff'g 107 App. Div. (N. Y.) 594, 14 A. B. R. 695 21, 23, 844, 852 Frank Meis, In re, 18 A. B. R. 104 956, 963, 986 Frank S. Keet, In re, 128 Fed. 651, 11 A. B. R. 117 25 Frank Stanton Co., In re, J., 163 Fed. 169, 20 A. B. R. 549 603 Frankel, In re, 2 N. B. N. R. 840 414, 604, 1012, 1149, 1150 In re, 184 Fed. 539, 25 A. B. R. 920 1165, 1177 ABB TO PAGES] Franklin, In re, 106 Fed. 666, 5 A. B. R. 284 807- Franklin v. Stoughton Wagon Co., 168 Fed. 857, 28 A. B. R. 63 559, 1212 Franklin . Co. Nat. Bank v. First Nat. . Bank, 138 Mass. 515 479 Franklin Lumber Co., In re, 26 A. B. R. 37 561 In re, 147 Fed. 852, 17 A. B. R. 443 563, 638 In re, 187 Fed. 281, 26 A. B. R. 37 564, 565 Franklin Suit & Skirt Co., In re, 197 Fed. 591, 28 A. B. R. 278 881 Franklin Syndicate, In re, 2 N. B. N. R. 522, 101 Fed. 402, 4 A. B. R. 511 206, 269, 359, 361 In re, 114 Fed. 205 372 Franklyn. Ex parte. Buck, 332 1042 Franks, In re, 95 Fed. 635, 2 A. B. R. 634 663, 822, 837, 880 Frazier, In re, 117 Fed. 746, 9 A. B. R. 21 563, 672 Frazier v. Barnum, 19 N. J. Eq. 316 774 V. McDonald, 8 N. B. R. 237, Fed. Cas. No. 5073 299 V. Southern L. & T. Co., 99 Fed. 707, 3 A. B. R. 710 658 Frazin & Oppeiiheim, In re, 174 Fed. 713, 23 A. B. R. 289, s. c. 183 Fed. 28, 24 A. B. R. 903 601, 602, 603 In re, 181 Fed. 307, 24 A. B. R. 598 950 In re, 201 Fed. 86, 29 A. B. R. 214 702 732 952 Frear, In re, 1 N. B. R. 201, 2 Ben. 467^ Fed. Cas. No. 5074 1047, 1130 Freche, In re, 109 Fed. 620, 6 A. B. R. 479 \ 1148 Fredenburg, In re, 1 N. B. R. 268 355, 1170 In re, 1 N. B. R. 34. 2 Ben. 133, Fed. Cas. 5fo. 5075 290, 357 Freedman, In re, 29 A. B. R. 135, aff'd 31 A. B. R. 53 301, 591, 938 941, 958 Freedman's Savings & Trust Co. v. Earle, 110 U. S. 710 644, 658 Freelander v. HoUoman, 9 N. E. R. 331, Fed. Cas. No. 5081 864, 968, 998 Freeman, Ex parte, 1 Dea. & Ch. 464 611 In re, 2 ISf. B. N. R. 569 548, 774 In re, 190 Fed. 48, 27 A. B. R. 16 983 In re. 4 N. B. N. R. 71, 4 Ben. 245, Fed. Cas. No. 5082 1058, 1060, 1078, 1185 Freischberg, In re, 8 A. B. R. 607 240 French, In re, 181 Fed. 583, 25 A. B. R. 77 312, 458, 913, 914. 921, 922 French v. White, 78 Vt. 89,' 18 A. B. R. 905 691, 796 Freund, In re, 1 N. B. N. 105, 1 A. B. R. 25 128, 129. 181, 189, 190, 239, 1047, 1130 In re, 2 N. B. N. R. 236, 98 Fed. 81, 3 A. B. R. 418 1077, 1082, 1096, 1097, 1185, 1186. 1187 Frey v. Torrey, 175 N. Y. 501, 8 A. B. R. 196 1132 v. Torrey, 36 Misc. (N. Y.) 216, 8 A. B. R. 196 1141 Price, In re, 1 N. B. N. 432, 2 A. B. R. 674, 96 Fed. 611 1053, 1056, 1057, 1067 In re, 1 N. B. N. 214, 1 A. B. R. 719 479, 554, 648, 984, 986, 995, 997 Friday v. Hall & Kaul Co., 216 U. S. 449, 23 A. B. R. 610, rev'g 158 Fed. 593, 19 A. B. R. 841 109, 110, 113, 114 Friedberg, In re, 19 N. B. R. 302, Fed. Cas. No. 5116 1086 Friederich, In re, 100 Fed. 284, 3 A. B. R. 801, aff'g 95 Fed. 282 754, 737, 758, 760, 771 Friedman, In re, 164 Fed. 131, 21 A. B. R. 213 380, 405 In re, 1 N. B. N. 208, 1 A. B. R. 510 465, 485, 653,. 654 In re, 161 Fed. 260, 20 A. B. R. 37, aff'g 153 Fed. 939, 18 A. B. R. 712 879 1514 Brandenbtjbg on Baspkruptcy [REFEBENCES Friedman, In re, 1 N. B. N. 332, 2 A. B. R. 301 889, 890, 1163, 1186 Friedman v. MyerSi'30 Ohio Cir. Ct. 303, 19 A. B. R. 883 555 V. Zweifler, 74 Misc. (N. Y.) 448, 27 A. B. R. 412 799, 1155 Friedrich, In re, 100 Fed. 284, 3 A. B. R. 801 609 In re, 199 Fed. 193, 28 A. B. R. 656 764, 1100, 1102 Friend, In re, l34 Fed. 778, 13 A. B. R. 595 924, 1201, 1202, 1203, 1204, 1209, 1212, 1216. 1232 Friend v.. Talcott, 228 U. S. 27, 30 A. B. R. Si, aff'g 179 Fed. 676; 24 A. B. R. 708 - 1118, 1133 Frisbie, In re, IS N. B. R. 522, 14 Blatch. 185, Fed. Cas. No. 5129 154 In re, 13 N. B. R. 349, Fed. Cas. No. 5131 362 Friscliberg, In re, 8 A. B. R. 607 181 Fritz, In re, 152 Fed. 562, 18 A. B. R. 107 321 In re, 173 Fed. 560, 23 A. B. R. 84 977; 1050, 1051, 1052, 1074, 1075 Frizzelle, In re, S N. B. R. 119, Fed. Cas. No. 5132 362 In re, 11 N. B. R. 69, 6 Biss. 213, Fed. Cas. No. 5134 147, 148, 380 In re, 3 N. B. R. 180, Fed. Cas. No. 5135 420 Frost V. Latliam & Co., 181 Fed. 866, 25 A. B, R. 313 217, 865, 866 Frostman v. Hicks, 15 N. B. R. 41 815 1123 Fry, In re, 9 Fed. 376 ' 1067 Fuller & Bennett, In re, 152 Fed. 538, 18 A. B. R. 443 1003 FiiHick, In re, 201 Fed. 463, 28 A. B. R. 634 2S0, 966 Fulton, In re, 153 Fed. 664, 18 A. B. R. 591 208 Fulton V. Hammond, 11 Fed. 291 1142 Fulton Club, In re, 113 Fed. 997, 7 A. B. R. 670 112 Funck & Balthazard, In re, 169 Fed. 481, 22 A.'B. E. 298 309 Funk, In re, 101 Fed. 244, 4 A. B. R. 96 68, 120, 298, 302 Fnnkenstein, In re, 14 N. B. R. 213, 3 Sawy. 605, Fed. Cas. No. 5158 251 In re. Fed. Cas. No. 1004 507, 514 Furcri, In re, 188 Fed. 675, 26 A. B. R. 658 .276 G Gaddy v. Witt, 142 S. W. 926, 27 A. B. R. 457 1146, 1150 Gage V. Gage, 15 N. B. R. 145 250 'Gage Liumber Co. v. McEldowney, 207 Fed. 25S, 30 A. B. R. 251 624, 678, 704 Gaglione & Son, In re, 200 Fed. 81, 28 A. B. R. 694 559, 561, 565 Gailey, In re, 127 Fed. 538, 11 A. B. R. 539 1096 Gainey, In re, 2 N. B. R. 163, Fed. Cas. No, 5181 752 Gallagher, In re, 19 N. B. R. 224, 16 Blatch. 410; Fed. Cas. No. 5197 617 Gallagher v. DeLancey Stables Co., 158 Fed. 381, 19 A. B. R. 801 112 Gallagher Coal Co., In re, 205 Fed. 183, 29 A. B. R. 766 , 413, 414, 682 Galland v. Galland, 44 Cal. 475 1164 Gallinger, In re, 4 A. B. R. 729, 1 Sawy. 224, Fed. Cas. No. 5192 171, 720 Gait, In re, 120 Fed. 64, 13 A. B. R. 575 558, 559 Galvin, In re, 2 N. B. N. R. 146 667 Gammon, In re, 109 Fed. 312, 6 A. B. R. 482 1078 Cans V. Ellison, 114 Fed. 734, 8 A. B. R. 153 475 Gany, In re, 103 Fed. 930, 2 N. B. N. R. 1082, 4 A. B. R. 576 619, 620, 1145 AEE TO PAGES] Garcewich, In re, 115 Fed. 87, 8 A. B. R. 149 560, 563 Garden, In re, 1 N. B. N. 189, 93 Fed. 423, 1 A. B. R. 582 759, 778 Gardner, In re, 106 Fed. 670, 5 A. B. R. 432 • 606 In re, 2 N. B. N. R. 796, 103 Fed. 922, 4 A. B. R. 420 295, 983 Gardner v. Cook, 7 N. B. R. 346, Fed. Cas. No. 5226 631, 1013 Garlington, In re, 8 A. B. R. 602 390 Garneau, In re, 127 Fed. 677, 11 A. B. R. 679 32, 35 Gamer, In re, 115 Fed. 200, 8 A. B. R. 263 758, 778 Gamer v. Second Nat. Bank of Provi- dence, 87 Fed. 833 794 Gamer & Co., In re, 153 Fed. 914, 18 A. B. R. 733 208 Garrett, In re, 11 N. B. R. 483, 2 Hughes 235, Fed. Cas. No. 5252 787, 1136 Garrison, In re, 149 Fed. 178, 17 A. B. R. 831 1065, 1083 In re, 7 N. B. R. 287, 5 Ben. 430, Fed. Cas. No. 5254 111, 1086 Garrison v. Markley, 7 N. B. R. 246 1170 Garton & Co., In re, 148 Fed. 63, 17 A. ' B. R. 343 922 Gaskill, In re, 130 Fed. 235, 12 A. B. R. r. 2?1. , „ 938 Gaskm s Case, 8 Term Rep. 209 264 Gasser, In re, 5 A. B. R. 32, 104 Fed. 537 178, 187, 1054 Gattman & Co. v. Honea, 12 N. B. R. 493, Fed. Cas. No. 5271 71, 586, 685 Gay, In re, 2 N. B. R. 114, 1 Hask. 108, Fed. Cas. No. 5279 728, 1087 In re, 182 Fed. 260, 25 A. 3. R. Ill 555 In re, 98 Fed. 870, 3 A. B. R, 529 ^ , . , , . 50, 189, :'39, 1047 Gaylord, In re, 113 Fed. 131, 7 A. B. R. 577 1142 In re. 111 Fed. 717, 7 A. B. R. 195 617, 618 In re, 112 Fed. 668, 7 A. B. R. 1, aff'g 106 Fed. 833, 5 A. B. R. 410 1067, 1068, 1077, 1190 In re, 106 Fed. 833, 5 A. B'. R. 410, aff'd 7 A. B. R. 1 1078 Gazlay v. Williams, 210 U. S. 41. 20 A. B. R. 18 958 Gebbie & Co., In re, 167 Fed. 609. 21 A B. R. 694 691 Gebhard, In re, 140 Fed. 571, 15 A. B. R. 381 384 Gebhardt, In re, 3 N. B. R. 63, Fed. Cas. No. 5294 235 Gee V. Gee, 84 Minn. 384, 7 A. B. R. 500 1141, 1142 Geery, In re, 43 Conn. 289 12 Gehns-Herbine Co., In re, 188 Fed. 502, 26 A. B. R. 470 564 Geiselhart, In re, 181 Fed. 622, 25 A. B „ ?• ^}^ „ . 877 Geisreiter v. Sevier, 33 Ark. 522 269 Geister, In re, 2 N. B. N. R. 297, 97 Fed. 322, 3 A. B. R. 228 793, 795, 797, 814 Geiver, In re, 193 Fed. 128, 28 A. B R „ *" 284, 543, 671, 672, 675 General Assignee, Ex parte. Fed. Cas. No. 5305 641 General Metals Co., In re, 133 Fed. 84, 12 A. B. R. 770 47 Genther v. Wright, 23 C. C. A. 500 185 Georgia Handle Co., In re, 109 Fed. 632. 6 A. B. R. 472 683 Georgia Manufacturing & Public Service Co., In re, 166 Fed. 964, 21 A.- B. R. „°78 111, 114 Gerber, In re, 186 Fed. 693, 26 A. B. R. ^ 608 27, 754, 755, 757, 782 Gerdes, In re, 102 Fed. 318, 4 A. B. R. 346, 2 N. B. N. R. 131 548, 688, 831, 844, 845, 847 - Table oi* Cases 1515 [BEFISRENCIiS Gering v. Leyda, 186 Fed. 110, 26 A. B. K. 137 738, 870 Germania Savings Bank & . Trust Co. v. Loeb, 188 Fed. 285, 26 A. B. R. 238 437, 439, 444, 445, 725 Gerry, In re, 112 Fed. 957, 7 A. B. R. 459 957 Gerson, In re, 1 N. B. N. 384, 2 A. B. R. 352 294 In re, 1 N. B. N. 190, 1 A. B. R. , 251 1002 In re, 1 A. B. R. 251, 2 N. B. N. , R- 493 212, 292, 1023 In re, 3 N. B. N. R. 249, 5 A. B. R. 89, 105 Fed. 891 387, 390, 419 In re, 107 Fed. 897, 6 A. B. R. 11 394 In re, 4 N. B. R. 346, 102 Fed. 318 938 In re, 1 N. B. N. 315, 2 A. B. R. 170 413, 680, 1012, 1149 Gerstman, In re, 157 Fed. 549, 19 A. B. i „S. 145 673, 675 Gesas, In re, 146 Fed. 734, 16 A. B. R. 872 670 Gettleston, In re, 1 N. B. R. 604 1162 Getts V. Jancsville Wholesale Grocery Co., 16.1 Fed. 417, 21 A. Bi R. : 739, 874 iGhazal, In re, 174 Fed. 809, 23 A. B. R. 178 549 In re, 169 Fed. 147, 22 A. B. R. 119 775 In re. 174 Fed. 809, 23 A. B. R. 178, rev'g 163 Fed. 602, 20 A. B. R. 807 629 Ghiglione, In re, 93 Fed. 186, 1 N. B. N. 351, 1 A. B. R. 580 255, 965 GhiraCrdelli, In re, 4 N. B. R. 42 816 Gibbs, In re, 109 Fed. 627, 6 A. B. R. 485 . 688 In re, 103 Fed. 782, 4 A. B. R. 619 765 Gibson, In re, 191 Fed. 665, 27 A. B. R. 401 610, 725 Gibson v. Dabil, 14 N. B. R. 165, 5 Biss. 198, Fed. Cas. No. 5394 686 V. Lewis, 11 N. B. R. 247, Fed. Cas. No. 5393 429 Gies, In re, 12 N. B. R. 179, Fed. Cas. No. 5407 963 Gifford V. Helms, 19 N. B. R. 113, 98 U. S. 248 937 Gift, In re, 130 Fed. 230, 12 .\. B. R. 244 1058, 1060, 1062, 1063 Gilbert, In re, 112 Fed: 951, 8 A. B. R. 101 65, 70, 85, 227 In re, 2 N. B. N. R. 378 278, 359, 360, 366 In re, 3 N. B. R^ 37, 1 Lowell 340, Fed. Cas. No. 5410 351, 362 Gilbert v. Priest, 8 N. B. R. 159 843 ; Gilbertson v. United States, 168 Fed. 672, 22 A. B. R.'32 49, 248, 266, 1184 Gilblom & King, In re, 2 N. B. N. R. 60 382, 991 - Giles, In re, 158 Fed. 596, 19 A. B. R. 306 764 Gill, In re, 195 Fed. 643, 28 A. B. R. 333 251, 1226 Gill V. Bell's Knitting Mills, 128 App. Div. (N. y.) 691, 21 A. B. R. 282 622, 6^7, 724, 854 Gillardon, In re, 187 Fed. 289, 26 A. B. R. 103 297, 976 Gillaspie, In re, 190 Fed. 88, 27 A. B. R. 59 ;■ , 997 Gille^e v. Piles & Co., 178' Fed. 886, 24 A. B. R. 502 ?9S, 517, 619, 978 Gillette, In re, 104 Fed. 769, 5 A. B. R. 119 , 140, 149, 150, 151, 736 Gilligan, In re, 152 Fed. 605, 23 A. B. R. 668 579 Gilman v. Lockwood, 4 Wall. 409 14 Gilpin V. Merchants' Nat. Bank, 165 Fed. 607, 21 A. B. R. 429, rev'g 160 Fed. 171, 20 A. B. R. 374 . 1091 Ginsburg, In re, 130 Fed. 627, 12 A. B. . R. 459 1056, 1059, 1060 ; In re, 208 Fed. 160, 31 A. B. R. 240 212 ABB TO FAGHS] Girard Glazed Kid Co., In re, 136 Fed. . 511, 14 A. B. R. 485 19, 982 In re, 129 Fed. 841, 12 A. B. R. 295 . ^. . , ISO, 288,' 1219 Girvin, In re, 160 Fed. 206, 20 A. B. R. 320 , 389 In re, 160 Fed. 197, 20 A. B. R. 490. 467 Githens v. Shiffler, 112 Fed. 605, 7 A. B. R. 453 71, 74 Gitkin, In re, 164 Fed. 71, 21 A. B. R. ^.1" ■ 1172, 1175 Glasberg, In re, 197 Fed. 896, 28 A. B. R. 826 1048 Glaser, In re, 1 N. B. R..73, 2 Ben. 180, Fed. Cas. No. 5474 322, 323 Cla.ss, In re, 119 Fed. 509, 9 A, B. R. 391 : 1054, 1061,, 1062 Glassburner, In re, 2 N. B. N. R. 634 ,388,576 Glassner, In re, 8 A. B. R. 184 366 Glazier, In re, 195 Fed. 1020, 28 A. S. R. 391 • 65, 165 Gleason v. O'Mara, 180 Fed. 417, 24 A. B. R. 832 1137, 1146 V. Smith, Perkins & Co., 145 Fed. 895, 16 A. B. E. 602 . 157, 171, 250 V. Thaw, 196 Fed. 359, 28 A. B. R. 473, 185 Fed. 345, 25 A. B. R. 782, afl'g 180 Fed. 419, 24 A. B. R. 759 812, 1137, U46 Glenn, In re, 185 Fed. 554, 25 A. B. R. 806 , 879 Glenny v. Langdon, 19 N. B. R. 24, 98 ' U. S. 20 522 Click, In re, 184 Fed. 967, 25 A. B. R. 871 394, 395 Glickman & Pisnofif, In re, 164 Fed. 209, 21 A. B. R. 171 1050 Glickstein v. United States, 222 U. S. 139, 27 A: B. R. 786 367, 1190 Glicman, In re, 1 N. B. N., 58 .686 Glisson, In re, 182 Fed. 287, 25 A. B. R. 911 763 Globe Cycle Works, In re, 1 N. B. N. 421, 2 A. B. R. 447 274, 793, 798, 806 In re, 1 N. B. N. 570 663 Globe. Ins. Co. v. Ins. Co., 14 N. B. R. 311, Fed. Cas. No. 5486 666, 667 Globe Laundry, In re, 198 Fed. 365, 28 A. B'. R. 831 495 Glover Grocery Co. v. Dome, 116 Ga. 216,. 8 A. B. R. 702 924 Goble Boat Co., In re, 190. Fed. 92, 27 A.,,B. R. 48 '460; 463, 486, 487, 491 , Goddard v. Weaver, 6 N. B. R. 440, Fed, Cas. No. 5495 806 Godshalk Co. v. Sterling, 129 Fed. 580, 12 A. B. R. 302 . 1059, 1060 Godsin v. Sanctuary, 4 B. & Ad. 255 714 Godwin v. M.urchison Nat. Bank, 145 N. C. 320, 22 A. B. R. 703 678, 718 Goedde, In re, 6 N. B. R. 295, Fed. Cas. No. 5500 1039 Gold, In re, 210 Fed. 410, 31 A. B. R. IS 620, 1215 Gold V. South Side Trust Co., 179 Fed. " 210, 24 A. B. R. 578 974 Gold Mountain Min. Co., In re, 15 N. B.. i R. 545, 3 ,Sawy. 601, Fed. Cas. No. i 551,5 ■ ' '■ , 662 Gold Run Mining & Tunnel Co., In re, 200 Fed. 162, 29 A. B. R. 563 86, 88, 92, 150, 176, 179 Goldbergj In re, 117 Fed. 692, 9 A. B. R. ,, 156 178, 187, 814 In re, 1 A. B. R. 385 838, 844 In re, 22 A. B. R. 503 862 In re, 167 Fed. 808, 21 A. B. R. 828 1220, 1226 Goldberg Bros., In re, 144 Fed. 566, ' 16 A. B. R. 521 1006 Golden Malt Cream Co., In re, 164 Fed. 326, 21 A, B. R. 36 90, 98 Golden Rule Mercantile Co^, In re, 21 A. B. R. 397 771 1516 Brandenburg* on Bankruptcy [BEFERENCES Goldfarb Bros., In re, 131 Fed. 643, 12 A. B. R. 386 1164, 1165, 1177 Goldich, In re, 164 Fed. 882, 21 A. B. R. 249 1083 Goldman, In re, 2 N. B. N. R. 818, 102 Fed. 122, 4 A. B. R. 100 664 In re, 174 Fed. 579, 23 A. B. R. 497 956 In re, 129 Fed. 212, II A. B. R. 707 1034 Goldman v. Smith, 1 N. B. N. 291, 2 A. B. R. 104 460, 521, 637, 641, 678 V. Smith, I'A. B. R. 266, 1 N. B. N. 160, 93 Fed. 182 69, 185, 578 Goldschmidt, In re, 3 N. B. R. 164 667 In re, 3 N. B. R. 41, 3 Ben. 379, Fed. Cas. No. 5520 1081 Goldsmith, In re, 1)8 Fed. 763 480 In re, 101 Fed. 570, 4 A. B. R. 234, 2 N. B. N. R. 1013 1068, 1190 Goldstein, In re, 155 Fed. 695, 19 A. B. R. 96 895 In re, 1 N. B. N. 422, 2 A. B. R. 603 413, 680, 1004, lffl2, 1149, 1150 In re, 199 Fed. 665, 29 A. B. R. 301 455, 465, 506 Golson V. Neihoff, 5 N. B. R. 56, 2 Biss. 434, Fed. Cas. No. 5524 721 Gomila v. Wilcombe, 151 Fed. 470, 18 A. B. R. 143 711 Gompers v. Buck Stove Co., 224 U. S. 418 1179 Good, In re, 99 Fed. 389, 3 A. B. R. 605 1203, 1224, 1231, 1232 Goodale, In re, 109 Fed. 783, 6 A. B. R. 493 42, 1046, 1058, 1097, 1190 Goodall V. Tuttle, 7 N. B: R. 193, 3 Biss. 219, Fed. Cas. No. 5533 9, 617, 835, 840, 846 Goodfellow, In re, 1 Lowell 510, Fed. Cas. No. 5536, 2 N. B. R. 114 36, 103, 107, 246, 1103, 1185 Goodhile, In re, 130 Fed. 471, 12 A. B. R. 380 735, 1063, 1068 Goodlander-Robertson Lumber Co. v. At- wood, 152 Fed. 978, 18 A. B. R. 510 69 Goodman, In re, 8 N. B. R. 380, 5 Biss. 401, Fed. Cas. No. 5540 120 In re, 174 Fed. 644, 23 A. B. R. 504 758, 1228 Goodman v. Brenner, 109 Fed. 481 1203 Goodman Shoe Co., In re, 96 Fed. 949, 3 A. B. R. 200 388, 440 In re, W6 Fed. 566, 27 A. B. R. 697 889 Goodnough Mercantile & Stock Co. v. Galloway, 156 Fed. 504, 19 A. B. R. 244, 171 Fed. 940, 22 A. B. R. 803 23 V. Calloway, 171 Fed. 940, 22 A. B. R. 803 643, 664, 678, 879 Goodrich, In re, 192 Fed. 746, 27 A. B. R. 619 1071 In re, 184 Fed. 5, 25 A. B. R. 787 1166 Goodrich v. Hunton, 2 Woods 137, Fed. Cas. No. 5544 1127 V. U. S., 42 Fed. 392 1158 V. Wilson, 14 N. B. R. 555 364, 745, 843 Goodridge, In re. 2 N. B. R. 324 1186 In re, 2 N. B. R. 105, Fed. Cas. No. 5547 1188 Goodwin, In re, 2 N. B. N. R. 445 746, 961 Goodwin v. Sharkey, 3 N. B. R. 138 320, 807 Gordon, In re, 167 Fed. 239, 21 A. B. R. 290 1173 Gordon v. Mechanics' &. Traders* Ins. Co., 120 La. Ann. 441, 22 A. B. R. 649 539, 593, 923 V. Ogden, 3 Pet. 33 1238 Gordon Supply & Mfg. Co., In re, 129 Fed. 622, 12 A. B. R. 94 509 In re, 133 Fed. 798, 13 A. B. R. 352 945 Gorham, In re, 18 N. B. R. 419, 9 Biss. 23, Fed. Cas. No. 5264 129, 1040 Gorham v. Buzzell, 178 Fed. 596, 24 A. B. R. 440 585 Gorman, In re, 15 A. B. R. 587 160, 239, 251 In re, 18 N. B. R. 419, 9 Biss. 23, Fed. Cas. No. 5624 772 AHE TO PAGES] Gorman v. Littlefield, 229 U. S. 19, 30 A. B. R. 266, rev'g 171 Fed. 254, 22 A. B. R. 659 . . „ „ ^^'' V. Wright, 136 Fed. 164, 14 A. B. R. 135, rev'g 132 Fed. 274, 13 A. B. ! R 91 476, 481 Gorwood, In re, 138 Fed. 844, IS A. B. R. 107 . „ 946 Gosch, In re, 126 Fed. 627, 12 A. B. R. 149, rev'g 121 Fed. 602, 9 A. B. R. 610 566 Gose, In re, 3 N. B. N. R. 840 603, 604 Gottardi, In te,- 114 Fed. 328 281, 289 Gould V. New York Life Ins. Co., 132 Fed. 927, 13 A. B. R. 233 300, 594, 596, 601 Gove V. Morton Trust Co., 96 App. Div. (N. Y.) 177, 12 A. B. R. 297 673 Goyer Co. v. Jones, 79 Misc. 253, 8 A. B. R. 437 1128 Grace v. Smith, 2 W. Black 998 127 Grady, In re, 3 N. B. R. 227, Fed. Cas. No. 5654 190 In re, 14 A. B. R. 738 775 Graham, In re, 1 N. B. N. 59 320, 803 In re, 110 Fed. 133, 6 A. B. R. 750 735 In re, 2 Biss. 449 768, 774 Graham v. Stark, 3 N. B. R. 92, 3 Ben. 520 Fed. Cas. No. 5676 643, 687, 735, 737 V. Stark, 3 N. B. R. 357, 3 Ben. 250 382 733 Grabs, In re, 1 N. B. N. 164, 1 A. B. r! 465 580, 597, 642, 850 Grainger, In re, 160 Fed. 69, 20 A. B. R. 166 563, 672 Grand, Jn re, 118 Fed. 73 489 Grandy & Son, In re, 146 Fed. 318, 17 A. B. R. 206 581, 582 Granger & Sabin, In re, 8 N. B. R. 30, Fed. Cas. No. 5684 391, 479, 623 Granite City Bank of Dell Rapids, In re, 137 Fed. 818, 14 A. B. R. 404, aff'g 131 Fed. 1004, 12 A. B. R. 727 20. 29, 30, 638, 934 Grant, In re, 143 Fed. 661, 16 A. B. R. . 256 288 In re, 135 Fed. 889, 14 A. B. R. 398 1064 In re, 106 Fed. 496, 5 A. B. R. 837 69, 72 In re, 2 N. B. R. 35, Fed. Cas. No. 5292 507, 514 Grant v. Bank, 97 U. S. 80, 81 733 V. National Bank of Auburn, 197 Fed. 581, 28 A. B. R. 712 721, 832, 861, 867, 870, .871, 872, 873 Grant Co. v. Dawson, 151 U. S. 586 185 Grant Shoe Co., In re, 130 Fed. 881, 12 A. B. R. 349, aff'g 125 Fed. 576, 11 A. B. R. 43 146 Grant Shoe Co. v. Laird Co., 212 U. S. 445, 21 A. B. R. 484 399, 434. 1239. 1249 v. Laird Co., 203 U. S. 502, 17 A. B., R. 1 1243 Grassier & Reichwald, In re, 154 Fed. 478, 18 A. B. R. 694 884, 1163, 1226 Graver v. Abraham, 203 Fed. 782, 29 A. B. R. 365 861 Graves, In re, 2 N. B. N. R. 469 778 In re, 1 N. B. R. 237, Fed. Cas. No. 5709 900 In re, 163 Fed. 358, 20 A. B. R. 818 480 In re, 182 Fed. 443, 25 A. B. R. 372 389, 480 In re, 24 Fed. 550 1058. 1060 In re, 9 Fed. 816 417, 418 Graves v. United States, ISO U. S. 118 355 V. Winter, 9 N. B. R. 357, Fed. Cas. No. 5710 119 Gray, In re, 170 Fed. 638, 21 A. B. R. 375 558 In re, 208 Fed. 959, 31 A. B. R. 146 1039 In re, 111 N. Y. 404 305 In re, 47 App. Div. (N. Y.) 554, 3 A. B. R. 647 525, 526 Gray v. Chiswell, 9 Ves. 118 305 Table of Cases 1517 [UEFEHENCES Gray v. Grand Forks Mercantile Co., 138 Fed. 344, 14 A. B. R. 780 120S, 1208, 1222 V. Eollo, 9 N. B. R. 337, 18 Wall. 629 410, 443 Great Western Mfg. Co., In re, 152 Fed. 123, 18 A. B. R. 259 541, 718 Greek Mfg. Co., In re, 164 Fed. 211, 21 A. B. R. Ill 288, 290 Greek Mfg., etc., Co., In re, 167 Fed. 424, 21 A. B. R. 717 562 Green, In re, 108 Fed. 616, 6 A. B. R. 270 271 In re, 116 Fed. 118, 8 A. B. R. 553 424, 1040 In re, 106 Fed. 313, 5 A. B. R. 84'8 83 In re, 207 Fed. 693, 30 A. B. R. 464 881 In re, 179 Fed. 870, 24 A. B. R. 665 655, 656, 660, 806 In re, 15 N. B. R. 198, 7 Biss. 338, Fed. Cas. No. 5751 387, 395 Green v. Elgie, 8 Jurist, Part 1, 187 1180 V. SarmientQ, Pet. C. C. 74, 3 Wash. C. C. 17, Fed. Cas. No. 5760 1119 Green Pond R. R. Co., In re, 13 N. B. R. 118, Fed. Cas. No. 5786 41 Green -River Deposit Bank y, Craig, 3 N. B. N. R. 897, 110 Fed. 137, 6 A. B. R. 381 82, 84, 164, 186, 187 Greenberg, In re, 114 Fed. 773, 8 A. B. R. 94 1066, 1082 In re, 106 Fed. 496, 5 A. B. R. 840 1162 Greenberger, In re, 203 Fed. 583, 30 A. B. E. 117 468, 1000 Greene, In re, 134 Fed. 137, 13 A. B. R. 504 674 Greenfield, In re, 193 Fed. 98, 27 A. B. R. 427 487 In re, 5 Ben. 552, Fed. Cas. No. 5772 129 Greenhall v. Carnegie Trust Co., 180 Fed. 812, 25 A. B. R. 300 724 V. Hurwitz, 31 A. B. R. 871 217 Greenwald, In re, 2 N. B. N. R. 791, 99 Fed. 70S, 3 A. B. R. 696 999, 1000 Greer, In re, 189 Fed. 511, 26 A. B. R. 811 894, 895 Greey v. Dockendorfif, 231 U. S. 513, 31 A. B. R. 407 578, 1213 Grefe, In re, 2 N. B. R. 106, Fed. Cas. No. 5794 1057 Gregg, In re, 3 N. B. E. 131, Fed. Cas. No. 5796 991 Gregg V. Mitchell, 166 Fed. 725, 21 A, B. R. 659 124 Gregnard Lithographic Co., In re, 158 Fed. 557, 19 A. B. R. 743 991, 996 Gregory, In re, 174 Fed. 629, 23 A. B. R. 270 617 Gregory v. Atkinson, 127 Fed. 183, II A. B. R. 495 838 V. I'ike, 67 Fed. 837 690 Gregory Co. v. Bristol, 191 Fed. 31, 26 A. B. R. 938 751, 1210 V. Cale, US Minn. 508, 27 A. B. R. 131 785, 1121 Greth, In re, 112 Fed. 978, 7 A. B. R. 598 474 Griesheiraer, In re,'209 Fed. 134, 31 A. B. R. S67 215 Griffin, In re, 2 N. B. R. 85, Fed. Cas. No. 5813 779, 788 In re, 180 Fed. 792, 25 A. B. R. 206 917 In re, 1 N. B. R. 83, 2 Ben. 209, Fed. Cas. No. 5810 377 Griffin v. Button, 165 Fed. 626, 21 A. B. R. 449 83 V. Mutual Life Ins. Co., 119 Ga. 664. 11 A. B. R. 622 822, 823 Griffin Bros., In re, 154 Fed. '537, 19 A.' B. R. 78 1057, 1058, 1060, 1065, 1072, 1083, 1096, 1108,' 1109 Criffln Pants Factory v. Nelms Racket Store Co., 2 N. B. N. R. 630 69, 72, 70S, 879 Griffith, In re, 3 N. B. R. 179 542, 670 ABB TO PAGBS] Griffith, In re, 18 N. B. R. 510, Fed. Cas. No. 5820 250 In re, 1 N. B. N. 546 , , 198, 350, 525, 590, 768, 769, 866 Grignard Lithographic Co., In re, 155 Fed. 699, 19 A. B. R. Ifll 603, 978 Grimes, In re, 1 N. B. N. 339, 94 Fed. 800, 2 A. B. R. 160, 1 N. B. N 426 2 A. B. R. 610, 1 N. B. N. 516, 96 Fed. 529, 2 A. B. R. 730 35, 609, 752, 758, 760, 772. 784, 790, 996 Grinnell, In re, 9 N. B. R. 137, Fed. Cas. No. 5829 ' 689 In re, 9 N. B. R. 29, 7 Ben. 42, Fed. Cas. No. S830 632, 693, 945, 1004 Grinstead v. X'nion Savings & Trust Co., ^ 190 Fed. 546, 27 A. B. R. 123 684 Grissler, In re, 136 Fed. 754, 13 A. B. R. ^ 508 , 683, 810; Gnst, In re, 1 A. B. R. 89 320. 803 Griswold v. Pratt, 9 Mete. 16 10 V. Hazard, 141 U. S. 260 326 Grive, In re, 151 Fed. 711, 18 A. B. R. 202 615 In re, 153 Fed. iS7, 18 A. B. R. 737 476, 482 Groetzinger, In re, 127 Fed. 814, 11 A. B. R. 723, afl'g 110 Fed. 366, 6 A. B. R. 399 420, 608, 609, 610, 955, 1206, 1232 Groom v. West, 8 A. & E. 758 446 Grossman, In re, 11 Fed. 507, 6 A. B. R. 510 296, 1095 Grover v. Clinton, 8 N. B. R. 312, Fed. Cas. No. 5845, 5 Biss. 324 320, 1143 Groves, In re. 6 A. B. R. 728 757 In re, 2 N. B. N. R. 30, 466 823, 943, 949, 951, 968, 994 Grow V. Ballard, 2 N. B. R. 69, Fed. Cas. ■ No. 5848 704, 733 GroZinger, In re, 199 Fed. 935, 28 A. B. R. 732 691, 543 Grubbs-Wiley Grocery Co., In re, 1 N. B. Ni 281, 96 Fed. 183, 2 A. B. R, 442 999 Gruber, In re, 129 App. Div. (N. Y.) 297, 21 A. B. R. 467 1130 Gruenberg v. Treanor, 40 Misc. (N. Y.) 232, 11 A. B. R. 776 1125 Grunsfeld Bros. v. Brownell, 12 N. M. 192, 11 A. B. R. 599 2, 13 Guanacevi Tunnel Co., In re, 201 Fed. 316, 29 A. B. R. 229 32, 33, 103, 226, 1230 Guarantee Title & Trust Co. v. First Nat. Bank of Huntingdon, 185 Fed. «3, 26 A. B. R. 85 629, 695 r. Pearlman, 144 Fed. 550, 16 A. B. R. 461 . .217, 852 V. Title Guaranty & Surety Co., 224 U. S. 152, 27 A. B. R. 873, rev'g 174 Fed. 385, 23 A. B. R. 340 8, 1001, 1015, 1041 Guardineer, In re, 2 N. B. N. R. 924 1076, 1085 Guilbert, In re, 154 Fed. 676, 18 A. B. R. 830 976, 1054 In re, 169 Fed. 149, 22 A. B. R. 221 1078, 1101 Guild V. Butler, 16 N. B. R. 347 1127 Gunike, In re, 4 N. B. R. 92, 2 Biss. 354, Fed. Casi No. 5868 - 299 Gurasiv. Porter, 118 Fed. 668 672 Gurney, In re, 15 N. B. R. 373, 7 Biss. 414, Fed. Cas. No. 587-3 .:, 73, 676, 866 Gutman, In re, 197 Fed. 472, 28 A. B. R. 643 602, 603, 937 In re, 114 Fed. 100?, 8 A. B. R. 252 689 Gutman & Wenk, In re, 114 Fed. 1009, 8 A. B. R. 252 794, 799 Gutterson, In re, 136 Fed. 698, 14 A. B. R. 495 936, 943, 944 Gutwillig, In re, 1 N. B. N. 19, 90 Fed. 481 197, 796, 812 In re, 1 N. B. N. SS4, 92 Fed. 337, 1 A. B. R. 388, 1 N. B. N. 40, 1 A. B. R. 78, 90 Fed. 475 20, 81, 82, 588, 666, 667, 802, 836, 842, 846 1518 Bbandenbubg on Bankruptcy [BEFEBENCES H Haack v. Thiese, 51 Misc. (N. Y.) 3, 16 A. B. R. 699 311, 1151 Haake, In re, 7 N. B. R. 61, 2 Sawy. 231, Fed. Cas. No. 5883 395, 687, 769, 787 Haas, In re, 8 N. B. R. 189, Fed. Cas. No. 5884 506, 509 Haase, Adolph, In re, 155 Fed. 553, 17 A. B. R. 528 1104 Habegger, In re, 139 Fed. 623, 15 A. B. R. 198 745 Haber v. Klauberg, 15 N. B. R. 377 815 Hackney v. Hargreaves Bros., 68 Neb. 633, H A. B. R. 164 705, 708, 724 V. Raymond Bros. Clarke Co., 68 Neb. 624. 10 A. B. R. 213 724 Hadden v. Dooley, 92 Fed. 274 388, 579 Hadden Rodee Co., In re, 135 Fed. 886, 13 A. B. R. 604 886 Hadley, In re, 12 N. B. R. 366, Fed. Cas. No. 5894 163 In re, 112 Mass. 100 733 Haensell, In re, 91 Fed. 355, 1 N. B. N. 340n, 1 A. B. R. 286 « 556; 822, 1149 Haeseler-Kohlhofif Carbon Co., In re, 135 Fed. 867. 14 A. B. R. 381 257 Hafer, In re, 1 N. B. R. 147, Fed. Cas. No. 5896 771 Haff, In re, 135 Fed. 742, 13 A. B. R. 354 201 In re, 136 Fed. 78, 13 A. B. R. 362 162, 172, 173, 174 Haffenberg v. Chicago Title & Trust Co., 192 Fed. 874, 27 A. B. R. 708 743, 744, 831, 839, 1213 Hagan, In re, 10 N. B. R. 383, Fed. Cas. No. 5898 410, 1030 Hagardine-McKitrick Dry Goods Co. v. Hudson, 111 Fed. 361, 6 A. B. R. 657 1134 Hager v. Comstbck, 7 A. B. R. 493 393 Haggerty v. Badkin, 72 N. J. Eq. 473, 18 A. B. R. 302 . 1142 V. Morrison, 59 Mo. 324 1128 Hahio V. Cole, 112 App. Div. (N. Y.) 636, IS A. B. R; 591 521, 823 Haight V. Love, 39 N. J. L. 14 265 Halbert v. Pranke, 91 Minn. 204, 11 A. B. R. 620 874 Halbert & Co., In re, 134 Fed. 236, 13 A. B. R. 399 518 Hale, In re, 18 N. B. R. 335, Fed. Cas. No. 591* 325 In re, rD7 Fed. 432, 6 A. B. R. 35 : 192, 1047 In re, 161 Fed. 387, 20 A. B. R. 633 400, 401, 411, 804, 1142 In re, 206 Fed. 856, 31 A. B. R. 88 1078 Hale V. Harden, 95 Fed. 747 856 V. Taylor, 104 Fed. 757 856 Haley, In re, 2 N. B. R. 13, Fed. Cas. No. 5918 464 Haley v. Pope, 206 Fed. 266, 30 A. B. R. 644 1053 Hall, Ex parte, Fed. Cas. No. 5919 129 In re, 2 N. B. R. 68, Fed. Cas. No. 5922 331 In re, 2 N. B. N. R. 1126, 4. A. B. R. 671 .470, 471, 705 In re, 9 N. B. R. 366, 2 Hughes 41 1> ' Fed. Cas. No. 5921 ' 769 In re, 170 Fed. 721, 22 A. B. R. 498 803 Hall V. Allen, 9 N. B. R. 6, 12 Wall. 452 1225, 1242 V. Chicago, B. & Q. R. Co., 88 Neb. 20, 25 A. B. R. 53 9 V. Kincell, 2 N. B. N. R. 745, 102 Fed. 301 20, 26, 42, 837, 842 V. Suydam, 6 Barb. (N. Y.) 63 1191 V. Wager, 5 N. B. R. 181, 3 Biss. 28, Fed. Cas. No. 5951 60, 68 Hall Co., Iff re, 121 Fed. 992, 10 A. B. R. 88 10 Hall & Sorts, In re, 208 Fed. 578, 31- A. B. R. 434 . - . 277 ABB TO PAGES] Hallagan v. Dowell, 139 N, W. 883, 31 A. B. R. 848 1133, 1148, 1157 Halliburten v. Carter, 10 N. B. R. 359 1129, 1138, 1144, 1150 Hallin, In re, 199 Fed. 806, 28 A. B. R. 708 65, 161 Halper, In re, 31 A. B. R. 283 1147 Halsell, In re, 132 Fed. 562, 13 A. B. R. 106 1059 Halsey v. Diamond Distilleries Co., 191 Fed. 498, 27 A. B. R. 333 619 Halsey Electric Generator Co., In re, 163 Fed. 118, 20 A. B. R. 738 140, 144 In re, 175 Fed. 825, 23 A. B. R. 401, aff'd 179 Fed. 321, 24 A. B. R. 562 989 Hamburger & Frankel, In re, 12 N. B. R. 277, Fed. Cas. No. 5975 996, 1012 Hamilton, In re, 102 Fed. 683, 2 N. B. N. R. 957, 4 A. B. R. 543 409, 592 In re, 133 Fed. 823, 13 A. B. R. 333 1065, 1078, 1083, 1106 Hamilton v. Bryant, 14 N. B. R. 479 1128, 1138 Hamilton Automobile Co., In re, 198 Fed. 856, 29 A. B. R. 163 1231 In re, 209 Fed. 596, 31 A. B. R. 205 466, 468, 476 Hamilton Furniture Co., In re, 116 Fed. 116, 8 A. B. R. 588 495 Hamilton Furniture & Carpet Co., In re, 117 Fed. 774, 9 A. B. -R. 65 619, 620 Hamilton Nat. Bank of Chicago v. Bal- comb, 177 Fed. 155, 24 A. B. R. 338 738 Hamlm, Ex parte, 16 N. B. R. 320, 2 Lowell 571, Fed. Cas. No. 5993 550, 921, 928, 931, 932 In re, 16 N. B. R. 522, 8 Biss. 122, Fed. Cas. No. 5994 128, 238, 909, 920 Hamlin v. Bridge, 24 Me. 145 1154 Hammel, In re, 211 Fed. 238, 31 A. B. R. 72 964, 965 Hammond, In re, 98 Fed. 845, 3 A. B. R. 466 588, 653, 656, 664. 834, 836, 842 In re, 163 Fed. 548, 20 A. B. R. 776 166, 173, 174 In re, 188 Fed. 1020, 26 A. B. R. 336 542, 543 In re, 198 Fed. 574, 28 A. B. R. 811 754 782 78^ In re, 211 Fed. 238, 31 A. B. R. 672 ' 964 Hammond v. Coolidge, 3 N. B. R. 71, 1 Lowell 381, Fed. Cas. No. 5999 ' 1087. Hamper, Ex parte, 17 Ves. 403 131 Hamrick, In re, 175 Fed. 279, 23 A. B. R. „721 - 173 Hancock v. Singer Mfg. Co., 62 N. T. L. 289 989 Handell, In re, 15 N. B. R. 72, Fed. Cas. No. 6017 963 Handlan v. Walker, 200 Fed. 566. 29 A. B. R. 4 489 Handlin, In re, 12 N. B. R. 49, 3 Dill. 290, Fed. Cas. No. 6018 771 Hanna, In re, 3 N. B. N. R. 237 541 In re, 7 N. B. R. 502, 5 Ben. 5, Fed. Cas. No. 6027 479 In re, 105 Fed. 587, 5 A. B. R. 127 633, 678 Iri te, .168 Fed. 238, 21 A. B. R. 843 1063, 1082, 1084 Hannibal, In re, 15 N. B. R. 233, Fed. Cas. No. 6023 161, 171, 186 Hanover Nat. Bank v. Moyses, 186 U. S. 181, 8 A. B. R. 1 2, 8, 9, 10, 13, 102, 139, 756, 757, 1052 Hansen, In re, 2 N. B. R. 75, Fed. Cas. No. 6039 1058 In re, 107 Fed. 252, 5 A. B. R. 747 588, 1110 Hansen Mercantile Co. v. Wyman, Par- tridge & Co., 105 Minn. 491, 22 A. B.. R. 877 556 Hanson, In re, 156 Fed. 717, 19 A. B. R. 235 285, 505, 507, Table of Cases 1519 [rufergnces Hanson v. Blake & Co.', 155 Fed. 342, 19 A. B. R. 325 641, 678. 725 V. Paige, 3 Gray 239 192 V. Stephens, 116 Ga. 722, 11 A. B. R. 172 669 Hanyan, In re, 180 Fed. 498, 24 A. B. R. 72 142 Harbaueh, In re, 3 N. B. R. 107, Fed. Cas. No. 6164 129 In re, 15 N. B. R. 246, Fed. Cas. No. 6045 128, 136, 190 Harber, In re, 2 N. B. N. R. 449 761, 762, 775, 778 Harder v. Clark, 66 Misc. (N. Y.) 584, 23 A. B. R. 756 700, 705, 706, 730 Hardie v. Swaflford Bros. Dry Goods Co., 165 Fed. 588, 21 A. B. R. 457, 461, rev'g 143 Fed. 607, 16 A. B. R. 313 4. 1067 Hanlin, In re, 1 N. B. H. 97, 1 Hask. 163, Fed. Cas. No. 6048 417, 418 Hardt v. Schuylkill Plush & Silk Co., 74 N. Y. S. 549, 8 A. B. R. 479 647, 656, 803 Hardy v. Bininger, 4 N. B. R. 77, Fed. Cas. No. 6057 171 V. Chandler, 175 Fed. 138, 23 A. B. R. 717 712 V. Clark, 3 N. B. R. 99, 7 Blatch. 262, Fed. Cas. No. 6058 721 Hare, In re, 119 Fed. 246 505, 512 Hargadine-McKittrick Dry Goods Co. v. Hudson, In re. HI Fed. 361, 6 A. B. R 65; 418 Hargraves. In re, 19 A B. R. 238 789 Harpfreaves, Ex parte, 1 Cox. Ch. 440 127 Hande v. Swaflord Bros. Dry Goods Co., 165 Fed. 588, 21 A. B. R. 457, rev'g 143 Fed. 607, 16 A. B. R. 313 1092 Haring, In re, 29 A. B. R. 387, aff'g 193 Fed. 168, 27 A. B. R. 285 . 1161, 1165, 1166, 1175, 1177, 1226 Hark v. Allen Co., 146 Fed. 665, 17 A. B. R. 3 173 Hark Bros., In re, 142 Fed. 279, IS A. B. R. 460 174 In re, 135 Fed. 603, 14 A. B. R. 400 161, 163, 165 In re, 136 Fed. 986, 14 A. B. R. 624 357, 372 Harmanson Ass'n t. Bain et al., 15 N. B. R. 173, 1 Hughes 188, Fed. Cas. No. 6072 108, 840 Harmon. In re, 128 Fed. 170, 11 A. B. R. 64 1002 Harmon v. Clark, 13 Gray 114, 122 138 Hamden, In re, 200 Fed. 172, 29 A. B. R. 504 286, 401 In re, 200 Fed. 175, 29 A. B. R. 507 286, 673, 676 Harper, In re, 2 N. B. N. R. 605, 100 Fed. 266, 3 A. B. R. 804 668 • In re, 105 Fed. 900, 5 A. B. R. 567 81 In re, 175 Fed. 412, 23 A. B. R. 918 438, 443, 488, 555, 848 Harper v. Rankin, 141 Fed. 626, 15 A. B. R. 608, certiorari denied 200 U. S. 621, aff'g 133 Fed. 970, 13 A. B. R. 430 , 1144 Harper Bros., In re, 2 N. B. N. R. 605, 100 Fed. 266, 3 A. B. R. 804 84, 88 Karr, In re, 143 Fed. 421, 16 A. B. R. 213 4, 284, 1088 Harrell v. Beall, 9 N. B. R. 49, 17 Wall. 590 585 Harrington, In re, 1 N. B. N. 513, 99 Fed. 390, 3 A. B. R. 639 758, 768, 774 In re, 29 A. B. R. 690 543, 560, 579 In re, 200 Fed. 1010, 29 A. B. R. 666 549, 629, 757, 777, 1116, 1120 Harris, Ex parte, 16 N. B. R. 432, Fed. Cas. No. 6109. „ . ^'> In re, 1 N. B. N. 384, 2 A. B. R. 359 169, 173, 310, 312i 548, 588 In re, 2 N. B. N. R. 868, 4 A, B. R. 132 128, 189, 239, 613 In re, 11 A. B. R. 649 32, 37 ABB TO PAGES] Harris; In re, 108 Fed. 517, 4 A. B. R.'132 190, 428 In re, 117 Fed. 575, 9 A. B. R. 20 911 In re, 155 Fed. 216, 19 A. B. R. 204 183, 187; 223, 233 In re, 156 Fed. 875, 19 A. B. R. 635 208 879 In re, 164 Fed. 292, 20 A. B. R. 911 210, 371 Harris v. Amery, L. R, 1 C. P. 148, 154 116 V. First Nat. Bank, 216 U. S. 382, 23 A. B. R. 632 832 Harris Co.. In re, 173 Fed. 735, 23 A. B. R. 237 29 Harris & Algor, In re, 15 A. B. R. 70S 10<8 Harrisburg v. Sheriock, 16 N. B. R. 62 442 Harrison, In re, 2 N. B. N. Vi. 541 478, 637, 641, 672, 673, 849, 851 Harrison v. McLaren, 10 N. B. R. 244, Fed. Cas. No. 6139 61 V. Sterry, 5 C. R. 289 430 Harrison Bros.* In re, 197 Fed. 320, 28 A. B. R. 293 260, 375 In re, 28 A. B. R. 684 706. 723, 731, 733 Harrison Mercantile Co., 1 N. B. N. 382, 2 A. B. R. 419, 95 Fed. 123 966 Hafry Dickinson, In re, 7 A. B. R. 679 470 Harson Co., In re, 11 A. B. R. 514 382 Hart V. Barney & Smith Mfg. Co., 7 Fed. 543 _ 558 V. Emerson-Brantingham Co., 203 Fed. 60, 30 A. B. R. 218 544, 566, 703, 729, 870, 873 V. United States, 95 U. S. 316 1016 Hart Mfg. Co., In re, 17 N. B. R. 459, Fed. Cas. Ntt. 8592 996 Hart & Co.. Ltd^ In re. 16 A. B. R. 725 964 In re, 17 A. B. R. 480 517 In re, 18 A. B.. Ri 137 296 Hartdagen, In re, 189 Fed. 546, 26 A. E. R. 532 558, 635 Harthill, In-re, 4 N. B. R. 131, 4 Ben. 488, Fed. Cas. No. 6161 199 Harthorn, In re, 4 N. B. R. 27, Fed. Cas. No. 6162 1003 Hartman, In re, 96 Fed. 593, 3 A. B. R. 65 172, 191 In re, 166 Fed. 776, 21 A. B. R. 610 380 In re, 185 Fed. 196, 26 A. B. R. 76 636, 675, 676 Hartman v. Ackoury, 210 Fed. 188, 31 A. B. R. 514 30 Hartseir& Son, In re, 140 Fed. 30, 15 A. B. R. 177 ,786, 1071 Hartwell Oil Mills, In re, 165 Fed. 555, 21 A. B. R. 586 83 Harvey, In re, 144 Fed. 901, 16 A. B. R. 345 911 Harvey v. Crane, 5 N. B. R. 218, 2 Biss. 496, Fed. Cas. No. 6178 670, 676 Harwood, Ex' parte. Fed. Cas. No. 6185 485 Hasie, In re, 206 Fed. 789, 30 A. B. R. 83 551, 621, 647 Haskell, In re, 11 N. B. R. 164, Fed. Cas. No. 6192 315, 905, 921 In re, 164 Fed. 301, 20 A. B. R. 914 1064, 1083 Haskell v. Ingalls, 5 N, B. R. 200, 1 Hask. 341, Fed. Cas. No. 6193 720 V. Jones, 4 N. B. R. 481, Fed. Cas. No. 6191 289 Haskin, In re, 109 Fed. 789, 6 A. B. R. 485 789 Haslett, In re, 116 Fed. 680 607 Hass-Baruck & Co. v. Portuondo, 138 Fed. 949, 15 A. B. R. 130 480 Hassam & Son, In re, 153 Fed. 932, 18 A. B. R. 745 694 Hassler, In re, 204 Fed. 139, 29 A. B. R. 5d2 785 Hastings, In re, 181 Fed.' 33, 23 A. B. R. 360 751, 754, 758, 777, 791 Hastings v. Fithian, 71" N. J. L.311, 13 A. B. R. 676 700 v. Spenser, 1 Curt. C. C. 504 992 1520 BBANCENBTJBdJ ON BaNKHUPTCY [REFERENCES Hatch, In're, IN. B. N. 293, 2 A. B. R. 36 765 In re, 102 Fed. 280, 4 A. B. R. 349 752 Hatch V. Seely. 13 N. B. R. 380 644 Hatcher, "In re, 145 Fed. 658, 16 A. B. R. 722 976 In- re, 1 N. B. R. 91, Fed. Cas. No. 6210 240 Hatcher v. Jones, 14 N. B. R. 387, S3 Geo. 208 789 Hatem, In re, 161 Fed. 895, 20 A. B. R. 470 284, 489 Hathorn, In re, 1 N. B. N. 361, 2 A. B-, R. 298 366 In re, 2 Woods 73, Fed. Cas. No. 6214 129, 667 Hatje, In re, 12 N. B. R. 548, 6 Biss. 436, Fed. Cas. No. 6215 177, 364, 380 Hauck, In re, 17 N. B. R. 158, Fed. Cas. No. 6219 733 Havghey v. Albin, 2 N. B. R. 129, 2 Bond 244, Fed. Cas. No. 6*2 76, 721 Haupt Bros., In re, 153 Fed. 239, 18 A. B. R. 585 199 Havens, In re, 1 N. B. R. 126, Fed. Cas. No. 6231 508 In re, 182 Fed. 367, 25 A. B. R. 116 402, 411, 876 Havens v. Bank, 13 N. B. R. 95 529 Hawes v. Cooksey, 13 Ohio 242 1137 Hawk V. Hawk, 102 Fed. 679, 2 N. B. N. R. 940, 4 A. B. R. 463 302 408, 589 Hawkeye Smelting Co., In le, 8 N. B. R. 385 183, 184. 235 Hawkins In re, 2 N. B. H. 122 84 Jr, le, 125 Fed. 633. 11 A. B. R. 49 943 Hawkins v. Bank, I Dill. 453: Fed. Cas. No. 6245 1218 V. Learned, 54 N. H. 333 13 Hawks, In re, 114 Fed. 916, 8 A. B. R. 71 1111 In re, 204 Fed. 309, 30 A. B. R. 365 284 393 Hawley, In re, 116 Fed. 429, 8 A. B. R.' 631 286 In re, 116 Fed. 428, 8 A. B. R. 632 496 In re, 177 Fed. 364, 9 A. B. R. 63 950 In re, 194 Fed. 751, 28 A. B. R. 58 386 Haworth V. Travis, 11 N. B. R. 145 662 v. Travis, 13 N. B. R. 145 786, 787 Hay, In re, 7 N. B. R. 344, 2 Lowell 180, Fed. Cas. No. 6253 775 Hayden, In re, 1 N. B. N. 265, 1 A. B. R. 670, 96 Fed. 199 357, 363, 373 In re, 7 N. B. R. 192, Fed. Cas! No. 6257 615 In re, 172 Fed. 623, 22 A. B. R. 764 837 Hayden v. Buddensick, 49 How. Pr. (N. Y.) 246 1005 Hayes, In re, 192 Fed. 1018, 27 A. B. R. 713 220 Hayes v. Comstock, 7 A. B. R. 493 390 v. Dickinson, 15 N. B. R. 350 545 V. Ford, 15 N. B. R. 569 1123, 1156 V. Nash, 129 Mass. 62 1134 Haynes, In re, 2 N. B. R. 78, Fed. Cas. No. 6269 344, 1028, 1032 Hays, In re, 117 Fed. 879, 9 A. B. R. " 144 605 In re, 179 Fed. 222, 24 A. B. R. 691 382, 883, 884, 991, 1226 In re, 181 Fed. 674, 24 A. B. R. 669 591, 957 Hays V. Dickinson, 15 N. B. R. 350 621 V. Fisher, 102 U. S. 121 1178 V. Wagner, 150 Fed. 533, 18 A. B. R. 163 144, 151 Hays, Foster & Ward Co., In re, 117 Fed. 879, 9 A. B. R. 144 602 Hayward, In re, 130 Fed. 720, 12 A. B. R. 264 1012 Haywood Co. v. Pittsburgh Industrial Iron Works, 163 Fed. 799, 19 A. B. R. 780 619 AKB TO PAGES] Hazard Mfg. Co. v. Brown (Pa. Ct. Com. PI.), 25 A. B. R. 903 ^ ,1152 Hazelton, In re, 2 N. B. R. 12, 1 Lowell 270, Fed. Cas. No. 6287 320, 321 Hazelton v. Valentine, 2 N. B. R. 12, 1 Lowell 270, Fed. Cas. No. 6287 324 Head. In re, 114 Fed. 489, 7 A. B. R. 556. 583, 772 Headley, In re, 2 N. B. N. R. 250, 3 A. B. R. 272, 97 Fed. 765, ,s. c. 2 N., B. N.. R. 684 27, 363, 406, 480, 481, 492, 498, 774, 1009, 1058, 1062, 1102, .1186, 1191 Heard v. Arnold, 15 N. B. R. 543 1151 V. Jones, 15 N. B. ,E. 402 479 V. Strugis, 146 Mass. 545 628 Heath, In, re, 7 N. B. R. 448, Fed. Cas. No. 6304 361, 1114, 1117, 1157 Heath v. Sha«fer, 1 N. B. N. 399, 93 Fed. 647, 2 A. B. R. 98 525, 688,> 809, 819, 820, 837, 844, 984 Hebbart, In re, 5 A. B. R. 8 237 Hebbert, In re, 104 Fed. 322 139 Heckathora, In re, 144 Fed. 499, 16 A. B. R. 467 558 Heckman, In re, 140 Fed. 859, 15 A. B. R. 500 40 Hecox, In re, 164 Fed. 823, 21 A. B. R. 314 42, 43, 248, 667, 1201, 1228 Hecox V. County of Teller, 198 Fed. 634, 28 A. B. R. 525 987 Hedley, In re, 156 Fed. 314, 19 A. B. R. 409 1101 Hee, In re, 13 A. B. R. 8 193 Heebnei. In le, 132 Fed. 1003, 13 A. B. R, 256 . 1033 Heffron, In re, 6 Biss. 156, Fed. Ca^. No. 6321, 10 N. B. R. 213 155, 241 Hegerty, In re, 2 N. B. N. R. 1083 1027,, 1031 Hegner v. American Trust & Savings Bank, 187 Fed. 599, 26 A. B. R. 571 1234 Heim Milk Product Co., In re, 183 Fed. ?87, 25- A. B. K. 746 - 206, 218 Heinsfurter, In re, 97 Fed. 198, 3 A. B. R. 113 146 In re, 1 N. B. N. 510, 3 A. B. R. 109 180, 927 In re, 1 N. B. N. 504, 3 A. B. R. 113, 97 Fed. 198 433, 472 Heintz, In re, 201 Fed. 338, 29 A. B. R. 19 20, 21, 882, 886 Heirschberg, In re, 1 N. B. R. 195, 2 Ben. 466, Fed. Cas. No. 6329, 6530 963 Heller, In re, 3 Biss. 153 720 In re, 5 N. B. R. 46, Fed. Cas. No. 6339 313 In re, 176 Fed. 656, 23 A. B. R. 792 402 Hellman v. Goldstone, 161 Fed. 913, 20 A, B. R. 539 815, 1155 HembyrHutchinson Pub. Co., In re., 105 Fed., 909, 5 A. B. R. 569 839 Hempner, In re, 6 N. B. E. 521, Fed. Cas. No. 7689 1162 Hemstreet, In re, 117 Fed. S68, 8 A. B. , R. 760 1171 In re, 139 Fed. 958, 14 A. B. R. 823 774 Henderson, In re, 206 Fed. 139. 30 A. B. R. 468 Henderson v. Mayer, 225 U. S. 631, 28 A. B. R. 387 655, 681, 683 Hendrick, In re, 138 Fed. 473, 14 A. B. R 795 1061 In re, 143 Fed. 647, 16 A. B. R. 218 1056 V. Webster, 159 Fed. 927, 20 A. B. R. 112 1201 Hendryx v. Fitzpatrick, 19 Fed. 810 rr , . „ ., 1124, 1177 Henkel v. Seider, 163 Fed. 553, 20 A. B. R. 773 580 Henly v. Lanier, 15 N. B. R. 280 752, 1125 Hennebry, In re, 207 Fed. 882, 31 A. B. R. 231 1066, 1067, 1078, 1079, 1095, 1097, 1098 Hennequin v. Clews, 111 U. S. 676 1141, 1142 Hennis, In re, 17 A. B. R. 889 551, 781 Henry, In re, 14 Ohio Fed. Dec. 353, 14 A. B. R. 362 774 942 Table of Cases 1521 [UEFUBBNCES Henry, Jti re, 17 N. B. R. 463, 9 Ben. 449, Fed. Cas. No. 6370 238, 310, 909 Henry C. King Co., In re, 116 Fed. 110, 7 A. B. R. 619 726 Henry H. Lipphart, In re, 201 Fed. 103, 28 A. B. R. 705 33 Henry Zeltner Brewing Co., In re, 117 Fed. 799, 9 A. B. R. 63 62, 85, 88 Henschel, In re, 7 A. B. R. 207 366 In re, 12 A. B. R. 31 1052 In re, 109 Fed. 861, 6 A. B. R. 305 342, 344, 349,- 506, 507 In re, 114 Fed. 968, 8 A. B. R. 201 43 Hepburn v. Griswold, 8 Wall. 603 757 Herbold, In re, 14 A. B. R. 116 764, 784 Hercules Atkin Co., Ltd., In re, 133 Fed. 813, 13 A. B. R. 369 40, 88, 109 Hercules Ins. Co., In re. Fed. Cas. No. 6402, 6 Ben. 35 117 Herdic, In re, 1 Fed. 242, Fed. Cas. No. 6403 1066 In re, 19 N. B. R. 385, 1 Fed. 242, Fed. Cas. No. 6403 1066, 1082, 1086 Herman, In re, 3 N. B. R. 153, Fed. Cas. No. 6425 343 In re, 17 N. B. R. 440, 8 Ben. 436, Fed. Cas. No. 6405 928 In re, 102 Fed. 753, 2 N. B. N. R. 905, 4 A. B. R. 139 1132 In re, 207 Fed. 594, 31 A. B. R. 243 717, 731 Herndon v. Howard, 4 N. B. R. 61, 9 Wall. 664 822 Hernich, In re, 1 A. B. R. 713 596 Herpich, In re, 15 N. B. R. 426, 7 Biss. 387, Fed. Cas. No. 6418 721 Herr, In re, 182 Fed. 715, 25 A. B. R. 141 597, 116B Herrick, In re, 7 N. B. R. 341, Fed. Cas. No. 6419 1109 In re, 13 N. B. R. 312, Fed. Cas. No. 6420 421, 1029 Herrmann, In re, 102 Fed. 753, 2 N. B. N. R. 905, 4 A. B. R. 139 1072, 1105 In re, 3 N. B. R. 153, Fed. Cas. No. '6426 493 Herron v. Superior Court, 68 Pac. 814, 8 A. B. R. 492 „ , 12 Herron Co. v. Moore, 208 Fed. 134, 31 A. B. R. 221 . 706 V. Sunerior Court, 136 Cal. 279, 8 A. B. R. 492 10, 12, lis Hersey, In re, 171 Fed. 998, 22 A. B. R. 856 884 In re, 171 Fed. 1001, 22 A. B. R. 860 996 In re, 171 Fed. 1004, 22 A. B. R. 863 488, 631, 702 Hersey v. Elliott, 18 N. B. R. 358 545 Hersh, In re, 97 Fed. 571, 2 N. B. N. R. 137, 3 A. B. R. 344 129 Hershberger, In re, 208 Fed. 94, 30 A. B. R. 635 384 Herskovitz, In re, 152 Fed. 316, 18 A. A. B. R. 247 . „ „267, 895 In re, 136 Fed. 950, 14 A. B. R. 86 896, 1178 Hertzog, In re, 18 N. B. R. 526, Fed. Cas. No. 6433 , 418 Heryford v. Davis, 102 U. S. 235 ^ 559 Herzikopf, In re, 118 Fed. 101, 9 A. B. B 90 149, 178, 187, 188 Hess, In re, 134 Fed. 109, 14 A. B. R. 559 372 In re, 138 Fed. 954, 14 A. B. R. 635 558, 563 Hess & Co., In re, 136 Fed. 988, 14 A. , B. R. 826 , 371 Hesseltine v. Prince, 1 N. B. N. 528, 95 Fed. 802, 2 A. B. R. 600 591 Hester, In re, 5 N. B. R. 285, Fed. Cas. No. 6437 591, 752 Hettling, In re, 175 Fed. 65, 23 A- B. R. 161 594, 599 Hewett V. Norton, 13 N. B. R. 276, 1 Woods 68, Fed. Cas. No. 644 845 Brandenburg — 96 ABE TO VAOBS] Hewit V. Berlin Machine Works, 194 U. S. 296, 11 A. B. R. 709 541, 564, 1202, 1211, 1242, 1244 V. Boston Straw Board Co., 214 Mflss. 260, 31 A. B. R. 652 709, 731 Heydette, In re, 8 N. B. R. 332, Fed. Cas. No. 6444 183, 235 Heyman, .In re, 95 Fed. 800, 2 A. B. R. 651 454, 480 In re, 104 Fed. 677, 4 A. B. R. 735 1096 In re, 108 Fed. 207, 5 A. B. R. 808 898, 900 Hibbard v. Bailey, 129 Fed. 575, 12 A. B. R. 104, rev'g 123 Fed. 185, 10 A. B. R. 545 386 Hibberd v. McGill, 129 Fed. 590, 13 A. B. R. 101 422 Hibbler Mach. Supply Cb., In re, 192 Fed. 741, 27 A. B. R. 612 593, 954, 990 Hickerson, In re, 162 Fed. 345, 20 A. B. R. 682 579, 633, 672 Hicks, In re, 19 N. B. R. 299, Fed. Cas. No. 6456 391 In re, 19 N. B. R. 449, Fed. Cas. No. 6457 349, 514 In re, 107 Fed. 910, 6 A. B. R. 182 299 In re, 133 Fed. 739, 13 A. B. R. 654 38, 810, 1117, 1123 In re, 27 A. B. R. 168 957 Hicks V. Longhorst (Ohio Ct. Com. PI.), 6 A. B. R. 178 ■ 870 V. Knost, 1 N. B. N. 336, 2 A. B. R. 153, 94 Fed. 625 897 V. Knost, 2 N. B. N. R. 734, 178 U. S. 541, 4 A. B. R. 178, s. c. 1 N. B. N. 336, 2 A. B. R. 153, 94 Fed. 625 827; 831, 835, 837, 839, 843, 847, 880 Hiell V. Burr, 61 Fla. 625, 26 A. B. R. 897 539 Higgins, In re, 2 N. B. N. R. 115, 3 A. ^ B. R. 364, 97 Fed. 775 95, 6M, 656\ Higgs V. Tea Co., L. R. 4 Ex. 387 447 Highfield, In re, 163 Fed. 924, 21 A. B. R. 92 749, 789 Highland Ave. & B. R. Co. v. Equipment Co., 168 U. S. 627 1212 Hilberg, In re, 6 A. B. R. 714 987 Hilborn, In re, 3 N. B. N. R. 62, 104 Fed. 866 275, 904, 905, 906, 913 Hildreth Granite Co. v. City of Water- vliet, 146 N. Y. Supp. 449, 31 A. B. R. 703, rev'g 30 A. B. R. 789 639, 683 HilL In re. Fed. Cas. No. 6481 336 l^n re, Fed. Cas. No. 6485 371 In re, 1 N. B. R. 42, 2 Ban. 136, Fed. Cas. No. 6482 1058, 1060, 1066, 1082 1185 In re, 1 N. B, R. 431, Fed. Cas. No. 6483 1186 In re, 2 A. B. R. 798, 96 Fed. 185 751, 776 In re, 140 Fed. 984, 15 A. B. R. 499 95, 575, 576, 643 In re, 190, Fed. 390, 27 A. B. R. 146 406, 407 Hill v. Harding, l07 U. S. 631 814, 1128 V. Harding, 130 U. S. 699, 9 S. Ct. 725 1122, 1128, 1138 V. Levy, 2 N. B. N. R. 180, 98 Fed. 94, 3 A. B. R. 374 146, 184, 185, 396 V. Simpson, 7 Ves. 170 733 Hill Co., In re, 130 Fed. 315, 12 A. B. R 221 444, 709, 724, 725, 729 In re, 148 Fed. 832, 17 A. B. R. 517 114, 1222 In re, 159 Fed. 73, 20 A. B. R. 73 207, 215, 967, 971 Hill Co. V. Contractors' Supply & Equip- ment Co., 156 111. App. 270, 24 A. B. R, 84 230, 249, 253, 256 Hill & Sons, In re, 187 Fed. 214, 26 A. B. R. 133 389 Hilfer V. LeRoy, 179 N. Y. 369, 12 A. BT R. 733 , 661 1522 Bbandenbubg on Bankbuptcij Hills V. F. D. McKinniss Co., 188 Fed. 1012, 26 A. B. R. 329 4, 8, 36. 158, 868 V. McRae, 9 Hare 297 305 Hilton, In re, 3 N. B. N. R. IDS 104 Fed. 981, 4 A. B. R. 774 432, 433, 457, 800 Hinchman v. Con. Arizona Smelting Co., 198 Fed. 907, 29 A. B. R. 893 952 Hindman, In re, 104 Fed. 331 775 Hinds, In re, 3 N. B. R. 91, Fed. Cas. No. 6516 425, 1042 Hinds V. Moore, 134 Fed. 221, 14 A. B. R. 1, rev'g 129 Fed. 922, 12 A. B. R. 136 21, 884, 1213 Hines, In re, 117 Fed. 790, 9 A. B. R. 27 SI, 52, 784 In re, 144 Fed. 142, 16 A.. B. R. 29S 61, 62 In re, 144 Fed. 147, 16 A. B. R. 538 256 In re, 144 Fed. 543, 16 A. B. R. 495 705, 724, 726, 732 Hinsdale, In re, 16 N. B. R. 550, 9 Ben. 91, Fed. Cas. No. 6526 921, 922 Hinson Bros., In re, 26 A. B. R. 754 945 Hintze, In re, l34 Fed. 141, 13 A. B. R 721 249 Hirose, In re, 12 A. B. R. 154 150, 667 Hirsch, In re, 2 N. B. N. R. 137, 3 A. B. R. 344, 97 Fed. 571 192, 1096, 1097, 1129, 1185 In re, 96 Fed. 468, 2 A. B. R. 715 ■ 1058, 1060, 1061, 1067, 1079, 1080, 1085, 1096, 1101, 1102, 1157, 1186, 1189 Hirschman, In re, 2 N. B. N. R. 1123, 104 Fed. 69, 4 A. B. R. 716 432, 433 Hirshowitz, In re, 194 Fed. 562, 27 A. B. R. 701' 1085, 1094, 1095, 1187 Iij re, 199 Fed. 202, 28 A. B. R. 571 705 Hirth, In re, 189 Fed. 926, 26 A. B. R. 666 427, 432 Hiscock V. Taycox & Green, 12 N. B. R. 507, Fed. Cas. No. 6531 301, 481, 609 V. Mortens, 205 U. S. 202, 17 A. B. R. 484, ail'g 142 Fed. 445, IS A. B. R. 701 7, 595 V. Varick Bank of New York, 206 U. S. 28, 18 A. B. R. 1, affg 144 Fed. 818, 15 A. B. R. 362, rev'g 134 Fed. 101, 14 A. B. R. 226 24, 482, 484, 540, 690 Hitchcock, In re, 17 A. B. R. 664 963, 965 Hiteshue v. Jones (Pa. Ct. Com. PI.), 28 A. B. R. 854 1147 Hixon, In re, 1 N. B. N. 556, 1 A. B. R. 610, 93 Fed. 440 1056, 1058, 1Q60, 1061, 1066, 1067 Hoadley, In re, 2 N. B. N. R. 704, 101 Fed. 233, 3 A. B. R. 780 548, 607, 1097, 1187 Hoag, In re,. 97 Fed. 543, 3 A. B. R. 290 764 Hoagland, In re, 18 N. B. R. 530, Fed. Cas. No. 6545 996, 1012 Hobbs V. Frazier, 56 Fla. 796, 22 A. B. R. 684 849, 946 V. Frazier, 61 Fla. 611, 26 A. B. R. 887 850, 860 V. Head & Dowst Co., 184 Fed. 409, 26 A. B. R. 63, aff'd 231 U. S. 692, 31 A. B. R. 656 25, 810, 1244 V. Head & Dowst Co., 191 Fed. 811, 27 A. B. R. 484 1248, 1249 Hobbs & Co., In re, 145 Fed. 211, 16 A. B. R. 544 1009 Hobson T. Markson, Fed. Cas. No. 6555 667 Hocki.ian, In re, 205 Fed. 330, 30 A. B. R. 921 1048, 1055, 1057, 1063, 1064 Hodeman v. Dewey, 7 N. B. R. 269, 2 Hughes 341, Fed. Cas. No. 6607 385 Hodge; In re, 205 Fed. 824, 30 A. B. R. 522 284, 1065. 1080, 1083, 1084, 1085 Hodgkinson, Ex parte, 19 Ves. 291 425 Hoffman, In re, 2 N. B. N. R. 554 471, 472, 47S, 728 In re, 2 N. B. N. R. 969, 102 Fedf 979, 4 A. B. R. 331 627^ 10S4, 1099 ABU- TO PAGES] HoffmMi,.lD re, 17a Fed. 234. 23 A. B. R. 19 i . ^ 284 Hoflfsdhlaeger Co., Ltd. v. Young Nap, 12 A. B. R. 521 64, 124, 161, 163, 326 V. Young Nap, 12 A. B. R. 515 227 V. Young Nap, 12 A. B. R. 517 229 v: Young Nap, 12 A. B. R. 526 255, 256 Hogan, In re, 194 Fed. 846, 28 A. B. R. 166 601 Hogran, In re, 1 N. B. N. 233, 3 A. B. R. 253, 98 Fed. 414, affg 2 N. B. N. R* 53, 97 -Fed, 319 372 Holbrook, In re, 2 Lowell 259, Fed. Cas. No. 6588 421 Holbrook Shoe & Leather Co., In re, 165 Fed. 973, 21 A. B. R. 511, 272 Holden, In re, 114 Fed. 650, 7 A. B. R. 615 595, 597 Holden v. Sherwood, 18 N. B. R. Ill 815 V. Stratton, 198 tf. S. 202, 14 A. B. R. 94, rev'g 113 Fed. 141, 7 A. B. R. 615, s. c. 191 U. S. 115, 10 A. B. R. 786 594, 597, 598, 754, 770, 1211, 1212, 1229, 1243 Holland, In re, 8 N. B. R. 190, Fed. Cas. No. 6604 148 In re, 12 N. B. R. 403, Fed. Cas. No. 6605 199, 203, 797 In re, 176 Fed. 624, 23 A. B. R. 835 1163 Holland v. Martin, 18 N. B. R. 359 1132 Hollander, In re, 181 Fed. 1019, 25 A. B. R. 48 530 HoUenfeltz, In re, 1 N. B. N. 503, 94 Fed. 629, 2 A. B. R. 499 621 HoUister, In re, 3 Fed. 452 454 Holloway, In re, 1 N. B. N. 264, 93 Fed. 638, 1 A. B. R. 659 525, 688, 809, 816, 984 Holman, In re, 1 N. B. N. 552, 1 A. B. R. 600, 92 Fed. 512 1058, 1066, 1067, 1081 Holmes, Ex parte, 14 N. B. R. 493, Fed. Cas. No. 6631 1013 In re, 12 N. B. R. 86, 8 Ben. 74, Fed. Cas. No. 6632 369 In re, 142 Fed. 391, 15 A. B. R. 689 1201 1232 In re, 165 Fed. 225, 21 A. B. R. 339 1048, 1049 Holmes v. Baker & Hamilton, 160 Fed. 922, 20 A. B. R. 252 81 Holmes Lumber Co., In re, 189 Fed. 178, 26 A. B. R. 119 593, 939, 956. 968, 969, 978 Holstem, In re, 114 Fed. 794, 8 A. B. R. 147 1081, 1095 Holt, In re, 3 N. B. R. 58, Fed. Cas. No. 6646 365 Holt V. Crucible Steel Co. of America, 224 U. S. 262, 27 A. B. R. 856, aff'g 174 Fed. 127, 23 A. B. R. 302 632, 672 V. Henley, 193 Fed. 1020, 27 A. B. R. 578, afl'g 190 Fed. 871, 27 A. B. R. 178 7, 544, S66 Holtz, In re, 1 N. B. N. 204 1073, 1081 Holyoke v. Adams, 10 N. B. R. 270 1128 1138 v. Adams, 13 N. B. R. 413 24o! 1156 "Home," The, 18 N. B. R. 557, Fed. Cas. No. 6657 631, 907, 1126, 1128 Home Discount Co., In re, 147 Fed. 538, 17 A. B. R. 168 286, 289, 290, 549, 629, 669, 885, 1119. 1173, 1177 Home Ins. Co. v. Hollis, 14 N. B. R. r,^^' ^ , 848 Home Powder Co. v. Geis, 204 Fed. 568. 29 A. B. R. 580 34, 91, 92. 143 Honestro, In re, 94 Fed. 119, 2 A. B. B. 107 381 Hook, In re, 11 N. B. R. 282, Fed. Cas. No. 6672 392 Hooks V. Aldridge, 145 Fed. 86S. 16 A. B. R. 658 40, 86 Hooks Smelting Co., In re, 138 Fed. 954, 15 A. B. R. 83 316, 366 In re, 140 Fed. 991, 15 A. B. R. 834 1176 In re, 146 Fed. 336, 17 A. B. R 141 ,1178 Taple of Cases 1523 [RUI'ISKENCISS Hooper-Morsan Co., In re, 156 Fed. 525, 19 A. B. R. 518 397 Hoover, In re. 3 N. B. N. R. 32? 1110 In re, 105 Eed. 354, 5 A. B. R. 247 1110 In re, 113 Fed. 136, 7 A. B. R. 330 778. 1004 Hoover v. Wise, 14 N. B. R..264, 91 U. S. 308 736 Hopkins, In re, 1 A. B. R. 209 778 In re, 1 N. B. N. 71, 1 A. B. R. 209 653, 654, 662 In re, 18 N. B. R. 339, Fed. Cas. No. 6686 26 In re, 18 N. B. R. 396, Fed. Cas. No. 6684 251 In re, 103 Fed. 781, 4 A. B. R. 619 784 Hopkins v. Carpenter, 18 N. B. R. 339, Fed. Cas. No. 6686 129 Horgan, In re, 2 N. B. N. R. 233. 3 A. B. R. 253, 98 Fed. 414, aff'g 2 N. B. N. R. S3, 97 Fed. 319 356, 372, 374, 845, 1095, 1229, 12f0 In re, 158 Fed. 774, 19 A. B. R. 857 882 In re, 168 Fed. 444, 21 A. B. R. 31 882 Home, In re, 22 A. B. R. 269 489 Home & Co., In re, 23 A. B. R. 590 466 Horner v. United States, 143 U. S. 207 327 Horner-Gaylord Co. v. Miller & Bennett, 147 Fed. 295, 17 A. B. R. 257 199, 581, 868 Horskins v. Sanderson, 132 Fed. 415, 13 A. B, R. 101 868 Hosie, In re, 7 N. B. R. 601, Fed. Cas. No. 6711 477, 616 In re, 206 Fed. 789, 30 A. B. R. 83 569 Hoskins V. Wall, 17 N. B. R. 314 768 Hosmer v. Tewett, 6 Ben. 208, Fed. Cas. No. 6713 635 V. Tififany, 115 App. Div. (N. Y.) 303, 17 A. B. R. 318 577 Houck V. Christy, 152 Fed. 612, 18 A. B. R. .';30 283, 578, 586 Hough V. Bank, 4,Biss. 349, Fed. Cas. No. 6721 385 In re, 1 N. B. R. 121, Fed. Cas. No. ■ 6223 171 Houghton, Ex parte, 1 Lowell SS4, Fed. Cas. No. 6725^ 604 In re, 1 N. B. R. 460 720 In re, 10 N. B. R. 337, Fed. Cas. No. 6730 153, 1054, 1065 Houghton V. Burden, 228 U. S. 161, 30 A. B. R. 16 1214, 1215, 1248 Houghton Web Co., In re, 185 Fed. 213, 26 A. B. R, 202 730 House, In re, 2 N. B. N. R. 1099, 103 • Fed. 616, 4 A. B. R. 603 1073, 1097 Houseberger, In re, 2 N. B. N. 33, 2 Ben. 504, Fed. Cas. No. 6734 664 Houston, In re, 1 N. B. N. 30S. 2 A. B. R. 107, 94 Fed. 119 321, 1136 Houston V. Bank, 6 How. 486 273, 938 Hovey, In re, 8 Fed. 314, aff'g S Fed. 356 1031 Hovey v. Home Ins. Co., 10 N. B. R. 224, Fed. Cas. No. 6743 442 Howard, In re, 1 N. B. N. 488, 2 A. B. R. S82. ?S Fed. 415 351.354,355,1170 In re, 4 N. B. R. 185, Fed. Cas. No. 6750 423, 482, 1038 In re, 100 Fed. 630, 4 A. B. R. 69 . 497 In re, 180 Fed. 399, 24 A. B. ?. 841 . 108O, 1101 In re, 207 Fed. 402, 31 A. B. R. 251 956 Howard v. Magazine & Book' Co^ 147 App. Div. (N. Y.) 335, 27. A. B; R. 296 Howard. Cole & Co., In re, 6 N. B. r! • 372, Fed. Cas. No. 6751 463 Howard Laundry Co., In re, 203 Fed. 445, 30 A. B. R. 167 570, 886 Howard Nat. Bank, Ex parte, 16 N. B. R. 420. 2 Lowell 487, Fed. Cas. No, 6764 ' 385 439 442 Howe v. Noyes, 47 Misc. (N. Y.) 338, 15 A. B. R. 103 1155 akb to pages] Howe V. Sheppard, 3 Sumner 133 1016 Howe Mfg. Co., In re, 193 Fed. 524, 27 A. B. R. 477 439, 440, 441, 497, 858 Howell, III re, 105 Fed. 594, 5 A. B. R. 414n 1061, 1097 I-Iowell V. Tones, 7 Pickle 402 590 Howland, In re, 2 N. B. R. 114, Fed. Cas. No. 6791' 121 In re, 109 Fed. 869, 6 A. B. R. 49S 563 Howland v. Carson, 16 N. B. R. 372 411, 1118, 1141 I-Iowley-Dresser Co., In re, 132 Fed. 1002, 13 A. B. R. 94 614 Hoxie, In re, 180 Fed. 508, 25 A. B. R. 32 914, 917 Hoy, In re, 137 Fed. 175, 14 A. B. R. • "648 122 Hoyt, In re, 3 N. B. S. 13, Fed. Cas. No. 6806 1032 Hoyt & Mitchell, In re, 127 Fed. 968, 11 A. B. R. 784 " 530 Hubbard, In re, 98 Fed. 710, 3 A. B. R. '528 1137 1149 Hubbel,' In re, 9 N. B. R. 523, Fed. Cas. No. 6828 523 Huber, In re, 1 N. B. N. 431 1096, 1188 Huber v. Huber, 1 N. B. N. 431 1185 Hubert v. Horter, 14 N. B. R. 430 815, 1138 Huddell, In re, 47 Fed. 206 1016 Huddleston, In re, 1 N. B. N. 214, I A. B. R. 572 20, 25, 269, 793, 817 In re, 167 Fed. 428, 21 A. B., R. 669 197 383 Hudgins v. Lane, 11 N. B. R. 462, i Hughes 361, Fed. Cas. No. 6827 129, 247, 426, 1047, 1130 Hudson V. Mercantile ' Nat. Bank of Pueblo, Colo., 119 Fed. 346, 9 A. B. R. 432 1099 v. Schwab, 18 N. B. R. 480, Fed. Casj- No. 6835 829 Hudson Clothing Co., In re, 140 Fed. 49, IS A. B. R. 254 231, 1219 In re, 148 Fed. 305, 17 A. B. R. 826- 238, 613 Hudsoii River Elec. Co., In re, 167 Fed. 986, 21 A. B. R. 915 248 In re, 184 Fed. 970, 25 A. B. R. 873 I 1223, 1246 Hudson River Electric Power' Co., In re, 173 Fed. 9'34, 23 A. B; R. 191, aff'd 183' Fed. 701, 25 A. B. R. 504 86, 90, 91, 107, 114, 116, 144, 227 Huffman, In re, 1 N. B. N. 215, 1 A. B. R. 587 660, 720 Hufnagel. In re, 12 N. B. R. 554, Fed. Cas. No. 6837 647, 807, 996, 1120 Huggins, In re, 179 Fed. 490, 24 A. B. R. 715 936, 937, 956, 978 Huehes, In re, 11 N. B. R. 452, Fed. Cas. No. 6843 1008 In re, 170 Fed. 809, 22 A. B. R. 303 204, 1009 In re, 183 Fed. 872, 25 A. B. R. 556 64, 67, 97, 241, 574 Hugill, In re, 2 N. B. N. R. 433, 100 Fed. 616, 3 A. B. R. 686, aff'g 2 N. B. N. R. m- 675, 686 HuU, In re, 18 N. B. R. 1, 14 Blatch. 257, Fed. Cas. No. 6857 663 In re, 115 Fed. 858, 8 A. B. R. 302 670, 674, 676 Hull V. Burr, 61 Fla. 625, 26 A. B. R. 897 639, 820 V. Burr, 63 Fla. 440, 28 A. B. R. 837 506, 865 V. Burr, 153 Fed. 945. 18 A. B. R. 541 838, 840 V. Burr, 206 Fed. 1, 30 A. B. R. 588 845 V. Hudson, 80 Atl. 674, 26 A. B. R. 725 583, 850 Hulse, In re, 7 Ben. 40, Fed. Cas. No. 9864 350 Humbert Co.; In re, 100 Fed. 439, 4 A. B. R..76 ■ 118, 180, 266 Humble v. Carson, 6 N. B. R. 84 1118, 1131 1524 Beandenbtjug ok Bankettptotj [BBFBBENCISS Hummitsch, In re, 2 N. B. R. 3, Fed. Cas. No. 6866 1060 Humphrey v. Tatman, 198 U. S. 91, 14 A. B. E. ?4, rev'g 184 Mass. 361, 12 A. B. E. 62 715 Humphrey Advertising Co., In re, 177 Fed. 187, 24 A. B. R. 41 110, llS Hunergardt v. Dry Goods Co., 116 Fed. 31, 8 A. B. R. 341 _ 766 Hunt, In re, 118 Fed. 282, 9 A. B. R. 2S1 187 In re, 139 Fed. 283, 14 A. B. R. 416 541, 716 In re, 2 N. B. R. 166, Fed. Cas. No. 6881' 74, 737 In re, S N. B. R. 433, Fed. Cas. No. 6882 148, 149, 473 In re, S N. B. R. 493 752, 789 In le, 17 N. B. R. 205, Fed. Cas. No. 6881 338 In re, 17 N. B. R. 205, Fed. Cas. No. 6884 482 Hunt V. Holmes, 16 N. B. R. 101, Fed. Cas. No. 6890 442, 447, 922 V. Pooke, 5 N. B. R. 161, Fed. Cas. No. 6896 129, 130, 188, 299, 304 V. Sharkey, 31 A. B. R. 894 532, 533, 857 Huntenberg, In re, 153 Fed. 768, 18 A. B. R. 697 1019 Hunter. In re, 151 Fed. 904, 18 A. B. R. 477 413, 533 In re, 3 McLean 297, Fed. Cas. No. 3902 1112 In re, 2 N. B. N. R. 490 364, 1058 In re, 18 N. B. R. 504, Fed. Cas. No.- 6903 943 Hunter v. Byng, 9 Fed. 277 991, 992 Huntington v. Baskerville, 192 Fed. 813, 27 A. B. R. 219 703, 726 V. Saunders 64 Fed. 476, 72 Fed. 10 1230 Huntington Mfg. Co. v. Edwards, 160 Fed. 619, 20 A. B. R. 349 707 Hurlbutt, Hatch & Co., In re, 135 Fed. 504, 13 A. B. R. SO 617, 952 Hurley, In re, 185 Fed. 851, 26 A. B. R. 434 541, 677 In re, 204 Fed. 126, 29 A. B. R. 567 35 J25 230 Hurley v. Atchison, T. & S. F. R. Co'., 213* U. S. 126, 22 A. B. R. 17, aff'g 153 Fed.' 503, 18 A. B. R. 396 567 V. Devlin, 149 Fed. 268, 17 A. B. R. 793 838 V. Devlin, 151 Fed. 919, 18 A. B. R. 627 5, 29, 300, 301 v. Smith, 1 Hask. 308, Fed. Cas. No. 6920 737 Hussey v. Tudson, 43 Misc. (N. Y.) 370, 11 A. B. R. 521 1123 V. Richardson-Roberts Dry Goods Co., 148 Fed. 598, 17 A. B. R. 511 706, 731, 739, 1210 Hussman, In re, 2 N. B. R. 140, Fed. Cas. No. 6951 1095, 1102 In re, 2 N. B. R. 437 1185, 1186 Hurst, In re, 13 N. B. R. 455, 1 Flip. 462, Fed. Cas. No. 6925 909, 920, 921 In re, 23 A- B. R. 554 415 In re, 188 Fed. 707, 26 A. B. R. 781 1019, 1026 Huston, In re, 7 A. B. R. 92 683 Hutchins v. Briggs, 61 Fed. 498 1229 V. Iron Wks., 8 N. B. R. 458, Fed. Cas. No. 6952 622 Hutchins Co., In re, 179 Fed. 864, 24 A. B. R. 647 284, 564 Hutchinson, In re, 8 A. B. R. 382 617, 618 In re, 113 Fed. 202, 8 A. B. R. 20 616, 1018, 1228 In re, 197 Fed. 1021, 28 A. B. R. 405 791 Hutchinson v. Otis, 190 U. S. 552, 10 A. B. R. 135, aff'g 115 Fed. 937, 8 A. B. R. 382 466, 1204, 1209 Hutchinson & Wilmoth, In re, 158 Fed. 74, 19 A. B. R. 313 22, 858 Aim TO PAGES] Huttig Mfg. Co. V. Edwards, 16Q Fed. 619720 A. B. R. 349 42, 528, 734, 863 Hutton, In re, 3 N. B. R. 787 787 Hyde v. Corrigan, 9 N. B. R. 466, Fed. Cas. No. 6968 , 720 Hyde & Gload Mfg. Co., In re, 2 N. B. N. R. 1122, 103 Fed. 617, 4 A. B. H- 602 170, 176 v. Holland (Pa. Ct. Com. PI.), 31 A., B. R. 785 788 V. Woods, 94 U. S. (4 Otto) 523 617 H3man,Jn re, 2 N. B. R. 107, 3 Ben. 28, Fed. Cks. No. 6984 269, 331 In re, 18 N. B. R. 299, Fed. Cas. No. 6985 926 In re, 97 Fed. 195, 3 A. B. R. 169 1082, 1098, 1185 Hymes, In re, 10 N. B. R. 433, 7 Ben. 427, Ted. Cas. No. 6986 310 Hymes Buggy & Implement Co., In re, 130 Fed. 977, 12 A. B. R. 477 210, 663, 799 Hyslop V. Hoppock, 6 N. B. R. 557, S Ben. 533, Fei Cas. No. 6989 32 V. Hoppock, 6 N. B. R. 552, 5 Ben. 447, Fed. Cas. No. 6988 157 Idaho & Oregon Land Imp. Co. V. Brad- bury, 132 U. S. 509, 515 1201 Idzall, In re, 96 Fed. 314, 2 A. B. R. 741 1066, 1079, 1099, 1187 Imperial Brewing Co., In re, 143 Fed. 579, 16 A. B. R. 110 247, 394 Imperial Corp., In re, 133 Fed. 73, 13 A. B. R. 199 183, 240 Imperial Film Exchange, In re, 198 Fed. 80, 28 A- B. R. 815 115, 165, 254 Independent Ins. Co., In re. Fed.- Cas. No. 7017, 1 Holmes 103, 6 N. B. R. 260 10, 117, 305, 797 Independent Thread Co., In re, 113 Fed. 998, 7 A. B. R. 704 140 Indianapolis, Cin. & L. R. R. Co., In re, 5 Biss. 287. 8 N. B. R. 302, Fed. Cas. No. 7023 26, 241 Industrial Cold Storage & Ice Co., In re, 163 Fed. 390, 20 A. B. R. 904 987. 989, 1030 Ingalls, In re. Fed. Cas, No. 7032 1036, 1037 Inge V. Stillwell, 88 Kan. 33, 28 A. B. R. 892 1140, 1142 Ingram v. Wilson, 125 Fed. 913, 11 A. B. R. 192 749, 788, 1229 Inman & Co., In re, 175 Fed. 312, 23 A. B. R. 566 394 In re, 171 Fed. 185, 22 A. B. R. 524 398 Institution V. Sprague, 43 Vt. 502 857 Ins. Co., In re, 16 N. B. R. 541, 9 Ben. 270, Fed. Gas. No. 628 96 Ins. Co. V. Ins. Co., 14 N. B. E. 311, Fed. Cas. No. 5486 ,84 International Coal Mining Co., In re, 143 Fed. 665, 16 A. B. R. 309 89 International Mahogany Co., . In re, 147 Fed. 147, 16 A. B. R. 797 687 International Milling Co,, In re, 17S Fed. 308, 23 A. B. R. 664 416 Interstate Paving Co., In re. 171 Fed. 604. 22 A. B. R. 573 109 In re, 197 Fed. 371, 28 A. B. R, 573 541. 669 Iowa Falls Mfg. Q?., In re, 140 Fed. 527, 15 A. B. R. 384 294 Irion V. Knapp, 132 La. 60, 31 A. B. R. 891 310, 556 Irish V. Citizens' Trust Co. of Utica, N. Y., 163 Fed. 880, 21 A. B. R. 39 70S, 709, 725 Iron Clad Mfg. Co., In re, 197 Fed. 280, 28 A. B. R. 628 230, 231 In re, 191 Fed. 831. 27, A. B. R. 490 881 Irons V. Bank, 27 Fed. 591, rev*!! 121 U. S. 27 1123 Irons & Coon, In re, 18 N. B. R. 95, Fed. Cas. No. 7067 649. 992 Table of Cases 1525 [lIlUFDItliNCISS Iroquois Mach. Co., In re; 166 Fed. 629, 22 A. B. R. 183 1006 Irving, In re, 14 N. B. R. 289. 8 Ben. 463, Fed. Cas. No. 7073 81S In re, 17 N. B. R. 22, Fed. Cas. No. 7074 420 . Irving V. Hughes, 2 N. B. R. 20, Fed. Cas. No. 7076 797 Irwin, In re, 174 Fed. 642, 23 A. B. R. 487 759, 122.6, 1230 Tsaacs, In re, 6 N. B. R. 92, 3 Sawy. 35, Fed. Cas. No. 7093 422 1 aacson. In re, 161 Fed. 777, 779, 20 A. B. R. 430. 437 45, 223 In. re, 175 Fed. 292, 23 A. B. H. 665 375, 1068 In re, 174 Fed. 406, 23 A, B. R. 98 32, 202, 211, 216 Isador, In re. 1 N. B. R. 33, 2 Ben. 123, Fed. Cas. No. 7105 361, 362 Isett V. Stuart, 16 N. B. R. 191 158, 843 Israel, In re, 12 N. B. R. 204, 3 Dill. 511, Fed. Cas. No. 7111 149 Ves, In re, 113 Fed. 911, 7 A. B. B. 692, rev'g 111 Fed. 495, 6 A. B. R. 653 43, 176, 249, 250, 251. 1181, 1206, 1226 In re. 8 N. B. R. 28, Fed. Cas. No. 7116 996 In re, 19 N. B. R. 97, 5 Dill. 146, Fed. Cas. No. 7115 _, 1075 In re. Ill Fed. 495, 7 A. B. R. 692 1107 Ives v. Tregent, 14 N. B. R. 60 952 Jack, In re, 13 N. B. R. 296, 1 Woods 549, Fed. Cas. No. 7119 176, 177 Tackier, In re, 179 Fed. 720, 24 A. B. R. 790 892 •-Jackson, In re, 18 A. B. R. 216 755, 764, 935 In re. 14 N. B. R. 449, 7 Biss. 280, Fed. Cas. No. 7123 333, 451, 514 In re. 1 N. B. N. 531, 94 Fed. 797, 2 A. B. R. 501 801 In re, 116 Fed. 46, 8 A. B. R. 594 776 Jackson v. Billings, 1 Caines 252 1124 V. McCuUoch. 13 N. B. R. 283, 1 Woods 433, Fed. Cas. No. 7140 60, 84 V. Sedgwick, 189 Fed. 508, 26 A. B. R? 836 577, 875 Jackson Brick & Tile Co.,, In re, 189 Fed. 636, 26 A. B. R. 915 478, 633, 635, 712, 715, 887, 1209 Jackson & Pearce, In re, 2 N. B. R. 158, Fed. Cas. No. 7127 752, 757 Jacob Berry & Co., In re, 146 Fed. 623, 15 A. B. R. 360 1100 Jacob L. Bartheleme, In re, 11 A. B. R. 67 '■ 586 Jacob Nathanson, In re, 155 Fed. 645, 19 A. B. R. 56 • 1058 Jacobs, Ex parte, 44 L. J. B. 34 925 In re, 144 Fed. 868, 16 A. B. R. 482 1065, 1094 In re, 1 N. B. N. 183, 1 A. B. R. 518 643, 686, 733 In re, 99 Fed. 593, 3 A. B. R. 671 1213, 1224, 1230 In re, 18 N. B. R. 48, Fed. Cas. No. 715^ ■ 919 Jacobs V. fiallantine Breweries Co., 193 Fed. 393, 27 A. B. R. 918 396 V. Siff, 74 Misc. (N. Y.) 58, 27 A B. R. 189 919, 921 V. United States, 161 Fed. 694, 20 A. B. R. 550 1198, 1199 V. Van Sickle, 127 Fed. 62, 11 A. B. R. 470, aflf'g 123 Fed. 340, 10 A. B. R. 519 575 Jacobs & Roth, In re, 154 Fed. 988, 18 A. B. R. 728 363, 365, 505, 508 Jacobs & Verstandig, In re, 147 Fed. 79.7, 17 A. B. R. 470 1094 ABB TO PAGES] Jacobson, In re, 21 A. B. R. 921 142, 241 In re, 181 Fed. 870, 24 A. li. R. 927 lOd Jacobson & Perrill, In re, 200 Fed. 812, 29 A. B. R. 603 544, 580, 1016, 1092 Jacobson & Son Co., In re, 196 Fed. 949, 28 A, B. R; 492 919 Jacons, In re, 1 N. B. N. 183, 1 A. B. R. 518 700 Jacquith v. Alden, 189 U. S. 78, 9 A. B. R. 773 727, 729 V. Rowley, 188 U. S. 620, 9 A. B. R, 525, affi'g 106 Fed. 666, 6 A. B. R. 285 24, 831, 841, 880, 881, 882 .Jamaica Slate Roofing & Supply Co., In re, 197 Fed. 240, 28 A. B. U. 763 242, 245 James, In re; 2 N. B. R. 78, Fed. Cas. No. 7175 1028, 1032 James v. Atlantic Delaine Co., 11 N. B, ■ R. 390, Fed. Ca.s. No. 7179 84. 224, 420 V. Central Trust Co., 98 Fed. 489 794 V. Gray, 12 A. B. R. 573, 131 Fed. 401 407, 423 v. Stone & Co., 181 Fed. 476, 24 A. P.. R 288, aft'g 175 Fed. 894, 23 A. B. R. 703 109'-, V. Stone & Co., 227 U. S. 411, 29 A. B. R. 476 1243 Jamison Mercantile Co., In re, 112 Fed. 966, 7 A. B. R. 558 1227 Janes, In re, 133 Fed. 912, 13 A. B. R. 341 1039 Jarecki Mfg. Co. v. McElwaine, 107 Fed. 249, 5 A. B. R. 571 , 1047. 1130 Jassoy Co., In re, 178 Fed. 515, ,23 A. B. R. 622 856 Jaycox. In re, 7 N. B. R. 140, Fed. Cas. No. 7239 963 In re, 8 N. B. R. 241, Fed. Cas. No. 7242 465, 479, 485 Jaycox V. Green, 13 N. B. R. 122, Fed. Cas. No. ^244 385, 1230 Jaysee Corset Co., In re, 201 Fed. 779, 29 A. B. R. 856 936 Jeffers, In re, 17 A. B. R. 368 777, 779 Jefferson, In re, 1 N. B. N. 288, 2 A. B. R. 206, 93 Fed. 948 413, ■ 414, 604, 680, 996, 1012, 1139, 1149, 1150 In re, 1 N. B. N. 558, 3 A. B. R. 174, 96 Fed. 826 349, 350 In re, 93 Fed. 951, 2 A. B. R. 206 603, 605 Jefferson Casket Co., In re, 182 Fed. 689, 25 A. B. R. 663 136, 139 Jehu, In re, 1 N. B. N. 509, 2 A. B. R. 498, 94 Fed. 638 182, 35,i Jelsh et al.. In re, 9 N. B. R. 412, Fed. Cas. No. 7257 226, 233 Jemison Mercantile Co., In re, 112 Fed. 966, 7 A. B. R. 588 43, 241, 244, 1181 Jenkins, In re, 192 Fed. 1000, 27 A. B. R. 860 • 384 Jenkins v. Armour, 14 N. B. R. 276, 6 ' Biss. 312, Fed. Cas. No. 7260 441, 859 V. Mayer, 3 N. B. N, E. 189, 2 Biss. 303, Fed. Cas. No. 7272 693 Jenks, In re, IS N. B, R. 301, Fed. CaS. No. 7276 401, 1013 Jenks V. Opp, 12 N. B. R. 19 352, 1155 Jennings, In re, 8 A. B. R. 358 649, 660, 1006 Jennings v. Stannus & Sosi, 191 Fed. 347, 27 A. B. R. 384 77<- Jennings & Co., In re, 166 Fed. 639, 22 A. B. R. 160 759, 773 Jerome'v. McCarter, IS N. E. R. S46 810 Jersey City Window Glass Co., In re, 1 N. B. R: 113, Fed. Cas. No. 7292 171 Jersey Island Packing Co., In re, 138 Fed. 625, 14 A. B. R. 689 38, 552, 648 In re, 152 Fed. 8i!9, 18 A, B. R. 417 930 Jervis v. Smith, 3 N. B. R. 147 392 Tetter Brewing Co. v. ScoUan, 48 Misc. (N. Y.) 546, 15 A. B. R. 300 953 Jewett, Ex parte. 11 N. B. R. 443, 2 Lowell 393, Fei Cas. No. 7303 188 1526 Beandenbukg on Bankeuptcy [KEFBEENCF.S Jewett, In re, 1 N. B. R. 130, Fed. Cas. Mo. 7309 425, 1036, 1037, 1039 Tewett V. Phillips, 5 Allen 150 305 "Tewett Bros. v. Huilman, 14 N. D. 110, 13 A. B. E. 738 785, 786, 818 Jobbins V. Montague, 6 N. B. R. 509, Fed. Cas. No. 7330 26, 181, 840 Johann, In re, 4 N. B. R. 143, Fed. Cas. No. 7331, 2 Biss. 139 25, 71, 72, 582, 584 Johansen IBros. Slice Co. v. Alles, 197 Fed. 274, 28 A. B. R. 299 65, 69, 76, 151 John Deere Plow Co. v. Anderson, 174 Fed. 815, 23 A. B. R. 480 564 V. Edgar Parmer Store Co., 143 N. W. 194, 31 A. B. R. 156 565 Johm L. Nelson & Bro. Co., In re, 149 Fed. 590, 18 A. B. R. 66 30. 203, 219, 220 Johns V. Rogers 15 N. B. B. 1, Fed. Cas. Mo. '408 521 Johnson, Ex parte, 167 U. S. 120 796 Johnson, In re, 158 Fed. 342, 19 A. B. R. 814 281, 1063, 1064 In le. 192 Fed. 356, 27 A B. R. 644 1061, 1062 In le, U% Fed. 838, 11 A B. B 138 481 In re, 149 Fed 86J, 18 A. B. R. 74 125 In le, 12/ Fed. 618. 11 A. B. R. 544 816 In le, 108 Fed. 373, 6 A. B. R. 202 657 In re, 208 Fed. 164, 30 A. B. R. 787 619, 620 In re, 176 Fed. 591, 24 A. B. R. 277 597" 598 In, re, 212 Fed. 311, 31 A. B. R. 579 ' 565 Johnson v. Anderson, 70 Neb. 233, 11 A. B. R. 294 657, 720, 738 V. Bishop, 8 N. B. R. 533, Fed. Cas. No. 7373 845, 854 V. Bruckheimer, 133 App. Div. (N. Y.) 649, 22 A. B. K. 242, rev'g 63 Misc. (N. Y.) 248, 22 A. B. R. 88 • 1147 V. Collier, 222 U. S. 538, 27 A. B. B 454 539, 822. 833 V. Collins, 12 N. B. R. 70 1128 V. Hanley Hoyc Co., 188 Fed. 752, 26 A. B. R 748 724 V. May, 16 N. B. R. 425, Fed. Cas. No. 7397 590, 752 V. Norris, 190 Fed. 459, 27 A. B. R. 107 410. 1030 V. RoEcrs, IS N. B. R. ], 10, Fed. Cas. No. 7408 649, 658, 806 V. United States, 163 Fed. 30, 20 A. B. R. 724 28, 315, 1199 V. United States, 170 Fed. 581, 22 A. B. B. 359 1197, 1198 .. United States, 228 U. S. 457, 30 A, B. R. ,14 1194 V. Wald, 2 A. B. R. 84, 93 Fed. 640, I N. B.N. 325 69. 576 V. Worden, 13 N. B. B. 335 901 Johnson & Knox Lumber Co., In re, 151 Fed. 207, IS A. B. R. 50 117li Johnston v. Forsyth Mercantile Co., 155 Fed. 268, 19 A. B. R. 48 578 V. Forsyth Merc. Co., 127 Fed. 845, II A. B. B. 669 861, 871, 872 V. Huff, Andrews & Moyler Co., 133 Fed. 704, 13 A. B. R. 287 382 V. Spencer, 195 Fed. 215, 27 A. B. R. 800 21, 22, 879, 881 Jones, Ex parte, 164 .U. S. 691 1238 In re, 100 Fed. 781, 2 N. B. N. R. 193, 4 A. B. R. 141 583 In re, 166 Fed. 337, 21 A. B. R. 536 773 In re, 4 N, B, R. 114, Fed. Cas. No. 7448 C-29 In re, 7 N. B. R. 506, Fed. Cas. No. 7450 152 In re, 2 Dill. 343, Fed. Cas. No. 744^ . 779 In le, 209 Fed. 717, 31 A. B. R. 692 222 In re, 118 Fed. 673, 9 A. B. R. 262 722 In re, 12 N. B. B. 48, Fed. Cas. No. 7452 728 ABB TO TAOES] Jones, In re, 16 N. B. R. 452, Fed. Cas. No. 7442 176 In re, 110 Fed. 736, 4 A. B. R 563, 2 N. B. N. R. 563 47C, 726, 728 In re, 6 N. B. B. 386, Fed. Cas, No. 7449 361, 1157 In re, Z Nj B; N. B. 193, 100 Fed. 781, 4 A. B. B. 141 420, 1037 In re, 209 Fed. 717, 31 A R, B. 693 174, 182 In re, 9 N. B. E. 556, 6 Biss. 68, Fed. Cas. No. 7444 407, 580 In re, 2 N. B. N. R. 296, 97 Fed. 773, '. 3 A. B. R. 259 754, 771 In re, 116 Fed. 431, 8 A. B. R. 626 420, 673 In re, 2 N. B. N. E. 561, 4 A. B. B. 563 471, 472 In re, 2 N. B. R. 20, Fed. Cas. No. 7447 171, 279, 493, 499, 504 In re, 151 Fed. 108, 18 A. B. R. 206 463, 499, 1004, 1020 Jonps V. Bumhatn, Willianis & C" , 138 Fed. 986. IS A. B. R. 8.5,,iev'g 130 Fed. 475, 12 A. B. R. 453 ' 227 V. Clifton, 18 N. B. B. 125, Fed. Cas. No. 7433 84, 589 Y. Coates, 196 Fed. 860, 28 A. B. R. 249 73, 94, 690 V. Coper, 16 N. B. R, 343 1128 V. Horsey, 4 Md. 306 1133 V. Knox. 8 N. B. R. 559 1129, 1150 V. Lawson, 33 Fed. 632 852 V. Leach, 1 N. B. R. 165, Fed. Cas. No. 7475 25, 806 V. Springer, 226 U. S. 14a 29 A. B. B. 204 24 V. Stevens, 94 Me. 582, 5 A. B. B. 571 644 V. Stevens, 48 Atl. 170, 5 A. B. B. 570 714 Jordan, In re, 8 N. B. E. 180, Fed. Cas. No. 7514 9, 652, 756, 757 In It, 19 N. B. R. ,465 423 In le, 142 Fed. 292, 15 A. B. R. 449. 1104 In re, 9, N. B. B. 16, Fed. Cas. No.r 7529 712 Jordan v. Downey, 12 N. B. R. 427 185, 849 , V. Taylor, 98 Fed. 643 796 Joseph, In re, 2 Woods 390, Fed. Cas. No. 7532 1207 In re, 24 Fed. 137 1229 Joseph V. Makley, 73 App. Div. (N. Y.) 156, 8 A. B. R. 18 823 Joseph Cohen, In re, 131 Fed. 391, 11 A. B. R. 439 506 Joseph Lavoc, In re, 142 Fed. 960, 13 A. B. R. 290 254 V. Raff, 78 N. Y. S. 310, 9 .ri. B. B. 227 823 Josephs, In re, 205 Fed. 548, 30 A. B. B. 586 • 1070 Josephson, In re, 121 Fed. 142, 9 A. B. B. 345 594 In re, 116 Fed. 404, 8 A. B. E. 423 672 Joslyn, In re, 3 N. B. R. 118, 2 Biss. 235, Fed. Cas. No. 7550 1012 Jourdan, In re, 2 N. B. N. E. 581 469, 471, 475, 728 , In re. Ill Fed. 726, 7 A. B. B. 186 1201 Joyce, In re, 128 Fed. 985, 11 A. B. B. 716 759 Judkins, In re, 205 Fed. 892, 30 A. B. B. S29 1226, 1229, 1235 Judson, In re, 192 Fed. 834, 27 A. B. B. 704, 188 Fed. 702, ;26 A. B. E. 775, aff'd 228 U. S. 474, 30. A. B. E. 1 300, 548, 596, 600, 601 Judson V. Courier Co;, 25 Fed. 705 1219 V. Kelty, 6 N. B. R. 165, 5 Ben, 348, Fed. Cas. Noi 7567 73, 737 Jules & Frederic Co., In re, 193 Fed. 533, 27 A. B. R. 136 676 Julius Bros., In re. 209 Fed. 371, 31 A. B. R. 132 1100, 1101 Junck & Balthazard, In re. 169 Fed. 481, 22 A. B. H. 298 132, 138, 190, 237, 613 Table of Cases 1527 Jungman, J., Inci, In re, 186 Fed. 302, 26 A. B. K. 401 209, 948, 952, 1170, 1214 K Eahley, In re, 4 N. B. R. 124, Fed. Cas. No. 7593, 2 Hiss. 383 737, 938, 1037 Kahn, In r?, 204 Fed. 581, 30 A. B. R. 322 1179, 1180 In re, 121 Fed. 412, 9 A. B.'R. 107 „ 908, 916 Kahn V. Cone Export & Commission Co., 115 Fed. 290 ' 475 Kai Y. Chung, In re, 1 N. B. N. 33 103 In re, 121 Fed. 412, 9 A. B. R. 107 908, 916 Kaiser, In re, 2 N. B. N. R. 123, 3 A. B. R. 767, ^9 Fed. 689 275', 1058, 1061, 1062, 1064, 1067 Kaiser v. Richardson. 14 H. B. R. 391 656 Kajita, In re, 13 A. B. R. 19 534 Kalb & Bereer Mfg. Co., In re, 165 Fed. 895, 21 A?B. R. 393 205, 218 Kallak, In re, 147 Fed. 276, 17 A. B. R. ,,414 988, 1030 Kalter, In re, 1 N. B. N. 384, 2 A. B. R. 590 511 In re, 2 N. B. N. R. 264 385, 392, 442, 444 Kamsler, In re, 2 N. B. N. R. 97, 97 Fed. 194 369, 728, 1080, 1085, 1189 Kane, In re, 127 Fed. 552, 11 A. B. R. 533 26, 27, 754, 788 In re, 131 Fed. 386, 12 A. B. ft. 444, ^ . 879, 881 Kane v. Rice, 10 N. B. R. 469, Fed. Cas. No. 7609 676 Kanouse v. Martin, 15 How. 198 1239 Kanpisch Creamery Co., In re, 107 Fed. 93, 5 A. B. R. 7S(0 656 Kansas City S. & M. Mfg. Co., In re, 9 " N. B. R. 76, Fed. Cas. No. 7610 634, 719 Kanter, In re, 117 Fed. 356, 9 A. B. R. „104 367, 372 Kanter v. Cohen, 121 Fed. 984, 9 A. B. R. 372 23 Kaplan, In re, 141 Fed. 463, 15 A. B. R. 534 1090 In re, 144 Fed. 159, 16 A. B. R. 267 541 In re, 186 Fed. 242, 24 A. B. R. 376 776 In re, 29 A. B. R. 54 929, 931 Karger v. Orth, 116 Minn. 124, 27 A. B. R. 212 1141, 1142', 1156 Kams, In re, 148 Fed. 143, 16 A. B. R. 841 549, 629, 885, 1116, 1134 Karp, In re, 196 Fed. 998, 28 A. B. R. 559 1180 Karr v. Whittaker, 5 N. B. R. 123, Fed. Cas. No. 76i3 177, 302 Kassard v. Kroner, 4 N. B. R. 569 10 Kassel, Iii re, 195 Fed. 492, 28 A. B. R. 233 69 Kasson, In re, 18 N. B. R. 379, Fed. Cas. No. 7617 84 Katz, In re, 1 N. B. N. 165, 1 A. B. R. 19 799 Katzenstein v. Reid, Murdock & Co., 41 Tex. Civ. App. 106. 16 A. B. R. 740 1116, 1131, 1132, 1145, 1146 Kaufman, In re, 179 Fed. 552, 24 A. B. R. 117 331, 332, '336, 339, 341, 342, 344, 505 In re, 136 Fed. 262, 14 A. B. R. 393 1048 In re, 19 N. B; R. 283, Fed. Cas. No. 7627 473 In re, 176 Fed. 93, 23 A. B. R. 429 175 Kaufman v. Schreier, 108 App. Div. (N. Y.) 298, 17 A. B. R. 314 311, 1151, 1153 V. Tredway, 195 U. S. 271, 12 A. B. R. 682 ,741, 875, 1239 Kaufmann, In re, 105 Fed. 768, S A. B. R. 104 - 408 In re, 2 N. B. N,,R. 778 674 In re, Ui Fed. 898, 16 A. B. R. 118 314, 75.8, 765 AltH TO PAGES] Kavanaugh, In re, 2 N. B. N. R. 528, 99 Fed. 928, 3 A. B. R. 832 661, 832 Kavanaugh v. Mclntyre, 31 A. B. R. 712, aff'g 74 Misc. (N. Y.) 222, 27 A. B. R. 279 319, 1142, 1147, 1148 Kayser, 177 Fed. 383, 24 A. B. R. 174 702 Keach, In re, 3 N. B. R. 3, 1 Lowell 335, Fed. Cas. No. 7629 ' 112 Kean, In re, 8 N. B. R. 367, Fed. Cas. No. 7630 756, 759 Kean v. White, 8 N. B. R. 367 756 Kearney, Ex parte, 7 Wheat. 38 1158, 1178, 1181 In re, 167 Fed. 995, 21 A. B. R. 721 625, 626, 727 Kearney v. Case, 12 Wall. 275 236 Kearney Bros., In re, 184 Fed. 190, 25 A. B. R. 757 818 Keating v. Keefer, 5 N. B. R. 133, Fed. Cas. No. 7635 578, 768 Keck Mfg. Co. v. Lorsch, 179 Fed. 485, 24 A. B. R. 70S 1222 Keefer, In re, 135 Fed. 885, 14 A. B. R. 290 1065, 1080 In re, 4 N. B. R. 126, Fed. Cas. No. 7636 74, 585, 1060 Keegan v. King, 3 A. B. R. 79, 96 Fed. 758 20, 274, 588, 796, 836, 842 Keenan v. Shannon, Fed. Cas. No. 7640, 9 N. B. R. 441 ' 353, 813 Keep Shirt Co., In re, 200 Fed. 80; 28 A. B. R. 765 392, 476 Keet, Frank S., In re, 128 Fed. 651, 11 A. B. R. 117 25, 173, 187, 939 Keeton, Stell & Co., In re, 126 Fed. 426, 11 A. B. R. 367 384 Kehler, In re, 159 Fed. 55, 19 A. B. R. 513 228, 302,, 303 Kehr v. Smith, 10 N. B. R. 49, 20 Wall. 31 580 Keiler, In re, 18' N. B. R. 10, Fed. Cas. No. 7647 25, 162, 169, 174, 186, 348, 815, 846, 913 Keim v. GrafT, 17 N. B. R. 319, Fed. Cas. , No. 7650 1141, 1143 Keith-Gara Co., In re, 203 Fed. 585, 29 A. B. R. 466 10, 413, 1012 Kellar, In re, 110 Fed. 348, 6 A. B. R. ' 661 471 Keller, In re, 16 A. B. R. 727 618 In re, 109 Fed. 118, 6 A. B. R. 334 424, 471, 474, 939 In re, 109 Fed. 118 1040 In re, 18 N. B. R. 331, Fed. Cas. No. 7654 489, 907, 913, 917 , In re, 207 Fed. 118, 31 A. B. R. 51 963, 968, 970 Kellogg, In re, 121 Fed. 333, 10 A. B. R; 7, aS'g 113 Fed. 120, 7 A. B. R. 623 23, 273, 355, 434, 546, 688, 860 In re, 112 Fed. 52, 7 A'. B. R. 270 541, 562 Kellogg-Mackey-Cameron Co. v. Curtice, 162 Mo. App. 124, 28 A. B. R. 906 619 Kelly, In re, 199 Fed. 984, 28 A. B. R. 730 757, 758 In re, 1 A. B. R. 306, 91 Fed. 504 185, 198, 200, 203 Kelly V. Strange, 3 N. B. R. 2, Fed. Cas. No. 7276 591 Kelly Dry-Goods Co., In re, 102 Fed. 747, 4 A. B. R. 528 91, 118, 273, 287, 288, 289, 342, 817, 945, 993, 995 Kelsey v. Munson, 198 Fed. 841, 28 A. B. R. 520 424, 461 Kemmerer, In re, 205 Fed. 108, 30 A. B. R. 72 ' 633 Kemmerer v. Tool, 12 N. B. R. 427 843 Kemp, In re. 101 Fed. 689, 2 N. B. N. R. 565, 4 A. B. R. 242 652. 653, 656 Kemper, In re, 142 Fed. 210, 15 A. B. R. 675 , 4S9 Kendrick & Roberts v. Warren Bros., iK Md. 47 1128 Kennedy, In re, 7 N. B. R. 337, Fed. Cas. No. 7699 39 1528 Bkandbnbtjbg on Bankbuptcy [BEFEBZNCBS Kennedy Tailoring Co., Iii re, 175 Fed. 871, 23 A. B. E. 656 86, 87, 89, 90, 165 Kenney, In re, 1 N. B. N. 401, 2 A. B. E. 494, 95 Fed. 427, s. c. 2 N. B. N. R. 141, 3 A. B. R. 353, 97 Fed. 557 131, 382, 636, 644, 663, 668, 794, 806, 836, 842, 954, 991, 1228 Kenney & Co., In re, 136 Fed. 451, 14 A. B. R. 611 337, 506 Kenova Loan & Trust Co. v. Graham, 135 Fed. 717, 14 A. B. E. 313 1226 Kentucky Nat. Bank of Louisville v. Car- ley, 127 Fed. 686, 12 A. B. E. 119 1078, 1106 Kenwood Ice Co., In re, 189 Fed. 525, 26 A. B. E. 499 103, 118, 251 Kenyon, In re, 112 Fed. 658, 7 A. B. R. 527 1083 In re, 156 Fed. 863, 19 A. B. E. 194 284, 499 In re, 6 N. B. E. 238 115, 163, 726 Kenyon v. Mulert, 184 Fed. 825, 26 A. B. E. 184 273; 400, 527 Keppel V. Tiffin Sav. Bank, 197 U. S. 356, 13 A. B. E. 552 474, '1026 Kerby-Denis, In re, 1 N. B. N. 399, 95 Fed. 116, 2 A. B. R. 402, aff'g IN. B. N. 337, 94 Fed. 818, 2 A. B. R. 218 . 640, 684, 983, 984, 1010, 1121 Keriin, In re, 209 Fed. 42, 31 A. B. E. 12, rev'g 30 A. B. E. 816 69 Kern v. United States, 169 Fed. 617, 22 A. B. R. 223 1187, 1190 Kerosene Oil Co., In re, 2 N. B. R. 164, 3 Ben. 35, Fed. Cas. No. 7725 809, 810, 816 Kerr, In re, 9 N. B. R. 566, Fed. Cas. No. 7729 765 Kerr v, Hamilton, Fed. Cas. No. 7731 1016 Kerrch v. United States, 171 Fed. 366, 22 A. B. E. 544 1195, 1198, 1217 Kerski, In re, 2 A. B. E. 79, 1 N. B. N. 328 274, 741, 837 Kersten & Kersten, In re, 110 Fed. 929, 6 A. B. E. 516 91, 93 Kessler, In re, 180 Fed. 979, 24 A. B. E. 287 481 Kessler v. Herklotz, 132 App. Div. (N. Y.) 278, 22 A. B. E. 257 818, 822, 823 Kessler & Co., In re, 184 Fed. 51, 25 A. B. R. 512, rev'g 176 Fed. 647, 23 A. B. E. 901 466 In re, 174 Fed. 906, 23 A. B. E. 391 609 Ketchum, In re, 108 Fed. 35, 5 A. B R. 532 39, 325, 326 In re, 51 Fed. 840 617 Ketterer Mfg. Co., In re, 156 Fed. 719, 19 A. B. R. ^46 216, 971 In re, 156 Fed. 719, 19 A. B. R. 638 947 In re, 162 Fed. 345, 20 A. B. R. 694 996 Keyes, In re, 160 Fed. 763, 20 A. B. R. ,,183 459, 1220 Keyes v. McKirrow, 180 Mass. 261, 9 A. B. R. 422 966 Keyser, In re, 9' Ben. 224, Fed. Cas. No. 7748 348, 464 Keyser v. Wessel, 128 Fed. 281, 12 A. B. R. 126, afl'g 123 Fed. 188, 10 A. B. R. 586 J 946 Keystone Brewing Co. v. Schermer, 241 Pa. 361, 31 A. B. E. 279 660 Keystone Coal Co., In re, 109 Fed. 872, 6 A. B. E. 377, rev'g 3 N. B. N. E. 349 115 Keystone Press, Inc., In re, 203 Fed. 710, 29 A. B. E. 715 469, 883, 941 Keystone Warehouse Co. v. Bissell, 203 Fed. 652, 30 A. B. E. 213 704, 729 Kidder v. Horrabin, 18 N. B. R. 146 843, 880 Kiker, In re, 18 N. B. R. 383, Fed. Cas. No. 11833 145 Kilgore v. Barr, 75 S. E. 762, 28 A. B. E. 860 19, 269, 838 KUlian, In re, 1 N. B. N. 267 274 ABB TO PACES] Kilpstein & Co. t. Allen-Miles Co., 136 Fed. 385, 14 A. B. R. 15 1128 Kimball, In re, 16 N. B. R. 188, Fed. Cas. No. 7770 84 In re. 1 N. B. N. 515, 97 Fed. 29, 3 A. B. R. 161 794, 836, 842 In re, 2 N. B. R. 204, 2 Ben. 554, Fed. Cas. No. 7768 322 In re, 2 N. B. N. R. 46, 100 Fed. 777, 4 A. B. R. 144 348, 464, 486. 966 In re, 1 N. B. R. 193, 2 Ben. 38, Fed. Cas. No. 7767 322. 324, 1134 In re, 2 N. B. R. 114, 6 Blatct. 292, Fed. Cas. No. 7769, aff'g 2 N. B. R. 74, 2 Ben. 554, Fed. Cas. No. 7768 320 322 Kimball, The, 3 Wall. 37, 43 ' 684 Kimberling v. Hartley, 1 Fed. 571 551 Kimmerle v. Farr, 189 Fed. 295, 26 A. B. R. 818 700, 705, 734 Kinder v. Scharfif, 129 La. 218, 26 A. B. E. 765 864 V. Trotti, 130 La. 360, 28 A. B. H. 939 780 Kindt, In re, 2 N. B. N. R. 369, rev'd 101 Fed. 107, 4 A. B. R. 148 525, 547, 579, 642, 713, 714 In re, 2 N. B. N. R. 373, 98 Fed. 867, 3 A. B. R. 546 26, 178, 241 In re, 2 N. B. N. R. 306, 339, 98 Fed. 403, 3 A. B. R. 443 187, 276, 348 Kilig, In re, 9 N. B. R. 140 477, 616 In re, 116 Fed. 110, 7 A. B. R. 619 726 In re, 179 Fed. 694, 24 A. B. R. 606 226 In re, 10 N. B. E. 103, Fed. Cas. No. 7783 * 76 King V. Block Amusement Co., 126 App. Div. (N. Y.) 48, 20 A. B. R. 784 658, 1128 V. Loudon, 14 N. B. E. 383 656 King Motor Car Co., In re, 31 A. B. R. 172 560 Kmgman, In re, 1 N. B. N. 518 382, 992 Kingman & Co. v. Western Mfg. Co., 170 U. S. 675 1220 Kingon, In re, 3 N. B. R. 446, Fed. Cas. No. 7815 523 Kingsbury, In re, 3 N. B. R. 84, Fed. Cas. No. 7816 60, 473 Kmgsbury v. Mattocks, 81 Me. 310 628 V. Tharp, 61 Mich. 216 238 Kingsley, In re, 16 N. B. R. 301, Fed. Cas. No. 7820 362 In re, 1 N. B. R. 52, 66, 1 LoweU 216, F«i. Cas. No. 7819 . „ 417, 418, 1131, 1149 In re, 7 N. B. R. 558, 6 Ben. 300. Fed. Cas. No. 7818 353 Kingston Realty Co., In re, 160 Fed. 445, 19 A. B. R. 845, rev'g 157 Fed. 299, 19 A. B. E. 465 110, 113, 114 Kmkead, In re. 7 N. B. R. 439. 3 Biss. 405, Fed. Cas. No. 7824 120 Kinmouth v. Braeutigam, 46 A. 769 639 Kinney & Co., In re, 136 Fed. 451. 14 A. B. R. 611 345 Kinot, In re, 2 N. B. N. R. 339 276 Kinott, In re, 2 N. B. N. R. 373, 98 Fed. 867, 3 A. B. R. 546 41 Kirkland, In re, 14 N. B. R. 139, 2 Hughes 208, Fed. Cas. No. 7843 1016 Kirkpatrick, In re, 148 Fed. 811. 17 A. B. R. 594 212 Kirkpatrick v. Hamesberger, 199 Fed. 886, 29 A. B. R. 439 1213, 1231 V. Johnson, 197 Fed. 235, 28 A. B. R. 291 582 Kirsner v. Taliaferro, 202 Fed. 51, 29 A. B. R. 832 365, 889, 894, 895, 896, 1163. 1164, 1165, 1201, 1205, 1214, 1226, 1227 Kiser Co. v. Georgia Cotton Oil Co., 208 Fed. 548, 31 A. B. R. 376 505 Kiskadden v. Steinle, 203 Fed. 375, 29 A. BR. 346 440, 856, 858, 1205 Kitchen v. Lowery, 127 N. Y. 53 649, 806 Table of Cases 1529 [RIIFEBBNCES Kittler, In re, 176 Fed. 6SS, 23 A. B. R. 585 314 Kitzinger, In re, 19 N. B. R. 152, Fed. Cas. No. 7861 411 In re, 19 N. B. R. 307, Fed. Cas. No. 7863 1030 Klapholz, In re, 113 Fed. 1002, 7 A. B. R. 703 1018 Klein, In re, 116 Fed. 523, 8 A. B. R. 559 839, 991 In re. 1 N. B. N. 486, 97 Fed. 31, 3 A. 13. R. 174 793, 847, 854 Klein v. Powell, 174 Fed. 640, 23 A. B. R. 494 1072 V. U. S., 13 Wall. 128 628 Klein's Case, 1 How. 277 2 Kletchka, In re, 1 N. B. N. 160, 92 Fed. 901, 1 A. B. R. 479 649, 806, 836, 842 Klingaman, In re, 101 Fed. 691, 4 A. B. R. 254 471, 472 Knapp V. Anderson, 15 N. B. R. 316 1126, 1128, 1156 V. Hoyt, 57 Iowa 591 1126 V. Milwaukee Trust Co., 162 Fed. 675, 20 A. B. R. 671 1248 Knapp & Spencer Co. v. Drew, 160 Fed. 413, 20 A. B. R. 355 884, 887 Knaszak, In re, 151 Fed. 503, 18 A. B. R. 187 1061, 1062, 1064, 1069 Knauer, In re, 133 Fed. 805, 13 A. B. R. 503 1050 Kneeland v. Pennell, 54 Misc. (N. Y.) 43, 18 A. B. R. 538 645, 647 Knickerbocker Insurance Co. v. Corn- stock, 8 N. B. R. 145, 16 Wall. 258 1216, 1221 Knidt, In re, 2 N. B. N. R. 269 634 Knight, In re, 125 Fed. 35, 11 A. B. R. 1, 20, 40, 82, 95, 667, 802 In re, 8 N. B. R. 436, Fed. Cas. No. 7880, 2 Biss. 518 847, 1037 Knight V. Cheney, 5 N. B. R. 305, Fed. Cas. No. 7883 880 Knight, Yancey & Co., In re, 190 Fed. 893, 26 A. B. R. 787 447, 499 Knittel v. McGowan, 134 Fed. 498, 14 A. B. R. 209 96, 98, 228, 229, 357 Knoepfel, In re, 1 N. B. R. 23, 1 Ben. 330, Fed. Cas. No. 7891, s. c. 1 N. B. R. 70, Fed. Cas. No. 7892 340 linopf, In re, 144 Fed. 245, 16 A. B. R. 432, 146 Fed. 109, 17 A. B. R. 48 272, 578, 867, 887 Knosco, In re, 208 Fed. 201, 31 A. B. R. 238 457 Knosher & Co., In re, 197 Fed. 136, 28 A. B. R. 747 969, 976, 1226, 1229 Knost & Wilhelmy, In re, 1 >(. B. R. 403, 2 A. B. R. 471, aff'd 99 Fed. 409 149, 471 Knott, In re, 109 Fed. 626, 6 A. B. R. 749 387 Knott V. Putnam, 107 Fed. 907, 6 A. B. R. 80 319,387,801,1133,1143 Knowlton & Co., In re, 19S Fed. 837, 28 A. B. R. 140 1038 Knox, In re,-98 Fed. 585 405, 919 Kobusch V. Hand, 156 Fed. 660, 19 A. B. R. 379 703 Koch, In re, 1 N. B. R. 153, Fed. Cas. No. 7916 365, 366, 376, 1173 Koelle, In re, 171 Fed. 257, 22 A. B. R. 515 1088 Koenig & Van Hoogenhuyze, In re, 127 Fed. 891, 11 A. B. R. 617 . 288 Koester, In re, 15 Ohio Fed. Dec. 257, 17 A. B. R. 391 552, 568, 603, 604, 1120 Kohl-Hepp Brick Co., In re, 176 Fed. 340, 23 A. B. R. 822 942, 950 Kohler, In re, 159 Fed. 871, 20 A. B. R. 89 1019 Kohlsaat, In re, 18 N. B. R. 570, Fed. Cas. No. 7918 „ , 910, 926 Kohlsaat v. Hoguet, 5 N. B. R. 159, 4 Ben. 565, Fed. Cas. No. 7919 700 Kohn, In re, 2 N. B. N. R. 367, 7 A. B. R. Illn 471, 472, 726 ABE! TO PAGES] Kohout V. Chaloupka, 69 Neb. 677, 11 A. B. R. 265 478, 820 Kolber, In re, 193 Fed. 281, 27 A. B. R. 414 773 Kolin, In re, 134 Fed. 557, 13 A. B. R. 531 22 199 Kolster; In re, 146 Fed. 138, 17 A. B. r! 52 1067, 1099 Koplin, In re, 179 Fed. 1013, 24 A. B. R. 534 894 Kornit Mfg. Co., In re, 192 Fed. 392, 27 A. B. R. 244 499, 839, 855, 884 Koronsky, In re, 170 Fed. 719, 21 A. B. R. 851 803 Koslowski, In re, 153 Fed. 823, 18 A. B. R. 723 655, 661, 720 Kovoloff V. United States, 202 Fed. 475, 28 A. B. R. 767 1190, 1195 Krall, In re, 182 Fed. 191, 24 A. B. R. 941 889 Kramer, In re, 210 Fed. 977, 31 A. B. R. 525 165, 1165 Kramer & Muchnick, In re, 209 Fed. 627, 31 A. B. R. 377 284, 896 Kranich, In re, 182 Fed. 849, 25 A. B. R. 50 413, 530 In re. 174 Fed. 908, 23 A. B. R. 550 897 Krause, In re, 155 Fed. 702, 19 A. B. R. 93 983 Kraver v. Abrahams, 203 Fed. 782, 29 A. B. R. 365 - 869, 870, 871 Kreithlein v. Ferger, 97 N. E. 819, 28 A. E. R. 908 1151, 1152, 1157 Kretsch, In re, 172 Fed. 523, 22 A. B. R. 284 1071, 1077, 1188 Krueger, In re, 2 Lowell 182 1068 In re. Fed. Cas. No. 7942 356 In re, 196 Fed. 705, 27 A. B. R. 440 503, 505, 507, 508 In re, 199 Fed. 367, 27 A. B, R. 623 543, 564 In re, 197 Fed. 124, 28 A. B. R. 890 888, 893 In re, 5 N. B. R. 439, Fed. Cas. No. 7941, 2 Lowell 66 128, 131, 238, 423 Krinsky, In re, 112 Fed. 972, 7 A. B. R. 535 802 Krogman, In re, 5 N. B. R. 116, Fed. Cas. No. 7936 476, 840 Kronrot, In re, 183 Fed. 653, 25 A. B. R. 738 948, 949, 950 Kross, In re, 1 N. B. N. 566, 96 Fed. 816, 3 A. B.- R. 187 383, 745, 960, 961, 963, 964 Krum, In re, 7 Ben. 5, Fed. Cas. No. 7943 737 Kuffler, In re, 153 Fed. 667, 18 A. B. R. 587 353, 1131 In re, 2 N. B. N. R. 29, 3 A. B. R. 162, 97 Fed. 187 506 In re, 151 Fed. 12, 18 A. B. R. 16 1053 In re, 168 Fed. 1021, 22 A. B. R. 289, aff'g 155 Fed. 1018, 19 A. B. R. 181 1053 In re, 127 Fed. 125, 11 A. B. R. 469 1232 Kullbcrg, In re, 176 Fed. 585, 23 A. B. R. 758 676 Kuntz, In re, 1 N. B. N. 256 888, 890, 1163, 1187 Kuntz V. Young, 131 Fed. 719, 12 A. B. R. 505 242, 1053 Kunzler v. Kohaus, 5 Hill 317 2, 5 Kurth, In re, 17 N. B. R. 573 992 Kurtz, In re, 125 Fed. 992, 11 A. B. R. 129 ' 286, 891 Kyle Lumber Co. v. Bush, 133 Fed. 688, 13 A. B. R. 535 45, 1230 Kyler. In re, 2 N. B. R. 649, 2 Ben. 414, Fed. Cas. No. 7956 370 Kyte, In re, 182 Fed. 166, 25 A. B. R. 337 406 In re, 164 Fed. 302, 21 A. B. R. 110 408 In re, 189 Fed. 531, 26 A. B. R. 507 968, 977 1530 Brandenbubg on Bankruptcy [EISFEBENCES Kyte, In re, 158 Fed. 121, 19 A. B. R. 768 216. 960 In re, 174 Fed. 867, 23 A. B. R. 414 1090, 1091, 1102 Lacey, In re, 10 N. B. R. 477, Fed. Cas. No. 7965 151, 152, 156, 182, 223 Lachemeyer, In re, 18 N. B. R. 270, Fed. Cas. No. 7966 1136 Lachenmaier, In re, 203 Fed. 32, 29 A. B. R. 325 102, 137, 224, 1103 Lackawanna Leather Co. v. La Porte Car- riage Co., 211 Fed. 318, 31 A. B. R. 658 188, 243 Lackow, In re, 140 Fed. 573, 14 A. B. R. 514 165 Laclede Gas Co. v. Murphy, 170 U. S. 78 1240 Lacy, In re, 4 N. B. R. 15, Fed. Cas. No. 7970 1005, 1011 Lacy V. Citizens' Bank, 198 Fed. 484, 28 A. B. R. 433 1026 Lady Bryan Min. Co., In re, 6 N. B. R. 252, Fed. Cas. No. 7980 814 Lafleche, In re, 109 Fed. 307, 6 A. B. R. 483 . 1069, 1082 La France Copper Co., In re, 205 Fed. 207, 30 A. B. R. 381 941, 942 Lains, In re, 16 N. B. R. 165, 168, Fed. Cas. No. 7985 992 Laird, In re, 109 Fed. 550, 6 A. B. R. 1 1010 Lake, Ex parte, 16 N. B. R. 497, 2 Lowell 544, Fed! Cas. No. 7991 414, 427 In re, 6 N. B. R. 542, 3 Biss. 204, Fed. Cas. No. 7992 549, 639 Lake Erie & W. R. Co. v. Bank, 65 Fed. 690 1007 Lake Jackson Sugar Co., In re> 11 A. B. R. 458, referee s report confirmed 129 Fed. 640 121 Lake Superior Ship Canal R. R. & I. Co., In re, 7 N. B. R. 376; Fed. Cas. No. 7997 336, 343, 344; 391, 492, 504 Laker v. Stapely Co., 21 A. B. R. 303 113 Lamb v. Brown, 12 N. B. R. 522, Fed. Cas. No.' 8011 3ll, 1151 Lambert. In re, 2 N. B. R. 138, Fed. Cas. No. 8026 525, 632, 688, 985 In -re, 2 N. B. R. 426 752, 787 Lammer, In re, 14 N. B. R. 460, 7 Biss. 289, Fed. Cas. No. 8031 766 Lamoille County Nat. Bank v. Stevens' Estate, 107 Fed. 245, 6 A. B. R. 164 426 Landis, In re, 151 led. 896, 18 'A. B. R. 483 893 Landry v. San Antonio Brewing Ass'n, 159 Fed. 700, 20 A. B. R. 226 1234 Landsberger, In re, 177 Fed. 443, 24 A. B. R. 107 284 Landy v. Kansas City, 58 Mo. App. 141 350 Lane, In re, 2 N. B. R. 100, 3 Ben. 98, Fed. Cas. No. 8042 995 In re. 10 N. B. R. 135, 2 Lowell 333, ' Fed. Cas. No. 8044 1037, 1042 In re, 125 Fed. 772, 11 A. B. R. 136 458, 922 Lane Lumber Co., In re, 206 Fed. 780, 30 A. B. R. 749 287, 964, 965 In re, 207 Fed. 762, 31 A. B. R 148 «47 In re, 210 Fed. 82, 31 A. B. R. 792 631, 695 Lang, In re, 127 Fed. 755, 11 A. B. R. 794 962 In re, 2 N. B. R. 151, Fed. Cas. No. 8056 714, 1049 Langdon, In re, 13 N. B. R. 60, 2 Lowell 387, Fed. Cas. No. 8058 909 Lange, Ex parte, 18 Wall. 163, 167 1182, 1246 Lange, In re, 1 N. B. N. 44, 60, 91 Fed. 361, 1 A. B. R. 186. 189 597 In re, 2 N. B. N. R. 85, 3 A. B. R. 231, 97 Fed. 197 173, 364, 727 ABB TO PAGES] Lange Co., In re, 159 Fed^ 586, 20 A.' B. R 478 988, 989 In re, 170 Fed. 114, 22 A. B. R, 414 459, 480 Langley, In re, 1 N. B. R. 155 10. 84, 587 Langley v. Perry, 2 N. B. R. 180, Fed. Cas. No. 8067 84 Langslow, In re, 1 N. B. N. 232, 1 A. B. R. 258, 98 Fed. 869 SO, 189, 239 Lanier, In re, 2 N. B. R. 59, Fed. Cas. No. 8070 -353, 354, 374 Lanley v. Alderson, 24 A. B. R. 69 1003 Lans, In re, 158 Fed. 610, 19 A. B. R. 458 1231 Lansaw, In re, 118 Fed. 365, 9 A. B. R. 167 487 Lansing v. Manton, 14 N. B. R. 127, Fed. Cas. No. 8077 197, 353 Lansing Boiler & Engine Works v. Ryer- son & Son, 128 Fed. 701, 11 A. B. R. 558 61, 64, 67 Laplume Condensed Milk Co., In re, 145 Fed. 1013, 16 A. B. R. 729 549, '891 Lapsley, Ex parte. Fed. Cas. No. 8083 485 Larkin, In re, 168 Fed. 100, 21 A. B. R. 711 65, 67, 299. 586 Larkin & Metcalf, In re, 202 Fed. 572, 30 A. B. R. 903 lOOS Lasch, In re. 12 A. B. R. 158 .894 In re, 142 Fed. 277, 15 A. B. R. 629 1113 Laskaris, In re, 1 N. B. N. 209, 1 A. B. R. 480 161, 162 Lasky, In re, 163 Fed. 99, 20 A. B. R. . 729 1165, 1177 Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683 240 I Lathrop, In- re, 5 N. B. R. 43, 5 Ben. 199, Fed. Cas. No. 8104 421 In re, 3 N. B. R. 11, Fed. Cas. No. 8105 1072 In re, 4 N. B. R. 93, Fed. Cas. No. 8106 352, 356, 1172 Lathrop v. Drakd, 13 N- B. R. 472, Fed. Cas. No. 8109, 91 U. S. 516 ■ 324. 617, 662, 841 Lathrop Bank v. Holland, 205 Fed. 143, 30 A. B. R. 62 717 Lathrop. Haskins & Co., In re, 184 Fed. 534, 24 A. B. R. 911 356, 1180 In re, 197 Fed. 164, 28 A. B. R. 756 459 Latimer, In re, 141 Fed. 665, 15 A. B. R. 461 893 In re, 174 Fed. 824, 23 A. B. R. 388 611, 1037 Latimer v. McNeal, 142 Fed. 451, 16 A. B. R. 43 201 LaughUn, In re, 96 Fed. 589, 3 A. B. R. 1 172, 191, 192, 424, 1047, 1130 Laundry v. Andrews, 22 R. I. 597, 6 A. B. R. 281 726 Laundy v. First Nat. Bank of Junction City, 66 Kan. 759, 11 A. B. R. 223 739 Laurel Oil & Fertilizer Co. v. Home, 101 Miss. 629, 28 A. B. R. 932 716 Laurie, In re, 4 N. B. R. 7 527, 604 Lausman, In re, 183 Fed. 647, 25 A. B. R. 186 544, 1004 Lavender v. Gosnell, 12 N. B. R. 282 11 Lavoc, In re, 142 Fed. 960, 15 A. B. R. 290 254 257 In re, 145 Fed. 237, 13 A. B. R. 400 ' 267 Law, Ex parte, 3 Dea. 541 425 In re. 13 A. B. R. 650 341 Lawler, In re, 110 Fed. 135, 6 A. B. R. 184 1002, 1003 Lawrence, In re, 18 N. B. R. 516, Fed. Cas. No. 8133 84, 639 In re, 134 Fed. 843. 13 A. B. R. 798 283 In re. 163 Fed. 131; 20 A. B. R. 698 795. 1145 Lawrence v. Graves, 5 N. B. R. 279, Fed. Cas. No. 8138 230, 371 V. Lowrie, 133 Fed. 995, 12 A. B. R. 297 868 Table op Cases 1531 [BErBRKNCES Lawson, In re, 2 N. B. R. 44, Fed. Cas. No. 8150 508 In re, 2 N. B. R. 19, Fed. Cas. No. 8149 752, 790 Lazarovic, In re, 1 A. B. R. 476 380, 404 Lazarus v. Eagan, 206 Fed. 518, 30 A. B. R. 287 703, 708 Lazzari v. Havens, 39 Misc. 255, 79 N. Y. S. 375 683 Lea V. West Co.. 1 N. B. N. 79, 91 Fed. 237, 1 A. B. R. 261, aff'd 174 U. S. 590, 1 N. B. N. 409, 2 A. B. R. 463 20, 82, 97, 225, 667, 668, 794, 802, 845 Leach v. King, 85 Mo. 413 767 Leachman, In re, 1 N. B. R. 91, Fed. Cas. No. 8157 364 Leader, In re. The, 190 Fed. 624, 26 A. B. R. 668 569, 680, 731, 734, 737 Leaf, Ex parte, 4 Dea. 287 305 Leavenworth Savings Bank, In re, 14 N. B. R. 92, 4 Dill. 363, Fed. Cas. No. 8165 140 •Lee. In re, 14 N. B. R. 89, Fed. Cas. No. 8179 473 In re, 171 Fed. 266, 22 A. B. R. 820 458 In re, 182 Fed. 579, 25 A. B. R. 436 688, 1201, 1226, 1232 Leech, In re, 171 Fed. 622, 22 A. B. R. 599 700, 774. 869, 1226 Leeds, In re, 1 N. B. R. 138, Fed. Cas. No. 82(fi 76, 77 Leeman, In re, 1 N. B. N. 331, 2 A. B. R. 52 472 Legal Tender Cases, 12 Wall. 457 757 Legg, In re, 1 N. B. N. 420, 2 A. B. R. 805, 96 Fed. 326 563. 564, 579, 588, 634, 640 Leggett V. Allen, 110 U. S. 741 1225 Lehman v. Crosby, 99 Fed. 542, 2 N. B. N. R. 451, 3 A. B. R. 662 836, 837, 842 v. Strassberger, 2 Woods 554, Fed. Cas. No. 8216 . 235 Leibowitz, In re, 108 Fed. 617, 6 A. B. R. 268 413, 459, 460 Leicester v. Hoadley, 66 Kan. 172, 9 A. B. R. 318 1148 Leidigh Carriage Co. v. Stengel, 1 N. B. N. 387, 95 Fed. 637, 2 A. B. R. 383 8 82 102 150, 151, 184, 185, 188, 225, '666' 842,' 846 Leigh, In re, 208 Fed. 486, 31 A. B. R. 379 626, 884 Leigh Bros., In re, 1 N. B. N. 526, '96 Fed. 806, aff'g 1 N. B. N. 425, 2 A. B. R. 606 563, 579, 634, 640, 672, 676, 852 Leigh Lumber Co., In re, 101 Fed. 216, 4 A. B. H. 221 420 Leighton, In re, 5 N. B. R. 95, 4 Ben. , 457, Fed. Cas. No. 8221 . 36, 181 Leighton v. Kennedy, 129 Fed. 737, 12 A. B. R. 229 141 Leighton & Co., In re, 147 Fed. 311, 17 A. B. R. 275 . 113 Leinwcber, In re, 128 Fed. 641, 12 A. B. R. 175 890 Leipsiger, In re, 18 N. B. R. 264 921 Leitch V. Northern Pac. Ry. Co., 95 Minn. 35, 14 A. B. R. 409 629, 669, 1119, 1121 Leiter v. Payson, 9 N. B. R. 205, Fed. Cas. No. 8226 178, 179 Leland, In re, 5 N. B. R. 222, 5 Ben. 168, Fed. Cas. No. 8228 ' 44, 309, 611. 1042, 1130 In re, 9 N. B. R. 209, 7 Ben. 156, Fed. Cas. No." 8230 473, 526, 573, 636 In re, 185 Fed. 830, 25 A. B. R. 209 107. 122, 123, 124 LeMaster v. Spencer, 203 Fed. 210, 29 A. B. R. 264 22 200, 884 Lemen, In re, 208 Fed. 80, 30 A. B. R. 638 32 Lemmel, In re, 118 Fed. 487 ' 1187, 1188, 1189 Lemmon.& Gale Co., In re, 112 F'ed. 292, 7 A. B. R. 291 843 ABD TO PAGES ] Lemont, In re, 2 N. B. N. R. 291 507 Lengert Wagon Co., In re, 110 Fed. 927, 6 A. B. R. 535 20, 41, 854 Lenke v. Booth, 5 N. B. R. 351 1143 Lennox, In re, 181 Fed. 428, 24 A. B. R. 922 • 231 Lennox v. Allen-Lane Co., 167 Fed. 114, 21 A. B. R. 648 1226, 1235 Lentz, In re, 2 N. B. N. R. 190, 97 Fed. 486 247, 609, 755, 771 Leonard, In re, 4 N. B. R. 182, Fed. Cas. No. 8255 171, 174 In re, 177 Fed. 503, 24 A. B. R. 97 204, 207, 214 Lesauis, In re, 163 Fed. 614, 21 A. B. R. 23 316, 888 In re, 181 Fed. 690, 25 A. B. R. 102 1235 Lesaius v. Goodman, 165 Fed. 889, 21 A. B. R. 446 896, 1226 Lesher & Son, T. M., In re, 176 Fed. 650, 25 A. B. R. 218 286, 440, 441, 448 Leslie; In re, 119 Fed. 406, 9 A. B. R. 561 358, 1066, 1067, 1077_^ 1095, 1106, 1190, 1197 Lesser, In re, 2 N. B. N. R. 599, 100 Fed. 433, 3 A. B. R. 815, aff'd 5 A. B. R. 320, s. c. 99 Fed. 913, 3 A. B.R. 758 383, 465, 573, 644, 650, 654, 658, 806, 807, 815, 854, 880, 992, 1230 In re, 108 Fed. 201, 5 A. B. R. 326 657, 1078, 1094, 1186, 1189 In re, 110 Fed. 433, 3 A. B. R. 815 41 In re, 114 Fed. 83, 8 A. B. R. 15 1096 Lesser v. Bradford Realty Co., 116 App. Div. (N. Y.) 212, 17 A. B. R. 524, aff'g 47 Misc. (N. Y.) 463, 15 A. B. R. 123 861, 869, 870 Leszynsky, In re, 2 N. B. N. R. 738 275, 1062, 1184 Letson, In re, 157 Fed. 78, 19 A. B. R. 506 247, 540, 766, 1226 LeVay, In re, 125 Fed. 990, 11 A. B. R. 114 784, 789 Levenstein, In re, 180 Fed. 957, -24 A. B. R. 822 1048, 1074 Leverton. In re, 155 Fed. 925, 19 A. B. R. 426 780 In re, 155 Fed. 931, 19 A. B. R. 434 519 Levey, In re, 133 Fed. 572, 13 A. B. R. 312 1053, 1055, 1057, 1058, 1060 Levi, In re, 142 Fed. 962, 15 A. B. R. 294 244 Levi V. Picard, 155 Fed. 262, 17 A. B. R. 430 , 620 Levi & Picafd. In re, 148 Fed. 654, 16 A. B. R. 756 619 Levin, In re, 14 N. B. R. 385, 7 Biss. 231, Fed, Cas. No. 8291 1057 In re, 113 Fed. 498, 6 A. B. R. 743 1105, 1162 In re, 131 Fed. 388, 11 A. B. R. 382 368, 1173 In re, 127 Fed. 886, 11 A. B. R. 446 561 In re, 176 Fed. 177, 23 A. B. R. 845 7, 1056 Levine, In re, 196 Fed. 589, 28 A. B. R. 481 675 Levingston, In re, 13 A. B; R. 357 161, 164, 187 Levitt, In re, 126 Fed. 889, 11 A. B. R. 411 382, 458 Levor v. Seiter, 34 Misc. (N. Y.) 382, 5 A. B. R. 576 660 V. Seiter, 69 App. Div. (N. Y.) 33, 8 A. B. R. 459 661, 730 Levy, In re, 1 N. B. R. 66, 2 Ben. 169, Fed. Cas. No. 8297 501, 1126, 1128 In re, 95 Fed. 812, 2 A. B. R. 21, ref. dec. 1 N. B. N. 287 129, 417 In re, 101 Fed. 247, 4 A. B. R. 108 51, 504, 514 In re, 110 Fed. 744, 6 A. B. R. 299 9fl7 In re, 7 A. B. R. 56 494 In re, 172 Fed. 780, 22 A. B. R. 769 913 In re, 30 A. B. R. 91 391 1532 Beaitdjenbubg on Bankruptcy [BErEBENCES Levy Outfitting Co., In re, 29 A. B. R. 8 965, 967 In re, 29 A. B. R. 13 157, 354 Levy & Co., In re, 142 Fed. 442, 15 A. B. R. 166 1179 Levy & Sons Co., D., In re, 208- Fed. 479, 31 A. B. R. 25 398 Lewensohn, In re, 2 N. B. N.. R. 315, 3 A. B. R. 299, 98 Fed. 576 503, 505, 507, 511, 512, 514 In re, 2 N..B. N. R. 381, 99 Fed. 73 319, 320, 322, 324, 1132, 1134 Lewin, In re, 103 Fed. 850, 4 A. B. R. 632 269, 280, 743 In re,, 103 Fed. 852, 4 A. B. R. 636 746, 1077. 1189 In re, 135 Fed. 252, 14 A. B. R. 358 1048, 1049, 1050 In re, 155 Fed. 501. 18 A. B. R. 72 1084 Lewis, In re, 1 N. B. N. 135, 556, 91 Fed. 632, 1 A. B. R. 458 41. 94, 168 In re, 1 N. B. R. 19, 2 Ben. 96, Fed. Cas. No. 8311 181, 189, 191 In re, 2 N. B. R. 145 60, 700, 722 In re, 8 N. B. R. 546, 2 Hughes 320, Fed. Cas. No. 8313 423 In re, 14 N. B. R. 144, Fed Cas. No. 8314. 909. 910 In re, 99 Fed. 935, 4 A. B. R. 51 401, 983, 992, 995. 1002, 1004, 1006 In re, 129 Fed. 147, 11 A. B. R. 683 241 In re, 12 A. B. R. 279 1001 In re, 163 Fed. 137. 20 A. B. R. 711 1059 Lewis V. Hawkins^23 Wall. 119 1121 v. Julius, 212 Fed. 225, 31 A. B. R. 515 586, 593 V. Shaw, 122 App. Div. (N. Y.) 96, 19 A. B. R. 866 1141, 1142 V. United States, 14 N. B. R. 64, 92 U. S. 618 428, 430, 829, 1016, 1041, 1127, 1129, 1135 Lewis, Eck & Co., In re, 153 Fed. 495, 18 A. B. R. 657 496 Lewis & Bros., In re, 91 Fed. 632, 1 A. B. R. 458 547 Leyson v. Davis, 170 U. S. 36 1240 L'Hommedieu, In re, 146 Fed. 708, 16 A. B. R. 850 694 Libby, In re, 103 Fed. 776, 4 A. B. R. 615 775 Libby V. Hopkins, 104 U. S. 303 437, 444 v. Strassburger, 17 N. B. R. 468 1141 Liberty Silk Co., In re, 152 Fed. 844, 18 A. B. R. 582 678 Liddon & Bro. v. Smith, 135 Fed. 43. 14 A. B. R. 204 963, 1211, 1214 Lieber, In re, 2 N. B. N. R. 21, 3 A. B. R. 217 1073. 1081, 1103, 1141 Lillington Lumber Co.. In re, 132 Fed. 886, 13 A. B. R. 153 639 Lindeke v. Associates Realty Co., 146 Fed. 630, 17 A. B. R. 215 604 V. Converse, 198 Fed. 618, 28 A. B. R. 596 1063, 1229 Linderman, In re, 166 Fed. 593, 22 A. B. ~R. 131 914 Lindley v. Ross, 200 Fed. 733, 29 A. B. R. 610 712 Lindsay v. Runkle, 18 Ohio St. 325, 24 A. B. R. 612 849 Lindsley & Co., In re, 185 Fed. 684, 25 A. B. R. 239 624 Lineberry, In re, 183 Fed. 338, 25 A. B. R. 164 629, 1116, 1119 Lines, In re, 133 Fed. 803, 13 A. B. R. 318 812 Linforth, In re, 16 N. B. R. 435. 4 Sawy. 370, Fed. Cas. No. 8369 560 In re, 87 Fed. 386 429 Lingafelter, In re, 181 Fed. 24. 24 A. B. R. 656 739 Lingan v. Bayley, 1 Cranch C. C. 112, Fed. Cas. No. 8370 320 Linkenbroker v. Detrick, 81 Va. 44 778 Linn v. Smith, 4 N. B. R. 12, Fed. Cas. No. 8375 145 ABD TO PAGES] Linstorth Wagon Co. v. Ballew, 149 Fed. 960, 18 A. B. R. 23 219, 799, 811, 818, 879 Linton, In re, 7 A. B. R. 676 491 Lipke, In re,^ 2 N. B. N. R. 347, 98 Fed. 970, 3 A. B. R. 569 39, 325 Lipman, In re, 1 N. B. N. 310, 94 Fed. 353, 2 A. B. R. 46 314, 417, 539 In re, 201 Fed. 169, 29 A. B. R. 139 30, 578, 833, 884 Lipman v. Stein, 134 Fed. 235, 14 A. B. R. 30, aff'g 130 Fed. 629, 12 A. B. R. 384 788 Lipphart, In re, 201 Fed. 103, 28 A. B. R. 70S 33, 35 Lipset, In re, 119 Fed. 379, 9 A. B. R. 32 _ . 375 Liquid Carbonic Co. v. Quick, 182 Fed. 603, 25 A. B. R. 394 563 Liquor Dealers* Supply Co., In re, 177 Fed. 197, 24 A. B. R. 399 396 Lisk Mfg. Co., In re, 167 Fed. 411, 21 A. B. R. 674 43, 91 • Lissberger, In re, 18 N. B. R. 230, Fed. Cas. No. 6632a 906 Liszynsky, In re, 2 N. B. N. R. 738 1064 Litchfield, In re, 9 N. B. R. 506, 7 Ben. 259, Fed. Cas. No. 8385 299 In re, 18 N. B. R. 347, Fed. Cas. No. 8386 383 In re, 3 N. B. R. 13, 1 Loweir 331, Fed. Cas. No. 8398 1075 Litson, In re, 157 Fed. 78, 19 A. B. R. 506 782 Little, In re, 1 N. B. R. 74, 2 Ben. 186, Fed. Cas. No. 8390 171, 1130 In re, 2 N. B. R. 97, 3 Ben. 25, Fed. Cas. No. 8391 162, 181 In re, 2 N. B. R. 298 277 In re, 19 N. B. R. 234, Fed. Cas. No. 8392 90S In re, 110 Fed. 621, 6 A. B. R. 681 444, 478, 483, 776, 785 In re, 137 Fed. 521. 13 A. B. R. 640 138. 1104 Little v. Alexander. 12 N. B. R. 134, 21 Wall. 500 586, 721 v. HoUey-Brooks Hdwr. Co., 133 Fed. 874, 13 A. B. R. 422 468, 718 Little River Lumber Co., In re, 1 N. B. N. 307, 92 Fed. 585, 1 A. B. R. 483 690, 694 In re, 101 Fed. 558, 3 A. B. R. 682 490, 532, 968, 969, 975 Littlefield, In re, 3 N. B. R. 13, 1 Lowell 331, Fed. Cas. No. 8398 1087 In re, 155 Fed. 838. 19 A. B. R. 18 551, 936 Littlefield v. Gray, 8 A. B. R. 409 10 Littman, In re, 159 Fed. 233, 20 A. B. R. .300 284 Livergood v. Greer, 43 III. 213 1149 Livingston Co., In re, 144 Fed, 971, 16 A. B. R. 385 290, 489 Lloyd, In re, 15 N. B. R. 257, Fed. Cas. No. 8429 144, 193, 426, 477 In re, J48 Fed. 92, 17 A. B. A. 96 V , , ™ 337. 341, 507 Lloyd V. Chapman, 93 Fed. 599 1220 v. Strobridge, 16 N. B. R. 197, Fed. Cas. No. 8435 687, 733 Lochmeyer, In re, 18 N. B. R. 270. 14 Fed. Cas. No. 914 381 Locke, In re, 1 N. B. R. 123, 1 Lowell 293 471 Lockerby, In re, 3 N. B. N. R. 7 772, 773 Lockett V. Hodge, 9 N. B. R. 167, Fed. Cas. No. 8444 528, 647 Lockhardt, In re, 101 Fed. 807. 4 A B. R; 307 ' • 122 Lockman v. Lang, 128 Fed. 279. 11 A B. R. 59r 26,1216 V. Lang, 132 Fed. 1, 12 A. B. R. 497 T , o . ^, . 1217, 1219, 1221 Lock-Stub Check Co., In re, 5 A B R. 106u 383 Table or Cases 1533 [BBFERGNCIIS Locks, In re, 104 Fed. 783, 5 A. B. E. 136 1096, 1097 Lockwood, In re, 3 N. B. N. R. 57, 104 Fed. 794, 4 A. B. R. 731 899 Lockwood V. Exchange Bank, 190 U. S. 294, 10 A. B. R. 107 749, 751, 776, 788, 1070 V. Salter, 5 B. & Ad. 303 1154 Loden, In re, 184 Fed. 965, 25 A. B. R. 917 479, 485, 786 Loder, In re, Fed. Cas. No. 8457 387, 390 In re, 2 N. B. R. 161, Fed. Cas. No. 8459 508 Lodge, Ex parte, 1 Ves. Jr. 166 1042 Lodge V. Prichard, 1 D. G. J. & S. 610 305 [.oeser v. Alexander, 176 Fed. 265, 24 A. B. R. 75 386 V. Dallas, 192 Fed. 909, 27 A. B. R. 733 31, 220 T. Savings Deposit Bank & Trust Co., 163 Fed. 212, 20 A. B. R. 845 1212, 1215, 1224 V. Savings Deposit Bank & Trust Co., 148 Fed. 975, 17 A. B. R. 628, rev'g 140 Fed. 674, 15 Ohio Fed. Dec. 202, 15 A. B. R. 528 716 Logan, In re, 102 Fed. 876, 2 N. B. N. R. 1056, 4 A. B. R. 525 1061, 1190 In re, 28 A. B. R. 543, 196 Fed. 678 589, 879, 880, 882 London v. Epstein, 138 App. Div. (N. Y.) 513, 24 A. B. R. 557 585 Long, In re, 9 N. B. R. 227, 7 Ben. 141, Fed. Cas. No. 8476 131, 422, 424, 1040 In re, 3 N. B. R. 66, Fed. Cas. No. 8477 loss In re, 116 Fed. 113, 8 A. B. R. 591 780, 781 Long f. Conner, 17 N. B. R. 540, Fed. Cas. No. 8479 663 V. Farmers' State Bank, 147 Fed. 360, 17 A. B. R. 103 719, 1217 ,. Gump, 144 Fed. 824, 16 A. B. R. 501 645 V. Lockman, 135 Fed. 197, 14 A. B. R. 172 ^ ^ 35 Longbottom & Sons, In re, 142 Fed. 291. 15 A. B. R. 437 889, 891 Longfield v. Minnesota Sav. Bank, 95 M?nn. 54, 14 A. B. R. 413 1153 Longis V. Creditors, 20 La. Ann. IS 14 Longstreth v. Pennock, 7 N. B. R. 449, Fed. Cas. No. 8488 681 V. Pennock, 12 N. B. R. 95, 20 Wall. 575 1012, 1013 Lookout Lumber Co. v. Hotel, 109 N. C. 658 986 Loomis V. Wallblom, 94 Minn. 392, 13 A. B. R. 687 1047 Lorch & Co., In re, Sam Z., 199 Fed. 944, 28 A. 13. R. 784 289 Lord, In re, Fed. Cas. No. 8501 1144 In re, 3 N. B. R. 58, Fed. Cas. No. 8502 356 In re, 5 N. B. R. 318. Fed. Cas. No. 8503 76, 720 Lorde, In re, 144 Fed. 320, 16 A: B. R. 201 807, 1147 Lorillard, In re, 107 Fed. 677, 5 A. B. R. 62 417 Loring, In re, 224 U. S. 183, 27 A. B. R. 852 1204 Lott V. Young, 109 Fed. 798, 6 A. B. R. 436 127, 131 Louchheim Bros. v. Henzey, 18 N. B. R. 173 .. 76 Loud, In re, 1 N. B. ISt. 502 636, 672 Loudon v. Bank, IS N.- B. R. 476, 2 Hughes 420, Fed. Cas. No. 8525 733 Lough & Burrows, In re, 182 Fed. 961, 25 A. B. R. 597 , ^ 422 Louisiana Nat. Life Ass'n Society v. Segen, 196 Fed. 903, 28 A. B. R. 19, .,407 61, 62, 67, 97, 229 Louisville National Bank, Petition of, 19 A. B. R. 309, rev'g 19 A. B. R. 41 1089 AUB TO PAGES] Louisville Trust Co. v. Cominger, 184 U. S. 18, 7 A. B. R. 421, aSE'g 107 Fed. 898, S A. B. R. 537 160, 382, 831. 839, 840, 1161 V. Marx, 98 Fed. 456, 3 A. B. R. 450 842 Louisville & N. R. Co. v. Bryant, 149 Ky. 359. 28 A. B. R. 867 1133, 1140 V. Louisville, 166 U. S. 709 1240 Lount, In re, Fed. Cas. No. 8543 497 Love V. Export Storage Co., 143 Fed. 1, 16 A. B. R. 171 690, 692, 1208 Loveland, In re, 192 Fed. 1005, 27 A. B. R. 765 597 In re, 200 Fed. 136, 29 A. B. R. 560 883 Loveless v. Southern Grocer Co., Ltd., 159 Fed. 415, 20 A. B. R. 180 530 Lovell V. Beauchamp, [1894] A. C. 607 132 V. Latham & Co., 186 Fed. 602, 26 A. B. R. 599 872 V. Newman & Son, 227 U. S. 412, 29 A. E. R. 482 1243 ,. Newman & Son, 188 Fed. 534, 26 A. B. R. 660 550 V. Newman & Son, 192 Fed. 753, 27 A. B. R. 746 540, 541, 584 Loving, In re, 224 U. S. 183, 27 A. B. R. 852 1201, 1210, 1214, 1225, 1226, 1227, 1231 Low V. Taylor, 73 N. J. Eq. 406, 19 A. B. R. 879 640 Lowe, In re, 11 N. B. R. 221, Fed. Cas. No. 8564 421, 609, 1036 Lowell V. International Trust Co., 158 Fed. 781, 19 A. B. R. 853 718, 725 Lowensohn, In re, 2 N. B. N. R. 871, 100 Fed. 776, 4 A. B. R. 79 684, lOU Lowenstein, In re, 1 N. B. N. 329, 2 A. B. R. 193 1095, 1185 In re, 3 N. B. R. 65, 3 Ben. 422, Fed. Cas. No. 3572 55 In re, 106 Fed. 51, 7 A. B. R. 193 1095 Lowenstein v. McShane Mfg. Co., 130 Fed. 1007, 12 A. B. R. 601 85, 141, 150 Lowrie's Appeal, 1 Grant 373 971 Luber, In re, 152 Fed. 492, 18 A. B. R. 476 356 Luby, In re, 155 Fed. 659, 18 A. B. R. 801 788 Lucius V. Cawthon-Coleman Co., 196 U. S. 149, 13 A. B. R. 696 749, 1243 Lucius Hart Mfg. Co., In re, 17 N. B. R. 459, Fed. Cas. No. 8592 1012 Luckenbill, In re, 127 Fed. 984, 11 A. B. R. 455 996 Ludeke, In re, 171 Fed. 292, 22 A. B. R. 4^7 1119 Ludelihg v. Chafte, 143 TJ. S. 301 846 V. Felton, 17 N. B. R. 3)10 1155 Ludowici Roofing Tile Co. V. Pa. Inst, for Blind, 116 Fed. 661, 8 A. B. R. 739 612, 684 Ludvigh V. American Woplen Co., 176 Fed. 145, 23 A. B. R. 314 559 V. American Woolen Co., 231 U. S. 522, 31 A. B. R. 481, rev'g 159 Fed. 796, 19 A. B. R. 795 558 V. Umstadter, 148 Fed. 319, 17 A. B. R. 774 > 612 Luftig, In re, 162 Fed. 322, 15 A. B. R. 773 1072, 1076, 1077, 1109. 1191 Lufty, In re, 156 Fed. 873, 19 A. B. R. 614 1167 Lukens, In re, 138 Fed. 188, 14 A. .B. R. 683 641 Lukins v. Aird, 2 N. B. R. 2, 6 Wall. 78 75 V. Aird, 2 k. B. N. R. 27, 24 Wall. 78 576 Lumpkin v. Eason, 10 N. B. R. 549 750, 758 V. Foley, 204 Fed. 372, 29 A. B. R. 673 283, 574, 578, 585, 586, 1248 Lutz, In re, 197 Fed. 492, 28 A. B. R. 649 558, 5S9 Lyinond v. Barnes, 6 N. B. R. 377 1108 Lynan, In re, 127 Fed. 123, 11 A. B. R. 466 251 Lynch, In re, 1 N. B. N. 182, 1 A. B. R. 245 350; 767 1534 Beandbnbtjbs on Bankeuptcy [REFEBBNCES Lynch, In re, 101 Fed. 579, 4 A. B. R. 262, 2 N. B. R. 374 754, 790 Lynch v. Bronson, 160 Fed. 139, 20 A. B. R. 409, s. c. 177 Fed. 60S, 24 A. B. R. 513 . 500, 832 Lynde, In re, 17 A. B. R. 906 774* 781 Lynde v. McGregor, 13 Allen 182, 184 592 Lynden Mercantile Co., In re, 156 Fed. 713, 19 A. B. R. 444 723 Lynn Camp Coal Company, In re, 168 Fed. 998, 22 A. B. R. 60 711 Lyon, In re, 1 N. B. R. Ill, Fed. Cas. No. 8643 1067 In re, 7 N. B. R. 182, Fed. Cas. No. 8644 563, 566, 934 In re, 7 A. B. R. 61 496 In re, 114 Fed. 326. 7 A. B. R. 412 471 Lyon V. Clark, 2 N. B. N. R. 792, rev'd 2 N. B. N. R. MOO 835 Lyon & Co., In re, 3 N. B. R. 63, Fed. Cas. No. 12043 996 Lyons Beet Sugar Refining Co., In re, 192 Fed. 445, 27 A. B. R. 610 394, 402, 433 M Maaget, In re, 173 Fed. 232, 23 A. B. R. 14 802 Maas V. Kuhn, 130 App. Div. (N. Y.) 68, 22 A. B. R. 91 247, 779 Mabin v. Raymond, 15 N. B. R, 353, Fed. Cas. No. 9338 552 McAdam, In re, 2 N. B. N. R. 256, 98 Fed. 409, 3 A. B. R. 417 1097, 1187 McAdoo V. Loomis, 43 Tex. 227 1144 McAllister-Newgord Co., In re, 193 Fed. 265, 27 A. B. R. 459 683 McArdle, In re, 126 Fed. 442, 11 A. B. R. 358 675 McAtee v. Shade, 185 Fed. 442, 26 A. B. R. 151 638, 685, 702, 703 McBachron, In re, 116 Fed. 783, 8 A. B. R. 732 1082, 1085 McBride, In re. Fed. Cas. No; 9682 1016 In re, 2 N. B. N. R. 345, 3 A. B. R. 729, 99 Fed. 686 412, 418, 769 In re, 2 N. B. R. 345 1167 McBride & Co., In re, 132 Fed. 285, 12 A: B. R. 81 614 McBrien, In re, 2 N. B. R. 73, 2 Ben. 513, Fed. Cas. No. 8665 354 In re, 3 N. B. R. 90, 3 Ben. 481, Fed. Cas. No. 8666 363 McBryde, In re, 3 A. B. R. 729, 2 N. B. N. R. 345, 99 Fed. 686 1098 McCabe v. Patton, 174 Fed. 217, 23 A. B. R. 335 384 McCall, 145 Fed. 898, 16 A. B. R. 670 1218, 1219, 1221 McCallum, In re, 113 Fed. 393, 7 A. B. R. 596 24, 560 McCallum & McCallum, In re, 127 Fed. 768, 11 A. B. R. 447 467 McCann, In re, 179 Fed. 575, 24 A. B. R. 789 1100 McCann v. Evans; 185 Fed. 93, 26 A. B. R. 47 1012 V. Randall, 146 Mass. 181 1124 McCann Bros. Ice Co., In re, 171 Fed. 265, 22 A. B. R. 555 289, 1060 McCarthy,. In re. 111 Fed. 151, 7 A. B. R. 40 1116 In re, 170 Fed. 859, 22 A. B. R. 499 1061 In re, Fed. Cas. No. 8684 1078 McCarthy Portable Elevator Co., In re, 196 Fed. 247, 28 A. B. R. 45 395, 398, 452, 462, 466 McCartney, In re, 109 Fed. 621, 6 A. B. R. 367 656, 659 In re, 188 Fed. 815, 26 A. B. R. 548 75 McCarty v. Coffin, 150 Fed. 307, 18 A. B. R. 148 583, 754, 791, 1213 McCauley, In re, 101 Fed. 223, 4 A. B. R. 122 412, 1148 In re, 18 A. B. R. 459 406 In re, 2 N. B. N. R. 1089 382, 991 ABE TO PAGES] McCauley & Sons, In re, 2 N. B. N; E. 1085 387, 390, 455 McChristal v. Clisbee, 190 Mass. 120, 16 A. B. R. 838 1147 McClintock, In re, 15 Ohio Fed. Dec. 58, 13 A. B. R. 606 754, 7S7> 761 McCoUough V. Goodhart, 1 N. B. N. 512, McConneli, In re, 197 Fed. 438, 28 A. B. R. 659 541, 679 In re, 9 N. B. R. 387, Fed. Cas. No. 8712 465, 479, 681, 1010, 1012 In re, 11 A. B. R. 418 186, 310 MoCord, In re, 174 Fed. 72, 22 A. B. R. 204 391 McCormick, In re, 2 N. B. N. 104, 97 Fed. 566, 3 A. B. R. 340 39, 888, 890, 1162 McCormick v. Solinsky, 152 Fed., 984, 18 A. B. R. 540 910, 932 McCoy, In re, 150 Fed. 106, 17 A. B. R. 760 424 McCracken & McLeod, In re, 129 Fed. 621, 12 A. B. R. 95 960 McCrary Bros., In re, 169 Fed. 485, 22 A. B. R. 161 283, 749, 754, 766, 767, 772 McCrea, In re, 161 Fed. 246, 20 A. B. E, 412 1078, 1080,. 1189 McCreery & Co. v. Brown (Pa. Ct. Com. PI.), 29 A. B. R. 238 1152 McCutchen, In re, 2 N. B. N. E. 636, 100 Fed. 779, 4 A. B. R. 81 760, 763 McDaniel v. Stroud, 106 Fed. 486, 5 A. B. R. 685 685, 687, 1207 McDavid Lumber Co., In re, 190 Fed. 97, 27 A. B. R. 39 983, 986, 1004 McDonald, In re, 101 Fed. 239, 4 A. B. R. 92 549, 596, 614 In re, 14 N. B. R. 477, Fed. Cas. No. 8753 1054, 1127 In re, 173 Fed. 99, 23 A. B. R. 51, aff'g 21 A. B. R. 358 633 In re, 30 A. B. R. 120 159 McDonald v. Clearwater Shortline Ry. Co., 264 Fed. 1007, 21 A. B. R. 182 700, 708, 711, 874 V. Daskam, 116 Fed. 276, 8 A. B. R. 543 719 V. Matney, 82 Mo. 358 238 v. Moore, 15 N. B. R. 26, 8 Ben. 579, Fed. Cas; No. 8763 84, 668, 992 V. Taylor Co., 144 App. Div. (N. Y.) 329, 26 A. B. R. 635 925 V. Tefft-Weller Co., 128 Fed. 381, 11 A. B. R. 800 4, 121 V. Willis, 143 Mass. 542 348, 464 McDonald & Sons, In re. 178 Fed. 487, 24 A. B. R. 446 284, 705, 723, 724, 732, 737, 738 McDonough, In re, 3 N. B. R. 53. Fed. Cas. No. 8775 - 733 MacDougall, In re, 23 A. B. S. 762 22 In re, 175 Fed. 400, 23 A. B. E. 762 680, 833 McDufI, 101 Fed. 241, 4 A. B. E. 110 275, 1046, 1064 McEldowney v. Card, 193 Fed. 475, 27 A. B E. 937 828, 830, 839, 869 McElvam v. Hardesty, 169 Fed. 31, 22 , A B. E. 320 558, 706, 737 McEwen, In re, 12 N. B. R. 11, 6 Hiss. 294, Fed. Cas. No. 8783 1037, 1039, 1041 McFarlan Carriage Co. v. Solanas, 106 Fed. 145, 5 A. B. R. 442 828 McFarland, In re, 10 N. B. R. 381, Fed. Cas. No. 8788 129, 247 McFarland v. Goodman, 11 N. B. R. 134, 6 Biss. Ill, Fed. Cas. No. 8789 591, 768, 780 McFaun, In re, 96 Fed. 592, 3 A. B. R, 66 172, 190, 191, 192, 1047 McGahan v. Anderson, 113 Fed. 115, 7 A. B. R. 641 531, 749, 782 McGee, In re, 105 Fed. 895, 5 A. B. R. 262 68 McGehee, In re, 166 Fed. 928, 21 A. B. R. 656 624 Table or Cases 1535 McGehee v. Hentz, 19 N. B. R. 136, Fed. Cas. No. 8794 799 McGill, In re, 106 Fed. S7, 45 C. C. A. 218, 5 A. B. R. 155, aff'g 104 Fed. 292, 4 A. B. R. 782 277, 332, 339, 341, 344, 504, 507 McGilton, In re, 7 N. B. R. 294, 3 Biss. 144, Fed. Cas. No. 8798 957 McGirr v. Humpreys Grocery Co., 192 Fed. 55, 26 A. B. R. 518 733, 739 McGivin, In re, 2 N. B. N. R. 877, 4 A. B. R. 459, 102 Fed. 743 1067 McGlynn, In re, 2 Lowell 127, 16 Fed. Cas. No. 122 S07, 314 McGourney v. Ry. Co., 146 U. S. 536 559 McGowan, In re, 170 Fed. 493, 22 A. B. R. 469 763 McGowan v. Knittel, 137 Fed. 453, 15 A. B. R. 1 228, 229 McGrath & Hunt, In re, 5 N. B. R. 254, 5 Ben. 183, Fed. Cas. No. 8808 996 McGuire, In re, 1 N. B. N. 279 1077, 1085 In re, 137 Fed. 967, 13 A. B. R. 704 646 McGum, In re, 2 N. B. N. R. 877, 4 A. B. R. 459. 102 Fed. 743 1001, 1058, 1066, 1080 McHarry, In re. 111 Fed. 498, 7 A. B. R. 83 607 McHenry v. Alford, 168 U. S. 651 124^ V. La Societe Francaise, 16 N. B. R. 385, 95 U. S. 58 500, 844 Machin & Brown, In re, 128 Fed. 315, 11 A. B. R. 449 345, 506, 507 Mclntire, In re, 1 N. B. R. US. 2 Ben. 345, Fed. Cas. No. 8823, 3 A. B. R. 767 1061, 1110, 1112 In re, 142 Fed. 593, 16 A. B. R. 80 286 Mcintosh, In re, 150 Fed. 546, 18 A. B. R. 169 , 716 Mclntyre, In re, 181 Fed. 955, 24 A. B. R. 626 694 In re. 185 Fed. 96, 26 A. B. R. 51 624 In re, 1 N. B. R. 11, 1 Ben. 277, Fed. Cas. No. 8811 354 Mclntyre Bros., In re, 21 A. B. R. 588 1002 Mclntyre & Co., In re, 174 Fed. 627, 24 A. B. R. 1 487 In re, 198 Fed. 579, 28 A. B. R. 459 390 In re T. A., 181 Fed. 960, 25 A. B. R. 93 554, SSS, 624 Mack V. Woodruff, 87 III. 570 138 McKane, In re, 152 Fed. 733, 18 A. B. R. 594 201, 661 In re, 155 Fed. 674, 19 A. B. R. 103 580, 715, 1100 Mackay, In re, 4 N. B. R. 17, Fed. Cas. No. 8837 1086 In re, 4 N. B. R. 17, Fed. Cas. No. 8838 1087 McKay, In re. 13 Fed. Cas. No. 443 446 In re. 1 N. B. N. 133, 1 A. B. R. 292 542, 563. 564, 579. 634. 640. 852 In re. 143 Fed. 671, 16 A. B. R. 238 626, 762 McKay v. Funk, 13 N. B. R. 334 808, 810 V. Hamill, 185 Fed. 11, 26 A. B. R. 164 940 Mackay v. Randolph Macon Coal Co., 178 Fed. 881, 24 A. B. R. 719 430 McKay's Case, 27 C. Cls. R. 422 628 McKean v. Rackey, 3 McLean 235, Fed. Cas. No. 8891 632 McKee. In re, 1 N. B. N. 139, 1 A B. R. 311 10» 11» 1^» o45 In re. 165 Fed. 269. 21 A. B. ^^306^^^^ McKee v. Preble. 138 N. Y. S. 91S, 31 A. B. R. 852 ,^ 1152 V. Spiro. 107 Mo. 452 350 Mackel V. Rochester, 2 N.B. N. R. 880, 4 A. B. R. 1. 102 Fed. 314 „ „ 346 V. Rochester, 135 Fed. 904, 14 A. B. R, 429 799, 1134, 1145 MacKellar, In re, 116 Fed. 547, 8 A B. R. 669 344,. 505, 512 [RBFEBENCBS ABB TO PAGHS] McKenna, In re, 9 Fed. 27 592 In re. 137 Fed. 611, 15 A. B, R. 4 208, 452, 518, 532, 606, 971, 973 McKenna v. Simpson, 129 U. S. 506 843 McKenney v. Cheney, In re, 118 Ga. 387, 11 A. B. R. 54 654. 776, 785 Mackenzie. In re, 132 Fed. 114, 12 A. B. R. 605 1082 McKenzie, In re, 142 Fed. 383, 15 A. B. R. 679, aff'g 132 Fed. 986, 13 A. B. R. 227 301, 1201. 1229 McKeon, In re. U N. B. R. 182. 7 Ben. 513, Fed. Cas. No. 8858 920 Mackey, In re. 110 Fed. 355, 6 A. B. R. 577 38, 122, 124, 153 In re, 1 A. B. R. 593 279. 311. 312 McKey v. Lee, 5 A. B. R. 267, 45 C. C. A. 127, 105 Fed. 923 475 V. Smith, 255 III. 465, 28 A. B. R. 864 575, 851. 860, 862, 870, 871, 874 McKibben, In re, 12 N. B. R. 97, Fed. Cas. No. 8859 73, 171, 325, 371 McKibbon v. Haskell, 198 Fed. 639, 28 A. B. R. 588 1083 McKinney, In re, 15 Fed. 912 418 McKinsey v. Harding, 4 N. B. R. 10, Fed. Cas. No. 8866 40, 464 MafcKissic, In re, 171 Fed. 259, 22 A. B. ■R. 817 749 McLam, In i-e, 97 Fed. 922. 3 A. B. R. 245, 1 N. B. N. 402 575, 577, 636. 740, 900, 901 : McLane. In re, 97 Fed. 922, 3 A. B. R. ' . 245 ' 686 McLaren, In re, 125 Fed, 835, 11 A. B. R. 141 128 McLaren v. Pennington, Paige, 102 446 McLean, In re. 15 N. B. R. 333, Fed. Cas. No. 8879 1037, 1043 McLean v. Cadwalader, 15 N. B. R. 383 525, 528,, 646 V. Mayo, In re, 113 Fed. 106, 7 A. B. R. 115 521, 533 V. Rackey, 3 McLean 235, Fed. Cas. No. 8891 639 McLellan, In re, 204 Fed. 482, 30 A. B. R. 325 917, 919, 1072, 1102 McLoon. In re, 162 Fed. 575, 20 A. B. R. 719 64, 67, 69 McMahon. In re, 147 Fed. 684, 17 A. B. R. 530 832, 1212, 1213 M'MiUan v. McNeill, 4 Wheat.. 209 14, 1119 McMurtrey & Smith, In re, 142 Fed. 853, 15 A. B. R. 427 63. 733 McNab, In re, 18' N. B. R. 388, Fed. Cas. No. 8906 909 McNaboe v. Columbian Mfg. Co., 153 Fed. 967, 18 A. B. R. 684 729 V. Marks, 51 Misc. (N. Y.) 207, 16 A. B. R. 767 606, 626 McNair, In re, 2 N. B. R. 109, Fed. Cas. No. 8908 371 In re, 2 N. B. R. 77, Fed. Cas. No. 8907 376 McNair v. IJcIntyre, 113 Fed. 113. 7 A. B. R. 638 687, 733, 938. 995 McNally v. Mulherin, 79 Ga. 614 780 McNally Co., In re, 208 Fed. 291, 31 A. B. R. 382 34 In re, 29 A. B. R. 772 91, 93 McNamara, In re, 1 N. B. N. 326, 2 A. B. R. 566 1061, 1095, 1186 In re, 2 N. B. N. R. 341 525, 542, 573, 634, 666, 807. 849. 851, 1135 McNamara v. Helena Coal Co., 5 A. B. R. 48 115 McNat. etc.. Mfg. Co., In re, 18 N. B. R. 388 244 McNaughton, In re, 8 N. B. R. 44. Fed. Cas. No. 8912 167, 181, 188 MacNichol Construction Co., In re, 134 Fed. 979, 14 A. B. R. 188 114 McNiel, Ex parte, 13 Wall. 236 835 McNiel V. United States, 150 Fed. 82, IS A. B. R. 18 1195, 1197 1536 Bbandenbubg on Bankbuptcy [refebi:nces McNulty V. Feingold, 129 Fed. 1001, 12 A. B. R. 338 856, 883 McPeck. In re, 2 N. B. N. R. 172 695 McQuade v. Trenton, 172 U. S. 636 1240 McUlta, In re, 189 Fed. 250, 26 A. B. R. 480 781 McVay, In re, 13 Fed. 443 148 McVey, In re, 2 N B. R. 85, Fed. Cas. No. 8932 1056, 1058 McVoy Hardware Co., In re, 200 Fed. 949, 29 A. B. R. 3221 927, 1106, 1204 Macon Grocery Co. v. Beach, 156 Fed. 1009, 19 A. B. R. 558 70 Macon Sash Door & Lumber Co., In re, 112 Fed. 323, 7 A. B. R. 66 1162 Macy V. Jordan, 2 Den. 570 403 Madison, In re, 9 N. B. R. 184 444 Madson Steele Co., In re, 216 U. S. 115, 23 A. B. R. 614 30 Magata, In re, 2 N. B. R. 456 780 Magen v. Campbell, 186 Fed. 675, 26 A. B. R. 594 1176 Magen Bros. Co., In re, 192 Fed. 883, 27 A. B. R. 729 1058, 1059, 1060, 1065 Magid V. Hope Silk Mfg. Co., In re, 110 Fed. 352, 6 A. B. R. 610 33, 158 Magie, In re, 1 N. B. R. 153 162 Magnus, In re, 3 N. B. N. R. 68 472 Magolies, In re, 191 Fed. 369, 27 A. B. R. 398 508 Maher, In re, 169 Fed. 997, 22 A. B. R. 290 1071 In re, 144 Fed. 649, 16 A. B. R. 340, aff'g 15 A. B. R. 786 1102 Mahland, In re, 184 Fed. 743, 26 A. B. • R. 81 638, 675 Mahler, In re, 2 N. B. N. R. 70 604, 1150 In re, 2 N. B. N. R. 76, s. c. 3 N. B. N. R. 39, 105 Fed. 428, 5 A. B. R. 453 146, 413, 414, 415, 603 Mahoney v. Ward, 100 Fed. 278, 2 N. B. N. R. 538, 3 A. B. R. 770 43, 50, 119, 128, 160, 189, 238, 239, 310, 1075 Maier v. Maier, 77 Misc. (N. Y.) 145, 28 A. B. R. 856 1133, 1137 Main, In re, 205 Fed. 421, 30 A. B. R. 547 1057, 1058, 1060, 1063, 1065 Main v. Glen, 7 Biss. 86, Fed. Cas. No. 8973 737 Maisner v. Maisner, 62 App. Div. (N. Y.) 286, 6 A. B. R. 295 1136 Major, In re. 14 N. B. R. 71, 2 Hughes 273, Fed. Cas. No. 2061 950 Malino, In re, 118 Fed. 368, 8 A. B. R. 205 337 342 Mall V. Ullrich. 37 Fed. 653 'llll Mallin v. Wenham, 209 111. 252, 13 A. B. R. 210 669, 1119, 1121, 1125 Malloch V. Adams, 199 Fed. 542, 28 A. B. R. 916 819, 820, 823 Mallory, In re, 6 N. B. R. 22, 1 Sawy. 88, Fed. Cas. No. 8991 816 In re, 4 N. B. R. 38, Fed. Cas. No. 8990 513, 534 Malloy, In re, 188 Fed. 788, 26 A. B. R. 31 765, 767 Maloney, In re, 37 Wash. L. Rep. 147, 21 A. B. R. 502 288 Malot, In re, 16 N. B. R. 485, Fed. Cas. No. 9282 193 Malschick v. Levin, In re, 206 Fed. 71, 30 A. B. R. 237 284 Maltbie v. Hotchkiss, 5 N. B. R. 485 10 Mambmann v. White, 12 N. B. R. 438 538 Mammoth Pine Lumber Co., In re, 109 Fed. 308, 6 A. B. R. 84 152 In re, 116 Fed. 731, 8 A. B. R. 651 292, 293, 294 Manchester Bk., Ex. parte. 12 Ch. D. 917 305 Mandell & Co. v. Levy, 47 Misc. (N. Y.) 147, 14 A. B. R. 549 924, 927, 1125, 1126 Mandenhall, In re, 9 N. B. R. 497, Fed. Cas. No. 9425 128, 131, 239 Mangan, In re, 133 Fed. 1000, 13 A. B. R. 303 508 AEB TO PAGES] Manhattan Brush Mfg. Co., In re, 209 Fed. 997, 31 A. B. R. 747 389, 453, 480 Manhattan Ice Co., In re, 114 Fed. 399, 7 A. B. R. 408 399 Manistee Watch Co., In re, 197 Fed. 455, 28 A. B. R. 316 626, 1014 Mann, In re, 14 N. B. R. 572, 13 Blatch. 401, Fed. Cas. No. 9033 164 Mannheim. In re, 7 N. B. R. 342, 6 Ben. 270, Fed. Cas. No. 9038 845 Manning, In re, 112 Fed. 948, 7 A. B. R. 571 756, 761, 789 Manning v. Evans, 156 Fed. 106, 19 A. B. R. 217 644, 714, 715, 850 Mansfield, In re, 6 N. B. R. 388, Fed. Cas. No. 9049 * 1110 Manson v. Williams, 213 U. S. 453, 22 A. B. R. 22, aff'g 153 Fed. 525, 18 A. B. R. 674 246, 608 Manufacturers Nat. Bank, In re. Fed. Cas. No. 9051, 5 Biss. 499 107 Many, In re, 17 N. B. R. 514, Fed. Cas. No. 9054 391 Mapes v. German Bank of Tilden, 176 Fed. 89, 23 A. B. R. 713 396 Maples, In re, 105 Fed. 919, 5 A. B. R. 426 102, 136, 250, 1148 Marble Products Co., In re, 199 Fed. 668, 29 A. B. R. 384 384, 670, 972 March v. Heaton, 2 N. B. R. 66, 1 Lowell 278, Fed. Cas. No. 9061 945 Marcus, In re, 104 Fed. 331, 5 A. B. R. 19, s. c. 45 C. C. A. 115, 3 N. B. N. R. 407 320, 401 Marcus & Scherr, In re, 203 Fed. 29, 30 A. B. R. 176, aff'g 192 Fed. 743, 27 A. B. R. 164 1077, 1079, 1083, 1086, 1102 Marden v. Phillips, 3 N. B. N. R. 46, 103 Fed. 196, 4 A. B. R, 566 579 Marengo County Mercantile Co., In re, 199 Fed. 474. 29 A. B; R. 46 286, 558, 619, 672, 675 Margolies, In re, 191 Fed. 369, 27 A. B. R. 398 505 In re, 181 Fed. 591, 24 A. B. R. 934 1066 Marine Construction & Dry Dock Co., In re, 144 Fed. 649, 16 A. B. R. 325, mod'f'g 135 Fed. 921, 14 A. B. R. 466 675 Marine Iron Works, In re, 159 Fed. 753, 20 A. B. R. 390 62 Marine Machine & Conveyor Co., In re, 91 Fed. 630, 1 A. B. R. 421 33, 91, 118 Marion Contract & Construction Co., In re, 166 Fed. 618, 22 A. B. R. 81 19, 20, 153, 172, 246, 1218 Markham v. U. S., 160 U. S. 319 1196 Marks, In re. Fed. Cas. No. 9094 129, 192, 1130 In re, 2 N. B. R. 175, Fed. Cas. No. 9095 254 In re, 171 Fed. 281, 22 A. B. R. 568 288, 290 In re, 6 A. B. R. 641 390 In re, 22 A. B. R. 54 959 In re, 176 Fed. 1018, 23 A. B. R. 911 1164 Marks v. Barker, Fed. Cas. No. 9096 439 v. Barber, 1 Wash. 178 446 V. Northern Fac. R. Co., 76 Fed. 941 1218 Marks Bros., In re, 15 A. B. R. 457 60 Markson v. Heaney, 4 N. B. R. 165, 1 Dill. 497, Fed. Cas. No. 9098 33, 538, 545, 797, 817, 829 V. Heaney, 12 N. B. R. 484 808, 938 Marquette, In re, 103 Fed. 777, 4 A. B. R. 623 765 Marrett v. Atterbury, 11 N. B. E. 225, 3 Dill. 444, Fed. Cas. No. 9102 1027 V. Murphy, 11 N. B. R. 131, Fed. Casf • No. 9103 609, 1038 Marrioneaux, In re, 13 N. B. R. 222, 1 Woods 37, Fed. Cas. No. 9088 1068, 1110 Marsh, In re, 2 N. B. N. R. 649 1056, 1057, 1058, 1061, 1066, 1067, 1068 Table of Cases 1537 [nEFKRENCES Marsh, In re, 19 N. B. R. 297, Fed. Cas. ' No. 9109 1086 In re, Fed. Cas. No. 9108 1230 In re, 2 N. B. N. R. 593 1066, 1079, 1080, 1083 In re, 116 Fed. 396, 8 A. B. R. 576 625, 626 In re, 109 Fed. 602, 6 A. B. R. S37 1096 Marsh v. Armstrong, 11 N. B. R. 125 196, 254, 639 V. Wilson Bros., 124 Minn. 254, 31 A. B. R. 874 644, 719 Marshall v. Knox, 8 N. B. R. 97, 16 Wall. 551 198, 829, 841, 881 Marshall Paoer Co., In re, 2 N. B. N. R. 1053, 102 Fed. 872, 4 A. B. R. 468, s. c. 1 N. B. N. 407, 2 A. B. R. 653, 95 Fed. 419 432, 433, 1046, 1073, 1116, 1117, 1122 In re, 1 N. B. N. 294 1002 Marter, In re, 12 N. B. R. 185, Fed. Cas. No. 9143 84, 840, 880 Martin, In re, 200 Fed. 940, 29 A. B. R. 623 723 In re, 201 Fed. 31, 29 A. B. R. 935 1248 In re, 13 N. B. R, 397, 2 Hughes 418 Fed. Cas. No. 9152 789 In re, 198 Fed. 947, 29 A. B. R. 935 1201, 1206, 1213, 1218, 1249 In re, 1 N. B. N. 301 62 In re, 105 Fed. 753, 5 A. B. R. 423 > 274, 1116 In re, 152 Fed. 582, 18 A. B. R. 250 912, 964 In re, 27 A. B. R. 151 447, 705, 731 In re, 173 Fed. 597, 23 A. B. R. 151 521, 672, 850 Martin v. Bank, 14 Atl. 649 773 V. Berry, 37 Cal. 222 2 V. Berry, 37 Cal. 208 12, 14 V. Bigelow, 36 Misc. (N. Y.) 298, 7 A. B. R. 218 706 V. Globe Bank & Trust Co., 193 Fed. 841, 27 A. B. R. 545 10, 20, 664, 1019, 1041, 1201, 1225 V. Hulen & Co., 149 Fed. 982, 17 A. B. R. 510 69 V. Hunter's Lessee, 1 Wheat. 304, 330 835, 836 V. Orgain, 174 Fed. 772, 23 A. B. R. 454 680, 1011 V. Toof, 4 N. B. R. 158, Fed. Cas. No. 9164 60 Martin-Vernon Music Co., In re, 132 Fed. 983, 13 A. B. R. 276 559 Martin & Co., In re, 167 Fed. 236, 20 A. B. R. 705 585 Marvin, In re, 1 Dill. 178, Fed. Cas. No. 9178 302 Marwick, In re. Fed. Cas. No. 9181 1037 Marx, In re, 102 Fed. 676, 4 A. B. R. 521 1077, 1080, 1082, 1190 Marx V. Hart, 166 Mo. 503, 66 S. W. 260, 8 A. B. R. 438n 1129 Marx Tailoring Co., In re, 196 Fed. 243, 28 A. B. R. 147 561 In re, 1 N. B. N. 331. 2 A. B. R. 60 613 Mason, In re, [1899] 1 Q. B. ,810 127 In re, 2 N. B. N. R. 425, 99 Fed. 256, 3 A. B. R. 599 42, 181, 245, 277, 1074 In re, 181 Fed. 899, 25 A. B. R. 73 51, 52 Mason v. National Herkimer County Bank, 172 Fed. 529, 22 A. B. R. 733, rev'g 163 Fed. 920, 21 A. B. R. 98 441, 723 V. St. Albans Furniture Co., 149 Fed. 898, 17 A. B. R. 868 398 V. Warthen, 14 N. B. R. 346 805, 845 V. Wolkowich, 150 Fed. 699, 17 A. B. R. 709 26, 208, 209, 887, 1212, 1231 Mason Sash, Door & Lumber Co., In re, 112 Fed. 323, 7 A. B. R. 66 . 10 Mason & Hamlin Organ Co. v. Bancroft, 1 Abb. N. C. 415 925 Mason & Son, In re, 1 N. B. N. 331, 2 A. B. R. 60 1041 Brandenburg — 97 AKD TO PAGES] Massachusetts Brick Co., In re, 5 N. B. R. 408, Fed. Cas. No. 9259 60, 150, 151 Massey v. Allen, 7 N. B. R. 401, 17 Wall. 351 579 Mather v. Coe, 1 N. B. N. 554, 92 Fed. 333, 1 A. B. R. 504 88, 160, 166, 720, 811, 847 Mathers, In re, 17 N. B. R. 225, Fed. Cas. No. 9274 , 501, 907 Mathews, In re. 20 A. B. R. 369 757 Mathieu v. Goldberg, 155 Fed. 541, 19 A. B. R. 191 1143 Matschke, In re, 193 Fed. 284, 27 A. B. R. 770 300, 601 Matthews, In re, 97 Fed. 772, 3 A. B. R. 265 51, 963 In re, 109 Fed. 603, 6 A. B. R. 96 273 274 277 In re, 132 Fed. 274, 13 A. B. R. 91 , 'lllO In re, 188 Fed. 445, 26 A. B. R. 19 477, 484 Matthews v. Knickerbocker Trust Co., 192 Fed. 557, 27 A. B. R.- 629 480,- 483 V. Tufts, 87 N. Y. 568, 62 How. Pr. 508 319 V. Westphall, 1 McCrarjr 446 715 Matthews Consol. State Co., In re, 144 Fed. 737, 16 A. B. R. 407, aff'g 144 Fed. 724, 16 A. B. R. 350, aff'g 15 A. B. R. 779 33, 115 Matthews & Rosenkranz, In re, 15 A. B. R. 721 724 Matthews & Sons, In re, 163 Fed. 127, 20 A. B. R. 570 40, 668 Mattley v. Giesler, 187 Fed. 970, 26 A. B. R. 116 716 V. Giesler, 202 Fed. 738, 29 A. B. R. 132 1215 Mattock V. Farrington, 2 Hask. 331, Fed. Cas. No. 9298 632 Mauran v. Carpet Lining Co., 23 R. I. 324, 6 A. B. R. 734 41, 668 Maurer v. Frantz, 4 N. B. R. 142 728 Mauzy, In re, 163 Fed. 900, 21 A. B. R. 59 nil, 111.4 Mawson, In re, 1 N. B. R. 271, Fed. Cas. No. 9320 363, 1069 In re, 1 N. B. R. 115, 2 Ben. 332, Fed. Cas. No. 9318 161, 1076 Maxson, In re, 170 Fed. 356, 22 A. B. R. 424 758, 766, 777 Maxwell v. Faxton, 4 N. B. R. 60 246 V. McDaniels, 195 Fed. 426, 27 A. B. R. 692 484, 1019, 1201 V. Martin, 130 App. Div. (N. Y.) 80, 22 A. B. R. 93 400, 404, 500, 1141, 1146 May, In re, 2 N. B. N. R. 93 1066 In re, 3 N. B. N. R. 128, 5 A. B. R. 1 606, 617, 618 May V. Harper, 4 N. B. R. 156 171 May & Co., In re, 17 N. B. R. 192, Fed. Cas. No. 9327 424, 426 In re, 19 N. B. R. 101, Fed. Cas. No. 9328 ' 426 May & Merwin, In re, 9 N. B. R. 419, 7 Ben. 238, Fed. Cas. No. 9325 414 Maybin, In re, 15 N. B. R. 468, Fed. Cas. No. 9337 418, 1025, 1144 Maybin v. Raymond, IS N. B. R. 353, Fed. Cas. No. 9338 385, 864, 970, 1137 Mayer, In re, 2 N. B. R. 257, 98 Fed. 839, 3 A. B. R. 533 39, 271, 888, 890, 1163 In re, 2 N, B. N. R. 527 911 In re, 3 A. B. R. 222, 97 Fed. 328 350 In re, 101 Fed. 227, 4 A. B. R. 119, aff'g 2 N. B. N. R. 719 1000 In re, 101 Fedi 695, 4 A. B. R. 238 963, 965 In re, 108 Fed. 599, 6 A. B. R. 117 749, 767 In re, 157 Fed. 836, 19 A. B. R. 356 692 In re, 195 Fed. 571, 28 A. B. R. 342 1065, 1069, 1079 Mayer v. Cohrs, 188 Fed. 443, 26 A. B. R. 695 849 1538 Brandenbubg on Bankeuptcy [BEFBBENCBS Mayer v. Hellman, £1 U. S. 496 13, 667 V. Hermann, 10 Blatch. 256, Fed. Cas. No. 9344 735 V. Nias, 8 Moore 275 446 Mayers, In re, 1 N. B. R. 162, 2 Ben. 424, Fed. Cas. No. 9518 582 Mayes v. Palmer, 208 Fed. 97, 31 A. B. R. 225 726 Maynard & Co., In re, 183 Fed. 823, 25 A. B. R. 732 783 Mayo, In re, 114 Fed. 600, 7 A. B. R. 764 382 Mayo Contracting Co., In re, 157 Fed. 469, 19 A. B. R. 551 468, 705, 710 Mayor v. Walker, 11 N. B. R. 478 1144 Mays V. Bank, 4 N. B. 147 615 V. Fritton, 11 N. B. R. 229, 20 Wall. 414 874 Mazima Trading Co. v. Martin, 164 Fed. 838, 21 A. B. R. 159 1223 Mead, Ex parte, 109 U. S. 230 1221 Mead t. Bank, 2 N. B. R. 65, 6 Blatch. 180, Fed. Cas. No. 9366 1037 V. Piatt, 17 Fed. 509 1221 Meador v. Everett, 10 N. B. R. 421, Fed. Cas. No. 9376 605 V. Sharpe, 4 N. B. p. 492 1143 Meadows, Williams & Co., In re, 177 Fed. 1004, 24 A. B. R. 251, afl'g 173 Fed. 694, 23 A. B. R. 124 554 In re 181 Fed. 911, 25 A. B. R. 100 847, 848, 862, 897 In re, 199 Fed. 304, 29 A. B. R. 165 294, 295, 516, 974 Mebane, In re, 3 N. B. R. 91, Fed. Cas. No. 9380 955 Mechanics- American Nat. Bank v. Cole- mar, 204 Fed. 24, 29 A. B. R. 396 384, 385 Mechanics' & Metals Nat. Bank v. Ernst, 231 U. S. 60, 31 A. B. R. 302, aff'g 201 Fed. 664, 29 A. B. R. 289 444, 447, 679 Medaris-Vine Carriage Co., In re, 15 Ohio Fed. Dec. 467, 17 A. B. R. 897 444 Medberg v. Swan, 8 N. B. R. 537 1155 Medina Quarry Co., In re, 179 Fed. 929, 24 A. B. R. 769 405, 464, 578, 876, 1026 In re, 191 Fed. 815, 27 A. B. R. 466, rev'g 182 Fed. 508, 25 A.' B. R. 405 968, 977, 994 Medomac Bank v. Curtis, 24 Me. 36 446 Medsker v. Bonebrake, 108 U. S. 66 237 238 Meeks v. Whatley, 10 N. B. R. 498 632,'' 957 Meier, In re, 182 Fed. 799, 25 A. B. R. 272 892 Meinhard & Bro. v. Pincus, 200 Fed. 736, 29 A. B. R. 619 776, 777, 1070 Meldaur, In re, 17 Fed. Cas. No. 958 518, 971 Melick, In re, 4 N. B. E. 26, Fed. Cas. No. 9399 193 Mellen, In re, 2 N. B. N. R. 69, 3 A. B. R. 226, 97 Fed. 326 , 368 Mendelsohn, In re, 102 Fed. 119, 4 A. B. R. 103 1066, 1082 In re, 1 N. B. N. 391 1095, 1185, 1187 In re, 12 N. B. R. 533, 3 Sawy. 342, Fed. Cas. No. 9420 84, 176, 177, 311, 406, 492 Mendenhall, In re, 9 N. B. R. 380, Fed. Cas. No. 9424 152, 154 In re. Fed. Cas. No. 9423 356 Mercedes Import Co., In re, 166 Fed. 427, 21 A. B. R. 590, rev'g 20 A. B. R. 648 802, 817 Mercer, In re, 171 Fed. 81, 22 A. B. R. 413, aS'g 166 Fed. 576, 22 A. B. R. 167 1013 In re, 6 N. B. R. 351, Fed. Cas. No. 9060 149, 150, 1139 In re, 105 Fed. 907, 5 A. B. R. 365 320, 401 In re. 160 Fed. 229, 20 A. B. R. 397 377 ABB TO pages] Merchants' Ins. Co., In re, 6 N. B. R. 43, 3 Biss. 162, Fed. Cas. No. 9441 10, 113, 117, 667, 727, 794, 797, 846 Merchants'-Laclede Nat. Bank v. Schade,, • 195 Fed. 199, 27 A. B. R. 687-'^ 1201 Merchants' Nat. Bank v. Cole, 149 Fed. 708, 18 A. B. R. 44 64, 65, 69, 70, 1210 V. Comstock, 11 N. B. R. ,235 1127 V. Cook, 16 N. B. R. 391. 95 U. S. 342 61, 577 V. Sexton, 228 U. S. 634, 30 A. B. R. 278 445 V. Truax, 1 N. B. R. 146, Fed. Cas. No. 9451 60 Mercnr, In re, 115 Fed. 655, 8 A. B. R. 275 192 In re, 1 N. B. N. 527, 2 A. B. R. 626, 95 Fed. 634 82, 173, 193 In re, 116 Fed. 655, 8 A. B. R. 275 171, 612 Meredith, In re, 144 Fed. 230, 16 A. B. R. 331 477 Meriden Nat. Bank v. Gallaudet, 120 N. Y. 298 238 Meriweather, In re, 107 Fed. 102, 5 A. B. R. 435 771 Merklein v. Hurley, 197 Fed. 183, 28 A. B. R. 841 729 Mero, In re, 128 Fed. 630, 12 A. B. R. /171 79, 164, 165 Merrick, In re, 17 Fed. Cas. No. 75 485 In re, 7 N. B. E. 459, Fed. Cas. No. 9463 456, 457 Merrifield, In re, 3 N. B. R. 1, Fed. Cas. No. 9465 996, 1012 Merrill, In re, 173 U. S. 131 - 857 In re, 16 N. B. R. 35, 9 Ben. 165, Fed. Cas. No. 9466 488 In re, 13 N. B. R. 91, 12 Blatch. 221, Fed. Cas. No. 9467 130 Merrill v. Hussey, 101 Me. 439, 16 A. B. R. 816 629 V. Schwartz, 68 Me. 514 ■ 1134 Merriman, In re, 18 N. B. R. 411, Fed. Cas. No. 9479 924, J12S Merriman's Estate, In re, 18 N. B. R. 411, 44 Conn. 587, Fed. Cas. No. 9497 393 Merrow, In re, 131 Fed. 993, 12 A. B. R. 615 664 Merry, In re, 201 Fed. 369, 29 A. B. R. 829 759 Jlerry v. Jones, 119 Ga. 643, 11 A. B. R. 625 41, 811 Mertens, In re, 131 Fed. 507, 12 A. B. E. 698 218, 534 Mertens & Co., In re, 147 Fed. 177, 16 A. B. R. 825 432, 460, 461 In re, 147 Fed. 182, 16 A. B. R. 8J1 844 Merwin & Willoughby Co., In re, 206 Fed. 116, 30 A. B. R. 485 400, 416 In re, 208 Fed. 293, 32 A. B. R. 385 495 Meservey v. Roby, 198 Fed. 844, 28 A. B. R. 529 574, 584 Mesibovsky, In re, 200 Fed. 562, 29 A. B. R. 235 -434 Messengill, In re, 113 Fed. 366, 7 A. B. R. 699 907 Metallic Bedstead Co., In re, 2 N. B. N. R. 304, 98 Fed. 981 88 Metallic Specialty Mfg. Co., In re, 193 Fed. 300, 27 A. B. R. 408 948, 949, 951 Metals Extraction & Eefining Co., In re, 195 Fed. 226, 27 A. B. E. 11 254 Metcalf V. Barker, 187 U. S. 165, 9 A. B. E. 36 40, 644, 652, 656, 658, 661, 801, 843, 854, 880, 881 V. Officer, 5 Dill. 565 189 Metropolitan Jewelry Co., In re, 216 Fed. 385, 31 A. B. R. 752 999 In re, 216 Fed. 384, 31 A. B. R. 750 1020 Metropolitan Store & Saloon Fixture Co., In re, 15 A. B. R. 119 634 Metz V. E. E. Co., 12 N. B. E. 559 434 Metzger, In re, 2 N. B. R. 114, Fed. Cas. No. 9510 526, 573, 636, 688, 984 Table op Cases 1539 Metzger Toy & Novelty Co., In re, 114 Fed. 957, 8 A. B. R. 307 721 Meurer, In re, 144 Fed. 445, 15 A. B. R. 823 1063 Mexico Hardware Co., In re, 197 Fed. 650, 28 A. B. R. 736 285, 494 Meyer, In re, 98 Fed. 976, 3 A. B. R. 559, aflfg 1 N. B. N. 304, 1 A. B. R. 565, 92 Fed. 896 82, 83, 130, 131, 132, 153, 188, 237, 304, 613, 1037, 1038, 1207 In re, 1 N. B. N. 207, 1 A. B. R. 1 720 In re, 1 N. B. N. 99 817 In re, 107 Fed. 86, 5 A. B. R. 593 444 In re, 181 Fed. 904, 25 A. B. R. 44 457, 460, 1034 In re, 8 A. B. R. 598 475 Meyer v. Richmond, 172 U. S. 82 1240 Meyer Bros. Drug Co. v. Pipkin Drug Co., , 136 Fed. 396, 14 A. B. R. 477 716, 1232, 1233, 1234 Meyer & Bleuler, In re, 195 Fed. 653, 28 A. B. R. 17 680, 681 Meyers, In re, 96 Fed. 408, 1 N. B. N. 515, 2 A. B. R. 707 129, 191, 192. 1038, 1047, 1066, 1129, 1186 In re, 1 N. B. N. 293, 1 A. B. R. 347 572, 811 In re, 2 N. B. N. R. Ill, 3 A. B. R. 260, 97 Fed. 757 172, 237, 1047 In re, 3 N. B. N. R. 120 1098 In re, 1 N. B. N. 207, 1 A. B. R. 1 76, 77 In re, 3 A. B. R. 760 313 In re, 2 N. B. N. R. 669, 100 Fed. 775, 3 A. B. R. 772 1108, 1109, 1113 In re, 105 Fed. 353, 5 A. B. R. 4 1082, 1098, 1225 MichaeliS' & Lindeman, In re, l96 Fed. 718, 27 A. B. R. 299 199. 439, 444 Michaels v. Post, 21 Wall. 398, 12 N. B. R. 152 42, 146, 405, 411 Michel, In re. 1 N. B. N. 265, 1 A. B. R. 665, 95 Fed. 803 965 Michener v. Payson, 13 N. B. R. 49, Fed. Cas. No. 9524 525, 858, 859 Michie, In re, 116 Fed. 749, 8 A. B. R. 734 ■ 831, 840 Mickel, In re, 19 N. B. R. 374, Fed. Cas. No. 9529 923 Miers, In re, 193 Fed. 288, 27 A. B. R. 870 976 Mifflin, In re, 1 Penn. L. J. 146 320 Migel, In re, 2 N. B. R. 153, Fed. Cas. No. 9538 320, 322, 323, 803, 808 Milbury Co., Ltd., In re, 11 A. B. R. 523 85, 90 Milgraum & Ost, In re, 133 Fed. 802, 13 A. B. R. 337 287, 288 In re, 129 Fed. 827, 12 A. B. R. 306 1059, 1060, 1062 Millan v. Exchange Bank of Mannington, 183 Fed. 753, 24 A. B. R. 889 168, 172, 173, 175, 187 Miller, In re, 5 A. B. R. 140 81, 149 In re, 1 N. B. N. 263, 1 A. B. R. 647 753 In re, 118 Fed. 360, 9 A. B. R. 274 860 In re, 64 Misc. (N. Y.) 467, 22 A. B. R. 759 862 In re, 104 Fed. 764, S A. B. R. 140 63, 80, 150, 173, 188 In re, 105 Fed. 57, S A. B. R. 154 271, 888, 1175 In re, 132 Fed. 414, 13 A. B. R. 87 415 In re, 133 Fed. 1017,. 13 A. B. R. 345 299, 302, 303, 1076 In re, 135 Fed. 591, 14 A. B. R. 329 1100 In re, 171 Fed. 263, 22 A. B. R. 560 210 In re, 192 Fed. 730, 27 A. B. R. 606 1063, 1088, 1091, 1116 In re, 203 Fed. 170, 30 A. B. R. 113 1066 In re, 6 Biss. 30, Fed. Cas. No. 9551 794 In re, 1 N. B. R. 105, Fed. Cas. No. 9553 241 ABE TO pages] Miller, In re, 17 N. B. R. 402, 10 Ben. 58, Fed. Cas. No. 9401 1013 In re, FEd. Cas. No. 9550 421 In re, 19 N. B. R. 78, Fed. Cas. No. 9555 ' 419 In re, Fed. Cas. No. 9556 1031 Miller v. Bowles, 10 N. B. R. SIS, 58 N. Y. 263 656 V. Chandler, 17-N. B. R. 251 1157 V. Guasti, 226 U. S. 170, 29 A. B. R. 201 1153 V. Mackenzie, 13 N. B. R. 496 926 V. New Orleans Acid & Fertilizer Co., 211 U. S. 496, 21 A. B. R. 416, aflg 117 La. 821 664, 711, 1241 V. O'Kam, 14 N. B. R. 145 499 V. Sherry, 2 Wall. 237 644, 658 V. Tiffany, 1 Wall. 298 860 Miller Bros. Grocery Co., In re, 208 Fed. 573, 31 A. B. R. 430 414 Miller Electrical Maintenance C<3., In re, 111 Fed. 515, 6 A. B. R..701 856 Miller Pure Rye Distilling Co., In re, 176 Fed. 606, 23 A: B. R. 890 692 Miller & Brown, In re, l55 Fed. 868, 14 A. B. R. 439 558 Millikin v. Second Nat. Bank, 206 Fed. 14, 30 A. B. R. 477, rev'g 200 Fed. 455, 29 A. B. R. 613 565, 580 Mills, In re, 11 N. B. R. 74, Fed. Cas. No. 9611 153, 1040 In re, 95 Fed. 269, 2 A. B. R. 667 426, 1037, 1039 In re, 17 N. B. R. 472, Fed. Cas. No. 9612 452, 462 In re, 179 Fed. 409, 25 A. B. R. 278 879 Mills V. Fisher & Co., 159 Fed. 897, 20 A. B. R. 237 239, 612, 613, 711, 1219 V. Lewis, 110 Fed. 512, 6 A. B. R. 162 471 V. Virginia-Carolina Lumber Co., 164 Fed. 168, 20 A. B. R. 750, mod'f'g 151 Fed. 642, 18 A. B. R. 218 704, 712, 730, '956 Mills Co., In re, 162 Fed. 42, 20 A. B. R. SOI 732 Milne Mfg. Co., In re, 21 A. B. R. 468 953 Milne, Turnbull & Co., In re, 159 Fed. 280, 20 A. B. R. 248 337, 338, 343 Milner v. Meek, 95 U. S. 252 1230 Milwain, In re, 12 N. B. R. 358, Fed. Cas. No. 9623 333, 492 Mimms & Parham, 193 Fed. 276, 27 A. B. R. 469 879, 937 Minard, In re, 156 Fed. 377, 19 A. B. R. 485 61, 64 Miner, In re, 117 Fed. 953, 9 A. B. R. 100, s. c. 114 Fed. 998, 8 A. B. R. 248 284 287, 381, 453, 1067, 1077, 1078, 1096, 'l098 In re, 2 N. B. N. R. 1073, 104 Fed. S20 60, 146, 149, 150 Miners' Brewing Co., In re, 162 Fed. 327, 20 A. B. R. 717 465 Mingo Val. Creamery Ass'n, In re, 2 N. B. N. R. 679, 100 Fed. 282 96 Minoh V. Van Nostrand, 4 N. B. R. 28, 1 Lowell 458, Fed. Cas. No. 9642 320 Mintzer, In re, 197 Fed. 647, 28 A. B. R. 743 1061, 1102 Mishawaka Woolen Mfg. Co. v. Westveer, 191 Fed. 465, 27 A. B. R. 345 559, 560 Mission Fixture & Mantel Co., In re, ,180 Fed. 263, 24 A. B. R. 873 673, 715 Missouri-American Elec. Co. v. Hamilton- Brown Shoe ,Co., 165 Fed. 283, 21 A., B. R, 270 26, 27, 82, 83, 357, 375 Mitchell, In re, 116 Fed. 87, 8 A. B. R. 324 1013 In re, 8 N. B. R. 47, Fed. Cas. No. 9657 631, 996 In re, 3 N. B. R. Ill, Fed. Cas. No. 9650 129 In re, 15 A. B. R. 735 947 In re, 1 N. B. N. 264, 1 A. B. R. 687 518, 971 1540 Bbandenburg on Bankruptcy [RKFHliENCES Mitchdl, In re, 16 N. B. R ^35, Fed. Cas. No. 9658 553 In re, I7S Fed; 877, 23 A. p. R. 707 1070 Mitchell V. McClure, 2 N. B. N. R. 735, 178 U. S. 539, 4 A. B. K. 177, s. c. 1 N. B. N 138, 1 A. B. R. 53, 91 Fed. 621 827, 831, 835, 837, 844, 880, 898 V. Mitchell, 147 Fed. 280, 17 A. B. R. 382 674, 675, 676, 758. 777, 851, 860, 862 V. United States, 21 Wall. 350, 353 a6, 37, 226 Mitchell Storebuilding Co. v. Carroll, 193 Fed. 616, 27 A. B. R. 894 432, 799 Mitcheir& Co., In re, 211 Fed. 778, 31 A. B. R. 814 67, 126, 238 Mitteldorfer, In re, 3 N. B. R. 1, Chase 288, Fed. Cas. No. 9675 966 Mize, In re, 172 Fed. 945, 22 A. B. R. 577 1164, 1177 Mobley v. Cureton, 6 S. C. 49 1154 Mock V. Market St. Nat. Bank, 107 Fed. 897, 6 a: B. R. 11 390 V. Stoddard, 177 Fed. 611, 24 A. B. R. 403 ■ 427 Moebins, In re, 116 Fed. 47, 8 A. B. R. 590 466 Moehs & Rechnitzer, In re, 174 Fed. 165, 22 A. B. R. 286 253, 255 Moench & Sons, In re, 130 Fed. 685, 12 A. B. R. 240, afFg 123 Fed. 965, 10 A. B. R. 656 91 Mohr & Sons V. Mattox, 120 Ga. 962, 12 A. B. R. 330 660 Molh'n V. Wenkam, 209 111. 252, 13 A. B. R. 210 , 629 Monarch Corporation, In re, 177 Fed. 464, 24 A. B. R. 428 522, 533, 857, 858 Moncriff Mfg. Co., In re, 31 A. B. R. 674 1006 Monroe, In re, 114 Fed. 398, 7 A. B. R. 706 1110, 1152 Monroe Lumber Co., In re, 186 Fed. 252, 24 A. B. R. 371 639 Monroe & Co., In re, 156 Fed. 216, 19 A. B. R. 255 . 771 In re, 25 A. B. R. 20 527 Monsarrat, In re, 25 A. B. R. 815 22, 942 In re, 25 A. B. R. 820 531, 944, 950 M-ontague, In re, 143 Fed. 428, 16 A. B. R. 18 700 Montello Brick Works, In re, 163 Fed. 624, 20 A. B. R. 859, aff'd 167 Fed. 482, 21 A. B. R. 896 603 In re, 163 Fed. 621, 20 A. B. R. 855 396 M:ontBomery, In re, 185 Fed. 955, 25 A. B. R. 431 487 In re, '3 N. B. R. 35, 3 Ben. 364, Fed. Cas. No. 9726 963 In re, 3 N. B. R. 109, 3 Ben. 567, Fed.' Cas. No. 9727 609 In re, 3 N. B. R. 97, Fed. Cas. No. 9728 473 In re, 3 N B. R. 108, Fed. Cas. No. 9729 467 In re, 3 N. B. R. 109, Fed. Cas. No. 9731 465 Montgomery v. Bucynis Mach. Wks., 14 N. B. R. 193, 92 U. S. 257 621 V. McNicholas, 138 Fed. 956, 15 A. B. R. 93 S85 Moody, In re, 131 Fed. 525, 12 A. B. R. 718 199 In re, 134 Fed. 628, 14 A. B. R. 272 575. 578, 638 Moody V. Cole, 148 Fed. 295, 17 A. B. R. 818 1164, 1166, 1177 V. Huntley, 149 Fed. 797, 17 A. B. R. 904 646 Mooney, In re, 15 N. B. R. 456 1163 Moore, Estate of, 26 C. Cls. R. 254 628 Moore, In re, 104 Fed. 869, 5 A. B. R. 151 40, 879 In re, 111 Fed. 145, 6 A. B. R. 590 403 In re, 1 Hask. 134, Fed. Cas. No. 9751 1073 AED TO PAGES] Moore, In re, 146 Fed. 187, 17 A. B. R. 164 938 In re, 19 A. B. R. 271 685 In re, 166 Fed. 689, 21 A. B. R. 651 1215, 1226 In re, 5 Biss. 79, Fed. Cas. No. 9750 138, 191 In re, 173 Fed. 679, 23 A. B. R. 109 594, 597 In re, 1 N. B. R. 123 434 Moore v. Crandall, 205 Fed. 689, 30 A. B. R. 517 290, 408, 487 V. Green, 145 Fed. 472, 16 A. B. R. 648 582, 633, 643, 659, 805 V. Harley, 4 N. B. R. 71, Fed. Cas. No. 9764 188 V. Horton, 32 Hun 393 1119 V. Third Nat. Bank of Philadelphia, 41 Pa. Super. Ct. 497, 24 A. B. R. 568 444 .. Walton, 9 N. B. R. 402, Fed. Cas. No. 9779 127 V. Young, 4 Biss. 128, Fed. Cas. No. 9782 735 Moore Bros. v. Cowan, 173 Ala. 536, 26 A. B. R. 902 20, 202, 245, 248 Moore & Muir Co., In re, 173 Fed. 732, 23 A. B. R. 122 113 Morales, In re, 105 Fed. 761, 5 A. B. R, 425 136, 399, 433, 434 Moran, In re, 105 Fed. 901, 5 A. B. R. 472 314, 757, 758, 784 Moran v. Bogart, 14 N. B. R. 293 439 V. Sturges, 154 U. S. 256, 269, 270, 274 794 Moraw v. King, 111 Fed. 730, 7 A. B. R. 176 757 Morehouse v. Pacific Hardware & Steel Co.,, 177 Fed. 337, 24 A. B. R. 178 1201, 1211, 1217, 1231 Morey Mercantile Co., C. S. v. SchefFer, 114 Fed. 447, 7 A. B. R. 670 475 Morgan, In re, 101 Fed. 982, 2 N. B. N. R. 846, 4 A. B. E. 402 75, 1056, 1062, 1066, 1082 In re, 2 N. B. N. R. 233, 3 A. B. R. 253, 98 Fed. 414 1168 Morgan v. Allen, 103 U. S. 498 441 V. Benedum, 157 Fed. 232, 19 A. B. R. 601 1219 V. Campbell, 22 Wall. 381 641 V. Campbell, 11 N. B. R. 529 682 V. First Nat. Bank of Mannington, 145 Fed. 466, 16 A. B. R. 639 633, 642, 715, 1228 r. Thornhill, S N. B. R. 1, 11 Wall. 65, 75 829, 841, 1065, 1225, 1230 V. Wordell, 8 A. B. R. 167 439 Morgan & Williams, In re, 184 Fed. 938, 25 A. B. R. 861, aff'd 192 Fed. 310, 27 A. B. R. 638 63, 71 Morganthal, In re, 1 N. B. R. 98, Fed.- Cas. No. 9813 313 Morley, Ex parte, L. R. 8 Ch. 1026 305 Morning Telegraph Pub. Co. v. Hutchin- son Co., 146 Mich. 38, 17 A. B. R. 425 883 Morrill, In re, 8 N. B. R. 117, 2 Sawy. 356, Fed. Cas. No. 9821 388 Morris, Ex parte, 12 N. B. R. 170 348, 907, 919 Morris, In re, 125 Fed. 841', 11 A. B R. 145 485, 962, 997 In re, 154 Fed. 211, 18 A. B. R. 828 331, 462, 506 In re, 11 N. B. R! 443 910, 916 In re, 2 N. B. N. R. 260 755, 780 In re, 19 N. B. R. Ill, Fed. Cas. No. 9824 1072 In re, 156 Fed. 597, 19 A. B. R. 422 558 In re, 204 Fed. 770, 30 A. B. R. 319 522, 542, 606, 1070 In re. Fed. Cas. No. 9825 ' 15 In re, 115 Fed. 591, 7 A. B. R. 709 255 In re, 159 Fed. 591, 19 A. B. R. 781 1011 Table of Cases 1541 [KEFERENCBS Morris v. Carnegie Trust Co., 154 App. Div. (N. Y.) 596, 29 A. B. R. 884 207, 530 V. Davidson, U N. B. R. 454 539, 664, 688, 798 V. Dodd, 110 Ga. 606, 5 A. B. R. 76 594 V. Dodd, 2 N. B. N. R. 823 596 V. Small, 160 Fed. 142, 20 A. B. R. 138 853 V. Swartz, 10 N. B. R. 305 43, 505 V. Tanuenbaum, 26 A. B. R. 368 229, 700 Morris Stark, In »e, 155 Fed. 694, 18 A. B. R. 467 206 Morrison, In re, 127 Fed. 186, 11 A. B. R. 498 1130 In re, 110 Fed. 734, 6 A. B. R. 488 763 In re, 10 N. B. R. 105, Fed. Cas. No. 9839 _ 478, 684 Morrison v. Vaughan, 119 App. Div. (N. Y.) 184, 18 A. B. R. 704 1152 Morrison's Assig. v. Bright, 20 Mo. 298 446 Morrow, In re, 97 Fed. 574, 3 A. B. R. 263 1096, 1185 Morrow v. Dudley & Co., 144 Fed. 441, 16 A. B. R. 459 376 Morrow & Co., In re, 134 Fed. 686, 13 A. B. R. 392 726, 729 Morse, In re, 168 Fed. 157, 21 A. B. R. 709 . 1049 In re, 206 Fed. 350, 30 A. B. R. 917 597 In re, 13 N. B. R. 376, Fed. Cas. No. 9854 423, 979, 1037 In re, 7 N. B. R. 56, Fed. Cas. No. 9852 513 Morse v. Godfrey, 3 Story 364 42 v. Kaufman, 100 Va. 218, 7 A. B. R. 549 1141 Morse Iron Works & Dry Dock Co., In re, 154 Fed. 214, 18 A. B. R. 846 517 Morss V. Franklin Coal Co., 125 Fed. 998, 11 A. B. R. 423 ■ 231, 232, 233 Morton, In re, 118 Fed. 908, 9 A. B. R. 508 - 149, 507, 1026 Morton Boarding Stables, In re, 108 Fed. 791, 5 A. B. R. 736 112 Moses, In re, 1 Fed. 845, 19 N. B. R. 412, Fed. Cas. No. 9870 545 Moses Taylor, The, 4 Wall. 411, 429 835 Mosier, In re, 112 Fed. 138, 7 A. B. R. 268 426, 587, 771 Moss, In re, 19 N. B. R. 132, Fed. Cas. No. 9877 112, 113, 1079 Moss Nat. Bank of Sandusky v. Arend, 146 Fed. 351, 16 A. B. R. 867 86, 89 Motion, Ex parte, L. R. 9 Ch. 192 611 Mott, In re, 1 N. B. R. 9, Fed. Cas. No. 9879 - 951 Mott V. Wissler Mining Co., 135 Fed. 697, 14 A. B. R. 321 683 Moulton V. Goburti, 131 Fed. 201, 12 A. B. R. 553, aff'g 126 Fed. 218, 11 A. B. , R. 212 142, 150, 155 Mourid Mines Co. v. Hawthorne, 173 Fed. 882, 23 A. B. R. 242 879, 887, 1212 Mowery, In re, 22 A. .B. R. 239 467 Mbyer, In re, 97 Fed. 324 479, 663 In re, 1 N. B. N. 260, 1 A. B. R. 577, 93 Fed. 188 79, 80, 653, 663, 720 Moyer v. Dewey, 103 U, S. 301* 1117 Mudd, In re, 2 N. B. N. R. 1112, 5 A. B. R. 242, i05 Fed. 348 1056, 1058, 1061, 1062, 1098 In re, 2 N. B. N. R. 710 313 Mueller, In re, 135 Fed. 711, 14 A. B. R. 256 1201, 1206, 1209, 1211, 1217, 1225, 1227, 1232 Mueller v. Brentano, 3 N. B. R. 329 161 V. Bruss, 112 Wis. 406, ? A. B. R. 442 836 . V. Goerlitz, 53 Misc. (N. Y.) S3, 17 A, B. R. 687 1153 AKE TO PAGES] Mueller v. Nugent, 184 U. S. 1, 7 A. B. R. 224, rev'g 105 Fed. 581, 5 A. B. R. 176, rev'g 3 N. B. N. R. 32, 104 Fed. 530, ' 4 A. B. R. 747 24, 39, 198, 259, 269, 270, 271, 276, 277, 631, 638, 794, 796, 831, 879. 880, 881, 888, 1162, 1179, 1225, 1246 Muhlbauser Co., In re, 9 A. B. R. 80 294, 1022 Muir, In re, 212 Fed. 495, 31 A. B. R. 528 225 Muirhead v. Aldridge, 14 N. B. R. 249, Fed. Cas. No. 9904 590 Mulee, In re, 7 Blatch. 23 1158, 1181, 1182 Mulford V. Fourth St. Nat. Bank, 157 Fed. 897, 19 A. B. R. 742 1226, 1230 Mullen, In re, 101 Fed. 413, 4 A. B. R. 224 663, 851, 854 In re, 140 Fed. 206, 15 A. B. R. 275 774 Muller, In re, 3 N. B. R. 86, Deady 513, Fed. Cas. No. 9912 254, 814 Mulligan, In re, 116 Fed. 715, 9 A. B. R. 8 555, 625, 637 Mullinix v. Simon, 196 Fed. 775, 28 A. B. R. 1 753, 782 Muncie Pulp Co., In re, 139 Fed. 546, 14 A. B. R. 70.202 U. S.' 621 199, 891 In re, 151 Fed. 732, 18 A. B. R. 56 205, 541, 821 Mundle, In re, 139 Fed. 691, 14 A. B. R. 680 867 Milnger, In re, 4 N. B. R. 90, Fed. Cas. No. 9923 585 Munger v. Champlin, In re, 4 N. B. R. 90, Fed. Cas. No. 9923 74 Munger Vehicle Tire Co., In re, 159 Fed. 901, 19 A. B. R. 785 118 In re, 168 Fed. 910, 21 A. B. R. 395 857 Munn, In re. 7 N. B. R. 468, 3 Biss. 442, Fed. Cas. No. 9925 71, 583 Munro, In re, 195 Fed. 817, 28 A. B. R. 369 1147 Munson v. Boston, Hartford & Erie R. Co., 14 N. B. R. 173- 802 Munsuri v. Fricker, 222 V. S. 121, 27 A. B..R. 344 1201, 1245 Murdock, In re, 3 N. B. R. 36, 1 Lowell 362, Fed, Cas. No. 9939 353, 387, 1053 Murpftiy, In re, 2 N. B. N. R. 393, 3 A. B. R. 499 25, 139, 797, 828, 842, 843, 845 In re, 10 N. B. R. 48, Fed. Cas. No. 9946 120 Murphy v.' Blumenfeich, 123 App. Div. (N. Y.) 645, 19 A. B. R. 910 1152 v. John Hofinan Co., 211 U. S. 562, '21 A. B. R. 487, aff'g 187 N. Y. 548 22, 23, 203 v. Young, 18 N. B. R, 505 815 Murphy-Barbee Shoe Co., In re, 11 A. B. R. 428 621 Murray, In re, 3 N. B. R. 187, 1 Hask. 267, Fed. Cas. No. 9954 396 In re, 1 N. B. N. 570, 96 Fed. 600, 3 A. B. R. 601, s. c. 1 N. B. N. 532, , 3 A. B. R. 90 46, 191, 233, 237, 1038 In re, 14 Blatch. 43, Fed. Cas., No. 9953 1112 In re, 162 Fed. 983, 20 A. B. R. 700 1068, 1085 Murray v. Beal, 2 N. B. N. R. 164, 3 A. B. R. 284, 9.7 Fed. 567 837. 842, 844 V. Joseph, 146 Fed. 260, 16 A. B. R. 704 579, 586, 863 V. Roberts, 150 Mass. 599 ir33 Murtangh v. Sullivan, 74 Misc. (N. Y.) 278, 27 A. B. R. 431 ' 822 Muse V. Hotel Co., 168 U. S. 430 1237 Musica V. Prentice, 211 Fed. 326, 31 A. B. R. 687, aff'g 205 Fed. 413, 30 A. B. R. 555 30, 383, 884, 972 Musica & Son, In re, 205 Fed. 413,130 A. B. R, 555, aff'g 211 Fed. 326, 31 A. B. R. 687 317 -1542 Beandenbtjeg on Bankbxjptoy [BEFERGNCBS Muskoka Lumber Co., In re, 127 Fed. 886, 11 A. B. R. 761 457 Muslin V. Creditors, 3 N. B. R. 126 14 Mussey, In re, 179 Fed. 1007, 25 A. B. R. 91 763 In re, 2 N. B. N. R. 113, affd 99 Fed. 71, 3 A. B. R. 592 242, 270, 274, 547, 795, 1116, 1118, 1162 Mustin, In re, 165 Fed. 506, 21 A. B. R. 147 1168 Musto, In re, 2 N. B. N. R. 577 358, 572 Mutual Life Ins. Co. of New York v. Smith, 184 Fed. 1, 25 A. B. R. 768, rev'g 178 Fed. 510, 24 A. B. R. 514, s. c. 158 Fed. 365, 19 A. B. R. 707 601 Mutual Mercantile Agency, In re. 111 Fed. 152, 6 A. B. R. 607 91, 112, lis, 153, 180 In re, 8 A. B. R. 435 989 Mutual Reserve Fund Life Ass*n v. Beatty, 93 Fed. 747, 2 A. B. R. 244 1125 Myers, In re, 1 N. B. N. 207, 1 A. B. R. 1 660 In re, 208 Fed. 407, 31 A. B. R. 24 588, 936 In re, 2 N. B. N. R. 76S 472 In re, 2 N. B. N. R. 1049 1013 In re, 102 Fed. 869, 2 N. B. N. R. 860, 1049 77S, 1012 In re, 99 Fed. 691 465 Myers v. Chami. 2 N. B. N. R. 765 728 v. Davis, 22 N. Y. 489 446 V. Seeley, 10 N. B. R. 411, Fed. Gas. No. 9994 525, 85» Myers Co. v. Tuttle, 188 Fed. 532, 26 A. B. R. 541 953, 1120 Myers- Wolf Mfg. Co., In re, 205 Fed. 289, 30 A. B. R. 572 614 N Nachman, In re, 114 Fed. 995, 8 A. B. R. 180 366 Napier, In re, 23 A. B. R. 560 1083, 1090 Naroma Chocolate Co., In re, 178 Fed. 383, 24 A. B. R. 154 123, 125 Nassau, In re, 140 Fed. 912, 14 A. B. R. 828 284 In re, IS A. B. R. 793 734, 735 Nathan, In re, 1 N. B. N. 326, 563, 92 Fed. 590 386, 741, 797, 842 In re, 2 N. B. N. R. 613 471, 728, 853 In re, 2 N. B. N. R. 611 475 Nathanson, In re, 155 Fed. 645, 19 A. B. R. 56 1053, 1058, 1061 In re, 152 Fed. 585, 18 A. B. R. 252 1062 National Bank v. Moyses, 186 U. S. 181, 8 A. B. R. 1 104^, 1072 National Bank of Athens v. Shackelford, 208 Fed. 677, 31 A. B. R. 464 580 National Bank of Commerce v. Carbondale Machine Co., 195 Fed. 180, 27 A. B. R. 840 1017 National Bank of Commerce of Seattle v. Downie, 218 U. S. 345, 25 A. B. R. 199, affg 161 Fed. 839, 20 A. B. R. 531 629 National Bank of Newport v. National Herkimer County Bank, 225 U. S. 178, 28 A. B. R. 218 709, 723, 724, 825 National Bank of South Reading v. Saw- yer, 3 N. B. N. R. 266, 6 A. B. R. 154, 177 Mass. 490 454, 456, 501, 1127 National Bank of Troy T. Cooper, 20 Wall. 171 1233 National City Bank of New York v. Hotchkiss, 231 U. S. 50, 31 A. B. R. 291, affg 201 Fed. 664, 29 A. B. R. 289 670, 723, 875 National Exch. Bank v. Pepperdine, 2 N. B, N. R. 675 733 National Hotel & Cafe Co., In re, 138 Fed. 947, 15 A. B. R. 69 78, 94 National Iron Co., In re, 8 N. B. R. 422, Fed. Cas. No. 10. 45 938 ABE TO PASES] National Lock & Metal Co., In re, 155 Fed. 690, 19 A. B. R. 106 635 ■ National Marble & Granite Co., In re, 206 Fed. 185 31 A. B. R. 80 1001 National Mercantile Agency, In re, 128 Fed. 639, 12 A. B. R. 189 29, 204, 216 In re, 11 A. B. R. 451 566, 976 National Mining .Exploration Co., In re, 193 Fed. 232, 27 A. B. R. 92 941, 943, 946, 949, 950 National Surety Co. of New York v. Med- lock, 2 Ga. App. 665, 13 A. B. R. 654 247, 1128, 1147 Naylon & Co. v. Christiansen Harness Mfg. Co., 158 Fed. 290, 19 A. B. R. 789 70 Naylor Mfg. Co., In re, 135 Fed. 206, 14 A, B. R. 284 559 Neal, In re, IS Ohio Fed. Dec. 113, 14 A. B. R. 550 753, 779, 781 Neal V. Oark, 95 U. S. 704 1141 Neale, In re, 3 N. B. R. 43, Fed. Cas. No. 10066 539 Neasmith, In re, 147 Fed. 160, 17 A. B. R. 128 232, 233, 235, 236, 1209, 1216 Nebe, In re, 11 N. B. R. 289, Fed. Cas. No. 10073 348, 464, 994 Nechamkus, In re, 155 Fed. 867, 19 A. B. R. 189 212 Needham, In re, 2 N. B. R. 124, 1 Lowell 309, Fed. Cas. No. 10081 1098 Neely, In re, 108 Fed. 371, 5 A. B. R. 836 402, 640, 806, 1009 In re, 134 Fed. 667, 12 A. B. R. 407 1046, 1103 NeS, In re, 157 Fed. 57, 19 A. B. R. 23 379. 380, 430 Neill-Pickney-Maxwell Co., In re, 170 Fed. 481, 22 A. B. R. 401 700 Neilson, In re, 98 Fed. 76, 1 N. B. N. 577, 1 A. B. R. 63 187 In re, 7 N. B. R. 505, Fed. Cas. No. 10090 240 Neiman, In re, 109 Fed. 113, 6 A. B. R. 329 407 Neiman v. Shoolbraid, 2 N. B. N. R. 668 820 Nelson, In re, 98 Fed. 76, 1 N. B. N. 567, 1 A. B. R. 63 165, 173. 187, 660, 720 In re, 191 Fed. 233, 27 A. B. R. 272 543, 558, 564 In re, 2 A. B. R. 556 772 In re, 179 Fed. 320, 23 A. B. R. 37 1096 Nelson & Bro. Co., In re, John L., 149 Fed. 590, 18 A. B. R. 66 30, 203, 219, 220 Neumann v. Blake, 178 Fed. 916, 24 A. B. R. 575 284 Neustadter v. Chicago Dry Goods Co., 1 N. B. N. 552, 96 Fed. 830, 3 A. B. R. ^ 96 141, 153, 180, 244, 245 Nevada-Utah Mines & Smelters Corpora- tion, 198 Fed. 497, 28 A. B. R. 409, 202 Fed. 126, 29 A. B. R. 754 941, 942, 943 In re, 198 Fed. 497, 28 A. B. R. 409 948 New, In re, 116 Fed. 116, 8 A. B. R. 566 469 New Amsterdam Motor Co., In re. 180 Fed. 943. 24 A. B. R. 757 7, 118 In re, 2 N. 'B. N. R. 56, 3 A. B. R. 158, 97 Fed. 24 836, 842, 843 N'ewberry Shoe Co. v. Collier, 111 Va. 288, 25 A. B. R. 130 644, 749, 750, 1121 Newborg v. Louisville Trust Co., 112 Fed. 501, 7 A. B. R. 305 740 New Brunswick Carpet Co., In re, 4 Fed. 574 395 Newbury & Dunham, In re, 209 Fed. 195, 31 A. B. R. 365 1080 New Chattanooga Hardware Co., In re, 190 Fed. 241, 27 A. B. R. 77 137, 138, 165, 219 Newcomb f. Biwer, 199 F^. 529, 29 A. B. R. 15 832, 850 Newcomber, In re, 18 N. B. R. 85, Fed. Cas. No. 10148 473 Table of Cases 1543 [llEFKKIiNCGS New England AdvertisingJCo. v. Leib^on (Pa. Ct. Com. PI.), 29 A. B. R. 62 1152 New England Breeder*s Club, In re, 169 Fed. 586, 22 A. B. R. 124, rev'g 165 Fed. 517, 21 A. B. R. 349 249, 1226 New England Piano Co., In re, 122 Fed. 937, 9 A. B. R. 767 21 New England Thread Co., In re, 158 Fed. 788, 20 A. B. R. 47, aff'g 154 Fed. 742, 18 A. B. R. 840 1000 Newfoundland Syndicate, In re, 196 Fed. 443, 28 A. B. R. 119 857 In re, 201 Fed. 917, 29 A. B. R. 858 858 ' New Hope Mining Co., In re, 7 N. B. R. 598 992 New Jersey v. Anderson, 203 U. S. 483, 17 A. B. R. 63, rev'g 137 Fed. 858, 14 A. B. R. 604 987, 988, 989 New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 13 N. B. R. 385. 91 U. S. (1 Otto) 656 42, 1016 Newland, In re, 9 N. B. R. 62, 7 Ben. 63, Fed. Cas. No. 10171, s. c. 7 N. B. R. 477, 6 Ben. 342, Fed. Cas. No. 10170 409, 482, 600, 623 Newland v. Zodikow, 39 Misc. (N. Y.) 541, 11 A. B. R. 770 869 Newman, In re, 2 N. B. R. 99, 3 Ben. 20, Fed. Cas. No. 10175 1080, 1086, 1087 Newman v. Tootle-Campbell Co., 31 A. B. E. 399 700, 734 New Orleans v. Steamship Co., 20 Wall. 387 1159 New Orleans Coffee Co., In re, 102 Fed. 785 854 New Orleans, S. F. & L. R. Co. v. Del- amore, 114 U. S. 501 117 New River Coal ■ Land Co. v. Ruffner Bros., 165 Fed. 881, 21 A. B. R. 474 5, 40, 793, 799, 815 Newton, In re, 107 Fed. 429, 6 A. B. R. 52 506, 512, 1034, 1035 New York v. Eno, 155 U. S. 89 323 New York Building-Loan Banking Co., In re, 127 Fed. 471, 11 A. B. R. 51 113 New York Car Wheel Works, In re, 139 Fed. 421, 14 A. B. R. 595 390 In re, 141 Fed. 430, 15 A. B. R. 571 487 New Yo/k County Nat. Bank v. Massey, 192 U. S. 138, 11 A. B. R. 42 444, 709, 725 New York Economical Printing Co., In re, 110 Fed. 514, 6 A. B. R. 615 541, 573, 636, 673 In re, 106 Fed. 839, S A. B. R. 697 1232 New York Inst, for Deaf & Dumb v. Crockett, 117 App. Div. (N. Y.) 269, 17 A. B. R. 233 247, 309, 424, 612 1037, 1047, 1153, 1157 New York Kerosene Oil Co., In re, 3 N. B. R. 31, Fed. Cas. No. 7726 688, 984 New York Life Ins. Co. v. Armstrong, 117 U. S. 591 597 V. Flack, 3 Md. 341 597 New York Mail S. S. Co., In re, 3 N. B. R. 155, 185, 7 Blatch. 178, Fed. Cas. No. 10208, s. c. 2 N. B. R. 170, Fed. Cas. No. 10211 966 In re, 2 N. B. R. 137, Fed. Cas. No. 10210 969 In re, 3 N. B. R. 73, Fed. Cas. No. 10212 1029 New York Tunnel Co., In re, 166 Fed. 284, 21 A. B. R. 531 249, 499, 1215 In re, 159 Fed. 688, 20 A. B. R. 25 434, 813, 1131, 1151 New York Wheel Works, In re, 132 Fed. 203, 13 A. B. R. 60 879, 881 New York & New Jersey Ice Lines, In re, 147 Fed. 214, 16 A. B. R. 832, aff'g 14 A. B. R. 61 110, 111 New York & Westchester Water Co., In re, 2 N. B. N. R. 414, 98 Fed. 711, 3 A. B. R. 508 no, 111, 116 AEE TO PAGES] Neyland & McKeithen, In re, 184 Fed. 144, 24 A. B. R-, 879 1047, 1092, 1105 Niagara Contracting Co., In re, 127 Fed. 782, 11 A. B. R. 643 250 Niagara Lead & Battery Co., In re, 202 Fed. 298, 29 A. B. R. 788 67? In re, 164 Fed. 102, 21 A. B. R. 55 205, 567 Nicholas v. Eaton, 13 N. B. R. 421, 91 U. S. 716 607 V. Murray, 18 N. B. R. 469, 5 Sawy. 320, Fed. Cas. No. 10223 418, 851. 1107 Nichols, In re, 166 Fed. 603, 22 A. B. R. 216 281, 288, 616 Nichols V. Doak, 48 Wash. 457, 22 A. B. R. 737 1133 Nicholson, In re, 27 A. B. R. 908 767 Nickerson, In re, 116 Fed. 1003, 8 A. B. R. 707 407, 454 Nickodemus, In re, 3 N. B. R. 55, Fed. Cas. No. 10254 120, 146 Nigel, In re, 2 N. B. E. 481, Fed. Cas. No. 9536 1142 Nimick v. Coleman, 95 U. S. 266 1229 Nims, In re, 18 N. B. R. 91, 10 Ben. 53, Fed. Cas. No. 10268 1037 Ninth Nat. Bank v. Moses, 39 Misc. (N. Y.) 664, 11 A. B. R. 772 643, 821 Nippon Trading Co., In re, 182 Fed. 959, 25 A. B, E. 695 288 Nisenson, In re, 182 Fed. 912, 24 A. B. R. 915 889, 890, 1169 Nixon v., Fidelity & Deposit Co., ISO Fed. 574, 18 A. B. R. 174 256 Noakes, In re, 1 N. B. E. 164, Fed. Cas. No., 12281 567 Noble' In re, 3 N. B. E. 25, 3 Ben. 332, Fed. Cas. No. 10282 342, 507 Noble V. Hammond, 129 U. S. 65 1140, 1141, 1143 Noel, In re, 137 Fed. '694, 14 A. B. R, 715 22, 23,' 711, 712 In re, 150 Fed. 89, 18 A. B. E. 10, rev'g 144 Fed. 439, 16 A. B. E. 457 459 Noell, In re, 2 N. B. N. E. 789 779, 780 Noesen, In re, 12 N. B. R. 422, 6 Biss. 443, Fed. Cas. No. 10288 146, 417 Noethen, In re, 201 Fed. 97, 29 A. B. R. 234 673, 675 In re, 195 Fed. 573, 27 A. B. E. 910 676 Noonan, In re, 10 N. B. R. 330, 3 Biss. 491, Fed. Cas. No. 10292 129, 191, 238,' 845, 1047, 1130 In re, 6 N. B. E. 579 138 In re, 3 N. B. E. 63, Fed. Cas. No. 10291 1086 Noonan v. Orton, 12 N. B. E. 4,05 556, 822, 823 Norcross, In re, 1 N. B. N. 257, 1 A. B. R. 644 69, 148, 149, 404 Norcross v. Mercantile Co., 101 Fed. 796; 4 A. B. R. 317 1219, 1221 V. Nathan, 2 N. B. N. R. 405, 99 Fed. • 414, 3 A. B. R. 613 •167, 827, 836, 842, 843 Norfolk, Ex parte, 19 Ves. 455 425 Norfolk & W. E. Co. v. Graham, 145 Fed. 809, 16 A. B. E. 610 439, 440 Norris, In re, 190 Fed. 101, 26 A. B. E. 945 396 In re, 177 Fed. 598, 24 A. B. R. 444 648, 879 Norris v. Trenholm, 209 Fed. 827, 31 A. B. E. 353 694 North v. House, 6 N. B. E. 365, Fed. Cas. No. 10310 737 Northampton Portland Cement Co., In re, 185 Fed. 542, 25 A. B. E. 565 899 North Carolina v. University, 5 N. B, R. 466, 1 Hughes 133, Fed. Cas. No. 10318 829 North Carolina Car Co., In re, 127 Fed. 178, 11 A. B. R. 488 27, 614, 1002 1544 Bkandenbubg on Bankkuptcy [BEFERENCB!8 Northern Iron Co., In re, 14 N. B. R. 356, Fed. Cas. No. 10322 342 Northern Shoe Co. v. Cecka, 22 N. D. 631, 28 A. B. R. 935 500, 776, 785, 786 Northrop, In re, 1 A. B. R. 427 274, 793, 795 Northwest Fixture Co. v. Kilboume & Clark, 128 Fed. 256, 11 A. B. R. 725 394 Norton, In re, 148 Fed. 301, 17 A. B. R. 504 157, 158, 159 In re, 6 N. B. R. 297, Fed. Cas. No. 10348 330 In re, 181 Fed. 901, 24 A. B. R. 794 400 Norton v. Billings, 4 Fed. 623 578, 586 V. De La Villeburn, 13 N. B. R. 304, 1 Woods 163, Fed. Cas. No. 10350 864 V. Hood, 124 U. S. 20 549 Nounan & Co., In re, 6 N. B. R. 579 242 Novak, In re, 101 Fed. 800, 4 A. B. R, 311 145 In re^ 111 Fed. 161, 7 A. B. R. 27 645 In re, 150 Fed. 602, 18 A. B. R. 236 770 Novicfc V. Reed & Co., 192 Fed. 20, 27 A. B. R. 521 1090 Nowell, In re, 99 Fed. 931, 3 A. B. R. 837 321, 381, 1136 Noyes, In re, 11 N. B. R. Ill, 2 Lowell 352, Fed. Cas. No. 10370 369 In re, 6 N. B. R. 277 969 Noyes Bros., In re, 127 Fed. 286, 11 A. B. R. 506 283, 480, 1038 Nuckols, In re, 201 Fed. 437, 29 A. B. R. 867 580, 597, 672 Nudd V. Barrows, 13 N. B. R. 289, 91 U. S. (1 Otto) 426 47 Nunemaker, In re, 208 Fed. 491, 30 A. B. R. 697 760, 782 Nunn, In re, 1 N. B. N. 427, 2 A. B. R. 664 759, 761, 778 Nuns, In re, 16 Blatch. 439, Fed. Cas. No. 10269 138 Niisbaum, In re, 152 Fed. 835, 18 A. B. R. 598 69, 78, 173 NuttaU, In re, 201 Fed. 557. 29 A. B. R. 800 799. 1145 Nye, In re, 133 Fed. 33, 13 A. B. R. 142 751, 754, 777, 791 Nylin v. American Trust & Savings Bank, 166 Fed. 276, 21 A. B. R. 533 562 Oakland Lumber Co.. In re, 174 Fed. 634, 23 A. B. R. 181 197 Oakley, In re, 215 Fed. 265, 31 A. B. R. 806 522 O'Bannon, In re, 2 N. B. R. 6, Fed. Cas. No. 10394 576, 1079 Obbard, Ex parte. 24 L. T. N. S. 145 299 Oberhoffer, In re, 17 N. B. R. 546, 9 Ben. 485, Fed. Cas. No. 10396 1018 O'Brian, In re, 2 N. B. N. R. 312 28, 128, 130, 177, 239, 303, 304, 613 O'Brien, In re, 21 A. B. R. 11 271 In re, 203 Fed. 1012, 30 A. B. R. 151 765, 768 O'Brien v. Ely, 195 Fed. 64, 28 A. B. R. 247 206, 1205 V. Weld, 15 N. B. R. 405 817 O'Callaghan, In re, 30 A. B. R. 97 543, 562, 633 In re, 199 Fed. 662, 29 A. B. R. 304 920, 1089, 1090, 1091, 1098 Ockershausen, In re, 59 Hun 200 1164 Oconee Milling Co., In re, 109 Fed. 866, 6 A. B. R. 475 1004 O'Connell, In re, 2 N. B. N. R. 237, 98 Fed. 83, 3 A. B. R. 422 961 In re, 137 Fed. 838, 14 A. B. R. 237 1226, 1234 O'Connor, In re, 112 Fed. 666,' 114 Fed. 777, 7 A. B. R. 428, 9 A. B. fe. 18 619, 620, 621 In re, 2 N. B. N. R. 90, 95 Fed. 943 649, 653, 654 In re, 16 A. B. R. 784 782 ABB TO PACKS] O'Connor, In re, 1 N. B. N. 132, 1 A. B. R. 381 818, 880 O'Connor v. Sunseri, 184 Fed. 712, 25 A. B. R. 1 523, 1169, 1177 Odell, In re, 9 Ben. 209, Fed. Cas. No. 10426 112 In. re. 16 N. B. R. 501, 9 Ben. 247, Fed. Cas. No. 10427 917 In re, 17 N. B. R. 73, 9 Ben. 209, Fed. Cas. No. 10426 1079 O'Dell V. Boyden, 150 Fed. 731, 17 A. B. R. 751 1201, 1214 Odell V. Wootten, 4 N. B. R. 46 1128, 1150 Oderkirk, In re, 103 Fed. 779, 4 A. B. R. 617 767 O'Donnell, In re. 131 Fed. 150. 12 A. B. R. 621 68, 69 In re, 1 N. B. N. 59 1144 O'Donohoe, In re, 3 N. B. R. 59. Fed. Cas. No. 10435 358 O'Fallon, In re. Fed. Cas. No. 10445 949 O'Farrell, In re, 2 N. B. R. 484. Fed. Cas. No. 10446, 3 Ben. 191 299 Off V. Hakes, 142 Fed. 364, 15 A. B. R. 696 735, 860, 862 O'Gara, In re, 3 A. B. R. 349, 97 Fed. 952 1095, 1186 Ogden V. Redd., 18 N. B. R. 318 1126 V. Reddish, 200 Fed. 977, 29 A. B. R. 531 702, 706, 710, 731, 732. 734, 736, 874 V. Saunders, 12 Wheat. 213 10, 13, 14 Ogles, In re, 1 N. B. N. 326. 93 Fed. 426, 1 A. B. R. 671 173, 185, 720, 80L 811, 1161 In re, 1 N. B. N. 400. 2 A. B. R. 514 798, 889, 1008 In re, 2 N. B. R. 400 1163 O'Hara, In re, 162 Fed. 325, 20 A. B. R. 714 753, 754, 758, 776 Ohio Co-op. Shear Co.. In re, 2 A. B. R. 775, 1 N. B. N. 477 542, 563, 579, 634, 640, 673, 676, 852 Ohio Valley Bank Co. v. Maclo 163 Fed. 155, 20 A. B. R. 40 406, 455, 1207 V. Switzer, 153 Fed. 362, 18 A. B. R. 689 1205 Oil Co. V. Hawkins, 74 Fed. 395 619 Oil Well Supply Co. v. HaU, 128 Fed. 875, 11 A. B. R. 738 232, 236 Okell, In re, 1 N. B. R. 52, Fed. Cas. No. 10474 376 In re, 2 N. B. R. 35, Fed. Cas. No. 10475 1066 Olcott V. McLean, 14 N. B. R. 379 1183 Oldmixon v. Severance, 119 App. Div. (N. Y.) 821, 18 A. B. R. 823 551, 552 Oldstein, In re, 182 Fed. 409, 25 A. B. R. 138 36 Old Town Bank v. McCormick, 10 A. B. R. 767 12 v. Parker, 30 A. B. R. 602 1125 Oleson, In re, 110 Fed. 796, 7 A. B. R. 22 557, 752, 1112 Olewine, In re, 125 Fed. 840, 11 A. B. R. 40 618 Olive V. Armour & Co.. 167 Fed. 517, 21 A. B. R. 901 121 Oliver, In re, 1 N. B. N. 329, 96 Fed. 85, 2 A. B. R. 783 271, 888, 1163 In re, 109 Fed. 784, 6 A. B. R. 626 471 In re, 2 N. B. N. R. 212 549, 1110 In re, 133 Fed. 832,- 13 A. B. R. 582 1113 In re, 132 Fed. 588, 12 A. B. R. 694 680 Oliver v. Cunningham, 19 N. B. R. 400, Fed. Cas. No. 10493 818 v. Hilgers, 88 Minn. 35, 11 A. B. R. 178 862, 873 Olman, In re. 134 Fed. 681, 13 A. B. R. 395 917 Olmstead, In re, 4 N. B. R. 71. Fed. Cas. No. 10505 153, 1065 Olney v. Tanner, 10 Fed. 101, 113, affd 18 Fed. 636 649, 806 O'Malley & Glynn, In re, 191 Fed. 999, 27 A. B. R. 143 1012 Table of Cases 1545 [REFSaENCES O'Mara, In re, 4 Biss. 506, Fed. Cas. No. 10S09 323 Ommen v. Talcott, 175 Fed. 261, 23 A. li. R. 572 208, 867, 873 ^v. Talcott, 188 Fed. 401, 26 A. B. R ■ 689 680 O'Neal, Ex parte, 125 Fed. 967, 11 A. B. R- 196 1169, 1179 O'Neil, In re, 189 Fed. 1010, 27 A. B. R. 5 • 388, 389 O'Neil V. Dougherty, 10 N. B. R. 294 801 Onslow V. Corrie, 2 Madd. 330 602, 603 Opelousas & Great West. R. R. Co., In re, 3 N. B. R. 31, Fed. Cas. No. 10547 117 Openhym & Sons v. Blake, 157 Fed. 536, 19 A. B. R. 639 619 Opin. Attorney-General, 9 N. B. R. 117 549 Oppenheimer, In re, 140 Fed. 51, 15 A. B. R. 267 405, 474 In re, 146 Fed. 140. 17 A. B. R. 59 971 Orcutt, In re, 4 N. B. R. 176, 5 Ben. 19, Fed. Cas. No. 10550 1066, 1082 Orcutt Co. V. Green, 204 U. S. 96, 17 A. B. R. 72, rev'g 137 Fed. 517, 13 A. B. R. 512 458, 459 Ordway, In re, 19 N. B. R. 171, Fed. Cas. No. 10552 247. 1073 Orear, In re, 178 Fed. 632, 24 A. B. R. 343 594 In re, 189 Fed. 888, 26 A. B. R. 521 598 751 770 Oregon Bulletin, etc., Co., In re, 13 N. b! R. 503, Fed. Cas. No. 10559 61, 161, 228, 400, 728 In re, 14 N. B. R. 405, 3 Sawyj 614, Fed. Cas. No. 10561 161 Oregon Iron Wks., In re, 17 N. B. R. 404, 4 Sawy. 168, Fed. Cas. No. 10562 840 Oregon Trust & Savings Bank, In re, 156 Fed. 319, 19 A. B. R. 484 113 Oram v. Harley, 3 N. B. R. 62, Fed. Cas. No. 10567 161, 165 Oriental Society, In re, 104 Fed. 975, 5 A. B. R. 219 111, 112 Orr V. Park, 183 Fed. 683, 25 A. B. R. 544 461, 485, 486, 487, 491, 675 V. Tribble, 158 Fed. 897, 19 A. B. R. 849 809 Orr Co. V. Cushman, 54 Misc. (N. Y.) 121, 18 A. B. R. 535 218 Orr Shoe Co. v. Upshaw & Powledge, 13 Ga. App. 501, 30 A. B. R. 534 501, 1145 Osage Valley, etc., R. Co., In re, 9 N. B. R. 281, Fed. Cas. No. 10592 147, 225, 433 Osborn, In re, 104 Fed. 780, 5 A. B. R. Ill 758, 774 Osborne, In re, 115 Fed. 1, 8 A. B. R. 165 1056, 1061 Osborne v. McBride, 16 N. B. R. 22, 3 Sawy. 590, Fed. Cas. No. 10593 422, 608 V. Pennsylvania Ry. Co., 159 Fed. 301, 20 A. B. R. 277 876 V. Perkins, 112 Fed. 127, 7 A. B. R. 250 1073, 1095, 1189, 1210 Osborne's Sons & Co., In re, 177 Fed. 184, 24 A. B. R. 65 1030 Oshwitz & Feldstein, In re, 183 Fed. 990, 25 A. B. R. 594 215, 219, 972 Ostrander, In re, 139 Fed. 592, 15 A, B. R. 96 1137 Ostrom, In re, 185 Fed. 988, 26 A. B. R. ■ 273 410 Otis Hadley, 112 Mass. 100 - 733 Ott, In re, 95 Fed. 274, 2 A. B. R. 637, 1 N. B. N. 571 276, 989, 1136 Ottenwess & Huxoll, In re, 193 Fed. 851, 27 A. B. R. 579 633, 672, 1016 Otto, In r'e, 115 Fed. 860, 8 A. B. R. 305 753 , Otto iFl-eund Arnold Yeast Co., In re, 178 .Fed. 305, 24 A. B. R. 458 431 Overholzer, In re, 23 A. B. R. 10 2e9i 271, 272, 832 Overman v. Quick, 17 N. B. R. 235, 8 Biss. 134, Fed. Cas. No. 10624 419 Overstreet, In re, 1 N. B. N, 408, 2 A. B. R. 486 749 ABB TO PAGES] °^1'''°';'„ JP, ■'*' ^ ^- ^- K. 366, Fed. Cas. iNo. 10625 512 °?J?.?,^" '^^' * N. B. R. 6, Fed. Cas. No. 10627 , cog Owen Pub. Co., In re, 20 A. B. R. 639 Owens, In re^ 12 N. B. R. 5l8, 6 Biss! 432, Fed. Cas. No. 10632 755, 756, 789 Owings, In re, 140 Fed. 739, 15 A. B R. ''?^ .„„ „ .' 29, 35, 750 In re, 109 Fed. 623, 6 A. B. R. 454. 474 Owsley v. Cobin, 15 N. B. R. 489, 2 ;^ Hughes 433, Fed. Cas. No. 10636 1143 Oxley, In re, 204 Fed. 826, 30 A. B. R. 406 ggg Oxley & White, In re, 182 Fed. 1019, 25 A. BR. 656 23, 648, 649 Uzark Cooperage & Lumber Co., In re, 180 Fed. 105, 24 A. B. R. 835 672 Pacific Mutual L. I. Co. v. Fisher. 106 Cal. 224 986 Pacific State Bank v. Coats, 205 Fed. 618. 30 A. B. R. 655 543 Packer v. Whittier, 1 N. B. N. 99. 91 Fed, 511, I A. B. R. 621 236, 1133, 1213 Paddock, In re, 6 N. B. R. 132, Fed, Cas. No. 10657 395 In re, 6 N. B. R. 396, Fed. Cas. No. 10658 975 Page, In re, 2 N. B. N. R. 1069, 102 i Fed. 746, 4 A. B. R. 467 617 Page V. Edmunds, 187 U. S. 596, 9 A. B. R. 277 617, 618 V. Moore, 179 Fed. 988, 24 A. B. R. 745 " - 703 V. Rogers, 211 U. S. 575, 21 A. B. R. 496, rev'g 140 Fed. 596, 15 A. B. R. 502 459, 474, 715, 975 V. Rogers, 149 Fed. 194, 17 A. E. R. 854 969 Paige, In re, 2 N. B. N. R. 110, 99 Fed. 538, 3 A. B. R. 678 183 Paine, In re, 127 Fed. 246, 11 A. B. R. 351 1034, 1035 Painter v. Napoleon Township, 156 Fed. 289, 19 A. B. r; 412 703, 867, 869 V. Napoleon Township, 190 Fed. 637, 26 A..B. R. 324 737 Palmer, In re, 14 N. B. R. 437, 2 Hughes 177, Fed. Cas. No. 10678 1026, 1074, 1076, 1109 In re, 3 N. B. R. 77, Fed. Cas. No. 10682 1054 Palmer v. Hussey, 87 N. Y. 303 1133 V. Hussey, 119 U. S. 96 - 1142. 1157 V. Roginsky, 175 Fed. 883, 23 A. B. R. 358 838 Pancoast, In re, 129 Fed. 643, 12 A. B. R. 275 464 Pangborn, In re, 185 Fed. 673, 26 A. B. R. 40 25, 70, 71, 144, 164, 417 Paramore & Ricks, In re, 156 Fed. -208, 211, 19 A. B. R. 126, 130 478, 776, 788 Paren & Gaff Mfg. Co. v. Peale, 17 N. B. R. 377, Fed. Cas. No. 10981 140 Paret v. Tioknor, 16 N. B. R. 315, 4 Dill. Ill, Fed. Cas. No. 10711 907 Parham, In r«, 17 N. B. R. 300, Fed.. Cas. No. 10712 338 Paris Modes Co., In re, 196 Fed. 357, 28 A. B. R. 470. 1008 Park, In re, 2 N. B. N. R. 981, 102 Fed. 602, 4 A. B. R. 432 780, 790 Parker, In re, 1 N. B. N. 261, 1 A. B. R. ,615 299 In re, 10 N. B. R. 82, Fed. Cas. No. 10754 337 In re, 1 N. B. N. 262, 1 A. B. R. 708 - 767 In re, 18 N. B. R. 43, Fed. Cas. No. -10724 775 In re. Fed. Cas. No, 10719 99(J 1546 Beandenbubg on Bankeuptcy [BEFEBENCBS Parker, In re, Fed. Cas. No. 10720 H8S Parker v. Bates, 203 Fed. 294, 30 A. B. R. 198 624, 679 V. Black, 143 Fed. 560, 16 A. B. R. 202, affd 151 Fed. 18, 18 A. B. R. 15 705, 726, 856^ 861, 862 V. Phillips, 2 Cush. 175 190 V. Murphy, 215 Mass. 72, 31 A. B. R. 646 1153 V. Sherman, 201 Fed. 155, 29 A. B. R. 862 573 V. Sherman, 195 Fed. 648, 28 A. B. R. 379 838 Parkes, In re, 10 N. B. R. 82, Fed. Cas. No. 10754 338, 465, 479, 485, 689 Parks, In re, 9 N. B. R. 270, Fed. Cas. No. 10765 610, 752 Parmenter Mfg. Co. v. Hamilton, 172 Mass. 178, 1 A. B. R. 39, 1 N. B. N. 8 10, 667 V. Stoever, 2 N. B. N. R. 174, 3 A. B. R. 220, 97 Fed. 330 - 95, 1203 Parsons v. Topliff, 119 Mass. 243, 249 227 V. Topliff, 14 N. B. R. 547 874 Partridge v. Andrews, 191 Fed. 325, 27 A. B. R. 388 300 Paterson Co., W. A., In re, 186 Fed. 629, 25 A. B. R. 855 497 Pattee, In re, 143 Fed. 994, 16 A. B. R. 450 13, 991, 995 Patten v. Carley, 8 A, B. R. 482, '730, 117 Fed. 130 635, 636, 1061 Patterson, In re, 1 N. B. R. 58, 307, 2 Ben. 155, Fed. Cas. No. 10817 319, 8Q3, 1133, 1134, 1141 In re, Fed. Cas. No. 1313 486 In re, 1 N. B. R. 100, 1 Ben. 448, Fed. Cas. No. 10814 359, 361 In re, 121 Fed. 921, 10 A. B. R. 371 1059 Pattison v. Dale, 196 Fed. 5, 27 A. B. R. 807 692 V. Wilbur, 12 N. B. R. 193 1119, 1131, 1151 Patton V. Vaughan, 39 Ark. 211 265 Patty-Joiner & Eubank Co. v. Cummins, 93 Tex. 598, 4 A. B. R. 269 667 Pauly, In re, 1 N. B. N. 405, 2 A. B. R. 333 178, 340, 382, 484, 960. 969, 972 Payne, In re, 151 Fed. 1018, 18 A. B. R. 192 964 Payne v. Able, 4 N. B. R. 67, Fed. Cas. No. 10854 1098 Payson v. Dietz, 8 N. B. R. 193, Fed. Cas. No. 10861 33, 829, 842 Peabody, In re, 16 N. B. R. 243, Fed. Cas. No. 10866 523, 760, 774, 775, 949, 951, 996 Peacock, In re, 178 Fed. 851, 24 A. B. R. 159 316, 497, 690, 692, 693, 887, 1163 In re, 2 N. B. N. R. 758, 101 Fed. 560, 4 A. B. R. 136 1046, 1058, 1072, 1103 In re, 203 Fed. 191, 30 A. B. R. 179 781 Pearce,^ In re, Fed. Cas. No, 10783 1185 Pearce v. Cooke, B. R. I. 184 305 Pears, In re, 205 Fed. 255, 30 A. B. R. 563 783 Pearson, In re, 1 N. B. N. 402, 2 A. B. R. 482, 95 Fed. 425 71, 727 In re, 1 N. B. N. 474, 2 A. B. R. 819 198, 522, 865, 879, 888, 1163, 1176 In re. 2 N. B. R. 151, Fed.' Cas. No. 10878 344 Pease, In re, 129 Fed. 446, 12 A. B. R. 66 66, 67, 575, 638 In re, 13 N. B. R. 168, Fed. Cas. No. 10881 428, 1037 In re, 6 N. B. R. 73, Fed. Cas. No. 10880 452 In re, 2 N. B. N. R. 1108, 4 A. B. R. 578, 3 A. B. R. 79 540, 546. 547, 588 In re, 2 N. B. N. R. 657, 4 A. B. R. 547 661 Peasley, In re, 137 Fed. 190, 14 A. B. R. 496 476, 566 Peck, In re, 168 Fed. 48, 21 A. B. R. 707. aff'K 161 Fed. 762. 20 A. B. R, 629 458 ABB TO EAGBS] Peck V. Connell, 8 A. B. R. 500 870 V. jenness. 7 How. 612 658, 881 Peck Co. V. Lowenbein, 178 Fed. 178, 24 A. B. R. 138 1091 V. Mitchell, 1 N. B. N. 262, 1 A. B. ^ R. 701 653^ 654, 636 Pedlow, In re, 209 Fed. 841, 31 A. B. R. 761 208 Peebles. In rt 13 N. B. R. 149, 2 Hughes 394, Fed. Cas. No. 10902 442, 690 Peerless Finishing Co., In re, 199 Fed. 350, 28 A. B. R. 429 208 Pegues, In re, 3 N. B. R. 80, Fed. Cas. No. 10907 969, 993 Peiper v. Harmer, 5 N. B. R. 252 843 Peirce, In re, 8 N. B. R. 514, Fed. Cas. No. 11411 226 Peltasohn, In re, 16 N. B. R, 265, 4 Dill. 107, Fed. Cas. No. 10912 590, 890 Penn, In re, 3 N. B. R. 582, 4 Ben. 99 181, 277 In re, 5 N. B. R. 30, 5 Ben. 89, Fed. Cas. No. 10927 188, 191 In re, 5 N. B. N. R. 288, Fed. Cas. No. 10929 1098 Penn. Ins. Co. v. Austin, 168 U. S. 685 1237 Pennewell, In re, 119 Fed. 139, 9 A. B. R. 490 602, 603 Pennington v. Lowenstein, 1 N. B. R. 157, Fed. Cas. No. 10938 855 Pennsylvania Con. Coal Co., In re, 163 Fed. 579, 20 A. B. R. 872 33, 243, 504 Pennsylvania Ins. Co. v. Austin, l6S U. S. 685 1237 Penny, In re, 2 N. B. N. R. 1001 1065, 1068, 1079, 1083, 1095, 1099, 1100 Penny v. Taylor, 10 N. B. R. 200, Fed. Cas. No. 10957 20, 768, 780, 799, 815, 1127 Penny & Anderson, In re, 176 Fed. 141, 23 A. B. R. 115 560, 561 Penzansky, In re, 8 A. B. R. 99 105 People V. Bartlett, 3 Hill 570 1116 v. Brennan,' 12 N. B. R. 567 26, 33 V. Court of Oyer and Terminer, 101 N. Y. 245 1160 V. Craft, 7 Paige 325 1124 V. Doty, 80 N. Y. 225, 228 108 V. Erlanger, 132 Fed. 883, 13 A. B. R. 197 321 V. Salomon, 54 111. 40 1164 V. Sheriff of Kings Co., 206 Fed. 566, 31 A. B. R. 84 794, 804 V. Spalding, 4 How. 21, 10 Paige Cr. R. 284 403 V. Swartz, 8 A. B. R. 487 372 V. Tillman, 3 Barb. 193 262 V. Wilson, 64 111. 195 1159 People's Bank of Buffalo v. Brown, 112 Fed. 652, 7 A. B. R. 47S 375 People's Dept. Store Co., In re, 159 Fed. 286, 20 A. B. R. 244 285, 287 Pepperdine v. Headley, 98 Fed. 863, 3 A. B. R. 455 837, 842 Pequod Brewing Co., In re, 18 A. B. R. 352 517 Percy v. Elliott, 18 N. B. R. 358 557 Percy Ford Co., In re, 199 Fed. 334. 28 A. B. R. 919 387, 444, 725 Perdue, In re, 2 N. B. R. 67, Fed. Cas. No. 10975 752, 789 Perego v. Dodge, 163 U. S. 160 236 Perin & Gaff Mfg. Co. v. Peale, 17 N. B. R. 377, Fed. Cas. No. 10981 163 Perkins, In re, 8 N. B. R. 56, S Biss. 254, Fed. Cas, No. 10982 442 In re, 155 Fed. 237, 19 A. B. R. 134 563 In re. 10 N. B. R. 529, Fed. Cas. No. 10983 454, 1126 In re, 8 N. B. R. 56, 5 Biss. 254, Fed. Cas. No. 10982 513, 1230 Perkins v. Dorman, 206 Fed. 858, 30 A. B. R. 767 143 V. McCauley, 98 Fed. 286, 3 A. B. R. 445 833, 837, 843 v. Smith, 116 N. Y. 441, 448 108 Table of Cases 154? [BEFERENCDS Perkins Plow Co., In re, 112 Fed. 308, 7 A. B. R. 369 673 Perkins' Appeal, 108 Pa. St. 314 971 Perley. In re, 138 Fed. 927, 15 A. B. R. 54 63 Perlhefter & Shatz, In re, 177 Fed. 299, 25 A. B. R. 576 63, 70, 175, 228, 239 In re, 25 A. B. R. 586 964 Perry, In re, 1 N. B. R. 2, Fed. Cas. No. 10998 313 Perry v. Langley, 1 N. B. R. 559, Fed. Cas. No. 11006 10, 60, 150, 151 V. Van Norden Trust Co., 192 N. Y. 189, 20 A. B. R. 190, rev'g 118 App. Div. (N. Y.) 288, 18 A. B. R. 370 711 Perry Aldrich Co., In re, 165 Fed. 249, 21 A. B. R. 244 34, 86, 88, 90 Perry & Whitney Co., In re, 172 Fed.- JI45, 22 A. B. R. 772 141, 142, 152, 229, 241 In re, 172 Fed. 744, 22 A. B. R. 770, aff'd 175 Fed. 52. 23 A. B. R. 695 140, 153, 243 Peter Paul Book Co., In re, 104 Fed. 786, 5 A. B. R. 105 91, 382, 991 Peters, In re, 1 N. B. N. 165, 1 A. B. R. 248 361, 1114, 1117 Peters v. United States,"^ 177 Fed. 885, 24 A. B. R. 206, rev'g 166 Fed. 613, 22 A. B. R. 177 1133. 1147 Petersen, In re, 200 Fed. 739, 29 A. B. R. 26 651, 656 In re, 1 N. B. N. 430, 95 Fed. 417, 2 A. B. R. 630 774 •Peterson, In re, 1 N. B. N. 215, 1 A. B. R. 254 780 In re, 64 Misc. (N. Y.) 217, 22 A. B. R. 549 1132, 1157 I In re, 137 App. Div. (N. Y.) 435, 24 A. B. R. 270 1153 Peterson v. Mettler, 198 Fed. 938, 29 A. B. R. 158 284, 579 V. Nash Brothers, 7 A. B. R. 181, 112 Fed. 311 475, 1219 Petit, In re, 1 Ch. Div. 478 547, 606 Petrie, In re, 7 N. B. R. 332, 5 Ben. no. Fed. Cas. No. 11040 385, 442 Petrim, In re. 1 N. B. R. 264 756, 783 Pettingill & Co., In re, 137 Fed. 143, 14 A. B. R. 728 379, 393. 394, 430, 685 In re, 137 Fed. 840, 14 A. B. R. 757, 763 458, 1230, 1234 Pettis, In re, 2 N. B. R. 17, Fed. Cas. No. 11046 324, 1134, 1141 Pevear, In re, 17 N. B. R. 461, Fed. Cas. No. 11053 398 Pfaffinger, In re, 164 Fed. 526, 21 A. B. R. 255 597, 770 In re, 154 Fed. 523, 18 A. B. R. 807 726, 731, 732, 734 In re, 19 A. B. R. 309, rev'g 154 Fed. 528, 19 A. B. R. 41 1107 Pfeiffer, In re, 155 Fed. 892, 19 A. B. R. 230 777, 789 Pfromm, In re, 8 N. B; R. 357, Fed. Cas. No. 11061 339 Phelan v. Iron Mountain Bank, 16 N. B. R. 308, 4 Dill. 88, Fed. Cas. No. 11069 617, 728 Phelps, In re, 1 N., B. R. 139, Fed. Cas. No. 11071 330, 336, 503 In re, IS A. B. R. 170 594 In re, 2 N. B. N. R. 484, 3 A. B. R. 396 740, 849, 852, 899 Phelps V. Clasen, 3 N. B. R. 22, Fed. Cas. No. -11074 ' 75 v. Curtis, 16 N. B. R. 85 854 v. Dudley, 4 N. B. R. 7, Fed. Cas. No. 11080 473 v. McDonald, 16 N. B. R. 217, 99 U. S. (9 Otto) 298, ,s. c.'19 N. B. R. 187 - 628, 629, 950 v. Rice, 51 Mass. 128 ^ 446 V. Sterns, 4 N. B. R. 7, Fed. Cas. No. 11080 473 ABE TO PAGES] Phenix Nat. Park Bank v. Waterbury, 197 N. Y. 161, 23 A. B. R. 250, aff'g 123 App. Div. (N. Y.) 433, 20 A. fi. R. 140 380, 399, 1139 Philadelphia Freezing Co., In re, 174 Fed. 702, 23 A. B. R. 508 ,113, 114 Philadelphia & (.ewes Transp. Co., In re, 114 Fed. 403 113, 115 In re, 127 Fed. 896, 11 A. B. R. 444 255 Philips V. Turner, 114 Fed. 726, 8 A. B. R. 171 838 Phillip Semmer Glass Co., Ltd., In re, 11 A. B. R. 665 437, 439 Phillips, In re, 14 N. B. R. 219, Fed. . Cas. No. 11098 349 In re, 209 Fed. 490, 31 A. B. R. 597 782. 783 In re. 2 N. B. N. R. 424. 98 Fed." 844, 3 A. B. R. 542 1066, 1085 Phillips V. Bowdoin, 14 N. B. R. 43 663, 1008 V. Dreher Shoe Co., 112 Fed. 404, 7 A. B. R. 326 145, 390, 392, 454 ,. Kleinman. 232 Pa. 571, 27 A. B. R. 195 582 V. Kleinman (Pa. Ct. Com. PI.), 23 A. B. R. 266 860, 866 V. Welch, 11 Nev. 187, 190 1159 Philmon v. Marshiill. 116 Ga. 811, 11 A. B. R. 780 1121 Philpot v. O'Briori. 126 Fed. 167, 11 A. B. R. 205, aff'g 121 Fed'. 139, 10 A. B. R. 424 107 Phinney, In. re, 2 N. B. N. R. 1001 1086 Photo Electrotype Engraving Co.. In re. 155 Fed. 6S4. 19 A. B. R. 94 379. 1000 Pickens v. Dent. 9 A. B. R. 47. aff'g 106 . Fed. 653. 5 A. B. R. 644 40, 658, 800, 822 V. Roy. 187 U. S. 177 831, 840 Pickens Mfg. Co., In re, 158 Fed. 894. 20 A. B. R. 202 10. 85, 96, 225 Pickens & Bro., In re, 184 Fed. 954. 26 A. B. R. 6 879 Pickett V. McGavick, 14 N. B. R. 236, Fed. Cas. No. 11126 1111 Pickhardt. In re. 198 Fed. 879. 29 A. B. R. 524 212 Pierce, In re, 2 N. B. N. R. 979, 102 Fed. 977, 4 A. B. R. 489 119. 238, 613, 1058, 1061, 1100 In re, 15 N. B. R. 449, 7 Biss. 426, Fed. Cas. No. 11139 178, 589 In re. 111 Fed. 516, 6 A. B. R. 747 155 272 291 In re, 103 Fed. 64, 2 N. B. N. R.' 984^ 4 A. B. R. 554 861, 1058, 1066 In re, 3 N. B. R. 61, Fed. Cas. No. 11141 1102 Pierce v. Shipper, 19 N. B. R. 221 1143 Pierson, In re, 10 N. E. R. 193, Fed. Cas. No. 11154 171 In re, 10 N. B. R. 107, Fed. Cas. No. 11153 312, 722, 1047, 1075 In re. 174 Fed. 160, 23 A. B. R. 58 458 Pilger, In re, 118 Fed. 206, 9 A. B. R. 244 - 125, 164, 165 Pilling V. Pilling, 3 De G. J. & S. 162 610 Pirn V. St. Louis, 165 U. S, 273 1240 Pincus, In re, 147 Fed. 621, ]7 A. B. R. 331 1046, 1047, 1048, 1090 Pinlfel, In re, 1 N. B. N. 138, 161, 1 A. B. R. 333 413 Ptnsker, In re, 25 A. B. R. 494 1083, 1088 Pirison & Co., In re, 180 Fed. 787, 24 A. B. R. 804 106, 130 Pioneer Paper Co., In fe, 7 N. ,B. R. 250, Fed. Cas. No. 17178 374, 1170 Piper, In re, 2 N. B. N. R. 7 471, 699, 705, 728 Pirie v. Chicago Title & Trust Co., 182 U. S. 444, 5 A. B. R. 814 722, 733 Pirvitz V. Pithan, 194 Fed. 403, 27 A. B. R. 621 1101 Pitt, In re, l4 N. B. R. 59, 8 Ben. 389, Fed. Cas. No. 11188 174, 181, 189 1548 Beandbnbubg on Bankbuptcy [BEFEBGNCES Pittelkow, In re, 1 N. B. N. 234, 92 Fed. 901, 1 A. B. R. 472 25, 809, 816, 836, 842, 844, 938, 985 Pittner, In re, 2 N. B. N. R. 915 356, 936 Pittock, In re, 8 N. B. E. 78, 2 Sawy. 416, Fed. Cas. No. 11189 434 Pitts, In re, 9 Fed. 542 . 649, 806 In re, 19 N. B. R. 63, Fed. Cas. No. 11190 805 Pittsburg Dick Creek Min. Co., In re, 197 Fed. 106, 28 A. B. R. 613 950 Pittsburg Drug Co., In re, 164 Fed. 482, 20 A. B. R. 227 413, 1011, 1012 Pittsburg L. & C. Wks. v. Bank, Fed. Cas. No. 11198 558 Pittsburg Lead & Zinc Co., In re, 198 Fed. 316, 28 A. B. R. 880 494, 497 Pittsburgh Laundry Supply Co. v. Impe- rial Laundry Co., 154 Fed. 662, 18 A. B. R. 756 78, 168, 170 Pittsburgh Plate Glass Co. v. Edwards, 148 Fed. 377, 17 A. B. R. 447 705, 731 Pittsburgh, etc., Ry. v. L. & T. Co., 172 U. S 493 1239 Place, In re, 4 N. B. R. 178, 8 Blatch. 302, Fed. Cas. No. 11200 1207 Plager, In re, 2 N. B. R. 10 1066, 1068, 1082 Planett Mfg. Co., In re, 157 Fed. 916, 19 A. B. R. 729 619 Plant, In re, 148 Fed. 37, 17 A. B. R. 272 203, 729, 873 Plasmon Co., In re, 14 A.'B. R. 487 158 Piatt, In re, 6 N. B. R. 465, Fed. Cas. No. 11213 139 Piatt V. Archer, 6 N. B. R. 465, 9 Blatch. 559, Fed. Cas. No. 11213 158, 305 V. Archer, 13 Blatch. 351 992 V. Beach, 2 Ben. 303 535 V. Parker, 13 N. B. R. 14 1151 V. Preston, 19 N. B. R. 241, Fed. Cas. No. 11219 46, 50, 84 Platteville Foundry & Machine Co., In re, 147 Fed. 828, 17 A. B. R. 291 21, 23, 534, 541, 940, 944 Plant V. Gorham Mfg. Co., 159 Fed. 754, 20 A. B. R. 269 22 V. Gorham Mfg. Co., 174 Fed. 852, 23 A. B. R. 42 681 Plimpton, In re, 3 N. B. N. R. 14, 103 Fed. 775, 4 A. B. R. 614 52, 1075 Plotke, In re, 3 N. B. N. R. 122, 104 Fed. 964, 5 A. B. R. 171 37 Ployd, In re, 183 Fed. 791, 25 A. B. R. 194 339, 507 Plummer, In re, 2 N. B. N. R. 292, 3 A. B. R. 320 518 Plummer v. Myers, 137 Fed. 660, 14 A. B. R. 805 735 Plymouth Cordage Co., In re, 135 Fed. 1000, 13 A. B. R. 665 142, 154, 168, 172, 245 Podolin, In re, 202 Fed. 1014, 29 A. B. R. 406 308 Podolin V. Lesher Warner Dry Goods Co., 210 Fed. 97, 31 A. B. R. 796, aflf'g 205 Fed. 563, 30 A. B. R. 576 367 Polakoff, In re, 1 N. B. N. 232, 1 A. B. R. 358 42, 277, 1058, 1066, 1074, 1081, 1185 Polemah, In re, 9 N. B. R. 376, 5 Biss. 526, Fed. Cas. No. 11247 779, 790 Polidori, In re, 2 N. B. N. R. 945 426, 612, 772 Pollard, Ex parte, 17 N. B. R. 228, 2 Lowell 411, Fed. Cas. No. 11252 433 434 442 Pollett V. Cosel, 179 Fed. 488, 24 k. B.' R. 678 1104 Pqlleys v. Black River Imp. Co., 113 U. S. 81 1218 Pollman, In re, 156 Fed. 221, 19 A. B. R. 474 653, 655, 656 In re, 16 A. B. R. 144 809 Pollock V. Simon, 205 Fed. 1005, 30 A. B. R. 390 584 Pomerantz v. Hopkins, 168 Fed. 444, 21 A. B. R. 857 1088 Pond V. Pittard, 3 Mee. & W. 357 127 ASH TO pages] Pontiac Buggy Co. v. Skinner, 158 Fed. 858, 20 A. B. R. 206 579 Pool V. McDonald, 15 N. B. R. 560. Fed. Cas. No. 11268 84, 904, 909 Poore, In re, 139 Fed. 862, 15 A. B. R. 174 560, 561 Pope, In re, 2 N. B. N. R. 427, 98 Fed. 722, 3 A. B. R. 525 769 Porter, In re, 109 Fed. Ill, 6 A. B. R. 259 809 Porter v. Cummings, 1 N. B. N. 520 808, 811 : V. Lazear, 109 U. S. 84 301, 591 Porterfield, In re, 138 Fed. 192, 15 A. B. R. 11 713, 845 Portner, In re, 149 Fed. 799, 18 A. B. R. 89 169 Portunodo Co., In re, 135 Fed. 592, 14 A. B. R. 337 694, 695 Post, In re, 1 N. B. N. 294 177 In re, 1 N. B. N. 527 351, 377 Post V. Berry, 175 Fed. 564, 23 A. B. R. 699 672 V. Corbin, 5 N. B. R. 11 643, 687 Potteiger, In re, 181 Fed. 640, 24 A. B. R. 648 1163 Potter V. Coggeshall, 4 N. B. R. 19, Fed. Cas. No. 11322 , 579, 684, 714 Potter V. Cogswell, 4^N. B. R. 9 542 Potts, Ex parte. Fed. Cas. No. 11344 161 Potts V. Smith Mfg. Co., 25 Pa. Super. Ct. 206, 12 A. B. R. 392 10 Powell, In re, 2 N. B. R. 17, Fed. Cas. No. 11354 340, 356, 508, 509 Powell V. Gate City Bank, 178 Fed. 609, 24 A. B. R. 316 574, 686, 730, 734 Powell & Smith v. Pangborn, 145 N. Y. S. 1073, 31 A. B. R. 650 376 Powers Dry Goods Co. v. Nelson, 10 N. D. 580, 7 A: B. R. 506 7B5 Prager, In re, 8 A. B. R. 356 945 In re, 134 Fed. 1006, 13 A. B. R. 527 1065, 1081 Prankard, In re, 1 N. B. R. 51, Fed. Cas. No. 11366 128, 191, 239 Pratesi, In re, 126 Fed. 588, 11 A. B. R. 319 : 682 Pratt, In re, 6 N. B. R. 276, 2 Lowell 96, Fed. Cas. No. 11371 120 Pratt V. Auto Spring Repairer Co., 196 Fed. 495, 28 A. B. R. 483 399 V. Bothe, 130 Fed. 670, 12 A. B. R. 529 964 V. Columbia Bank, " 157 Fed. 137, 18 A. B. R. 406 731 V. Curtis, 6 N. B. R. 139, Fed. Cas. No. 11375 580, 850 Prescott, In re, 9 N. B. R. 385, 5 Biss. 523, Fed. Cas. No. 11389 498, 688 Prescott V. Galluccio, 164 Fed. 618, 21 A. B. R. 229 850, 870 Presnall, In re, 167 Fed. 406, 2r A. B. R. 905 767 Press-Post Printing Co., In re, 134 Fed. 998, 13 A. B. R. 797 563 Press- Post Printing, Co. v. Landon Print- ing & Pub. Co., 2 N. B. N. R. 774 563, 579. 634, 640 Press Pub. Co. v. Monroe, 164 U. S. „ 105 1213 Pressed Steel Wagon Goods Co., In re, 193 Fed. 811, 27 A. B. R. 44 165, 166, 169 Preston, In re, 3 N. B. R. 27, Fed. Cas. No. 11392 314 In re, 5 N. B. R. 293. Fed. Cas: No. 11393 401 In re, 6 N. B. R. 545, Fed. Cas. No. 11394 649. 664, 750, 760, 776, 787, 876 Price, In re, 92 Fed. 987, 1 A. B. R. 606, 1 N. B. N. 240 41, 822, 854, 880 In re, 1 N. B. N. 131, 91 Fed. 635, 1 A. B. R. 419 292, 353, 363, 1051, 1117 In re, 4 N. B. R. 137, Fed. Cas. No. U409 513 In re, 6 N. B. R. 400, Fed. Cas. No.' 11410 773 Table of Cases 1549 [BEFERENCBS Price V. Derbyshire Coffee Co., 128 App. Div. (N. Y.) 472, 21 A. B. R. 280 741 Priegle Paint Co., In re, 175 Fed. 586, 23 A. B. R. 385 559 Prince & Walter, In re, 131 Fed. 546. 12 A. B. R. 675 25, 553, 757, 759, 771, 938, 956, 982, 983, 984, 987, 988 Princeton, In re, 1 N. B. R. 178, 2 Biss. 116, Fed. Cas. No. 11433 473 Printograph Sales Co., In re, 210 Fed. 567, 31 A. B. R. 539 604 Privett, In re, 132 Fed. 592, 13 A. B. R. 151 1026 Probst, In re, 205 Fed. 512, 30 A. B. R. 600 1164 Proby, In re, 17 N. B. R. 175, Fed. Cas. No. 11439 362, 364, 913 Proctor, In re, 6 A. B. R. 660 726 Prospect Worsted Mills, In re, 126 Fed. lOU, U A. B. R. 502 397 Proudfoot, In re, 173 Fed. 733, 23 A. B. R. 106 983, 1001 Prouty, In re, 24 Fed. 554 1229 Providence Rubber Co. v. Goodyear, 6 Wall. 153 1218 Pruschen, In re, 1 N. B. N. 526 39, 806 Pubke V. Churchill, 91 Mo. 81 922 PuUian, In re, 171 Fed. 595, 22 A. B. R. 513 1053, 1070 Pullman v. Upton, 17 N. B. R. 489, 96 U. S. 328 859 Pullman Car Co. v. Central Transporta- tion Co., 171 U. S. 138 1237 Puly, In re, 1 N. B. N. 405, 2 A. B. R. 334 992 Purcell. In re, 18 N. B. R. 447, Fed. Cas. No. 11470 916 Pure Milk Co. of Mobile, In re, 154 Fed. 682, 18 A. B. R. 735 165, 169, 175 Pursell, In re, 114 Fed. 371, 8 A. B. R. 96 350, 357 Purviance v.' Bank, 8 N. B. R. 447, Fed. Cas. No. 11475 545 Purvine. In re, 1 N. B. N. 326, 96 Fed., 192, 2 A. B. R. 787 39, 888, 890, 1163, 1186, 1229 Purvis, In re, 1 N. B. R. 163, Fed. Cas. No. 11476 340 Puschkin, In re, 183 Fed. 882, 25 A. B. R. • 742 1090 Pusey, In re, 7 N. B. R. 45, Fed. Cas. No. 11478 567 Putman, In re, 193 Fed. 464, 27 A. B. R. 923 80, 144, 403, 411, 417, 429 Pyle V. Texas Transport & Terminal Co., 185 Fed. 309, 25 A. B. R. 829 868 Q Quackenbush, In I'e, 102 Fed. 282, 2 N. B. R. 964, 4 A. B. R. 274 627, 1061, 1073, 1094: 1095, 1184, 1186, 1187 In re, 2 N. B. N. R. 1020 1106 In re! 122 Appl Div. (N. Y.) 456, 19 A. fe. R. 647 1110, 1152 Quaker Drug Co., In re, 204 Fed. 689, 30 A. B. R. 398 400, 416 Quality Shop, In re, 202 Fed. 196, 29 A. B. R. 854 1218, 1222 Quartz G6ld Min. Co., In re, 157 Fed. 243, 19 A. B. R. 667 92 Quimette, In re, 3 N. B. R. 140, 1 Sawy. 47, Fed. Cas. No. 10622 183, 225, 226, 241 Quincey Granite Quarriers Co., In re, 147 Fed. 279, 16 A. B. R. 823 115, 154, 243 Quinn, In re, 165 Fed. 144, 21 A. B. R. 264 478 Rabenau, In re, 118 Fed. 471, 9 A. B. R. 180 5*4 Radcliff V. Woods, 25 Barb. 52. 771 Radin v. United States, 189- Fed.^S68,-2S A B. R. 640 1192, 1196, 1197 ARB TO PAGES] Radke Co., R. L., In re, 193 Fed. 735, 27 A. B. R, 950 75, 116, 163, 165, 170 Rado, In re, 6 Ben. 230, Fed. Cas. No. 11522 149 Rafferty, In re, 112 Fed. 512, 7 A. B. R. „415 765 Ragan v. Donovan, 189 Fed. 138, 26 A. ' B. R. 311 715, 716 Ragan, Malone & Co. v. Cotton & Pres- ton, 195 Fed. 69, 28 A. B. R. 246 1204 v. Cotton & Preston, 200 Fed. 546, 29 A. B. R. 597 1091 Rahrer, In re, 140 U. S. 545, 560 9, 756 Railroad Co. v. Thompson (N. J. Err. and App.) 24 Atl. 544 . 1160 Rainsford, In re, 5 N. B. R. 381, 1 N. B. R. 114, 2 Ben. 349, Fed. Cas. No. 11537 1103, 1108, 1109. 1185, 1191 Rainwater, In re, 191 Fed. 738, 25 A. B. R. 419 753, 763 Rand v. Iowa Cent. Ry. Co., 186 N. Y. 58, 16 A. B. R. 692, rev'g 96 App. Div. (N. Y.) 413, 12 A. B. R. 164 539, 556, 823 Randall, In re, 1 Sawy. 56, Fed. Cas. No. 11552 1208 In re, 3 N. B. R. 4, Deady 557, Fed. Cas. No. 11551 161 In re, 159 Fed. 298, 20 A. B. R. 305 10S9, 1062, 1063 Randidge v. Lyman, 124 Mass. 361 1126 Randolph v. Canby, 11 N, B. R. 296, Fed. Cas. No. 11559 545, 557 v. Scruggs, 190 U. S. 533, 10 A. B. R. 1 12, 13, 384, 667, 960, 964, 972 Rank, In re, Crabbe 493, Fed. Cas. No. 11566 . 320 Rankin & Pullan v. Florida R. R. Co., 1 ' N. B. R. 647, Fed. Cas. No. 11567 76, 116, 117 Ransford, In re, 194 Fed. 658, 28 A. B. R. 78 615, 659, 880 ■Rasmussen, In re, 136 Fed. 704, 13 A. B. R. 462 561 RatcliiiEe, In re, 1 N. B. R. 98, Fed. Cas. No. 11578 171, 313 Rathbone, In re, 1 N. B. R. 50, 2 Ben. 138, Fed. Cas. No. 11580 161, 1058, 1141 In re, 2 N. B. R. 89, 3 Ben. 50, Fed. Cas. No. 11581 72 In re, 1 N. B. R. 536, Fed. Cas. No. 11583 1095, 1102, 1185, 1186 Rathfon Bros., In re, 200 Fed. 338, 29 A. B. R. 19 886 In re, 200 Fed. 108, 29 A. B. R. 22 849 Rathman, In re, 183 Fed. 913, 25 A. B. R. 246 24, 632, 838, 879, 882 Ratliff, In re, 107 Fed. 80, 5 A. B. R. 713 472, 730, 733 Rautman v. Hopkins, 1 N, B. N. 41 197 Ravenna Nat. Bank v. Curtiss, 30 A. B. R. 818 79, 168 Ray, In re, 1 N. B. N. 276 138 In re, 1 N. B. R. 203, 2 Ben. S3, Fed. Cas. No. 11589 353, 417 In re, 1 N. B. R. 336, 2 A. B. R. 158 37 Ray V. Brigham, 12 N. B. R. 145 648, 953 v. Norseworthy, 23 Wall. 128 273, 938 v.. Wright, 14 Nv B. R. 563 1122 Rayl v. Lapham, 15 N. B. R. 508 1052, 1109, 1110, 1118 Raynor, In re, 7 N. B. R. 527, 11 Blatch. 43, Fed. Cas. No. 11597 161, 188 Read, In re, 7 A. B. R. Ill 726 Read & Knight, In re, 7 A. B. R. Ill 709, 710 Real Estate Trust Go. v. Thompson, 112 Fed. 945, 7 A. B. R. 520 831 Realty Co. v. Gioshio (Pa. Ct. Com. PI.), 27 A. B. R. 58 1121 Reber v. Ellis Bros., 185 Fed. 313, 25 A. B. R. 567 856 V. Louis Shulman & Bro.. 183 Fed. 564, 25 A. B. R. 475, aff'g 179 Fed. 574, 24 A. B. R. 782 705, 730 1550 Bbandbnbubg on Bankbxjptcy [BEI'EBENCES Rebman, In re, 150 Fed. 759, 17 A. B. R. 767 419 Reboulin Fils & Co., In re, 19 A. B. R. 215 452 Receivers, etc. v. Paterson Gas L. Co., 23 N. J. L. 283 446 Rector v. City Deposit Bank Co., 200 U. S. 405, 15 A. B. R. 336 727, 1239, 1240 V. Commercial Nat. Bank, 200 U. S. 420, 15 A. B. R. 347 727 Redd V. Wallace, 145 Ala. 209, 21 A. B. R. 839 861 Reed, In re, 1 N. B. R. 137, Fed. Cas. No. 11634 169, 174 In re, 11 N. B. R. 94, 6 Biss. 250, Fed. Cas. No. 11635 417, 418 In re, 12 N. B. R. 390, Fed. Cas. No. 11639 1086 In re, 117 Fed. 358 938 Reed v. BuUington. 11 N. B. R. 408 528, 662, 664, 844, 935, 1004, 1121 V. Dipp'el, 16 Pa. Dist. Rep. 126, 17 A. B. R. 371 1152 V. Equitable Trust Co., 115 Ga. 780, 8 A. B. R. 242 648, 810 V. Mclntyre, 19 N. B. R. 45, 98 Fed. 507 1008 V. Phinney, 2 N. B. N. R. 1007 471, 472, 727, 728 V. Phinney, 2 N. B. N. R. 1009 726, 1149 V. Union Bank, 29 Gratt. 719 778 Reese, In re, 115 Fed. 993, 8 A. B. R. 411 762, 1035 Reese v. Vinton, 1 N. B. N. -544 663 Reese-Hammond Fire Brick Cot, In re, 181 Fed. 641, 25 A. B. R. 323 711 Reeves v, McCracken, 69 N. J. Eq. 203, , 13 A. B. R. 680 1141, 1144, 1155 Refrigerating Co. v. Gillett, 30 Fed. 683 1160 Regealed Ice Co., In re, 199 Fed. 340, 29 A. B. R. 69 954 Register v. State, 8 Minn. 214 1164 Reichman, In re, 91 Fed. 624, 1 N. B. N. 556, 1 A. B. R. 17 79, 80, 720 Reid, Ex parte, 2 Rose 84 425 Reid^ In re, 155 Fed. 933, 17 A. B. R. 477 374 Reid V. Cross, 1 N. B. N. 165, 1 A. B. R. 34 799, 805 Reiff, In re, 205 Fed. 399, 29 A. B. R. 753 , 1055 Reiman, In re, 13 N. B. R. 128, 12 Blatch. 562, Fed. Cas. No. 11675, s. c. 11 N. B. R. 21, 7 Ben. 455. Fed. Cas. No. 11673 755, 905, 909, 910, 916, 919, 920, 921, 926 Rein, In re, 3 N. B. N. R. 45 996 In re, 13 N. B. R. 551, 8 Ben. 384, Fed. Cas. No. 11678 55 Reinboth, In re, 157 Fed. 672, 19 A. B. R 15 527 Reiiihart, In re, 129 Fed. 510, 12 A. B. R. 78 765, 777 Reinheimer, In re, 1 N. B. N. 361 915, 916 Reisler Amusement Co., In re, 171 Fed. 283. 22 A. B. R. 501 110, 111, 112 Reitz V. People, 16 N. B. R. 96 1150 Rekersdres, In re, 108 Fed. 206, 5 A. B. R. 811 507 Reliance Storage & Warehouse Co., In re, 100 Fed. 619, 4 A. B. R. 49 216, 287, 288, 494, 495, 980 In re, 105 Fed. 351, 5 A. B. R. 249 409 Remaley, In re, 23 A. B. R. 29 125 Remington Automobile & Motor Co., In re, 153 Fed. 345, 18 A. B. R. 389, aR'e 139 Fed. 766, 15 A. B. R. 214 858 Remmerde, In re, 206 Fed. 822, 30 A. B. R. 701 750, 788 In re, 206 Fed. 826, 30 A. B. R. 707 406 Remmers, In re, 173 Fed. 484, 23 A. B. R. 78 1058, 1067, 1079, 1102 Renda, In re, 149 Fed. 614, 17 A. B. R. 521 203, 788, 790 Rennie, In re, 1 N. B. N. 335, 2 A. B. R. 182 10, 11, 104, 770, 1073 MICE TO PAGES] Republic Ins. Co., In re, 8 N. B. R. 197, Fed. Cas. 11705 179, 409 In re, 8 N. B. R. 317, Fed. Cas. No. 11706 179 Resler, In re, 1 N. B. N. 280, 95 Fed. 804, 2 A. B. R. 166, 602 314, 417, 418, 539 Resnek, In re, 167 Fed. 574, 21 A. B. R. 740 66a Restein, In re, 162 Fed. 986, 20 A. B. R. 832 207, 993 Reukauff Sons & Co^ Inc., In re, 135 Fed. 251, 14 A. B. R. 344 290 Revere Copper Co. v. Dimock,. 19 N. B. R. 372 , SIS, 1155 Rex Buggy Co. v. Hearick, 132 Ted. 310, 12 A. B. R. 726 70 Reynolds, In re, 9 N. B. R. 50, Fed. Cas. No. 11723 10, 13 In re, 16 N. B. R. 176, Fed. Cas. No. 11725 931 In re, 127 Fed. 760, 11 A. B. R. 758 28, 797 In re, 133 Fed. 82, 13 A. B. R. 245 671 In re, 153 Fed. 295. 18 A. B. R. 666 715 In re, 190 Fed. 967, 27 A. B. R. 200 889, 1163, 1164 In re, 203 Fed. 162, 29 A. B. R. 145 561 Reynolds v. New York Trust Co., 188 Fed. 611, 26 A. B. R. 693 400, 422, 425 Rhoades, In re, 3 N. B. N. R. 112, 105 Fed. 231 459 Rhoads, In re. 2 N. B. N. R. 178 478, 1022 In re, 2 N. B. N. R. 179 414, 433 In re, 2 N. B. N. R. 301, 98 Fed. 399, 3 A. B. R. 380, s. c. 2 N. B. N. R. 176 604, 652, 653, 654, 660 Rhoads v. Blatt, 16 N. B. R. 32 873 Rhodes, In re, 109 Fed. 117, 6 A. B. R. 173 749, 761, 769 Rhutass I, In re, 1 N. B. N. 572, 2 A. B. R. 697, 96 Fed. 597 1103, 1116, 1118, 1133, 1134, 1155 Rice, In re, 9 N. B. R. 373, Fed. Cas. No. 11750 131, 1039 In re, 164 Fed. 509, 21 A. B. R. 205 1042 In re, 164 Fed. 589, 21 A. B. R. 202 781 Rice V. Grafton Mills, 13 N. B. R. 209 441 V. Melendy, 41 Iowa 399 733 v. Rudd, 57 Vt. 6 763 Rich, In re, 15 Ohio Fed. Dec. 255, 17 A. B. R. 893 542, 684 Richard, In re, 1 N. B. N. 487, 94 Fed. 633, 2 A. B. R. 506 ' 10, 284, 289, 404 411, 471, 474, 660, 755. 760, 790, 836, 842 Richards, In re, 2 N. B. N. R. 38, 96 Fed. 935, 3 A. B. R. 145, s. c. 95 Fed. 258, 2 A. B. R. 518 95, 652, 653, 654, 656, 660, 663, 702, 720, 1203, 1209, 1224, 1234 In re, 2 N. B. N. R. 1024 503 In re, 2 N. B. N. R. 1027, 103 Fed. 849, 4 A. B. R. 631 336, 337, 340, 344 In re, 2 N. B. N. R. 1029, 104 Fed. 792 625 In re, 4 N. B. R. 25, Fed. Cas. No. 11769 366 In re, 17 N. B. R. 562, Fed. Cas. No. 11770 351 In re, 127 Fed. 772, 11 A. B. R. 581 214 In re, 183 Fed. 501, 25 A. B. R. 176 316, 1164, 1165, 1177, 1228 In re, 28 A. B. R. 636 - 689, 725 Richards v. Clark, 124 Mass. 491 714' Richardson, Ex parte, 3 Dea. & Ch. 244 427, 1042 In re, 2 N. B. R. 74, 2 Ben. 517, Fed. Cas. No. 11774 813 In re, 11 N. B. R. 114, Fed. Cas. No. , 11776 771 In re, 11 A B. R. 379 777 In re, 192 Fed. 50, 27 A. B. R. 590 82, 172 Richardson v. Denegre, 93 Fed. 572 1007 V. Mclntyre, 4 Wash. C. C. 412 1129 V. New Orleans Coffee Co., 102 Fed. 785 616, 617, 1007 Table of Oases 1551 [beferenciss Richardson v. New Orleans Deb. Redemp. Co., 102 Fed. 780 - 616, 854, 1007 V. Shaw, 209 U. S. 365, 19 A. B. R. 717, aflf'g 147 Fed. 659, 16 A. B. R. 842 67, 69, 554, 704 V. Woodward, 104 Fed. 873, 5 A. B. R. 94 754, 755, 763. 769 Richmond, In re, 18 N. B. R. 362, Fed. Cas. No. 11798 906 Richmond v. Ironr, 21 U. S. 27, rev'g 27 Fed. 591 1123 Richmond Standard Steel Spike & Iron Co. V. Allen, 148 Fed. 657, 17 A. B. R. 583 69, 71, 79, 103, 136 Richter, In re, 190 Fed. 905, 27 A. B. R. 215 1053 Richter's Estate. In re. 4 N. B, R. 67, 1 Dill. 544, Fed. Cas. No. 11803 148, 473 Rider, In re, 1 N. B. N. 483, 3 A. B. R. 178, 96 Fed. 808 816, 903 904, 906, 907, 908, 909, 910, 911, 915, 919 In re, 3 A. B. R. 192, 96 Fed. 811 406, 498 Ridge Avenue Bank v. Sundheim, 145 Fed. 798, 16 A. B. R. 863 725, 738 Ridgeway v. Kendrick, 208 Fed. 849, 31 A. B. R. 497 874 Rieger, In re, 157 Fed. 609, 19 A. B. R. 622 578 Riehl, In re, 200 Fed. 455, 29 A. B. R. 613 543, 955, 1003 Rieser, In re, 2 N. B. N. R. 859 1004, 1011 Riff, In re, 205 Fed. 406, 30 A. B. R. 594 398 Riggin V. Maguire, 8 N. B. R. 484, 15 Wall. 549 433, 1139 Riggs, In re, 214 U. S. 9, 22 A. B. R. 720 1217 Riggs, Lechtenberg & Co., In re, 8 N. B. R. 90 388 Riggs Restaurant Co., In re, 130 Fed. 691, 11 A. B. R. 508 68 Riker, In re. Fed. Cas. No. 11833 387, 390 In re, 109 Fed. 63, 5 A. B. R. 724, s. c. 107 Fed. 96, 5 A. B. R. 720 839 934 938 Riley v. Pope, 186 Fed. 857, 26 A. B. r! 618 1007 Riley, Talbot & Hunt, In re, IS A. B. R. 159 92 Riorden, In re, 14 N. B. R. 332, Fed. Cas. No. 11852 700 Ripon Knitting Wks. v. Schreiber, 2 N. B. N. R. 899, 101 Fed. 810, 4 A. B. R. 299 888, 890, 1162, 1177, 1179, 1186 Rise V. Bordner, 140 Fed. 566, 15 A. B. R. 297 164, 184 Rising, In re, 27 A. B. R. 519 19, 749. 751. 788 Rison V. Knapp, 4 N. B. R. 114, 1 Dill. . 186, Fed. Cas. No. 11861 60. 66, 578, 586. 587. 637. 728, 737 Ritchie County Bank v. McFarland, 183 Fed. 715, 24 A. B. R. 893, aff'g 174 Fed. 859, 23 A. B. R. 530 633, 1232 Rix V. Bank, 2 Dill. 367 752. 765 Roadarmour. In re, 177 Fed. 379, 24 A. B. R. 49 968, 975, 1207, 1234 Roanoke Furnace Co., In re, 152 Fed. 846, 18 A. B. R. 661 487, 514 Robert v. Lynch, 16 N.. B. R. 38, Fed. Cas. No. 8635 464 Robert & Son, F., In re, }65 Fed. 749. 21 A. B. R. 634 301 Roberts v. Johnson, 151 Fed. 567, 18 A. B. R. 132 723, 724 Roberts Co., In re, 193 Fed. 294, 27 A. B. R. 437 998, 999 Robertshaw Mfg. Co.. In re. 133 Fed. 556. 13 A. B. R. 409 576 In re, 135 Fed. 220, 14 A. B. R. 341 1222 Robertson, In re. Fed. Cas. No. 11921 1078 Robertson v. Baldwin. 165 U. S. 275 835. 846 V. Howard. 229 U. S. 254, 30 A. B. R. , 611 30, 545. 934. 941, 944 AKBl TO PAGES] Robertson v. Union Potteries Co., 177 Fed. 279, 22 A. B. R. 121 109 Robinson, Ex parte, 19 Wall. 505 1161, 1163 Robinson, In re, 2 N. B. R. 108, 6 Blatch. 253, Fed. Cas. No. 11939 319. 322, 1132, 1141, 1143 In re, 2 N. B. R. 162, Fed. Cas. No. 11942 362 In re, 3 N. B. R. 17, Fed. Cas. No. 11943 968 In re, 14 N. B. R. 130, 8 Ben. 406, Fed. Cas. No. 11938 497 In re, 136' Fed. 994, 14 A. B. R. 626 435 In re, 179 Fed. 724, 24 A. B. R. 617 30, 1069 In re. 206 Fed. 176, 30 A. B. R. 686 • 774, 775 Robinson v. Elliott, 11 N. B. R. 553, 22 Wall. 513 676 V. Pesant, 8 N. B. R. 426 1154 V. White, 1 N. B. N. 513, 97 Fed. 333, 3 A. B. R. 88 167, 576, 836, 842, 843, 846 V. Wilson, 14 N. B. R. 565 787, U23 Robinson & Smith, In re, 154 Fed. 343, 18 A. B. R. 563 681 Roche, In re, 101 Fed. 956, 4 A. B. R. 369 385, 1205, 1208 Rochford, In re, 124 Fed. 182, 10 A. B. R. 608 21, 22, 26 Rock Island Plow Co. v. Reardon, 222 U. S. 354, 27 A. B. R. 492, aii'g 168 Fed. 654, 22 A. B. R. 26 566 Rockett. Ex parte, 15 N. B. R. 95, 2 Low. 522, Fed. Cas. No. 11977 1001 Rockland Sav. Bank v. Alden, 103 Me. 230. 19 A. B. R. 886 640 Rockwood, In re, 1 N. B. N. 134, 91 Fed. 363, 1 A. B. R. 272 196. 198, 203, 741, 838 Roddin, In re, 6 Biss. 377, Fed. Cas. No; 11989 138; 421 Rode & Horn v. Phipps, 195 Fed. 414. 27 A B R 827 541, '633, 678, 1201, 1216, 1219, 1231 Roden Grocery Co. v. Bacon, 133 Fed. 515, 13 A. B. R. 251 776, 778, 601 Rodenhagen, In re, 2 N. B. N. R. 674 757, 789 Rodger, In re, 18 N. B. R. 381, Fed. Cas. No. 11992 926 Rodgers & Kite, In re. 143 Fed. 594. 16 A. B. R. 401 , , 569. 570 Rodney. In re, 6 N. B. R. 165, Fed. Cas. No. 12032 95 Rodolf V. First Nat. Bank of Tulsa, 30 Okla. 631, 28 A. B. R. 897 661, 700, 704, 705, 734, 869, 870. 871 Roeber, In re, 127 Fed. 122, 11 A. B. R. 464 466 In re, 121 Fed. 449, 9 A. B. R. 303 683 Roebuck Weather Strip & Wire Screen Co., In re. 180 Fed. 497. 24 A. B. R. 532 1000 Rosrer Brown & Co.. In re, 196 Fed. 758. 28 A. B. R. 336 645, 795, 938, 952, 1058 Rogers, In re, 1 A. B. R. 541, 1 N. B. 211 274, 795, 799, 1141 In re, 3 N. B. R. 139, 1 Lowell 423. Fed. Cas. No. 12001 112, 695, 1100 In re, 2 N. B. R. 129, Fed. Cas. No. 12002 722 In re, 10 N. B. R. 444, Fed. Cas. No. 12003 233, 644 In re, 116 Fed 435, 8 A. B. R. 723 797, 972 Rogers v. American Halibut Co., 31 A. B. R. 576 556, 705, 732, 736 V. DeSoto Placer Mining Co., 136 Fed. 407, 14 A. B. R. 252 187 V. Fidelity Savings Bank & Loan Co., 172 Fed. 735, 23 A. B. R. 1 723 724 732 V. Palmer, 19 N. B. R. 471, 102 U. s! 263 721, 735 V. United States, 141 U. S. 548 236 1552 Bbandenbtjbg on Bankbuptct Rogers v. Winsor, 6 N. B. R. 246, Fed. Cas. No. 12023 542. 880 Rogers Milling Co., In re, 2 N. B. N. R. 973, 102 Fed. 687, 4 A. B. R. 540 98, 149, 471, 472, 728 Rogers & Stefani, In re, 156 Fed. 267, 19 A. B. R. 566 382, 796 Rogers & Woodward, In re, 132 Fed. 560, 13 A. B. R. 75 633, 718 Rogowski, In re, 166 Fed. 165, 21 A. B. R. 553 1164 Rohrer, In re, 177 Fed. 381, 24 A. B. R. 52 661, 809 Rolling Mill Co., In re, 2 N. B. R. 146, Fed. Cas. No. 2338 244 Rolliiis V. TwitcheU, 14 N. B. R. 201, 2 Hask. 66, Fed. Cas. No. 12027 556 Rollins Gold & Silver Mining Co., In re, 102 Fed. 982, 2 N. B. N. R. 988, 4 A. B. R. 327 91, 115, 143 Romanow, In re, 92 Fed. 510, 1 N. B. N. 213, 1 A. B. R. 461 60, 150, 151, 153, 154 Rome, In re, 162 Fed. 971, 19 A. B. R. 820 971, 1232 Rome Planing Mill Co., In re, 96 Fed. 812, 3 A. B. R. 123, 76, 80, 720 In re, 99 Fed. 937, 2 N. B. N. R.,531, 3 A. B. R. 766 63, 98 Romine, In re, 138 Fed. 837, 14 A. B. R. 785 284, 357, 375, 376, 1068. 1175 Rooney, In re, 109 Fed. 601, 6 A. B. R. 478 589 Roosa, In re, 119 Fed. 542, 9 A. B. R. 531 1108, 1109 Rose, In re, 1 N. B. N. 212, 1 A. B. R. 68 999 In re, 163 Fed. 636, 19 A. B. R. 169 353 In re, 193 Fed. 815, 26 A. Bl R. 752 483, 936, 939 In re, 206 Fed. 991, 30 A. B. R. 791 544 Rose V. Hart, 2 Smith Lead. Cases 298 446 V. Hart, 8 Taunt. 499 438, 446 Rose Shoe Mfg. Co., In re, 168 Fed. 39, 21 A. B. R. 725 22, 884, 1225 Roseberry, In re, 16 N. B. R. 340, 8 Biss. 112, Fed. Cas. No. 12052 631, 648 Rosenbaum, In re, 1 N. B. N. 541 582, 772, 1038 Rosenbaum v. Button, 203 Fed. 838, 30 A. B. R. 155, rev'g 198 Fed. 316, 28 A. B. R. 880 , 489 Rosenberg, In re, 2 N. B. R, 81, 3 Ben, 14, Fed. Cas. No. 12054 1123, 1142 In re, 3 N. B. R. 33, 3 Ben. 366, Fed. Cas. No. 12055 545 In re, 116 Fed. 402 365, 476 In re, 144 Fed. 442, 16 A. B. R. 465 451 In re, 22 A. B. E. 900 578 Rosenberg v. Dworetsky, 139 App. Div. (N. Y.) 517, 24 A. B. R. 583 253 Rosenblatt, In re, 143 Fed. 663, 16 A. B. R. 306 210, 317 In re, 153 Fed. 335, 18 A. B. R. 663 898 Rosenblatt & Co., In re, 193 Fed. 638, 28 A. B. R. 401 20, 161, 170, 241 Rosenbluth v. De Forest & Hotchkiss Co., 85 Conn. 40, 27 A. B. R. 359 551, 641 Rosenfield, In re, 2 N. B. Rj 49, Fed. Cas. No. 120S7 310, 963 In re, 1 N. B. R. 161, Fed. Cas. No. 12058 700, 1058, 1073, 1103, 1141 In re, 1 N. B. R. 60, Fed. Cas. No. 12059 363, 375, 1173 Eoseniields, In re, 11 N. B. R. 86, Fed. Cas. No. 12061 154, 155, 186 Rosenthal, In re, 108 Fed. 368, 5 A. B. R. 799 798, 816, 1128 In re, 144 Fed. 548, 16 A. B. R. 448 197 In re, 200 Fed. 190, 29 A. B. R. 515 890, 893 Rosenzweig, In re, 206 Fed. 360, 30 A. B. R. 680 892 Rosett, In re, 204 Fed. 431, 30 A. B. R. 309, aff'g 203 Fed. 67, 29 A. B. R. 341 1013 Rosey, In re, 8 N. B. R. 509, 6 Ben. 507, Fed. Cas. No. 12066 1016 ABB TO PAGES] Rosoff V. Gilbert Transportation Co., 204 Fed. 349, 30 A. B. E. 359 352, 533, 857 Ross, In re, 2 N. B. N. R. 218 767, 778 Ross V. Saunders, 105 Fed. 915, 5 A. B. R. 350 1204 V. Stroh, 165 Fed. 628, 21 A. B. R. 644 202 1234 Rosseau, In re, 2 N. B. N. R. 1066 67^, 686 Rosser, In re, 1 N. B. N. 469, 96 Fed. 305, 2 A. B. R. 755 39, 271, 366 In re, 1 N. B. N. 469, 2 A. B. R. 746, 96 Fed. 308, s. c. 101 Fed. 562, 4 A. B. R. 153 888, 890, 1162, 1176, 1186, 1229 Roth & Appel, In re, 181 Fed. 667, 24 A. B. R. 588, aff'g 174 Fed. 64, 22 A. B. R. 504 394, 414, 432, 1149 Rothenberg, In re, 140 Fed. 798, 15 A. B. R. 485 146, 390 Rothschild, In re, 154 Fed. 194, 18 A. B. R. 682 885 Rouk, In re. 111 Fed. 154, 7 A. B. R. 31 726 RoukouB, In re, 128 Fed. 645, 12 A. B. R. 128 929, 930,, 931 Rouse, In re, 1 A. B. R. 393 429, 432, 433 Rouse V. Ottenwess & HuxoU, 31 A. B. R. 115 739, 1019 Rouse, Hazard & Co., In re, 1 N. B. N. 75, 91 Fed. 96, 1 A. B. R. 234, 1 N. B. N. 231, 91 Fed. 514 10, 1002, 1227 Rousseau, In re, 2 N. B. N. R. 1066 675, 686 Rowan's Case, 4 Op. Atty. Genl., 58 1158 Rowe V. Page, 13 N. B. R. 366 84, 542, 806, 819 Rowell V. Powell, 53 Vt. 302 775 V. Ricker, 79 Vt. 552, 18 A. B. R. 651 1145 Rowland, Ex parte, 104 U. S. 604 1178 Roy, In re, 1 N. B. N. 526, 3 A. B. R. 37, 96 Fed. 400 1095, 1185 In re, 185 Fed. 551, 26 A. B. R. 4 340 Roy V. Salisbury, 134 N. Y. S. 733, 27 A. B. R. 892 718 Royal, In re, 112 Fed. 135, 7 A. B. R. 106 1187 In le, 113 Fed. 140, 7 A. B. R. 636 1052, 1056, 1069 Royall, Ex parte, 117 U. S. 254 323 Royce Dry Goods Co., In re, 133 Fed. 100, 13 A. B. R. 257 284, 405, 491, 1008 Royea, In re, 143 Fed. 182, 16 A. B. R. ' 141 624 Rozinsky, In re, 2 N. B. N. R. 787, 101 Fed. 229, 3 A. B. R. 830 292, 970 Rubel, In re, 166 Fed. 131, 21 A. B. R. 566 204, 414, 605, 996 Ruchle, In re, 2 N. B. R. 175,, Fed. Cas. No. 12113 419 Rudd, In re, 180 Fed. 312, 2S A. B. R. 35 380, 689 Ruddiclc V. Billings, 3 N. B. R. 14, Woolw. 330, Fed. Cas. No. 12110 1226 Rude, In re, 2 N. B. N. R. 498, 101 Fed. SOS, 4 A. B. R. 319 452, 460, 529, 678, 873, 998 Rudnick, In re, 1 N. B. N. 531, 2 A. B. R. 114, 93 Fed. 787 913, 929, 930 In re, 2 N. B. N. R. 975, 102 Fed. 750, 4 A. B. R. 531, rev'g 2 N. B. N. R. 769 542, 583. 702, 733, 772, 1040 Rudnick & Co, In re, 160 Fed. 903, 20 A. B. R. 33, rev'g lS8 Fed. 223, 18 A. B. R. 750 882 Rudolf V. First Nat. Bank of Tulsa, 30 Okla. 631, 28 A. B. R. 897 853 Rudstrom v. Sheridan, 122 Minn. 262, 31 A. B. R. 862 1145 Ruffin, Ex parte, 6 Ves. 119 610, 1040 Rugsdale, In re, 16 N. B. R. 215, Fed. Cas. No. 12123 124 Ruhl-Koblegard Co. v. Gillespie, 61 W. Va. 584, 22 A. B. R. 643 521, 847, 1131 Rumsey & Sikemier Co. v. Novelty Mach. Co., 2 N. B. N. R. 129, 99 Fed. 699, 3 A. B. R. 704 66, 577 Table of Cases 1553 [hevebkncrs Rundle & Jones, In re, 2 N B. R. 49, Fed. Cas. No. 1213S 405, 433, 816, 1132 Rung Bros., In re, 1 N. B. N. 406, 2 A. B. R. 620 S04, 521, 923 Rung Furniture Co., In re, 139 Fed. 526, 14 A. B. R. 12 76, 80 Runkle v. Bumham, 153 U. S. 217 355 Runn Hdw. & Furn. Co., In re, 132 Fed. 719, 13 A. B. R. 147 563 Ruohs V. Hooke, 3 Lea. 302 590, 769 Ruos, In re, 159 Fed. 252, 20 A. B. R. 281 358 375 In re, 164 Fed. 749, 21 A. B. R. 257 265, 316, 889, 894, 896 Rupp, In re, 4 N. B. R. 25, Fed. Cas. No. 12141 771 Ruppel, In re. 2 N. B. N. R. 88, 3 A. B. R. 233, 97 Fed. 778 681, 1012 Rusch, In re, 8 A. B. R. 518, 116 Fed. 270 1224 Rushmore, In re, 24 A. B. R. 55 613, 771 Russell, Ex parte, 16 N. B. R. 476, Fed. Cas. No. 12148 420 Russell, In re, 1 N. B. N. 532, 97 Fed. 32, 3 A. B. R. 91 191, 192, 237 In re, 101 Fed. 248, 3 A. B. R. 658 25, 796, 797, 815, 842, 846, 854, 1228 In re, 105 Fed. 501, 5 A. B. R. 566 286, 494 In re, 176 Fed. 253, 23 A. B. R. 850 1088, 1090 In re, 14 Ohio Fed. Dec. 364, 13 A. B. R. 24 591 Russell V. Owen, IS N. B. R. 322 844, 847 Russell Card Co., In re, 174 Fed. 202, 23 A. B. R. 300 281, 519 Russie, In re, 96 Fed. 609, 3 A. B. R. 6 104, 770 Rutland Co. Nat. Bank v. Graves, 156 Fed. 168. 19 A. B. R. 446 704, 705, 707 Rutland Groc. Co., In re, 189 Fed. 765, 26 A. B. R. 942 773 Rutland-Perry Co., In re, 205 Fed. 200, 30 A. B. R. 383 543, 544, 955 Rutland Realty Co., In re, 157 Fed. 296, 19 A. B. R. 546 114 Ryan, In re, 2 N. B. N. R. 693 437, 471, 475, 728 In re, 105 Fed. 760, 5 A. B. R. 396 437 In re, 114 Fed. 373, 7 A. B. R. 562 155 Ryan v. Hendricks, 166 Fed. 94, 21 A. B. R. 570 172, 175, 1226 Ryan & GriiBn, In re, 6 N. B. R. 235, Fed. Cas. No. 12182 521 Rybum, In re, 145 Fed. 662, 16 A. B. R. 514 1034 Ryder, In re, 96 Fed. 811, 3 A. B. R. 193 284 Ryker v. Gwynne, 116 N. Y. S. 10, 21 A. B. R. 95 876 Ryttenberg v. Schefer, 131 Fed. 313, 11 A. B. R 652 691, 838 S. Ah Mi, In re, 18 A. B. R. 138 660 Sabin, In re, 18 N. B. R. 157, Fed. Cas. No. 12195 33 In re, 12 N. B. R. 142, Fed. Cas. No. 12194 633 In re, 9 N B. R. 383, Fed. Cas. No. 12193 647 Sabin V. Camp, 2 N. B._ N. R. 375, 98 Fed. 974, 3 A. B. R. 578 643, 687 V. Connor, Fed. Cas. No. 12197 684 Sabine, In re, 1, N. B. N. 45, 1 A. B. R. 315 274, 793, 795, 809 In re, 1 N. B. N. 312, 1 A. B. R. 322 294, 1022, 1023 Sabsevitz, In re, 197 Fed. 109, 28 A. B. R. 623 m3. 1090 Sacchi, In re, 6 N. B. R. 398, Fed. Cas. No. 12200 , „ 513 fti re, 6 N. B. R. 497, 43 How. Pr. 252, Fed. Cas. No. 12200 647 Brandenburg — 98 ARE TO PAGES] Sacharoff & Kleiner, In re, 163 Fed. 664, 20 A. B. R. 814 930 Safe Dep. & Sav. Inst., In re, 7 N. B. R. 392, Fed. Cas. No. 12211 10, 14 In re, 18 N B. R. 493 411 Safford, Ex parte, 15 N. B. R. 564, 2 Lowell 563, Fed. Cas. No. 12212 399 Sage V. Wyncoop, 16 N. B. R. 363. Fed. Cas. No. 12215 662, 721, 735 St. Albans Foundry Co., In re, 2 N. B. N. R. 1093, 4 A. B. R. 594 818 St. Cyi-. V. .Daignault, 103 Fed. 854, 4 A. B. R. 638 661 St. Helen's Mill Co., In re, 10 N. B. R. ,411, 3 Sawy. 88, Fed. Cas. No. 12222 849 St. John, In re, 3 N. B. N. R. 114, 105 Fed. 234, 5 A. B. R. 190 607, 1097, 1187 St. John V. Stephenson, 19 N. B. R. 227 1125 St. Louis Ice M{g. & Storage Co., In re, 147 Fed. 752, 17 A. B. R. 194 1002 St. Louis & Kansas Coal Co., In re, 168 Fed. 934, 22 A. Bt R. 56 605 Salaberry, In re, 107 Fed. 95, 5 A. B. R. 847 241 Sale, In re, 143 Fed. 310, 16 A. B. R. 235 752, 765 Salkey, In re, 11 N. B. R. 423, 6 Biss. 269, Fed. Cas. No. 12253 26, 888, 1085, 1162 In re, 9 N. B. R. 107, 5 Biss. 486, Fed. Cas. No. 12252 357, 359, 361 Sallignon, In re, 2 N. B. N. R. 660 604 Salmon & Salmon, In re, 143 Fed. 395, 16 A. B. R. 122 65, .82, 83, 151 In re, 145 Fed. 649, 16 A. B. R. 623 1007, 1014 Salmons, In re, 2 N. B. R. 19, Fed. Cas. No. 12268 936, 938 Salsburg v. Blackford, 204 Fed. 438, 29 A. B. R. 320 283, 1235 Salsbury, In re, 113 Fed. 833, 7 A. B. R. 771 1067, 1078 Salt Lake Val. Canning Co. v. Collins, 176 Fed. 91, 23 A. B. R. 716 224 Salvator Brewing Co., In re, 193 Fed. 989, 28 A. B. R. 56, aff'g 188 Fed. 522, 26 A; B. R. 21 392, 452, 459, 464 In re, 183 Fed. 910, 25 A. B. R. 536 71 + Sam Z. torch & Co., In re, 199 Fed. 944, 28 A. B. R. 784 ■ 289, 700, 731 Samel v. Dodd, 142 Fed. 68, 16 A. B. R. 163 1164, 1165, 1177, 1226 Sample v. Beasley, 158 Fed. 607, 20 A. B. R. 164 800 Samson v. Burton. 4 N. B. R. 1, 5 Ben. 343, Fed. Cas. No. 12285 794, 818, 842 V. Clark & Burton, 6 N. B. R. 403 39, 817 Samuel Bodek, In re, 188 Fed. 817, 26 A. B. R. 476 79 Samu'l Kurtz, In re, 125 Fed. 992, U A. B. R. 129 286, 891 Samuels & Lesser, In re, 207 Fed. 195, 30 A. B. R. 293 612 Samuelsohn, In re, 174 Fed. 911, 23 A. B. R. 528 353, 524 San Gabriel Sanatorium Co., In re, 1 N. B. N. 390, 2 A. B. R. 408, 95 Fed. 271 113 In re, 2 N. B. N. R. 827, 102 Fed. 310, 4 A. B. R. 197 809, 837, 842, 939, 984 In re. 111 Fed. 892, 7 A. B. R.. 206 831 San Miguel Gold Mining Co., In re:, 197 Fed. 126, 27 A. B. R. 901 230 Sanborn, In re, 96 Fed. 551, 3 A. B. R. 54 273, 938, 939 In re, 131 Fed. 397, 12 A. B. R. 428 1076 Sanderlin, In re, 109 Fed. 8S7, 6 A. B. R. 384 613, 686, 687 Sanders v. Aetna Life Ins. Co., 95 S. C. 36, 31 A. B. R. 854 598 Sanderson, In re, 160 Fed. 278, 20 A. B. R. 396 457 In re, 149 Fed. 273, 17 A. B. R. 871 866, 867 Sands Ale Brewing Co., In re, 6 N. B. R. 101, 3 Biss. 175, Fed. Cas. No. 12307 694 1554 Bbandenbtjeg ON" Bankeuptcy [BEFEBEKCB8 Sandusky, In re, 17 N. E. R. 542, Fed. ' Cas. No. 12308 423 Sandusky V. Bank, 12 N. B. R. 176, 23 Wall. 289 43, 1225 Sanford, In re, 7 N. B. R. 352, Fed. Cas. No. 12310 73 ' Sanford v. Sanford, 12 N. B. R. 565 401 Sanford Furniture Mfg. Co., In re, 126 Fed. 888, 11 A. B. R. 414 295, 517 Sanger, In re, 169 Fed. 722, 22 A. B. R. 145 874 Sanger V. Upton, 13 N. B. R. 226, 91 U. ■ S. 56 441, 840, 859 Sapihsky & Sons, In re, 206 Fed. 523, 30 ■ A. B. R. 416 414, 604, 680, 1149 Sapiro, In re, 1 N. B. N. 136, 92 Fed. 340, ■' =1 A. B. R. 296 366, 373 Sapulpa Produce Co., In re, 26 A. B. R. 900 397 Saratoga Gas, Elect. L. & P. Co., In re, 21 A. B. R. 592 1217 Sargent, In re, 13 N. B. R. 144, Fed. Cas. >No. 12361 154, 155, 170, 187, 241 Sargent v. Blake, 160 Fed. 57, 20 A. B. R. lis 576, 583, 666 Saterlee v. Matthewson, 2 Pet. 330 757 Sattler v. Slonimsky, 199 Fed. 592, 28 A. B. R. 729 855 Saunders, In re, 13 N. B. R. 164, Fed. Cas. No. 12371, 2 Lowell 444 451, 473, 481, 491, 499 SautofiF, In re, 14 N. B. R. 364, 7 Biss. 167, Fed. Cas. No. 12379 787 Savage, In re, 16 N. B. R. 368, Fed. Cas. ' No. 12381 422 Savage v. Savage, 141 Fed. 346, 15 A. B. R. 599, 201 U. S. 646 381, 592, 940, 957, 1017 Savarese, In re, 209 Fed. 830, 31 A. B. R. 758 1091, 1093 Savings Bk. v. Palmer, 10 N. B. R. 239, Fed. Cas. No. 17207 310 Savings Fund Society, In re, 11 N. B. R. 303, 2 Hughes 239, Fed. Cas. No. 11398 965 Savory v. Stocking, 4 Cush. 667 604 Sawyer, In re, 130 Fed. 384, 12 A. B. R. 269 584 In re, 14 N. B. R. 241, 2 Lowell 475, Fed. Cas. No. 12395 918, 919 In re, 16 N. B. R. 460, 2 Lowell 551, Fed. Cas. No. 12396 983, 1001 Sawyer v. Hoag, 9 N. B. R. 145, 17 Wall. 610 440, 856 V. Turpin, 5 N. B. R. 339, 2 Lowell 29, Fed. Cas. No. 12410 60, 563, 566, 712 Sax, In re, 141 Fed. 223, 15 A. B. R. 455 889 Saxton *"umace Co., In re, 136 Fed. 697, 14 A. B. R. 483 24, 287, 939, 940, 952 In re, 142 Fed. 293, 15 A. B. R. 445 399 Sayed, In re, 185 Fed. 962, 26 A. B. R. 444 705, 706, 710, 712, 725 Saver v. Turpin, 13 N. B. R. 371, 91 U. •S. 114 715 Seammon, In re, 11 N. B. R. 280, 6 Biss. 195, Fed. Cas. No. 12429 140, 162, 163, 242 In re, 10 N. B. R. 66, 6 Biss. 130 161 Seammon v. Cole, 3 N. B. R. 393, 5 N. B. R. 257, 3 CliflF. 472, Fed. Cas. No. 12432 582, 733 V. Kimball, 13 N. B. R. 445, 92 U. S. 362 440, 441 Scanlan, In re, 2 N. B. N. R. 58, 97 Fed. 26, 3 A. B. R. 202 999, 1000 Schacht Motor Car Co., In re, 31 A. B. R. 624 577, 584, 722, 732, 874 Schachter, In re, 170 Fed. 683, 22 A. B. R. 389 1048, 1072, 1088 Schaefer, In re, 104 Fed. 973, 3 N. B. N. R. 261 387, 390 In re, 189 Fed. 187, 26 A. B, R. 340 599 Schaeffer, In re, 5 A. B^ R, 248 301 ABE TO PAGES] Schaupp V. Miller, 206 Fed. 57S, 30 A. B. R. 699 SSO Scheldt Bros., In re, 177 Fed. 599, 23 A. • B. R. 778 431, 988 Scheier, In re, 188 Fed. 744, 26 A. B. R. 739 755, 756, 771 Soheiffer, In re, 2 N. B. R. 179, Fed. Cas. No. 12445 ■ 336, 342, 503 Scheld, In re, 104 Fed. 870, 5 A. B. R. 102 597 Schellenberg v. MuUaney, 112 App. Div, (N. Y.) 384, 16 A. B. R. 542 1137 Schenberger, In re, 102 Fed. 978, 2 N. B. N. R. 783, 4 A. B. R. 487 548 Schenck, In re, 116 Fed. 554, 8 A. B. R. 727 850, 1095, 1101 Schenectady Engineering & Construction Co., In re, 147 Fed. 868, 17 A. B. R. 279 266, 267, 270 Schenkein, In re, 113 Fed. 421, 7 A. B. R. 162 97, 145, 148, 226, 325 Schepeler, In re, 3 N. B. R. 43, 3 Ben. 346, Fed. Cas. No. 12452 279 Scherber, In re, 131 Fed. 121, 12 A. B. R. 616 879 Schermerhom, In re, 145 Fed. 341, 16 A. B. R. 507 22 Scherr, In^re, 138 Fed. 695, 14 A. B. R. 794 288 Scherzer, In re, 130 Fed. 631, 12 A. B. R. 451 444 Scheuer v. Smith & Montgomery Book & Stationery Co., 112 Fed. 407, 7 A. B. R. 384 80 Schick, In re, 1 N. B. R. 177, Fed. Cas. No. 12455 720 Schiebler, . In re, 165 Fed. 363, 21 A. B. R. 309 674 Schiermann, In re, 2 N. B. N. R. 118 414, 527, 551, '568, 604, 1120, 1139 Schiller, In re, 96 Fed. 400, 2 A. B. R. 704 286, 331 Schiller v. Weinstein, 47 Misc. (N. Y.) 622, 15 A. B. R. 183 1151 Schimmel, In re, 203 Fed. 181, 29 A. B. R. 361 285 Schlesinger, In re, 2 N. B. N. R. 169. 97 Fed. 930, 3 A. B. R. 342 39, 888, 890, 1085, 1186 In re, 102 Fed. 117, 4 A. B. R. 361 890, 1162, 1179 Schlessel, In re, 18 A. B. R. 434 579 Schloerb, In re, 2 N. B. N. R. 721. 178 U. S. 542 25, 846 In re, 2 'N. B. N. R. 234, 97 Fed. 326, 3 A. B. R. 224 41, 796, 842, 845, 846 Schloss v. A. Strellow & Co., 156 Fed. 662, 19 A. B. R. 359 232 Schmechel Cloak & Suit Co., In re, 104 Fed. 64, 4 A. B. R. 719, 3 N. B. N. R. ^ PO.j , 454, 469, 471, 474 Schmidt, In re, 181 Fed. 73, 24 A B R o f *^ , 204. 673 Schmidt V. Bank of Commerce, 15 N M 470, 25 A. B. R. 904 705, 725, 741 Schmidt & Co., In re, 165 Fed. 1006. 21 A. B. R. 593 649 Schmitt V. Dahle, 88 Minn. 506, 11 A. B R. 226 851 Schnable, In re, 166 Fed. 383, 23 A. B. R. 22 1053 Schneider, In re, 203 Fed. 589, 29 A. B. o ?■ ''*' , 7, 285, 544 Schoenenberger, In re, IS N. B. R. 305. Fed. Cas. No. 12473 405 Schoerfeld, In re, 183 Fed. 219, 25 A. B. R- 748 209, 214, 215, 216, 516, 519 Schoenfield, In re, 190 Fed. 53, 27 A. B. R- 64 573, 579, 879 Schofield, In re, 3 N. B. R. 137, Fed. Cas. No. 12509 309 Scholtz, In re, 106 Fed. 834, S A. B. R „ ,782 383, 802 Schreck, In re, 1 N. B. N. 334, 1 A. H R. 366 1066, 1078,. 1082, 1102, 1185 Table of Gases 1555 Schreck, In re, 3 McLean 573, Fed, Cas. No. 14847 1191 Schreiber v. Schomaker Piano Forte M£g. Co.. 152 App. Div. (N. Y.) 817, 28 A. B. R. 858 1078 Schrenkeisen v. Miller, 9. Ben. 55, Fed. Cas. No. 12480 737 Schrom, In re, 91 Fed. 760, 3 A. B. R. 352 216 Schryock v. Bashore, 13 N. B. R. 481, Fed. Cas. No. 12820 10 Schuchart & Wells, In re. I'S N. B. R. 161, 8 Ben. 585, Fed. Cas. No. 12483 422 433 Schulenberg v. Kabureck, 2 Dill. 132, Fed! Cas. No. 12487 733 Schuler v. Hassinger, 177 Fed. 119, 24 A. B. R. 184 942, 949, 950, 952, 1206 SchuUer, In re, 108 Fed. 591, 6 A. B. R. 278 686, 784 Schulman, In re. 167 Fed. 237, 21 A. B. R. 288, aff'd 177 Fed. 191, 23 A. B. R. 809 1172, 1176 Schulman & Goldstein, In re, 164 Fed. 440, 20 A. B. R. 707 1168, 1174, 1180 Schultz, In re, 107 Fed. 264, 6 A. B. R. 91 1082 Schulz, In re, 135 Fed. 228, 14 A. B. R. 317 767 Schulze V. Bolting, 17 N. B. R. 167, 8 Biss. 174, Fed. Cas. No. 12489 579, 1011 Schumert & Warfield, Ltd. v. Security Brewing Co., 199 Fed. 358, 28 A. B. R. 676 86, 87, 225 Schumpert, In re, 8 N. B. R. 415, Fed. Cas. No. 12491 417, 1087 Schunack v. Art Metal Novelty Co., 84 Conn. 331, 26 A. B. R. 731 657 Schuyler & Co., In re, 21 A. B. R. 428 431, 988, 1030 Schwab, In re, 8 Ben. 353, Fed. Cas. No. 12499 353 Schwaninger, In re, 144 Fed. 555, 16 A. B. R. 427 102 Schwartz, In re, 204 Fed. 326, 30 A. B. R. 344 29, 126, 171, 177 In re, 15 N. B. R. 330, 14 Blatch. 196, Fed. Cas. No. 12502 404, 501 In re, 4 N. B. R. 189, Fed. Cas. No. 12503 774 In re, 179 Fed. 767, 23 A. B. R. 37 1190 Schwartz & Co., In re, 201 Fed. 166, 28 A. B. R. 670 ■ 1090, 1105 Schwartzman, In re, 167 Fed. 399, 21 A. B. R. 885 605 Schwarz, In re, 200 Fed. 309, 29 A. B. R. 700 284, 390 Schweer v. Brown, 195 U. S. 171, 12 A. B. R. 673 ' 881, 1236, 1245 V. Brown, 130 Fed. 328, 12 A. B. R. 178 1165, 1177, 1179 Scofield V. United States, 174 Fed. 1, 23 A. B. R. 259 \ 513 Scott, In re, 1 N. B. N. 161, 1 A. B. R. 49, 95 Fed. 815 355 In re, 1 N. B. N. 226 471 In re, 1 N. B. N. 265, 1 A. B. R. 650 12 In re, IN. B. N. 265, 95 Fed. 815, 1 A. B. R 49. 366 In re, 1 N. B. N. 327 189, 251, 838, 880 In re, 1- N. .B. N. 353, 2 A. B. R. 324, 96 Fed. 607 997, 1025, 1029 In re, 1 N. B. N. 402, 1 A. B. R. 553, 93 Fed. 418 462, 465 In re, 3 N. B. R. 181, Fed. Cas. No. 12517 1004, 1005 In re, 4 N. B. R. 139, Fed. Cas. No. 12518 473 In re, 7 A. B. R. 35 270 In re. 111 Fed. 144, 7 A. B; R. 39 32, 252, 270 In re, 7 A. B. R. 710 271, 276 In re, IS N.' B. R. 73, Fed. Cas. No. 12519 269, 307, 311, 356, 903, 907, 908, 912, 915, 916, 919, 921 Altlg TO FAQXSl Scott,- In; re, 99 Fed. 404, 3 A. B. R. 625. 2 N. B. N. R. 440 212, 213, 288, 289 In re, 126 Fed. 981, 11 A. B. R. 327 1088 Scott V. Abbott, 160 Fed, 573, 20 A. B. R. 335 1014 V. Devlin, 1 N, B. N. 561, 89 Fed. 970 555 V. EUery, 142 U. S. 381 799 V. Kelly, 12 N. B. R. 96. 22 Wall. 57 846 V. McAleese, 1 N. B. N. 265, 1 A. B. R. 605 323 Scrafford, In re, 15 N. B. R. 104, 4 Dill. 376, Fed. Cas. No. 12556, rev'g 14 N. B. R. 184, Fed. Cas. No. 12557 147, 176, 177. 225, 380 Screws, In re, 147 Fed. 989, 17 A. B. R. 269 518 Scruggs, In re, 205 Fed. 673, 31 A. B. R. 94 414, 543, 551, 602, 680 Scull, In re, 7 Ben. 371, 10 N. B. R. 165 161, 186 Scully, In re, 108 Fed. 372, > 5 A. B. R. 717 340 Seaboard Fire Underwriters, In re, 137 Fed. 987 13 A. B. R. 722 121 Seaboard Steel Casting Co. v. Trigg Co., 124 Fed. 75, 10 A. B. R. 594 78, 90 Seabolt, In re, 113 Fed. 766, 8 A. B. R. 57 301, 751. 752, 772 Searles, In re, 200 Fed. 893, 29 A. B. R. 635 447 Sears, In re, 117 Fed. 294, 8 A. B. R 713, rev'g 112 Fed. 58, 7 A. B. R. 279 ,45, 46, 174 Sears v. Hanks, 14 Ohio St. 298^ 301 719 Seaver v. Spink, 8 N. B. R. 218 715 Seavey, In re, 195 Fed. 825, 27 A. B. R. . 373 607, 938 Seay, In re, 7 A. B. R. 700 - 474 Sebring v. Wellington, 63 App. Div. (N. Y.) 4981 6: A. B.,E..e71 722 Seckendorf, In re, 1 N. B. R. 185, 2 Ben. 462, Fed. '.Cas. No^, 12600 363 Seckler, In re,^ 106 Fed. 484, 5 A. B. R. 579 471, 475 Seckler & Silverman, In re, 197 Fed. 128, 28 A. B. R. 627 912 Security Warehousing Co. v. Hand, 206 U. S. 415, 19 A. B. R. 291, aff'g 143 Fed. 32, 16 A. B. R. 49 541, 691 Sedgwick v. Casey, 4 N. B. R. 161, 4 Ben. 562, Fed. Cas. No. 12610 ' 476 V. Fridenberg, 11 Blatch. 77, Fed. Cas. No. 12611 1218 V. Lynch, 8 N. B. R. 289, Fed. Cas. No. 12615 74 V. Menck, 1 N. B. R. 108, Fed. Cas. No. 12167 741 V. Place, 1 N. B. R. 204, 34 Conn. 552, Fed. Cas. No. 12622 10, 84 V. Place, 3 N. B. R. 35, 3 Ben. 360, Fed. Cas. No. 12619 198 V. Place, 5 N. ,B. R. 168, 5 Ben. 184, Fed. Cas. No. 12620 580, 586, 700 V. Place, 10 N. B. R. 28, Fed. Cas. " No: 12621 581 V. Wormser, 7 N. B. R. 186, Fed. Cas. No. 12636 584 See, In re, 209 Fed. 172, 31 A. B.-^ R. 360 625, 1007 Seebold, In re, 105 Fed. 910, 5 A. B. R 358 794 Seeley, In re, 19 N. B. R. 1, Fed. Cas. No. 12628 233 Seibel V. Simeon, 62 Mo. 255 810 Seider, In re, 163 Fed. 138, 20 A. B. R. 708 508, 514 Seigel V. Cartel, 164 Fed. 691, 21 A. B. R. 140 1066, 1099 Seligman, In re, 192 Fed. 750, 26 A. B. R. 664 352, 373 In re, 163 Fed. 549, 20 A. B. E. 774 920 Selkregg v. Hamilton Bros., 144 Fed. 557, 16 A. B. R. 474 255 1556 Bbahdenbueg on Bankbuptcy Sellers v. Bell, 94 Fed. 801, 2 A. B. R. 529 51, 52, 774, 784, 1081, 1083, 1096, 1097, 1188 Selwyn Importing Co., In re, 18 A. B. R. 190 987 Semmer Glass Co., Ltd., In re, 11 A. B. R. 663 444 In re, 135 Fed. 77, 14 A. B. R. 25, appeal dismissed, 203 U. S. 141 390, 444 Semens, In re, 140 Fed. 989, 15 A. B. R. 8d2 1106, 1204 Serra e Hijo v. Hoffman, 17 N. B. R. 124 815, 818, 1156, 1230 V. Hoffman, 19 N. B. R. 152, Fed. Cas. No. 7861 819 Ser\-is, In re, 140 Fed. 222, 15 A. B. R. 271 1054, 1057, 1061 Sessioni. v. Romadka, 145 U. S. 29 551, 552 Sesslcr v. Nemcof, 183 Fed. 656, 25 A. B. R. 618 27 V. Paducah Distilleries Co., 168 Fed. 44, 21 A. B. R. 723 . 453 Seventh Nat. Bank v. Shenandoah Iron Co., 35 Fed. 436 986 Sexton v. Dreyfus, 219 U. S. 339, 25 A. B. R. 363 410, 481 V. Kessler & Co., Ltd., 172 Fed. 535, 21 A. B. R. 807 718 V. Kessler & Co., Ltd., 225 U. S. 90, 28 A. B. R. 85 541 Seydel, In re, 118 Fed. 207 782 .Seymour In re, 1 N. B. R; 29, 1 Ben. 348, Fed. Cas. No. 12684 324, 1143 Shaefer, In re, 151 Fed. 505, 18 A. B. R. 361 780 Shaeffer, In re, 105 Fed. 352, 5 A. B. R. 248 591, 936, 939, 957 Shafer, In re, 17 N. B. R. 116, Fed. Cas. No. 12695 924, 927 Shaffer, In re, 2 N. B. R. 178, Fed. Cas. No. 12694 316 In re, 104 Fed. 982, 4 A. B. R. 728 43 In re, 3 N. B. N. R. 54, 104 Fed. 982, 4 A. B. R. 728 457, 1035, 1111, 1124, 1125, 1155 In re, 17 N. B. R. 369, 4 Sawy. 363, Fed. Cas. No. 12742 152, 154 In re, 169 Fed. 724, 22 A. B. R. 147 1088, 1090 Shaffer v. Fritchery, 4 N. B. R. 179, Fed. Cas. No. 12697 434, 557, 721 V. Koblpgard Co., 183 Fed. 71, 24 A. B. R. 898, aff'g 169 Fed. 724, 22 A. B. R. 147 1064, 1068, 1091 V. Stern, 185 Fed. 549, 26 A. B. R. 54 892 Shaffer & Son, In re, 128 Fed. 986, 11 A. B. R. 717 759 Shale V. Farmers' Bank of Mofrill, 82 Kan. 649, 25 A. B. R. 888 725, 731 Shanker, In re, 138 Fed. 862, 15 A. B. R. 109 307, 1064 Shapiro, In re, 154 Fed. 673, 19 A. B. R. 125 949 Shapiro v. Thompson, 160 Ala. 363, 24 A. B. H. 91 414, 1150 Sharp, In r«; 15 A. B. R. 491 754, 757 Sharp V, Philadelphia Warehouse Co., 19 N. B. R. 378 74, 700 V. Woolslare, 25 Pa. Super. Ct. 251, 12 A. B. R. 396 785 Sharpe v. AUender, 170 Fed. 589, 22, A. B. R. 431, aff'g 164 Fed. 448, 21 A. B. R. 73 730 Sharr, In re, 15 A. B. R. 491 781 Shaw, In re, 19 N. B. R. 512, Fed. Cas. No. 12716 575, 926 In re, 109 Fed. 780, 6 A. B. R. 499 486, 487, 491 In re, 109 Fed. 782, 6 A. B. R. 501 1002, 1003 Shawhin v. Wherritt, 7 How. 627 3, 42 Shea, In re, 126 Fed. 153, 11 A. B. R. 207 948 ABB TO PAQBS] Shea, In re, 211 Fed. 365, 31 A. B. R. 697 ^^^ Shea^v. Lewis, 206 Fed. 877,^30 A. B.^R.^^^^ Shearman v. Bingham, 3 Cliff. 552, Fed. Cas. No. 12672 „ „, 617 V. Bingham et al., 5 N. B. R. 34, ' 1 Lowell 57S, Fed. Cas. No. 12733 44 V. Bingham, 7 N. B. R. 490 43 Sheehan, In re, 8 N. B. R. 345, Fed. Cas. No. 12737 411, 481, 1029 In re, 8 N. B. R. 353, Fed. Cas. No. 12738 241, 255, 965 Sheinbaum, In re, 107 Fed. 247, 5 A. B. R. 187 ^ , 831 Shelburne, In re. 19 N. B. R. 359, Fed, Cas. No. 12745 411 Sheldon v. Parker, 66 Neb. 610, 11 A. B. R. 152 861, 862, 863 V. Wickham^ 161 N. Y. 500 673 Shellington v. Rowland, 53 N. Y. 374 1116 Shelton v. First Nat. Bank of Mauns- ville. 31 Okla. 217. 27 A. B. R. 587 734 V. Price, 174 Fed. 891, 23 A. B. R. 431 578, 584, 638, 874 Shenberger, In re, 2 N. B. N. R. 783, 102 Fed. 978, 4 A. B. R. 489 1102, 1191 Shepard. In re. 1 N. B. R. 115, Fed. Cas. No. 12753 347, 417, 455, 501, 1054, 1119 In re, 3 N. B. R. 172, 3 Ben. 347, Fed. Cas. No. 12754 131, 247 In re, 97 Fed. 187, 5 A. B. R. 857 321, 381, 1136 Shepardson, In re, 36 Conn. 23 12 Shepherd, In re, 2 N. B. N. R. 1020 1058 In re, 2 N. B. N. R. 1070 1079, 1096, 1116, 1143 In re, 6 A. B. R. 725 712 Sheppard v. Lincoln, 184 Fed. 182, 25 A. B. R. 804 24, 838 Shera, In re, 114 Fed. 297, 7 A. B. R. 552 366 Sherburne, In re, 1 N. B. R. 155, Fed. Cas. No. 12758 242 Sheridan, In re, 98 Fed. 406, 3 A. B. R. 5.';4 488, 718 Sherman v. Binghahi, 7 N. B. R. 490, Fed. Cas. No. 12762 835, 840, 846 V. Kortright, 52 Barb. (N. Y.) 261 1191 V. Luckhardt, 9 A. B. R. 307 726 V. Luckhardt, 67 Kan. 682, 11 A. B. R. 26 700 V. Straus, 10 N. B. R. 300 1140 Sherry, In re, 8 N. B. R. 142 183, 235 Shertzer, In re, 2 N. B. N. R. 520, 99 Fed. 706, 3 A. B. R. 699 1079. 1080 Sherwood, In re, 1 N. B. R. 74, Fed. Cas. No. 12774 363 In re, 17 N. B. R. 112, 9 Ben. 66, Fed. Cas. No. 12773 112 Sherwood v. Mitchell, 4 Den. 435 1134 Sherwood, Inc., In re, 210 Fed. 754, 31 A. B. R. 769 206, 416, 602, 603, 605, 725 Shesler v. Pation, 114 App. Div. (N. Y.) 846, 17 A. B. R. 372 555, 953, 954 Shickerling, In re^ 204 Fed. 592, 30 A. B. R. 312 1100 Shjebler & Co., In re, 163 Fed. 545, 20 A. B. R. 777 703,, 973 In re, 174 Fed. 336, 23 A. B. R. 162 517 Shields, In re, 1 N. B. R. 170, Fed. Cas. No. 12785 761 In re, 15 N. B. R. 532, 4 Dill. 588, Fed. Cas. No. 12784 903, 908, 911 Shilladay, In re, 1 N. B. N. 475 413, 414, 680, 1012, 1149 Shimer v. Huber, 19 N. B. R. 414, Fed. Cas. No. 12787 76, 721 Shinn, In re, 185 Fed. 990, 25 A. B. R. cu?^^ „ , , . . . 667, 803 Shippen V. Robbms' Appeal, IS N. B. R. 533 592 Shoe & Leather Reporter, In re, 129 Fed. 588, 12 A. B. R.- 248 25, 938 Table or Cases 1557 [KEFEHBNCBS Shoemaker, In re: Fed. Cas. No. 12799 118S In re, 112 Fed. S48, 7 A. B. R. 437 807, 843 In re, 205 Fed. 113. 30 A. B. H. 349 666 Shoesmith, In re, 135 Fed. 684, 13 A. B. R. 645 61, 175, .229 Shomacker Piano Forte Mfg. Co., In re, 163 Fed. 413, 20 A. B. K. 899 416 Shorer, In re, 1 N. B. N. 331, 2 A. B. R. 165, 96 Fed. 90 1073, 1081 Shoshone Min. Co. v. Rutter, 177 U. S. 505, 511, 513 833, 835 Shropshire, Woodliff & Co. v. Bush, 204 U. S. 186, 17 A. B. R. 77 1002 Shuey, In re, 9 N. B. R. 526, Fed. Cas. No. 12821 806 fhufeldt. In re, 2 N. B. N. R. 517 321 hulman. In re, 206 Fed. 129, 30 A. B. R. 238 691 Shults, In re, 132 Fed. 573, 13 A. B. R. 84 442, 443, 444 In re, 135 Fed. 623, 14 A. B. R. 378 284, 441 Shults & Mark, In re, 11 A. B. R. 690 272 Shumann v. Fleckstein. 15 N. B. R. 324, 4 Sawy. 174, Fed. Cas. No. 12826 ' 852 Shute V. Patterson, 147 Fed. 509, 17 A. B. R. 99 41, 299, 300 Shutts V. Bank, 2 N. B. N. R. 320, 98 Fed. 705, 3 A. B. R. 492 26, 42, 181, 728, 837, 842, 898, 1202, 1211, 1213 Sibley v. Nason, 196 Mass. 125, 22 A. B. R. 712 54, 555, 822 Sicard v. R. R. Co., 15 Blatch. 525, Fed. Cas. No. 12831 639 Sidle, In re, 2 N. B. R. 77, Fed. Cas. No. 12844 746, 1066, 1082, 1148 Siebert, In re, 133 Fed. 781, 13 A. B. R. 348 274, 795 Siegel, In re, 164 Fed. 559, 21 A. B. R. 154 199 Siegel-Hillman Dry Goods Co., In re, 2 N. B. N. R. 856 988 , In re, 2 N. B. N. R. 933 469, 471, 472, 475, 713,, 728 In re. 111 Fed. 980, 7 A. B. R. 351 26, 27;, 481 Si.evers, In re, 1 N. B. N. 68, 1 A. B. R. 117, 91 Fed. 366 10, 20,. 82, 353, 386, 572, 617, 666, 833, 842, 846, 897 Sig. H. Rosenblatt & Co., In re, 193. Fed. 638. 28 A. B. R. 401 20, 161, 170, 241 Sigsby V. Willis, 3 N. B. R. 51, 3 Ben. 371. Fed. Cas. No. 12849 132, 230 Silherhom, In re, 105 Fed. 899, 5 A. B. ^ R. .568 831 Sill V. Wofswick, 1 H. Bl. 665 6 Silling V. Todd, 112 Va. 802, 27 A. B. R. 127 582, 585 Sillitoe, Ex parte, 1 Glyn & J. 374 127 Silsby V. Foote, 20 How. 290 1218 Silv*. In re, 208 Fed. 797, 31 A. B. R. 10# 1007 Silverman et al.. In re, 2 N. B. N. R. 18, 3 A. B. R. 227, 97 Fed. 325, 5 51, 377, 967 In re,> 4 N. B. R. 173, Fed. Cas. No.' 12855 .. 8 In re, 157 Fed. 675, 19 A. B. R. 46.0 .-11053 In re, 206 Fed. 960, 30 A. B. R. 798-- ,890 Silverman Bros., In re, 2 N. B. N. R. ■ 760, 101 Fed. 219, 4 A. B. R. 83, s. c. 1 N. B. N. 286, 2 A. B. R. 515 398, 433, 999, .1001 Silvey & Co. v. Tift, 123 Ga. 804, 17 A. B. R. 9 245,246 Sime, In r.e, 7 N. B. R. 407, 2 Sawy. 320, Fed. Cas. No. 12860 47 Simmons, In re, 10 N. B. R. 253, Fed. Cas. No. 12864 186, 188 Simmons v. Greer, 174 Fed. 654, 23 A. B. R. 443, aff'g 164 Fed. 300, 21 A. B. R. 34 ' 673, 986 Simon, In re, 197 Fed. 102, 28 A. B. R. 616 592, 893 AHB TO PAGES] Simon, In re, 197 Fed. 105, 28 A. B. R. 611 379, 390, 391 In re, 201 Fed. 1004, 29 A. B; R. 808 1067, 1086, 1089, 1092 Simon v. Sternberg, In re, 151 Fed! 507, 18 A. B. R. 204 284, 780 Simonson, In re, I N. B. N: 230, 1 A. B. R. 197, 92 Fed. 904 184, 187, 188, 240, 241 In re, 95 Fed. 948 184, 188 Simonson v. Sinsheimer, 95 Fed. 948, 3 A. B. R. 824, rev'g 1 N. B. N. 230, 92 Fed. 904, 1 A. B. R. 197 60, ISO, iSl, 922 V. Sinsheimer et al., 100 Fed. 426, 3' A. B. R. 824 82; 1203 Simonson, Whiteson & Co., In re, 1 N. ' B. N. 230, 1 A. B. R. 197, 92 Fed. .904 ' 82 Sittipson, In re, 2 N. B. R. 17, Fed. Cas. No. 12879 ; , ' 320, 323 Simpson v. Bank, 56 N. H. 466 12 V. Ready, 12 Mee. & W. 740 , 185 v. Van Etten, 108 Fed. 199, 6 A. B. R. 204 663 Sims, In re, 9' Fed. 440 1112 In. re, 16 N. B. . R. 251, Fed. Cas. No. 12888 639, 747 In re, 19 N. B. R. 57, Fed. Cas. No. 12889 587 In re, 118 Fed. 356, 9 A. B. R. 162, 554, 986 In re, 176 Fed. 792, 23 A. B. R. 899 809, 816 Singer, In re, 174 Fed. 208, 23 A. B. R. 28 1172 Singer v. Nat. Bedstead Mfg. Co., 65 N. J. Eq.' 290, 11 A. B. R. 276 8, 9, 10, 12 v. SlQ^n, 12 N. B. R. 208, 3 Dill. 110, Fed. Cas. No. 12898 733 Sink, In re, 2 N. B. N. R. 645 479, 621, 648, 995 Sinsheimer v. Simonson, 107 Fed. 898, ' S A. B. R. 537 839, '840 Sisler, In re, 1 N. B. N. 472, 96 Fed. 402, 2 A. B. R. 760 778 Sitting, In re, 182 Fed. 917, 25 A. B. R. 682, ■ 507 Six Penny Savings Bank v.' Siuyvesant Bank, 10 N. B. R. 399, Fed. Cas. No. 12919 .... ■■• g V. Stuyvesant Bank, 10 N. B. R. 142, 12 Blatch. 179, Fed. Cas. No.. 12919, s. c. 9 N. B. R. 318 1014 Skelley, In re, 5 N. B. R. 214, 3 Biss. , , 260 • 226 Skewis V. Barthell, 152 Fed. 534, 18 A. B. R. 429 850 Skillen v. Endelman, 39 Misc. CN. Y.) 261, 11 A. B. R. 766 642, 676,866 Skilton V. Codington, 185 N. Y.' 80, 15 A. B. R. 810 21,634,676,844 Skinner, In re, 97 Fed. 190, 3 A. B. R. . 163 581,. 819, 1095, 1101, 1185, 1187 Skubinsky V. Bodek, 172 Fed. 332; 22 A. ■B. R. 689 ' 265, 360, 1163 Skylark,^ The, 4 Biss. 388, Fed. Cas. No. 12929 ' '483 Slack, In re'. 111 Fed. 523, 7 A. B. R. 121 301, 591 Slade, In re, 1 N: B. N. 182, 1 A. B. R. 193 906 Slaughter v. Louisville &' N. R. Co., 125 Tenn. 292, 27 A, B.'.'R, 570 202, 217 Slekter, Inre, 2 N. B..N. R. 951 1066, 1085 Slichter, In re, 2 N. B. R. 107, Fed. Cas. No. 12943 121, 445 Slingluff, In re, 2 N. B. N. R, 1115, 105 Fed. 502 1077, 1078, 1079, 1096, 1098 In re, 106 Fed. 154, 5 A. B. R. 76 594 Sloan, In re, 102 Fed. 116, 4 A. B. R. .356 469, 471, 728 In re, 135 Fed. 873, 14 A. B. R. 435 777, 788, 790, 791 Sloan V; Lewis,- 12 N. B: R. 173, 22 Wall. ISO 146. 248. 283, 409 1558 Beandenbukg on Bankbuptcy [RGFERENCBS Slocum, In re, Fed. Cas. No. 12951, aff'g Fed. Cas. No. 12950 1037 Slocum V. Soliday, 183 Fed. 410, 25 A. B. R. 460 379, 414 Slomka, In re, 117 Fed. 688, 9 A. B. R. 124 1002, 1003 Smalley v. Laugenour, 196 U. S. 93, 13 A. B. R. 692 754, 1240 Smart, In re, 136 Fed. 974, 14 A. B. R. 672 1014 Smedley, In re, 10 L. T. N. S. 432 120 Smedley v. Speckman, 157 Fed. 815, 19 A. B. R. 694, aff'g 153 Fed. 771, 18 A. B. R. 717 718 Smith, In re. Fed. Cas. No. 12974 667 In re. Fed. Cas. No. 12977 353 In re. Fed. Cas. No. 12993, 12994 797 In re, 16 Fed. 465 1067 In re, 92 Fed. 135, 1 N. B. N. 356, 2 A. B. R. 9 794 In re, 96 Fed. 832, 3 A. B. R. 140 774 In re, 100 Fed. 795, 1 N. B. N. 533, 3 A. B. R. 95 581 In re, 108 Fed. 39, 5 A. B. R. 559 294, 963, 968 In re, 112 Fed. 509, 7 A. B. R. 213 350, 1193 In re, 146 Fed. 923, 17 A. B. R. 112 390, 394 In re, 155 Fed. 688, 19 A. B. R. 63 237, 1104 In re, 176 Fed. 426, 23 A. B. R. 864 64, 70, 72, 147, 148, 149, 152, 717 In re, 185 Fed. 983, 26 A. B. R. 399 1169 In re, 198 Fed. 876, 29 A. B. R. 527 544 In re, 203 Fed. 369, 29 A. B. R. 628 532, 673, 970, 1226, 1234 In re, 209 Fed. 91, 31 A. B. R. 560 147 In re, 1 A. B. R. 37, 1 N. B. N. 136 969 In re, 1 N. B. N. 404, 2 A. B. R. 648 335, 479, 497 In re, 2 A B. R. 648 971, 1023 In re, 3 A. B. R. 67 381 In re, 8 A. B. R. 55. 113 Fed. 993 794 In re, 11 A. B. R. 646 998 In re, 16 A. B. R. 478 255, 256 In re, 29 A. B. R. 628, 203 Fed. 369 969 In re, 1 N. B. N. 61 198 In re, 1 N. B. N. 1J6, 1 A. B. R. 37 392, 476, 509, 532 In re, 1 N. B. N. 180 943 In re, 1 N. B. N. 356, 2 A. B. R. 9, 92 Fed. 135 82, 667, 836, 842 In re, 1 N. B. N. 47i, 3 A. B. R. 67 321, 1136 In re, 1 N. B. N. 532, 93 Fed. 791, 2 A. B. R. 190 760. 762. 1184 In re, 1 N. B. N. 533, 100 Fed. 795, 3 A. B. R. 95 888 In re, 1 N. B. R. 25, 2 Ben. 113. Fed. Cas. No. 12971 267, 493, 508 In re, 1 N. B. R. 169, 2 Ben. 432, Fed. Cas. No. 12973 542 In re, 3 N. B. R. 15 44 In re, 3 N. B. R. 98, 4 Ben. 1, Fed. Cas. No. 12974 84 In re, 5 N. B. R. 20, Fed. Cas. No. 12985 1057, 1058 In re, 8 N. B. R. 401, Fed. Cas. No. 12986 756, 758 In re, 12 N. B. R. 459, Fed. Cas. No. 12990 617 In re, 13 N. B. R. 256, 1 Woods 478, Fed. Cas. No. 12995 1098 In re, 13 N. B. R. 500, Fed. Cas. No. 12987 • 979, 1036, 1037 In re. 14 N. B. R. 295, 2 Woods 458, Fed. Cas. No. 12996 9, 652, 756, 7S7 In re, 14 N. B. R. 432, Fed. Cas. No. 12988 349 In re, IS N. B. R. 97, Fed. Cas. No. 12989 . 1027, 1030 In re, 16 N. B. R. 399, Fed. Cas. No. 12992 1006 In re, 18 N. B. R. 24, Fed. Cas. No. 12976 322, 1143 ABB TO pages] Smith T. Bamhard, 14 N. B. R. 41 920 V. Belford, 106 Fed. 658, 5 A. B. R. 291 1175 V. Berman, 8 Ga. App. 262, 24 A. B. R. 849 22, 527 V. Bromley, Doug, Rep. (Mich.) 696 1076 v. Buchanan, 4 N. B. R. 133, Fed. Cas. No. 13016 545, 639, 845 .. Ely, 10 N. B. R. 553, Fed. Cas. No. 1344 676 v. Engle, 14 N. B. R. 481 904, 908, 923, 926 V. Engle, 14 N. B. R. 489 815 V. Evans, 148 Fed. 89, 17 A. B. R. 433 1213 v. Hewlett Robin Co., 178 Fed. 271, 24 A. B. R. 153 738 V. Keegan, In re. 111 Fed. 157, 7 A. B. R. 4 1072 V. Kehr, 7 N. B. R. 97, 2 Dill. 50, Fed. Cas. No. 13071 577, 647, 768, 780 V. Krauskopf, 18 N. B. R. 6 925 V. Little, 9 N. B. R. 11. 5 Ben. 490, Fed. Cas. No. 13072 722 V. Manufacturers' Nat. Bank, 9 N. B. R. 122, Fed. Cas. No. 13076 107, 108 V. Mason, 6 N. B. R. 1, 14 Wall. 419 178, 829, 840, 841, 880, 1231 V. Meisenheimer, 1 N. B. N. 19 644, 807 V. MotUey, 150 Fed. 266, 17 A. B. R. 863, rev'g 143 Fed. 407, 16 A. B. R. 226 626 V. Putnam, 3 Pick. 221 603 V. Scholtz, 17 N. B. R. 520 548, 942, 946 V. Stanchfield, 84 Minn. 343, 7 A. B. R. 498 1125 V. Steinberg, 1 N. B. N. 240 1128 V. Township of Au Gres, 150 Fed. 257, 17 A. B. R. 745 349, 625, 1Q05 V. Wheeler, 3 N. B. N. R. 337, 66 N. Y. S. 780 390 V. Wheeler, 5 A. B. R. 46 393 Smith Lumber Co., In re, 132 Fed. 618, 13 A. B. R. 123 405 In re, 132 Fed. 625, 13 A. B. R. 118 396 Smith & Bro. Typewriter Co. v. Alleman, 199 Fed. 1, 28 A. B. R. 699, rev'g 187 Fed. 281, 26 A. B. R. 37 561 Smith & Nixon Piano Co., In re, 149 Fed. Ill, 17 A. B. R. 636, rev'g 132 Fed. 983, 13 A. B. R. 276 558 Smith & Shuck, In re, 132 Fed. 301, 13 A. B. R. 103 563 Smith & Wallace Co. v. Lambert, 69 N. J. L. 487, 11 A. B. R. 252 1140 Smoke, In re, 2 N. B. N. R. 831, 4 A. B. R. 477, aff'd 2 N. B. N. R. 996, 4 A. B. R. 434, 104 Fed. 289 102, 471, 728 Snedaker, In re, 3 N. B. R. 155 808 In re, 4 N. B. R. 43 621, 1011 Snell, In re, 125 Fed. 154, 11 A. B. R. „ 35 657, 802 SneUmg, In re, 202 Fed. 259, 29 A. B. Rf 818 543, 888, 894 In re, 19 N. B. R. 120, Fed. Cas. No. 13140 907, 910, 915 Snodgrass, In re, 209 Fed. 325, 31 A. B. R. 601 S81 Snow v. Dalton, 203 Fed. 843, 29 A. B. _ R- 240 iil2, 1214, 1228 Snowman v. Harford, 57 Me. 397 1164 Sn*der *. Bougher, 214 Pa. 453, 16 A. B. R. 792 935, 937, 951 v. Gutbne (Pa. Ct. Com. PI.) , 24 A. B. R. 58 751 V. Guthrie, 6 Pa. Dist. Ct. Rep. 490, 17 .A. B. R. 902 808 Snyder & Tohnson Co., In re, 133 Fed. 806, 13 A. B. R. 32i 115 Sohoo, In re, 3 N. B. R. 52, Fed. Cas. No. 13162 1055, 1056 Soils, In re, 4 N. B. R. 18, Fed. Cas. ^ No. 13165 354, 361 Solomon, In re, 2 Hughes 164, Fed. Cas. No. 13166 778 Table or Cases 1559 [BEFEUKNCUS Solomon, In re, 2 N. B. N. R. 460 382, 668, 802, 845 In re, 2 N. B. R. 94, Fed. Cas. No. 13167 1080, 1086, 1087 In re, 10 N. B. R. 9, Fed. Cas. No. 13166 758r 789 Solomon & Carvel, In re, 163 Fed. 140, 20 A. B. R. 488 120, 309 Soloway & Katz, In re, 195 Fed. 100, 28 A. B. R. 225 374, 1161, 1168 In re, 195 Fed. 103, 28 A. B. R. 228 374 In re, 196 Fed. 132, 28 A. B. R. 345 889 Bonnabend, In re, 18 A. B. R. 117 273, 275, 913, 924, 1034, 1036 Sonnentheil v. Moerlein Brewing Co., 172 U. S. 401 1238 Soper, In re, 1 A. B. R. 193 309 , In re, 173 Fed. 116, 22 A. B. R. 868 751, 760, 781 Sorkin, In re, 166 Fed. 831, 20 A. B. R. 637 1168, 1169 Soudan Mfg. Co., In re, 113 Fed. 804, 8 A. B. R. 45 676, 685 South Side Trust Co. v. Watson, 200 Fed. 50, 29 A. B. R. 446 414, 1013 V. Wilmarth, 199 Fed. 418, 29 A. B. R. 29 572 Southard v. Benner, 19 N. B. R. 124 852 V. Benner, 72 N. Y. 424 573, 636 Souther, .In re, 2 Low. 320 Fed. Cas. No. 13184 454 Southern v. Fisher, 16 N. B. R. 414 796 Southern Irrigation Co. v. Wharton Nat. Bank, 144 S. W. 701, 28 A. B. R. 941 643, 754, 766 Southern L. & T. Co. v. Benbow, 96 Fed. 514, 3 A. B. R. 9, 42 323, 793, 794, 808, 842, 846, 938, 1117 Southern Minn. Ry. Co., In re, 10 N. B. R. 86, Fed. Cas. No. 13138 ^ 117 Southern Pine Co. of Georgia v. Savannah Trust Co., 141 Fed. 802, 15 A. B. R. 618 283, 541, 559 Southern Steel Co., In re, 169 Fed. 702, 22 A. B. R. 476 91, 967 Southern Steel & Iron Co. v. Hickman, Williams & Co., 190 Fed. 888, 27 A. B. R. 203 205, 206 Southern Textile Co., In re, 174 Fed. 523, 23 A. B. R. 172 633 Southwestern Bridge & Iron Co., In re, 133 Fed. 568, 13 A. B. R. 304 29, 34 Southwestern Car Co.. In re, 19 N. B. R. 404, Fed. Cas. No. 13192 1013 Spacht, fn re, 2 N. B. N. R. 238 660, 720 Spades, In re, 13 N. B. R. 72, 6 Biss. 448, Fed. Cas. No. 13196 903, 904, 90S, 908 Spalding. In re, 139 Fed. 244, 14 A. B. R. 12^,. rev'g- 134 Fed. 507, 13 A. B. R 223 85, 87, 88, 299 In re, 150 Fed. 120, 17 A. B. R: 667 256 Spalding v. New York, 4 Hun 21 1124 Spann, In re, 183 Fed. 819, 25 A. B. R 551 ^'9 Sparhawk v. Ackley, 142 U. S. 1 553, 617 V. Drexel, 12 H. B. R. 450, Fed. Cas. No 13204 483, 609, 623, 690 v. Richards, 12 N. B. R. 74, Fed. Cas. No. 13205 477 V. Russell, 10 Met. 305 „ „ 595 v. Yerkes, 142 U. S. 1 5S1, 553, 617 Sparks V. Marsh, 177 Fed. 739, 24 A. B. R. 280 . „ 700, 734 Spear, In re, 103 Fed. 779, 4 A. B. R..„„^ *617 ^ 1082 Spears v. Freuchton & B. R. R. Co., 213 Fed. 784, 31 A. B. R. 679 887 Spechler Bros.; In re, 185 Fed. 311, 26 'A. B. R. 97 218 Specht, In re, 2 N. B. N. R. 238 _ . „ ,654 Speer Bros., In, re, 144 Fed. 910, 16 A. B. R. 524 421 Spencer, In re, 1 N. B, N. 154 799, 806 In re, 18 N. B. R. 199, Fed. Cas. -No. .13229 279, 283, 331, 343. 913, '920 AlIB TO PAGES] Spencer v. Duplan Silk Co., 191 U. S. 526, 11 A. B. R. 563 830 V. Lowe, 198 Fed. 961, 29 A. B. R. 876 389, 461, 545, 568, 764 V. Nekemoto, 24 A B. R. 517 572 575 732 V. Smith, 201 Fed. 647, 29 A. fe. R.' 120 1014 Speyer, In re, 6 N. B. R. 255, Fed. Cas. No. 13239 271, 888, 1162, 1163 Spicer, In re, 145 Fed. 431, 16 A. B. R. 802 1154 Spicer v. Ward, 3 N. B. R. 127, Fed. Cas. No. 13241 151 Spillman, In re, 13 N. B. R. 214, Fed. Cas. No. 13242 904, 920 Spilman v. Johnson, 16 N. B. R. 145 500 S&ittler, In re, 151 Fed. 942, 18 A. B. R. ^425 394 Spitzel & Co., In re, 168 Fed. 156, 21 A. B. R. 729 618 Spitzer, In re, 130 Fed. 879, 12 A. B. R. 346 21, 218 Spot Cash Hooper Co., In re, 188 Fed. 861, 26 A. B. R. 546 430 Spring, In re, 2 N. B. N. R. 509 392, 479 Springer, In re, 199 Fed. 294, 29 A. B. R. 96 1104 Spruks v. Lackawanna Dairy Co., 189 Fed. 287, 26 A. B. R. 554 999 Squier, In re, 165 Fed. 515, 21 A. B. R. 346 882 Standard Cordage Co., In re, 184 Fed. 156, 30 A. B. R. 448 197, 198 Standard Dairy & Ice Co., In re, 20 A. B. R. 321 382, 1028 Standard Fuller's Earth Co., In re, 186 Fed. 578, 26 A. B. R. 562 20, 383, 384, 960 Standard Laundry Co., In re, 112 Fed. 126, 7 A. B. R. 254 674 Standard Oak Veneer Co., In re, 173 Fedr 103, 22 A. B.iR. 883 12, 13, 1004, 1013 Standard Oil Co. v. Hawkins, 74 Fed. 395 , 448, 689 Standard Sewing Machine Co. v. Kattell, 132 App. Div. (N. Y.) 539, 23 A. B. R. 37^ I 1132, 1155 Standard Tel. & Elec. Co., In re, 216 U. S. 545, 24 A. B. R. 761, aft'g 162 Fed. 675, 20 A. B. R. 671 675, 1214, 1248 In re, 186 Fed. 586, 26 A. B. R. 601 459, 466 Standard Varnish Works v. Haydock, 143 Fed. 318, 16 A. B. R. 286 619, 620 Stansell, In re, 6 N. B. R. 183, Fed. Cas. No. 13293 147, 149 Stansfield, In re, 16 N. B. R. 268, 4 Sawy. 334, Fed. Cas. No. 13294 1054, 1135 Stanton v. Wooden, 179 Fed. 61, 24 A. B. . R. 736 29 Stanton Co., In re, 162 Fed. 169, 20 A. B. R. 549 604 Star Spring Bed Co., In re, 203 Fed. 640, 30 A. B. R. 208 1168 Stark, In re, 1 N. B. N. 232, 1 A. B. R. 180, 96 Fed. 88 1073, 1080, 1081 In re, 155 Fed. 694, 18 A. B. R. 467 206, 292 Starks-Ullman Saddlery Co., In re, 171 Fed. 834, 22 A. B. R. 596 683 Starkweather v. Ins. Co., 4 N. B. R. 110, Fed. Cas. No. 13308 539, 592, 602 Starkweather & Albert, In re, 206 Fed. 797, 30 A. B. R. 743 284, 445, 726 State V. Brice, 8 Ohio St. 82 264 V. Dewey, 5 N. B. R. 466 843 V. Doherty, 25 La. Ann. 119 265 V. Fagan, 42 Conn. 32 262 V. Harrison, 113 Ind. '440 262 V. Hope, 102 IHq. 431 492 V. Rollins, 13 Mo. 179 321 V. Sauvinet, 24 la. Ann. 119 1181 V. St. Louis. 90 Mo. 19 264 V. Wells, 8 Nev. 105 262 1560 Brandenbubg on Bankbuptcy State Bank of Chicago v. Cox, 143 Fed. 91, 16 A. B. R. 32 574, 638, 639, 876 State Ins. Co., In re, 15 Fed. 736 418 Stale Nat. Bank v. Dodge, 124 U. S. 333 529 State of Georgia v. Railroad,. 3 Woods 434 982 State, of New Jersey v. Lovell, 138 App. Div. (N. Y.) 513, 24 A. B. R. 562 ' 983- State Savings Association v. Kellogg, 52 Mo. 583 - 857 Staunton, In re, 117 Fed. 507, 9 A. B. R. 79' 756, 790 Staunton v. Wooden, 179 Fed. 61, 24 A. B. R. 736 883, 896 Stavrahn, In re, 174 Fed. 330, 23 A. B. R. 168 1176 Steadman v. Bank of Monroe, 117 Fed. 237, 9 A.- B. R. 4 , 686, 735 Steani Laundry Co. of Queens County, In re, 24 A. B. R. 457 113 Stearns v. Flick, 2 N. B. N. R. 1046, 103 Fed. 919, 4 A. B. R. 723 382, 991 Stedmat) v. Taylor, 17 N. B. R. 283 ' 953 Steed, In re, 107 Fed. 682, 6 A. B. R. 73 296, 771, 831, 1063; 1080, 1095, 1100 Steedman, In re, 8 N. B. R./319, Fed. Cas. No. 13330 603 Steel V. Lyford, 59 Vt. 230 775 Steele, Ex parte, 162 Fed. 694, 20 A. B. R. 575 261 Steele, In re, 156 Fed. 853, 19 A. B. R. 671 260, 265 In re, 2 Flip. 324, Fed. Cas.- No. 13346 774 In re, 2 N. B. N. R. 281, 98 Fed. 78; 3 A. B. R. 549, rev'd 104 Fed. , 968, 5 A. B. R. 1§5 596, 597, 598 In re, 16 N. B. R. 105, 7 Biss. 504, Fed. Cas. No. 13345 1008 In re, 161 Fed. 886, 20 A. B. R. 446 15 Steele v. Buel, 104 Fed. 968, 5 A. B. R. 165, 44 C. C A. 287 754, 1217 V. Iloody, 16 N. B. R. 558 ' ■ 43, 750, 759, 865 V. Thalmeier, 74 Ark. 518 , 1152 Steelman v. Mattix, 36 N. J. L. 344 12 Steffen v. Bower, 70 Mo. 399 350 Stegar, In re, 113 Fed. 978, 7 A. B. R. 665 137, 138, 219 Stege, In re, 116( Fed. 342, 8 A. B. R. 515 444, 725 Stein, In re, 1 N. B. N. 339, 94 Fed. 124, 1 A. B. R. 662 335, 457, 495, 525, 1029, 1033 In re, 105 Fed. 749, 5 A. B. R. 288 41, 153. 158, 181, 240 In re, 16 N. B. R. 569, Fed. Cas. No. 13352 473 In re, 130 Fed. 377, 12 A. B. R. 364 175 Stein & Co., L., In re, 127 Fed. 547, 11 A. B. R. 536 130, 304 Steindler, In re, 3 N. B. N. ?. 81, 5 A. B. R. 63 1076 Steiner v. Marshall, 140 Fed. 710, IS A. B. R. 486 774, 1234 Steinhardt v. National Park Bank of New York, 120 App. Div. (N. Y.) 255, 19 A, B. R. 72, rev'g 52 Misc. (N. Y.) , 464, 18 A. B. R. 86 437, 439, 440, 444, 448 Steiningfer Mercantile Co., In re, 107 Fed. 669, 6 A. B. R. 68 686 Stelling v. Jones Lumber Co., 116 Fed. 261, 8 A. B. R. 521 1213 Stendts, In re, 1 N. B. N. 509 418, 686 Stephens, In re, 6 N. B. R. 533, 3 Biss. 187, Fed. Cas. No. 13365 427, 473 In re, 114 Fed. 192, 8 A. B.R. S3 284 Stephens v. Merchants' Nat. Bank, 154 Fed. 341, 18 A. B. R. 560 123, 233 V. Meridian Britaniiica Co., 160 N. Y. 178 673 V. Perrine, 143 N, Y. 476 673 Stephenson v. Bird, 168 Ala. 363, 25 A. B. R. 909 851. 1117, 1120 ABE TO PAGBS] Stephenson v. Jackson, 9 N. B. R. 25S, 2 Hughes 204, Fed. Cas. No. 13374 423 Sterin & Levi, In re, 26 A. B. R. 535 633 Sterlingw'orth Ry. Supply Co,, In re, 165 Fed. 267, 21 A. B. R. 342 40, 811 Stern, In re, 116 Fed. 604, 8 A. B. R. S69 146,. 164, 394, 399 ■ In re, 144 Fed. 956, 16 A. B. R. SIO 434, 490, 494 In re, 208 Fed. 488, 30 A. B. R. 694 760, 782 Stern v. Louisville Trust Co., 112 Fed. 501, 7 A. B, R. 305 722, 740 V. Mayer, 113 App. Div. (N. Y.) 181, 16 A. B. R. 763 872 V. Paper, 183 Fed. 228, 25 A. B. R. 451, aff'd 198 Fed. 64, 28 A. B. R. 592 62, 703, 704, 706, 732, 734, 738 V. United States, 193 Fed. 888, 28 A; B. R. 101 1197 Sternberg, In rt 3 N. B. N. R. 79 775, 789 Sternbergh v. Duryea Powder Co., 161 Fed. 540, 20 A. B. R. 625, rev'g 159 Fed. 783, 20 A. B. R. 219 858 Sterne & Levi, ,In re, 26 A. B. R. S3S 379, 414, 567, 602, 603 In re, 30 A. B. R. 915 413, 996 In re, 190 Fed. 70, 26 A. B. R. 259 46, 47 Stetson, In re, 3 N. B. R. 179, 4 Ben. 147, Fed. Cas. No. 13381 1110 Steuer, In re, 104 Fed. 976, 980, 5 A. B. R. 209 274, 839 Stevens, In re, 2 Biss. 373, Fed. Cas. No. 13392, S N. B. R. 298 649, 758, 776, 779 In re, 104 Fed. 323, 5 A. B. R. 9 422, 424, 427, 1043 . In re, 104 Fed. 325, 5 A. B. R. 11 461 In re, 107 Fed. 243, 5 A. B. R 806 , ^ . 391, 461, 463, 464, 465 In >e, 173 Fed. 842, 23 A. B. R. 239 409, 410, 478, 938, 955, 1030 In re, 4 N. B. R. 122, Fed. Cas. No. , 13391 333, 336, 478 In re, 5 N. B. R. 112, 1 Sawy. 397, Fed:. Cas. No. 13393 130, 304, 305, 1038, 1047, 1126, 1128 Stevens v. Brown, 11 N. B. R 568 „ ^ , , '845, 1118, 1131 V. Nave-McCord Mercantile Co.. ISO Fed. 71, 17 A. B. R. 609 5. 149, 467, 1201, 1203, 1207, 1209, 1227 V. Oscar Holway Co., 156 Fed. 90 19 A. B. R. 399 732 Stevenson, In re, 1 N. B. N. 313, 2 A B R. 66, 94 Fed. 110 95, 167, .168, 714 : In re, 1 N. B. N. 531, 93 Fed. 789. 2 c. ■ ^- ^- ^JK^ ' *09. 755. 771 Stevenson v. McLaren, 14 N. Bi R. 403 nf.,-. ^ ,. 65, 2S4, S76 V. MiUiken-Tomlmson, 99 Me. 320 13 A. B. R. 201 I 732 734 Stewart, In re, 178 Fed. 463, 24 A B r' '*?* ,„, ^ J 't", 616, 620; 975 In re, 193 Fed. 791, 27 A. ^. r! T ^^' . ,.r ^ „ 291, 293, 956, 957 ^",;fiJ ^- ^- K- *2, Fed. Cas. No! T "'''^, ,>T „ „ 478, 482, 835 In re, 3 N. B. R. 28; Fed. Cas. No 13419 137 ■ I",f«%" N. B. R. 295, Fed. Cas. No. _ 13420 771 773 Stewart v. Armstrong, 56 Fed. 171 454 V. Emerson, 8 N. B. R. 462 695 1134 V. Isador, 1 N B^ R. 129 478, 479, 482 V. McCIung, 12 Ore. 431 774 V. Piatt, 19 N. B. R. 347, 101 U. S. 712 Stich V. Berman, 49 Misc. (N. Y) 104 15 A. B. R. 466 ' i4f 442 Sticltney In re, 17 N. B. R. 305, Fed' Cas. No. 13/jii9 112 ^HS}"}f''.7.; ''^'"- " N. B. R. 97, 23 WaU, 150, 1218, 1230. 1235 Table op Cases 1561 [REFERENCES Stiger, In re, 209 Fed. 148, 31 A. B. R. 634, affg 202 Fpd. 791. 29 A. B. B. 253 680 Stiles V. Dunnahoo, 113 Fed. 80-1, 8 A. B. R. 45 683 Still's Sous, H. D., V. American Nat. Bank, 209 Fed. 749, 31 A. B. R. 320 121, 133 Stillwell, In re, 2 N. B. R. 104, Fed. Cas. No. 13447 512 In re, 7 N. B. R. 226, Fed. Cas. No. 13448 338 Stillwell V. Coope, 4 Denio 225 1126 V. Walker, 17 N. B. R. 569, Fed. Cas. No. 13451 490 Stoddard, In re, 114 Fed. 486, 7 A. B. R. 762 1103 Stoddard v. Locke, 9 N. B. R. ?3 844, 1121, 1122 Stoddard Bros. Lumber Co., In re, 169 Fed. 190, 22 A. B. R. 435, aff'd 177 Fed. 611, 24 A. B. R. 403 439 Stoever, In re, 105 Fed. 355, 5 A. B. R. 250, 3 N. B. N. R. 314 278, 335 In re, 127 Fed. 394, 11 A. B. R. 345 394, 431, 458, 1013. 1016 Stokes, In te, 106 Fed. 312, 6 A. B. R. 262 611 In re, 185 Fed. 994, 26 A. B. R. 255 289 In re, 1 N. B. N. 106, 1 A. B. R. 35 37 In re, 1 N. B. R. 130, Fed. Cas. No. 13475 513 In re, 2 N. B. R. 76, Fed. Cas. No. 13476 1103, 1141. Stokes V. Mason, 12 N. B. R. 498 1134 r. State of Ga., 9 N. B. R. 191 431 Stoll V. Wilson, 14 N. B. R. 571 , 1156. Stolp, In re, 199 Fed. 488, 29 A. B. R. 32 745, 746, 997 Stone, In re, 116 Fed. 35, 8 A. IB. R. 416 755, 766 In re, 172 Fed. 947, 23 A. B. R. 24 1053 In re, 206 Fed. 356, 30 A. B. R. 392 141, 142, 165 Stone V. Moore, 36 111. 165 185 Stoner, In re, 3 N. B. N. R. 423 606 In re, 105 Fed. 752, 5 A. B. R. 402 547 Storck Lumber Co., In re, 114 Fed. 360, 8 A. B. R. 86 10, 90 Stores V. Engel, 19 N. B. R. 90, Fed. Cas. No. 13494 840 Storm, In re, 103 Fed. 618, 4 A. B. R. 601 80 Stotts, In re, 1 N. B. N. 326, 93 Fed. 438, 1 A. B. R. 641 963, 969. 972, 980 Stout, In re, 109 Fed. . 794, 6 A. B. R. 505 284, 392, 773 Stovall Grocery Co., In re, 161 Fed., 882, 20 A. B. R. 537 67, 70 Stowe, In re, 6 N. B. R. 429, Fed. Cas. No. 13513 674 Stowers, In re, 1 Lowell 528, -Fed. Cas. No. 13516 131 Strachen, In re, 3 N. B. R. 148 1075 Stradley & Co., In re, 187 Fed. 285, 26 A. B. R. 149 339 Strain v. Gourdin, 11 N. B. R. 156, 2 Woods 380, Fed. Cas. No. 13521 704 Strait, In re, 2 A. B. R. 308, 1 N. B. N. 354 169, 279 Stranahan v. Gregory, 4 N. B. R. 142, Fed. Cas. No. 13522 60, 733 Strang v. Bradner, 114 U. S. 555 1140, 1141, 1146 Strasburger v. Bach, 157 Fed. 918, 19 A. B. R. 732 ' S55 Strassburger, In re. Fed. Cas. No. 13526 1016 Strattmeyer, In re, 14 A. B. R. 120 964 Stratton v. Oulton, 28 Cal. 44, 382 262 V. Tabb, 8 III. App. 225 127 Straub, In re, 158 Fed. 375, 19 A. B. R. 808 955 Strauch, In re, 208 Fed. 842, 31 A. B. R. 36 957, 999, 1017 ABB TO PAGES] I Strauch v. Flynn, 108 Minn. 313, 22 A. B. R.'246 1156 Strause v. Hooper, 105 Fed. 590, 5 A. B. R. 225 420, 107J Strauss, In re, 2 N. B. R. 18, Fed. Cas. No. 135J2 464 Strawbridge, In re, 25 A. B. R. 355 427, 1042 Streator Metal Stamping Co., In re, 205 Fed. 280, 30 A. B. R. 55 1231 Streeter v. Lowe, 184 Fed. 263, 25 A. B. „ R. 744 396, 465 Strenz, In re, 8 Fed. 311 584 Strickland, In re, 20 A. B. E. 923 1001 In re, 167 Fed. 867, 21 A. B. R. 734 49J Strobe], In re, 160 Fed. 916, 20 A. B. R. 22 , 207, 1233 In re, 163 Fed, 380, 20 A. B. R. 754 1177 In re, 153 Fed. 787, 20 A. Q. S. 884 458 Strobe] V. Knost, 99 Fed. 409, 1 N. B. N. 403, 2 A. B. R. 471 728 Strobe! & Wilkins v. Knost, 3 A. B. R. 631 474 Stroheim v. Perry & AVhitney Co., 175 Fed. 52, 23 A. B. R. 695, aff'g 172 Fed. 745. 22 A. B. R. 572 ISO, 152 Stroud V. McDaniei, 106 Fed. 493, 5 A. B. ^ R. 695 673 Stroum, In re, 192 Fed. 762, 27 A. B. R. 721 210, 692, 1225 Strouse, In re, 2 N. B. N. R. 64 ' 1077, 1034, ,1183 tjtructural Steel Car Co., In le, 14 Ohio Fed. Dec. ^09, 13 A. B. R. 373 399, 400 Stuart V. Farmers' Bank of Cuba City, 137 Wis. 66, 21 A. II. E. 403 731 V. Mines, 6 N. B. R. 416 138, 159, 639, V. Reynolds, 204 Fed. 709, 29 A. B. R. 412 889, 1159," 1163, , 1164,' 1165, 1175, 1179, 1226, .1-230 Stucky V. Bank, 108 U. S. 74 733 Studebaker, In re, 127 Fed. 951, 11 A. B. ' R. 384, rev'g 124 Fed. 945, 10 A. B. R. ,205 ,, ■ 1079 Stu'dley V. Eoylston Bank, 2'29 U. S. 523, 30 A. B. R. 161, aff'g 200 Fed. 249, 29 A. B. R. 649 436, 709, 725 Stumpff, In re, 9 Okla. 639, 4 A. B. R. ^287 1224 Sturdivant Baiik v. Schade, 195 Fed. 188. 27 A. B.R. 673, rev'g 189 Fed. ti6. 26 . A-B. R. 915 543, 633, 635, 671, 719, 1209 Sturgeon,. In re, 139 Fed. 608, 14' A. B. . R. 681 375 In re, 1 N. B. E. 131, Fed. Cas. No. • •13564 47, 290 Sturges V. Crowinshield, 4 Wheat. 196 2, 10, Hi 13, 14, 102, 183, 652 Sturgis, In re, 16 N. B. R. 304,"S Biss, ' 79, Fed. Cas. No. 13565 930 Sturgis V. Colby, 18 N. B. R. 168, Fed. -Cas. No. 13566, 13574 400, 557 V. Corbin,- 141 Fed. 1, 15 A. B. R. ■ 543 946, 949, 1232 Sturgiss V. Meurer, 191 Fed. 9, 26 A. B. R. 851 380, 395 Sturtevatit, In re, 188 Fed. 196, 26 A. B. R. 574 717 Stuyvesant Bk., In re,i 7 N. E. R. 445, 6 Ben. 33, Fed. Cas. No. 13582 355, 356, 364 In re, 9 N. B. R. 318, Fed. Cas. No. 13584 . 1007- Styer, In re, 2 N. B. N. R. 203, 98 Fed. 290, 3 A. B. R. 424 273, 936, 938, 939 Suckle, In re, 176 Fed. 828, 23 A. B. R. 861 408 Suffiel V. McCartney Nat. Bank, 127 Wis. 208, 16 A. B. R. 259 733, 738 Sueenheimer, In re, 1 N. B. N. 39, 1 A. B. R. 425, 91 Fed. 744 340, 347, 464 . Sullivan, In re, 148 Fed. 815, 17 A. B. R. 578, aft'g 142 Fed. 620, 16 A. B. R. 87 754, 764 1562 Beandbnbubg ox Bakkkuptcy rBEFEEBNCES Sullivan, In re, 1 N. B. N. 380, 2 A. B. R. 30 410, 412, 800, 1148 Sullivan v. Davis, 50 Vt. 648 77S V. Heiskell, Crabbe, V. S. Dist. Ct. 525 13 , y. Mussey, 184 Fed. 60, 25 A. B. R. 781, aff'g 179 Fed. 1007 25 A. B. R 91 788 Sully, Tn re, 13 A. B. R. 783 961 In re, 133 Fed. 997, 13 A. B. R. 22 215 Sully & Co., In re, 142 Fed. 895, 15 A. B. R. 304 494 In re, 152 Fed. 619, 18 A. B. R. 123 380, 490, 498 Summers, In re, 1 N. B. N. 60 319, 803 In re, 3 N. B. R. 21, Fed. Cas. No. 13604 7,63 Summers ». Abbott, 122 Fed. 36, 10 A. B. R. 254/ 94 Sumner, In re, 4 A. B. R. 123, 101 Fed. 224, 2 N. B. N. R. 681 343, 354, 451, 487, 492, 493, 499, 506 Sundheim v. Ridge Ave. Bank, 138 Fed. 951. IS A. B. R. 132 733 Sunseri, In re, 156 Fed. 103, 18 A. B. R. 231 201, 879, 89S In te, 3 N. B. R. 61 984 In re, 3 N. B. W. R. 65 ^ 681, 775, 789, 1012 Superior Drop Forge & Mfg. Co., In re, 208 Fsd. 813, 31 A. B..R. 455 543, 565 Supervisors v. Kennicott, 103 U. S. 113 Otto) 554 236 Surety & Guarantee Trust Co., In re, 131 Fed. 73, 9 A. B. R. 139 108, 109, 111, 113 Sussmin, In le, 183 Fed. 331, 24 A. B. R. 909 7S0 Sutherland, In re, 1 N. B. R. 531, 1 Deady 344, Fed. Cas. No. 13638 720 In re, 3 N. B. R. 314, Fed. Cas. No. 13639 403 Sutherland v. Davis, 10 N. B. R. 424 539 v. Lake Slip, Ship Canal, R. R. & Iron Co., 9 N. B. R. 298, Fed. Cas. No. 13643 648, 829 v. Lasher, 41 Misc. (N. Y.) 249, 11 A. B. R. 780 309, 311, 1151 Sutherland Medicine Co., E. E., et al. v. Rich & Bailev, 22 A. B.R. 8? 133 Sutter Bros., Id re, 131 Fed. 654, 11 A. B. R. 632 30 Svcnson, In re, 19 N. B. R. 229, 9 Biss. 69, Fed. Cas. No. 13659 1053 Swager v. Smith, 194 Fed. 762, 27 A. B. R. 660 672, 675, 1209 Swain Co., In re, 194 Fed. 749, 28 A. B. R. 66 999 Swan, In re, ISO U. S. 637 1159 Swarls V. Fourth Nat. Bank, 117 Fed. 1, 8 A. B. R. 673 389, 45S, 475, 480, 710 v. Hammer, 194 C. S. 441, 11 A. B. R. 708, aff'g 120 Fed. 256, 9 A. B. R. 691 553 v. Siegel, 117 Fed. 13, 8 A. B. R. 689 481, 703. 1128 Sweatt V. Boston, etc., R; R., 5 N. B. R. 234, 3 Cliff. 339, Fed. Cas. No. 13684 108, 116, 117 Sweeney, In re, 168 Fed. 612, 21 A. B. R. 866 266, 284, 296, 620 Sweenie v. Sharp, 4 Bing. 37 1126 Sweet, In re, 9 N. B. R. 48, Fed. Cas. No. 13688 995 Sweetser. Pembroke & Co., In re, 142 Fed. 131, IS A. B. R. 650 398 Swift. In re, 106 Fed. 65, 3 N. B. N. R. 271, 5 A. B. R. 415 1031 In re, 108 Fed. 212 616 In re. 111 Fed. 503, 7 A. B. R. 117 689 In re, 112 Fed. 315, 7 A. B. R. 374 387 In re, 118 Fed. 348, 9 A. B. R. 237, rev'd 130 Fed. 13, 12 A. B. R. 88 284, 608, 617 In re, 5 A. B. R. 232 625 In re, 3 N. B. N. R. 52 546 ABE TO r.lGESl , Switzer, In re, 140 Fed. 976, IS A. B.. R.. •• 468 1164, 1177 Switzer v. Henking, 158 Fed. 784, 19 A. B. R. 300 404 Swofford V. Cornucopia Mines of Oregon, 140 Fed. 95/, IS A. B. R. 564 820, 821 Swofford Bros. Dry Goods Co., 180 Fed. 549. 25 A. B. R. 282 4, 26, 27, 38, 43, 555, 799, 1074 Swope V. Arnold, 5 N. B. R. 148, Fed. Cas. No. 13702 1008 Sykes, In re, 106 Fed. 669, 6 A. B. R. 264 168, 1063 In re, 5 Biss. 113 224 Symonds V. Barnes, 6 N. B. R. 377 1151 Synnott v. Tombstone Consol. Mines Co., Ltd., 208 Fed. 251. 31 A: B. R. 421 430 Syracuse Paper & Pulp Co., In re, 164 Fed. 275, 21 A. B. R. 174 43, 339, 494 T. A. Mclntyre & Co., In re, 181 Fed. 960, 25 A. B. R. 93 554, 555, 624 Tacoma Shoe & Leather Co., In re, 3 N. B. N. R. 9 441, 446 Taft, In re, 133 Fed. 511, 13 A. B. R. 417 624, 1234 Taft V. Fourth Nat. Bank, 2 N. B. N. R. 1145 733, 734 V. Marisly, 120 N. Y. 474 628 Taft Co. V. Century Sav. Bank, 141 Fed. 369, 15 A. B. R. 594 19, 163, 1203, 1209, 1222 Tait, In re, 1 N. B. N. 140 809 Talbot, In re, 110 Fed. 924, 7 A. B. R. 29 407 Talbott, In re, 116 Fed. 417, 8 A. B. R. 427 780, 781 Talcott, Ex parte, 9 N. B. R. 502, ' 2 Lowell 320, Fed. Cas. No. 13184 387, 389, 392 Talcott V. Friend, 179 Fed. 676, 24 A. B. R. 708 1088, 1116, 1132 Tallman, In re, 1 N. B. R. 145, 2 Ben. 404. Fed. Cas. No. 13740 1057 Talman, In re, 1 N. B. R. 122, 2 Ben. 348, Fed. Cas. No. 13739 1141 Talton, In re, 137 Fed. 178, 14 A. B. R. 617 296, 965, 966 Tampa Suburban R. Co., In re, 168 U. „S. 583 1212 Tanner. In re, 1 N. B. R. 59, 1 Lowell 215, Fed. Cas. No. 13745 356 In re, 192 Fed. 572, 27 A. B. R. 615 „ . 1083, 1089 Taplin, In re, 135 Fed. 861, 14 A. B. R. 360 1058, 1073, 1096, 1185 Tarbox, In re, 185 Fed. 985, 26 A. B. R. 432 887 Tatem, In re, 110 Fed. 519, 6 A. B. R. 426 673 Tatum, In re, 112 Fed. 50. 7 A. B. R. 52 382 Tiylor, Ex parte, 16 N. B. R. 40, 1 Hughes 617, Fed. Cas. No. 13773 320, 323, 359, 1129, 1144, IISO Taylor, In re, 1 N. B. N. 412 151, 153, 154, 156, 182, 582, 722 In re, 1 N. B. N. 480, 95 Fed. 956 579, 642 In re, 2 N. B. N. R. 929, 102 Fed. 728, 4 A. B. R. 515 98, 122, 123, 137, 139, 161, 164, 182, 183, 184, 185 In re, 3 N. B. R. 38, Fed. Cas. No. 13775 763 In re, 5 A. B. R. 184, 105 Fed. 509 1175 In re, 114 Fed. 607, 7 A. B. R. 410 „ . 780, 1180 Taylor v. Irwin, 20 Fed. 615 * 552 V. Nichols, 134 App. Div. (N. Y.) 783, 23 A. B. R. 306 709 V. Nichols, 134 App. Div. (N. Y.) 787, 23 A. B. R. 310 700, 708 v. Taylor, 59 N. J. Eq. 86, 4 A. B. R. 211 661 Table of Oases 1563 [BEFERGNCBS Taylor House Ass'n, In re, 209 Fed. 924, 31 A. B. R. 727 ISO Teague, In re, 1 N. B. N. 310, 2 A. B. R. 168 686 Teague v. Anderson Hdwr. Co., 161 Fed. 765, 20 A. B. R. 424 840, 849 Tebo, In re, 101 Fed. 419, 4 A. B. R. 235 292, 293, 961, 962 980, 983, 995, 997, 1001 Tecopa Mining & Sn^elting Co., In re, no Fed. 120, 6 A. B. R. 250 115 Teilt, Welter & Co. v. Munsuri, 222 U. S. 114, 27 A. B. R. 338 1201, 1211, 1245 Telford v. Henrickson, 122 Minn. 531, 31 A. B. R. 866 717 Tellinghast v. Champlin, 4 R. I. 173 305 Temple, In re, 17 N. B. R. 345, 4 Sawy. 92, Fed. Cas. No. 13825 129, 130, 191, 304, 611 Templeton v. Kehler, 173 Fed. 374, 23 A. B. R. 39 875 V. Kehler, 173 Fed. 575, 23 A. B. R. 41 870 Ten Eyck, In re, 7 N. B. R. 26, Fed. Cas. No. 13829 604 Tennant Sons & Co. v. New Jersey Oil & M. Co., 31 A. B. R. 901 657, 803 Tennessee Const. Co., In re, 207 Fed. 203, 31 A. B. R. 67 34 Tennessee Producer Marble Co. v. Grant, 135 Fed. 322, 14 A. B. R. 288 800 Tenny v. Collins, 4 N. B. R. 156, Fed. Cas. No. 13833 1067, 1114 Terens, In re, 172 Fed. 938, 22 A. B. R. 895 1089, 1091, 1092 In re, 175 Fed. 495, 23 A. B. R. 680 1040 terrill. In re, 100 Fed. 778, 4 A. B. R. 145 572 In re, 103 Fed. 781, 4 A. B. R. 625 962, 963 Terry, In re, 208 Fed. 162, 30 A. B. R. 631 124 Terry v. Johnston, 129 Fed. 354, 12 A. B. t> 1 7 808 Terry & Cleaver, In re, 4 N. B. R. 33, Fed. Cas. No. 13835 721 Tersey, In re, 171 Fed. 1004, 22 A. B. R. 863 384 Teschmacher & Mrazay, In re, 127 Fed. 728, 11 A. B. R. 547 879, 886 Teslow, In re, 2 N. B. N. R. 1024, 104 ' Fed. 229 471, 472, 728 Tesson. In re, 9 N. B. R. 378, Fed. Cas. No. 13844 423 Teuthorn, In re, 5 A. B. R. 767 532 Thackara Mfg. Co., In re, 140 Fed. 126, 15 A. B. R. 258 645 Thaw, In re, 166 Fed. 71, 21 A. B. R. 561, 172 Fed. 288, 22 A. B. R. 687 307, 332, 360 the "Home," 18 N. B. R. 557; Fed. Cas. No. 6657 631, 907, 1126, 1128 Thedford, In re, 27 A. B. R. 354 762 In re, 28 A. B. R. 191 754, 755, 767 Thiessen, In re, 2 N. B. N. R. 625 39 602 889 Thomas, In re, 1 N. B. N.'329, 1 A. b! R. 515, 92 Fed. 912 1058, 1103, 1116, 1134, 1141 In re, 1 N. B. N. 551, 96 Fed. 828, 3 A. B. R. 99 787 In re, 3 N. B. R. 7, Fed. Cas. No. 13890 ' 816 In re, 11 N. B. R. 330, Fed. Cas. No. 13891 277, 300 In re, 17 N. B. R. 54, 8 Biss. 139, Fed. Cas. No. ,13886 421 In re. 103 Fed. 272, 2 N. B. N. R. 1021, 4 A. B. R. 571 80 In re, 199 Fed. 214, 29 A. B. R. 945 539, 553, 574, 576, 637, 640, 671, 673, 713 Thomas v. Adelman, 136 Fed. 973, 14 A. B. R. 510 737 V. Birmingham Railway, Light ■ & Power Co., 195 Fed. 340, 28 A. B. R. 152 568 ABE TO PAGES] Thomas v. Fletcher, 153 Fed. 226, 18 A. B. Rj 623 581, 586 V. Roddy, 122 App. Div. (N. Y.) 851, 19 A. B. R. 873 850, 851 V. Sugarman, 157 Fed. 669, 19 A. B. R, 509 851 V. Taggart, 209 U. S. 385, 19 A. B. R. 710 554 V. Woods, 173 Fed. 585, 23 A. B. R. 132 8, 9, 23, 301, 1201, 1212, 1213 Thomas & Sivyer, In re, S Biss. 139 338 Thompson, In re, 1 N. B. N. 65, 2 Ben. 166, Fed. Cas. No. 13935 1069 In re, 1 N. B. N. 355, 2 A. B. R. 216 949 In re, 2 N. B. N. R. 1016 149, 198, 272, 437, 471, 475, 728 In re, 13 N. B. R. 300, 4 Fed. Cas. No. 13938 775 In re, 140 Fed. 257, 15 A. B. R. 283, 767, 779 In re, 179 Fed. 874, 24 A. B. R. 655 360 In re, 205 Fed. 556, 30 A. B. R. 64 543 In re, 208 Fed. 207, 31 A. B. R. 236 480 Thompson v. Fiirbanks, 196 U. S. 516, 13 A. B. R. 437, aff'g 70 Vt. 558, 13 A. B. R. 75n 541, 573, 665, 677, 718 V. Judy, 169 Fed. 553, 22 A. B. R. 154 1133, 1147 V. Mauzy, 174 Fed. 611, 23 A. B. R. 489 1204, 1211, 1239 V. Maxwell Land Co., 168 U. S. 451 1249 V. Railroad Co. (N. J. Ch.), 21 Atl. 182 1160 Thompson-Breese Co., In re, 30 A. B. R. 105 1027, 1031, 1032 Thompson Mercantile Company, In re, 11 A. B. R. 579 401 Thompson Milling Co., In re, 144 Fed. 314, 16 A. B. R. 454 9, 379, 384, 387 Thorington v. Montgomery, 147 U. S. 490 366 Thomhill V. Bank, 3 N. B. R. 110, Fed. Cas. No. 13990 797, 845 V. Bank, 5 N. B. R. 377, Fed. Cas. No. 13991 1249 V. Bank, 5 N. B. R. 367, 1 Woods 1, Fed. Cas. No. 13992 10, 667 V. Link, 8 N. B. R. 521, Fed. Cas. No. 13993 580, 670 Thornton, In re, 2 N. B. R. 68, Fed. Cas. No. 13994 775 Thornton v. Hogan, 17 N. B. R. 277 311 V. Nichols & Lemon, 119 Ga. 50, 11 A. B. R. 304 1 1126 Thorp, In re, 130 Fed. 371, 12 A. B. R. 19S 673 Thorp V. Thorp, 70 Vt. 49 763 Thrall v. Crampton, 16 N. B. R. 261, 9 Ben. 218, Fed. Cas. No. 14008 423 Throckmorton, In re, 149 Fed. 154, 17 A. B. R. 856 949, 1226 In re, 196 Fed. 656, 28 A. B. R. 487 938 942 1234 Throll V. Union Maid Tobacco Co., 19 Ohio Dec. 732, 22 A. B. R. 287 856 Thurmond v. Andrews, 13 N. B. R. 157 526, 866, 1051, 1151 Tice, In re, 139 Fed. 52, 15 A. B. R. 97 558 Tichenor-Grarid Co., In re, 203 Fed. 720, 29 A. B. R. 409 397 Tiffany, In re, 133 Fed. 799, 13 A. B. E. 310 525, 694, 762, 849 In re, 147 Fed. 314, 17 A. B. R. 296 1071, 1101 Tiffany v. Boatman's Sav. Inst., 9 N. B. R. 245, 18 Wall. 375 684 V. LaPlume Condensed Milk Co., 141 Fed. 444, 15 A. B. R. 413 34 V. Lucas, 8 N. B. R. 49, 15 Wall. 410 585 Tifft, In re, 17 N. B. R. 421, Fed. Cas. No. 14036 361 In re, 17 N. B. R. 502, Fed. Cas. No. 14029 494 In re, 18 N. B. R. 78, Fed. Cas. No. 14031 908 1564 Beandenbues on BaiT^euptcy [BEFBHBNCBS Tifft, In te, 18 N. B. R. 177, Fed. Caa. No. 14032, s. c. 17 N. B. R. 550, Fed. Cas. No. 14030 • ; 353, 376 In re, 19 N. B. R. 201, Fed. Cas. No. 14034 639, 806, 926 Tilden, In re, IN. B. N. 134, 91 Fed. 500, 1 A. B. R. 300 779, 791, 986, 990 Tillman, In re, 2 N. B. N. R. 611 ' 763 Tilt V. Citizens' Trust Co., 191 Fed. 441, ■ 27 A. B. R. 320 • 718, 733 Tindal, In re, 155 Fed. 456, 18 A. B. R. 773 ,5 Tindle v. Birkett, 205 U. S. 183, 18 A. B. R. 121, aff'g 183 N. Y. 267, 15 A. B. R. 179 1141, 1145, 1146 Tine, In re. 1 N. B. N. 402, 95 Fed. 425, 2 A. B. R. 493 . , 686 Tinker, In re, 99 ted. 79, 2 N. B. N. R. 391, 3 A. B. R. 580 136, 1103, 1116, 1118, 1148 Tinker v. Colwell, 193 U. S. 473, 11 A. B. . R. 568, afif'g 62 N. E. 668, 7 A. B. R. ' 334, s. c. .169 N Y. 531, aflf'g 65 Am). Div. (N. Y.) 201, aff'g 35 Misc. (N. YT) 330, 6 A. B. R. 434 1148 Tirre, In re, 1 N. B. N. 402, 95 Fed. 425, 2 A. B. R. 493 148, 728 Tisdi, In re, 202 Fed. 1018, 29 A. B. R. 339' 212 215 Tischler, In re, 2 N. B. N. R. 549 888, 890, 1162, 1163 Title Guaranty & Surety Co. v. Guarantee ■ Title & Trust Co., 174 Fed. 385,. 23 A. B. R. 340, rev'g 22 A. B. R. 851 1015 V. Witmire, 195 Fed. 41, 28 A. B. R. 235 . . , 541, 672 T. M. Lesher & Son, In re,. 176 Fed. 650, 25 A. B. R. 218 286, 440, 441, 448 Tobias, In re, 103 Fed. 68, 3 N. B. N. R. • 23, 4 A. B. R. 555 758, 783 In re, 215 Fed. 815, 31 A. B. R. 889 364, 367 Todd, In re, 109 Fed. 265, 6 A. B. R. 88 - 276 292 In re, 112Fed. 315, 7 A. B. R. 770 'll85 ?odd V. Barton, 13 N. E. R. 197 1123 oklas Bros., In re, 201 Fed. 377, 29 A. ■ B.,R. 709 ; ' 804, 1142 Toledo, A, A. & N,:M. Ry. Co. v. Pa. Co., 54 Fed. 746 . 1160 Toledo Portland Cement Co., In re, 156 Fed. 83, 19 A. B. R. 117, rev'g 17 A. B. R. '375 ' 110, 182 Tollett, In re, 2 N. B. N. R. 1096, ' 105 Fed. 425; 5 A. B. R. 305, rev'd 106 Fed. 866, 5 A. B. R. 404 573, 746, 76S, 780, 831, 851 Tomes, In re, 19 N. B. R. 36, Fed. Cas. No. 1457 576 Tomlinson, In re, 193 Fed. 101, 27 A. B. R. 780 812 Tomlinson v. Bank of Lexington, ■ 145 Fed. 824, 16 A. S. R. 632 444, 709, 725 Tomlinson Co., In fe, 154 Fed. 834, IS A. B. R. 691 82, 1232 Tompkins V. Hazen, 5 A. B. R. 62 1125 V. Williams, 137 App. Div. (N. Y.) 521, 23 A. B. R. 886 1148 Tonawanda Street Planing Mill Co., In re, 6 A. B. R. 38 95, 714 Tonkin, In re, 4 N. B. R. 13, Fed. Cas. No. 14094 473, 700 Tonne, In re, 13 J^: B. R. ,170, Fed. Cas. .'No. 14095 769, 771, 773 Tontine Surety Co., In re,- 116 Fed. 401, ! 8 A. B. R. 421 110, 113 Tool V. City Nat. Bank, 206 Fed. 250, 30 A. B. R. 79 444, 445, 540, 615, 634 V. Martin, 6 N..B. R. 49, 13 Wall. 40, s. c. 4 N. B. R. 158, Fed. Cas. No. 9164 60, 70, 227, 722, 733 Tooker, In re, 14 ,N. B. R. 35, 8 Ben. ' 390, Fed. Cas. No. 14096 926, 927 Toothaker Bros,, In re,., 128 Fed. 187, 12 .! A. B. R. 99 JD97, 1113 AKB TO PAGES] Topliff, In re, 114 Fed. 323, 8 A. B. R. 141 475 Torchia, In re, 188 Fed. 207, 26 A. B. R. 579 556, 621, 956 Torrance v. Winfield Nat. Bank, 66 Kan. 177, 11 A. B. R. 185 , 679, 718 Towle V. Davenport, 16 N. B. R. 478 822 Town, In re, 8 N. B. R. 38, Fed. Cas. No. 14111 396 In re, 8 N. B. R. 40, Fed. Cas. No. 14112 1030 Townsend, In '^, 3 Fed. 559 1185 Townsend v. Ashepoo Fertilizer Co., 212 Fed. 97, 31 A. B. R. 682 565, 580 v. Brown,' 4 Zabriskie 88 653 Toxaway Hotel Co. v. Smathers & Co., 216 U. S. 439, 23 A. B. R. 622, 626 1*10, 112, 113 Tracy, In re, 2 N. B. R. 98, Fed. Cas. No. 14124 ■ • ^ 1103 , In re, 179 Fed. 366, 24 A. B. R. 539 267 Tracy & Co., In re, 177 Fed. 532, 23 A. B. R. 438 371, 372, 524 Traders' Ins. Co. of Chicago v. Mann, 118 Ga. 381, 11 A. B. R. 269 847, 862, 866 Traders' Nat. Bank v. Campbell, 6 N. B. R. 353, 14 Wall. 87 441, 444, 615 Traei- v. Clews, 115 U. S. 528 , 1240 Trafton, Ex parte, 14 N. B. R. 507, 2 Loweir505, Fed. Cas. No. 14133 315. 816, 90S, 907, 911, 921, 924 Traub v. Marshall Field & Co., 182 Fed. 622, 25 A. B. R. 410, 1035 Travers v. Ross, 14 N. J. Eq. 254 185 Trayna & Cohn, In re, 195 Fed. 486, 27 A. B. R, 594 218 Treadwell v. Halloway, 12 N. B. R. 61 805, 1143, 1156 v. Marden, 18 N. B. R. 353 414, 1150 v.'Marden, 123 Mass. 390 604 Treat v. Wooden, 138 Fed. 934, 14 A. B. R. 736 550 Treniont Nail Co., Ex parte, 16 N. B. R. 448, Fed. Cas. No. 14168 631 Tribelhorn, In re, 137 Fed. 3, 14 A. B. R. 491 , ., 140, 153, 160, 245 Trim v. Wagner, 5 N. B. R. 23, 2 Hughes 355, Fed. Cas. No. 14174 681 Tripp v. Mitschrich, 211 Fed. 424, 31 A. ' B. R. 662 744, 745 Troeder, In re, 150 Fed. 710, 17 A. B. R. 723 1058, 1067, 1077, 1079 Trombly, In re, 16 A. B. R. 598 774 In re, 16 A. B. R. 599 774 Troth, In re, 4 A. B. R. 780, 104 Fed. 291 . 296 Trowbridge, In re, 24 Fed. Cas. No. 218 486 Troy Steam Laundering Co., In re, 132 Fed. 266, 13 A. B. R. 97 114 Troy Wagon Works v. Vastbinder, 130 Fed. 232, 12 A. B. R. 352 6i, 69, 184 Troy Woolen Co., In re, 8 N. B. fe. 412, Fed. Cas. No. 14203 97s In re, 1 Blatch. 191, Fed. Cas. No. 14204 1207 Truitt, In re, 203 Fed. 550, 29 A. B. R. 570 68, 77 Trunk Co., G. & K., In re, 176 Fed. 1007, 23 A. B. R. 914 542, 579 Trust Co. v. Benbow, 1 N. B. N. 499 3 A. B. R. 9, 96 Fed. 514 836 v. Marx, 98 Fed. 456 836 T. S. Faulk & Co. v. Steiner, 165 Fed. 861, 21 A. B. R. 623 197 Tua V. Carriere, 117 U. S. 201 41 Tucker, In re, 153 Fed. 91, 18 A. B. R. ^78 1236 In re, 161 Fed. 584, 20 A. B. R. 404 675 Tucker v. Curtin, 148 Fed. 929, 17 A. B. R. 354, rev'g 129 Fed. 922, 12 A. B. R. „ 594 • 406 Tudor,, In re, 1 N. B. N. 339 61 In re, 1 N. B. IST. 476, 96 Fed. 942, 2 A. B. R. '808 39, 1163, 1186 Table of Cases 1565 [REPBRENCBS Tudor, In re, JOO Fed. 796, 2 N. B. N. R. 168, 4 A. B. R. 78 271, 307, 369, 890, 973 Tufts V. Matthews, 10 Fed. 609 5S6 Tuley V. State, 1 Ind. SCO 262 Tully, In re, 3 N. B. R. 19, Fed. Cas. No. 3587 969 In re, 156 Fed. 634, 19 A. B. R. 604 37 248 250 Tumlin v. Bryan, 165 Fed. 166,. 21 L r! A. (N. S.) 960, 21 A. B. R. 319 63, 700, 707, 734 Tune, In re, 115 Fed. 906, 8 A. B. R. 285 796. 843, 881 Tupper, In re, 163 Fed. 766, 20 A. B. R. 824 68, 78, 80 Turetz, In re, 29 A. B. R. 752 287, 895 Turgeon v. Emery, 182 Fed. 1016, 25 A. B. R. 694 , 321 Turnbull, In re, 106 Fed. 667, 5 A. B. R. S49 774 Turner v. Fisher, 133 Fed. 82, 13 A. B. R. 243 738 V. Turner, 108 Fed. 785, 6 A. B. R. 289 410, 1136 V. Ward, 154 U. S. 618 619 Turner & Co., In re, 20 A. B.. R. 646 S07 Tuxbury v. Miller, 19 Johns. (N. Y.) 311 1076, 1109 Twaddell, In re, 110 Fed. 145, 6 A. B. R. 539, 3 N. B. N. R. 752 545, 607 Tweed, In re, 131 Fed. 355, 12 A. B. R. 648 563 Twining, In re, 185 Fed. 555, 26 A. B. R. 200 / 692 Two Rivers Woodenware Co., In re, 199 Fed. 877, 29 A. B. R. 518 491 Tybo Mining & Reduction Co., In re, 132 Fed. 697, 13 A. B. R. 62 29, 30, 224, 503 Tybo Mining Co., In re, 132 Fed. 978, 13 A. B. R. 68 47 Tygarts River Coal Co., In re, 203 Fed. 178, 30 A. B. R. 183 34, 196 Tyler, In re, 4 N. B. R. 27, Fed. Cas. No. 14305 1079 In re, 104 Fed. 778, 5 A. B. R. 152 668, 854 In re, 149 U. S. 164, 182 S54 Tyrrel, In re, 2 N. B. R. 73, Fed. Cas. No. 14314 1058 Tyrrel v. Hammerstein, 33 Misc. (N. Y.) 505, 6 A. B. R. 430 1151 U Ulfelder Clothing Co., In re, 98 Fed. 409, 3 A. B. R. 425 247- UUman, In re, 180 Fed. 944, 24 A. B. R. 755 908 Ulrich, In re, 3 N. B. R. 34, 3 Ben. 355, Fed. Cas. No. 14327 155, 181 In re, 8 N. B. R. 15, Fed. Cas. No. 14328 813 Underleak v. Scott, 117 Minn. 136, 28 A. B. R. 926 573, 574, 575, 586, 642 Ungewitter v. Von Sachs, 3 .N. B. R. 178, 4 Ben. 167, Fed. Cas. No. 14343 477, 625 Union Bank, Whitney, Gilkey.& Co., In re, 184 Fed. 224, 25 A. B. R. 148 1036, 1041 Union Furniture Co. v. Walker-Cooley Furniture Co., 206 Fed. 217, 31 A. B. R 73 932 Union Nat. Bk. v. McKey, 2 N. B. N. R. 913 448 Union Nat. Bank of Kansas City v. Neill, 149 Fed. 711, 17 A. B. R. 841, rev'g 143 Fed. 553, 16 A. B. R. 318 421 v. Neill, 149 Fed. 720, 17 A. B. R. 853 1231 Unior Planing Mill Co., In re, 2 N. B. N. R. 384 1002, 1004 Union R. R. Co., In re, 10 N. B. R. 178, Fed. Cas. No. 14376 112 ABU TO PAGBS] Union Trust Co. v. Amery, 67 Wash. 1, 27 A. B. R. 499 859 v. Bulkeley, 150 Fed. 510, 18 A. B. R. 35 680 Union Trust Co. & Security Warehouse Co. V. Wilson, 198 U. S. 530, 14 A. B. R. 109 692 United Button Co., In re, 132 Fed. 378, 12 A. B. R. 761 45, 47 ,In re, 137 Fed. 668, 13 A. B. R. 454 44, 46, 47 United States v. Appel, 211 Fed. 495, 31 A. B. R. 154 1172 V. Baker, 13 N. B. R. 88, Fed. Cas. No. 14584 ■ 587 V. Bank of N. Carolina, 6 Pet. 29 1016 V. Barnes, 31 Fed. 705 431, 1016 V. Bayer, 13 N. B. R. 88, Fed. Cas. No. 14548 72 V. Black, 12 N. B. R, 340, 1 Hask. 570, Fed. Cas. No. 14602 359 V. Block, 15 N. B. R. 325, 4 Sawy. 211, Fed. Cas. No. 14609 1187, 1194 V. Brod, 176 Fed. 165, 23 A. B. R. 740 247, 367, 1194, 1198 V. Chambers, 135 Fed. 1023, 13 A. B. R. 708 315, 1194 V. Clark, 4 N. B. R. 14 1185 V. Comstock, 161 Fed. 644, 20 A. B. R. 520 1185, 1194, 1195 V. Connor, 3 McLean 573 1102 V. Crook, 5 Dill. 453 104 V. Flynn, 179 Fed. 316, 23 A. B. R. 294 319 V. Freed, 179 Fed. 236, 25 A. B. R. 89 110, 1184, 1196 V. Freight Ass'n, 166 U. S. 290 1205 V. Goldstein, 132 Fed. 789, 12 A. B. R. 755 366, 368, 373, 1172, 1173, 1184 V. Green, 53 Fed. 771 262 V. Griswold, 8 Fed. 496 1016 V. Grodson, 164 Fed. 157, 21 A. B. R. 68 1184, 1192 V. Halstead, 38 App. Cas. (D. C.) 69, 27 A. B. R. 302 1194 V. Haminond, 104 Fed. 862, 4 A. B. R. 736 ' 1203 V. Henkel, 185 Fed. 553, 26 A. B. R. 199 1175 V. Herron, 20 Wall. 251, 9 N. B. R. 535 430, 1129, 1135, 1138, 1150 V. Hoar, 2 Mason 311 1129, 1135 V. Hudson, 7 Cranch!32 1161 V. Jacobi, 4 Amer. Law T. R. U. S. Cts. 148, 4 Blackstone 124, 279 1159, 1181 V. King, Wall. C. C. R. 18, Fed. Cas. .No. 15536 1129, 1135 V. Kirkpatrick, 9 Wheat. 720, 735 1016 V. Knight, 14 Pet. 301, 315 1129, 1135 V. Lake, 129 Fed. 499, 12 A. B. R. 270 1184, 1196 V. Levinson & Komblut, 13 A. B. R. 29 1185, 1186, 1197 V. Lewis. Fed. Cas, No. 15395, 13 N. B. R. 33 1016, 1037, 1040 V. Liberman, 176 Fed. 161, 23 A. B. R. 734 276, 370, 375, 1188 V. Lowenstein, 126 Fed. 884, 11 A. B. R. 134 1185 V. Mann, 95 U. S. 580 1196 V. Murphy, 15 Fed. 589 1016 V. Philfips, 196 Fed. 574, 27 A. B. R. 625 1194 V. Prescott, 4 N. B. N. R. 29, 2 Biss. 325, Fed. Cas. No. 16084 1195 V. Rob Roy, 13 N. B. R. 235, 1 Woods 42, Fed. Cas. No. 16179 1135, 1138, 1140 V. Simon, 146 Fed. 89, 17 A. B. R. 41 367, 487, 1188, 1198 y. Smith, 13 N. B. R. 6, Fed. Cas. No. 16339 118S 1566 BEANDENBukiQ ON BANKRUPTCY United States v. Stern, 186 Fed. 854, 26 A. B. R. 110 1195, 1197 V. Throckmorton, 8 N. B. R. 309, Fed. Cas. No. 16516 1128, 1129, 1138. 1150 V. Union Surety & Guaranty Co., 9 A. B. R. 114, 118 Fed. 482 535 V. Waldman, 188 Fed. 524, 26 A. B. R. 677 1184, 1188, 1196 V. Young & Holland Co., 170 Fed. 110, 2i A. B. R. 484 1192 United States Fidelity & Guaranty Co. v. Bray, 225 U. S. 205, 28 A. B. R. 207 20, 23, 1215, 1244 United States Food Co., In re, 15 A. B. ■ R. 329 717 United States Graphite Co., In re, 159 Fed. 300, 20 A. B. R. 280 373 In re, 161 Fed. 583, 20 A. B. R. 573 938 United States Hotel Co., In re, 134 fed. 225, 13 A. B. R. 403 HI, 122 United States Lumber Co., In re, 206 Fed. 236, 30 A. B. R. 682 632 United States Restaurant & Realty Co., In re, 187 Fed. 118, 25 A. B. R. 915 7, 113, 116 United States ex rel. Schauffler v. Union Surety & Guaranty Co., 118 Fed.' 482, 9 A. B. R. 114 521 United Surety Co. v. Iowa Mfg. Co., 179 Fed. 55, 24 A. B. R. 726 77, 114, 703, 1002, 1003 United Wireless Telegraph Co., In re, 192 Fed. 238, 27 A. B. R. 1 20, 23, 809, 811 In re, 196 Fed. 153, 28 A. B. R. 394 812 In re, 201 Fed. 445, 29 A. B. R. 848 461, 464, 487 Unitype Co. v. Long, 143 Fed. 315, 16 A. B. R. 282, aff'g 136 Fed. 989, 14 A. B. R. 668 561, 563 V. Long, 149 Fed. 196, 17 A. B. R. 627 1224 Upshur V. Briscoe, 138 U. S. 365 1117, 1140, 1141, 1143, 1155 Upson V. Mount Morri^s Bank, 103 App. T>iv. (N. Y.) 367, 14 A. B. R. 6 705, 706, 727, 735 Upton V. Burnhamj 8 N; B. R. 22, 3 Biss: 431, Fed. Cas. No. 16798 ■ 859 V. Hansbrough, 10 N. B. R. 368, 3 Biss. 417, Fed. Cas. No. 16801 857, 859 V. Jackson, Fed. Cas. No. 16802 526, 542 Urban & Suburban, In re, 132 Fed. 140, 12 A. B. R. 687 . 250, 251 Usher v. Pease, 12 N. B. R. 305j 116 Mass. 440 325 Utah Ass'n of Creditmen v. Boyle Furni- ture Co., 43 Utah 523, 31 A. B. R. 488 706, 707, 861, 870, 874, 875 V. Boyle Furniture Co., 39 Utah 518, 26 A. B. R. .867 61, 499, 700, 707, 708, 738, 853 Utt, In re, 105 Fed. 754, 5 A. B. R. 383 294, 1011, 1233 V. D. L. Co., In re, 175 Fed. 635, 23 A. B. R. 643 1011 Vaccaro v. Bank, 103 Fed. 436, 2 N. B. N. R. 1037, 4 A. B. R. 474 63, 85, 130, 192, 304 Valentine, In re, 12 N, B. R. 389, 4 Biss. 417, Fed. Cas. No. 16812 461 Valk, In re, 3 N. B. R. 73, 3 Ben. 431, Fed. Cas. No. 16814 *" 319, 322 Valley Nat. Bk. v. Meyers' Ass'n, 17 N. B. R. 257, Fed. Cas. No. 5549 1127 Valliant V. Childress, 11 N. B. R. 317 - 797, 855 Valliquette; In re, 4 N. B. R. 92, Fed. Cas. No. 16823 74 Van Alstine, In re, 100 Fed. 929, 2 N. B. N. R. 642, 4 A. B. R. 42 819 AHB TO PAGES] Van Auken, In re, 14 N. B. R. 425, Fed. Cas. No. 16828 923 Van Buren, In re, 19 N. B. R. 149, Fed. Cas. No. 16833 411, 799 In re, 164 Fed. 883, 21 A. B. R. 338, s. c. 20 A. B. R. 896 807 Van Da Grift Motor Car Co., In re, 192 Fed, 1015, 27 A. B. R. 474 604, 812 Van De Mark, In re, 175 Fed. 287, 23 A. B. R. 760 505, 507 Vanderheyden v. Mallory, 1 N. Y. 452 1154 Variderhoof, In re, 18 N. B. R. 543, Fed. Cas. No. 16841 171, 172 Vanderhoof v. Bk., 1 Dill. 476 720 Van Iderstine v. National Discount Co., 227 U. S. 575, 29 A. B. R. 478, aff'g 174 Fed. 518, 23 A. B. R. 345 574, 575, 638, -713, 875 Van Ingen v. Schophofen, 129 Fed. 352, 12 A. B. R. 24 1079 Van Kirk v. Vermont Slate Co., 140 Fed. 38, 15 A. B. R. 239 484, 596 VanNostrand v. Barr, 2 N. B. R. 154 10 Van Orden, In re, 1 N. B. N. 475, 2 A. B. R. 801, 96 Fed. 86 321, 381, 1136 Van Seryl, In re, 1 N. B. R. 193, Fed. Cas. No. 16880 365 Van Tuyle, In re, 2 N. B. R. 177, 3 Ben. 237, Fed. Cas. No. 16879 350 In re, 2 N. B. R. 35, Fed. Cas. No. 16881 362 Van Wert Machine Co., In re, 186 Fed. 607; 26 A. B. R. 597 1002 Varley & Bauman Clothing Co., In re, 188 Fed. 761, 26 A. B. R. 104 209, 210, 681 In re, 191 Fed. 459, 26 A. B. R. 840 710, 735, 874 Vamey v. Harlow, 210 Fed. 824, 31 A. B. R. 339 294, 295, 956 Vary V. Jackson, 164 Fed. 840, 21 A. B. R. 334 1035, 1036 Vastbinder, In re, 126 Fed. 417, 11 A. B. R. 118 75, 78, 149, 151, 166 In re, 132 Fed. 718, 13 A. B. R. 148 , ■ , , 807, 938 Vaughan, In re, 2 N. B. N. R. 101, 97 Fed. 560, 3 A. B. R. 362 654, 660 Vaughan v. Thompson, 17 111. 78 " 779 Vehon v. UUman, 147 Fed. 694, 17 A. B. „?■ 435 1097, 1223 Veitch, In re, 101 Fed. 251, 4 A. B. R. .112 419, 621, 988 Venstrom, In re, 205 Fed. 325, 30 A. B. R. 569 474 Verdon Cigar Company, In re, 193 Fed. 813, 27 A. B. R. 56 288 Vetterlein, In re, 4 N. B. R. 194, Fed. Cas. No. 16926 354 In re, 6 N. B. R. SI8, 5 Ben. 571, Fed. Cas. No. 16928 919 Vetterman, In re, 135 Fed. 443, 14 A B ,r-^,- ^'*^ . ^ r -^5, 76. 78 Vickerman & Co., In re, 199 Fed. 589. 29 A. B. R. 298 770 771 Victor Color & Varnish Co- In re. 175 Fed. 1023, 23 A. B. R. 177 199 Victor Talking Mach. Co. v; Hawthorne, etc., Co., 173 Fed. 617, 23 A. B. R. 234 818 Vincent, In re, 115 Fed. 236 766 Virginia Hardwood Mfg. Co., In re, 139 Fed. 209, 15 A. B. R. 135 ' 733 ^'r^i"S ^'■°£'> Coal & Coke Co. v. Olcott, 197 Fed. 730, 28 A. B. R. 321 „■ . , 24, 27, 38, 40. 799 Vitzthum V. Large, 162 Fed. 685, 20 a! B. R. 666 7j8* 725 ^^?*'' ,lo„"' ^8 N- ^- ^- 165. Fed. Cas! No. 16981 155 177 In i-^ 3 N. B. R. 198, 7 Blatch. Is! Fed. Cas. No. 16982 254 854 In re, 2 N. B. R. 138, Fed. Cas. No. 16983 813 ^",ISl,/ ^- ^- ^ 393. Fed. Cas. No. 1*984 362. 363, 365 Table op Cases 1567 [BKrERENCES Vogle V. Lathrop, 4 N. B. E. 146, Fed. Cas. No. 16985 76, 720, 721, 735 Vogler, In re, 8 N. B. R. 132 757 Volence, In re, 197 Fed. 232, 27 A. B. R. 914 676 Vollmer v. McFadgen, 161 Fed. 913, 20 A. B. R. 540, aff'g 156 Fed. 715, 19 A. B. R. 481 946 V. Plage, 186 Fed. 598, 26 A. B. R. 590 584 Von Borcke, In re, 1 N. B. N. 505, 2 A. B. R. 322, 94 Fed. 352 168, 643 Von Borries, In re, 168 Fed. 718, 21 A. B. R. 849 1053 Von Hartz, In re, 142 Fed. 726, 15 A. B. R. 747 30 Von Kerm, In re, 135 Fed. 447, 14 A. B. R. 403 758, 759 Von Sachs v. Kretz, 19 N. B. R. 83 364, 442 Voorhees v. Frisbfe, 8 N. B. R. 152 843 Vulcan Foundry & Machine Co., In re, 180 Fed. 671, 24 A. B. R. 825 956, 983 W Waco, City of v. Bryan, 127 Fed. 79, 11 A. B. R. 481 694, 987 Wade, In re. 185 Fed. 664, 26 A. B. R. 169 541, 551 Wade V. Elliott, 11 Ga. App. 646, 28 A. B. R. 888 952 Wager v. Hall, 16 Wall. 584, 600, s. c. 5 N. B. R. 131, 3 Biss. 28, Fed. Cas. No. 5951 227 733 Wagner, In re, 206 Fed. 364, 30 A. B. r! 396 800 In re, 139 Fed. 87. 15 A. B. R. 100 1049 Wagner v. U. S., 2 N. B. N. R. 1116, 104 Fed. 133, 4 A. B. R. 596 321, 793, 803, 1124 Waite, In re, T Low. 207, Fed. Cas. No. 17044 70 In re, 2 N. B. R. 146 966 In re. 1 N. B. R. 84 171 Waite-Robbins Motor Co., In re, 192 Fed. 47, 27 A. B. R. 541 543, 551, 664 Wakefield, In re, 182 Fed. 247, 25 A. B. In re, 207 Fed. 180, 31 A. B. R. 42 1067, 1094, 1095, 1100, 1147 Walbrun v. Babbitt, 9 N. B. R. 1, 16 Wall. 577 75, 587, 737 Walder, In re, 142 Fed. 784, 16 A. B. R. 41 ' 890 In re, 152 Fed. 489, 18 A. B. R. 419 1065, 1068 Walford v. Noble, 19 N. B. R. 440 591 Walker, In re, 176 Fed. 455, 23 A. B. R. 805 19, 427 In re, 164 Fed. 680, 21 A. B. R. 132 174, 186, 187, 429 In re, S4 L. T. N. S. 682 299 In re, 1 N. B. R. 60, 1 Lowell 222, Fed. Cas. No. 17060 319, 321 In re, 1 N. B. N„ 510, 3 A. B. R. 35, 96 Fed. 550 336, 353, 739, 906, 912, 1025 In re, 2 N. B. N. R. 1014 479, 1004, 1008 In re, 18 N. B. R. 56, Fed. Cas. No. 17063 668 Walker v. Muir, 194 N. Y. 420, 21 A. B. R. 593, aff'g 127 App. Div. (N. Y.) 163, 21 A. B. R. 278 1123 V. Seigel, 12 N. B. R. 394, Fed. Cas. No. 17085 20, 624, 818 Walker & Co., In re, 204 Fed. 132, 29 A. B. R. 499 341 Walker Roofing, etc., Co. v. Merchant & Evans Co., 173 Fed. 771, 23 A. B. R. 185 107, 109, 110, 114, 227 WalL In re, 207 Fed. 994, 29 A. B. R. 90f 541, 558 Wall V. Cox, 181 U. S. 244, 5 A. B. R. 727, rev'g 101 Fed. 403, 4 A. B. R. 659 831, 835, 842, 843, 860, 862 ABE TO PAGES] ■ Walla Walla v. Walla Walla Water Co., 172 U. S. 1 1236 Wallace, In re. 12 N. B. R. 191, Fed. Cas. No. 17095 189 In re, Fed. Cas. No. 17094, 2 N. B. R, 512 667, 813 Wallace v. Conrad, 3 N. B. R. 10 663 Waller, In re, 142 Fed. 883, 15 A. B. R, 753 989 Wallerstein v. Ervin, 112 Fed. 124, ? A. B. R. 256 127, 193 Walrath, In re, 175 Fed. 243, 24 A. B. R. 541 105, lort Walsh, In re, 2 N. B. N. R. 1031, 104 Fed. 518 368 ■ Walsh V. First Nat. Bank, 201 Fed. 522, 29 A. B. R. 118 709, 725 V. Young, 110 Mass. 396. 399 592 Walsh Bros., In re, 159 Fed. 560, 20 A. B. R. 472 657, 1167, 1170 In re, 163 Fed. 352, 21 A. B. R. 14 270, 272, 879, 886 In re, 195 Fed. 576, 28 A. B. R. 243 564, 666 Walter A. Wood Co. v. Eubanks, 169 Fed. 929, 22 A. B. R. 307 28 Walter Scott & Co. v. Wilson, 115 Fed. 284, 8 A. B. R. 349 1211, 1213 . Walters, In re, 209 Fed. 133, 31 A. B. R. ' 565 1049 Walters v. Zimmerman, 208 Fed. 62, 30 A. B., R. 776 713, 724 Walther, In re, 2 A. B. E. 702, 95 Fed. 941 1098 Walther v. Walther, 14 N. B. R. 273, Fed. Cas. No. 17126 371 Walther v. William Mercantile Co., 169 Fed. 270, 22 A. B. R. 328 703- Walton, In re, 1 N. B. N. 533 363 In re, 4 N. B. R. 154, Fed. Cas. No. 17130 473 In re, 1 N. B. R. 154, Fed. Cas. No. 17131 996 Walton V. Walton, 54 N. J. Eq. 607 1164 Ward, In re, IBl Fed. 755, 20 A. B. R. 482 97, 165, 229, 233, 302, 303, 360 In re, 9 N. B. R. 349, Fed. Cas. No. , 17145 , 992 In re, 203 Fed. 769, 29 A. B. R. 547 219, 254, 255, 256, 303, 304 In re, 194 Fed. 174, 28 A. B. R. 29 120, 228, 302 In re, 104 Fed. 985, S A. B. R. 215 198, 831 Ward V. First National Bank, 202 Fed. ■ 609, 29 A. B. R. 312 478, 691, 692 Warder, In re, 10 Fed. 275, s. c. IS Fed. 789 617 ; Waring v. Buchanan, 19 N. B. R. 502, Fed. Cas. No. 17176 700, 712 ■ Warmath v. O'Daniel, 159 Fed. 87, 20 A. B. R. 101 861, 862 Warne, In re, 10 Fed. 377 1185 Warnftr, In re, 144 Fed. 987, 16 A. B. R. 519' 95, 644 In re, 5 N. B. R. 414, Fed. Cas. No. ■ 17177 728 Warner v. Cronkhite, 13 N. B. R. 52, Fed. Cas. No. 17180 1134 V. New Orleans, 167 U. S. 467 1246 Warren, In re, 2 Ware 322, Fed. Cas. No. 17191 422, 1036 Warren v. Bank, 7 N. B. R. 481, 10 • Blatch. 493, Fed. Cas. No. 17202, 96 U. S. 539 60, 76, 137, 720, 867 V. D. L. & W. Ry. Co., 7 N. B. R. 451, Fed. Cas. No. 17194 720 V. United States, 199 Fed; 753, 29 A. B. R. 555 1186i 1194 Warshing, In re, 5 N. B. R. 350, Fed. Cas. No. 17209 970 Warszawiak, In re, 1 N. B. N. 135 292 , Warth, In re, 196 Fed. 571, 28 A. B. R. 41 803 1568 Bbandenbubg on Bankbuptcy [BEFERGNCBS Warth, In re, 200 Fed. 408, 29 A. B. R. 210 1148, 1149 Washburn, In re, 99 Fed. 84, 3 A. B. K. 585 169 In re, 11 N. B. R. 66, Fed. Cas. No. 17211 604 Washington v. Teamev, 194 Fed. 830, 27 A. B. R. 651 1019 V. Tearney, 197 Fed. 307, 28 A. B. R. 633 . 1248 Washington Cotton Co. v, Morgan & Wil- liams, 192 Fed. 310, 27 A. B. R. 638, aff'g 184 Fed. 938, 25 A. B. R. 861 63 Washington Marine Ins. Co., In re. Fed. Cas. No. 17246 667 Wasson v. Hawkins, 59 Fed. 233 1007 Waterbury Furniture Co., In re, 114 Fed. 255, 8 A. B. R. 79 471 Waterloo Organ Co., In re, 134 Fed. 341, 13 A. B. R. 466 396 In re, 134 Fed. 345, 13 A. B. R. 477 430 In re, 154 Fed. 657, 18 A. B. R. 752, mod'f'g 147 Fed. 814, 17 A. B. R. 301 515 In re, 118 Fed. 904 939 Waters-Colver Co., In re, 206 Fed. 845, 30 A. B. R. 763 560, 566 Walertown Bank v. Simmons, 131 Mass. 85 1127 Watertown Carriage Co. v. Hall, 176 N. Y. 313, 11 A. B. R. 15, aff'g 75 App. Div. (N. Y.) 201, 10 A. B. R. 23n 1156 Watertown Paper Co.. In re, 169 Fed. 252, 22 A. B. R. 190 406, 462 Watkinson, In re, 143 Fed. 602, 16 A. B. R. 245 466 In re, 142 Fed. 782, 16 A. B. R. 38 729 "Watkinson & Co., In rp, 130 Fed. 218, 12 A. B. R. 370 487, 496 Watrous. In re, 14 N. B. R. 258, Fed. Cas. No. 17270 452 Watschke v. Thompson, 85 Minn. 105, 7 A. B. R. 504 . 636, 656, 664 Watson, In re, 4 N. B. R. 197, Fed. Cas. No. 12272 35, 38 In re, 201 Fed. 962, 30 A. B. R. 871 • 702, 706, 732 Iij re, 2 N. B. R. 174, Fed. Cas. No. 17271 752, 765 In re, 3 Lans. (N. Y.) 408 1159 Watson V. Bank, 2 Hughes 200, Fed. Cas. No. 17279, 11 N. B. R. 161 794, 845 V. Merrill, 136 Fed. 359, 14 A. B. R. 453 247, 413, 414, 602 Watts, In re, 190 U. S. I, 10 A. B. R. 113 20, 1170 In re, 2 N. B. R. 145, 3 Ben. 166, Fed. Cas. No. 17293 313 Watts-WoodwaVd Press, Inc., In re, 181 Fed. 71. 24 A. B. R. 684 673 Waugh, In re, 133 Fed. 281, 13 A. B. R. 187 26, 242 Waugh V. Carver, H. Black. 235 127 Waukesha Water Co., In re, 116 Fed. 1009, 8 A. B. R. 715 39, 881 Waxelbaum, In re, 101 Fed. 228, 4 A. B. R. 120 284, 780 In re, 97 Fed. 562, 3 A. B. R. 267, 2 N. B. N. R. 228, 98 Fed. 589, 3 A. B. R. 392 32, 36. 47, 137, 226, 252 Way V. Howe, 4 N. B. R. 677 1112 V. Sperry, 6 Ciish. 238 1126 Wayne Knitting Mills v. Nugent, 2 N. B. N. R. 714 1163 V. Nugent, 3 N. B. N. R. 32, 104 Fed. 530 1191 Waynesboro Drug Co., In re, 157 Fed. 101, 19 A. B. R. 487 913, 914, 916, 917 Wear v. Mayer, 6 Fed, 658 1222 Weaver, In re, 9 N. B. R. 132, Fed. Cas. No. 17307 72 In re, 144 Fed. 229, 16 A. B. R. 265 1071 Weaver v. Hugill Stone & Supply Co., 15 Ohio Fed. Dec. 208, 16 A. B. R. 516 999, 1000 ABE XO PAGES] Webb, In re, 2 N. B. N. R. 11, 3 A. B. R. 204, 2 N. B. N. R. 289, 3 A. B. R. . 386, 98 Fed. 404 689, 1073, 1097, 1184, 1186, 1193, 1194 In re, 2 N. B. R. 183, Fed. Cas. No. 17313 - 42K 1016, 1041 In re, 6 N. B. R. 302, Fed. Cas. No. 17315 604, 1150 In re, 16 N. B. R. 253, 258, 4 Sawy. 326, Fed. Cas. No. 17317 336, 503 Webb V. Manheim, 109 App. Div. (N. Y.) 63, 16 A. B. R. 472 868 V. Sachs, 15 N. B. R. 168, 4 Sawy. 158, Fed. Cas. No. 17325 60, 65, 76, 587, 721, 733, 737 V. Ward, 6 Fed. 163 992 Webb & Co., In re, 6 N. B. R. 302, Fed. Cas. No. 17315 996 Weber Co., In re, 200 Fed. 404, 29 A. B. R. 217 1165 Weber Furniture Co., In re, 13 N. B. R. 529, Fed. Cas. No. 17330, s. c. 13 N. B. R. 559, Fed. Cas. No. 17331 904, 911, 914, 916, 917, 918 Webster, In re, 2 N. B. N. R. 54 129, 237 Wechsler v. United States, 158 Fed. 579, 19 A. B. R. 1, rev'g 16 A. B. R. 1 367, 1198, 1199 Weedman Stave Co., In re, 199 Fed. 948, 29 A. B. R. ,460 2, 151, 382 Weeks, In re, 13 N. B. R. 263, 8 Ben. 265, Fed. Cas. No. 17349 391, 1026 Wehe, In re, 1 N. B. N. 267 816 Weidenfeld v, Tillinghast, 54 Misc. (N. Y.) 90, 18 A. B. R. 531 311, 1152, 1153 Weil, In re, 2 N. B. N. R. 295 596, 693 In re. 111 Fed. 897, 7 A. B. R. 90 619, 620, 69S Weiland, In re, 197 Fed. 116, 28 A. B. R. 620 385 , Weinger, Bergman & Co., In re, 126 Fed. 875, 11 A. B, R. 424 202, 663, 881 Weinman, In re, 2 N. B. N. R. 51 172 Weinreb, In re, 153 Fed. 363, 18 A. B. R. ,^387 1105 Weintraub, In re, 133 Fed. 1000, 13 A. B. R- 711 1053 Weisenberg & Co., In re, 131 Fed. 517, 12 A. B. R. 417 425, 1041, 1103 Weiss, In re, 159 Fed. 295, 20 A, B. R. 247 982 Weissman, In re, 178 Fed. 115. 24 A B. R. 150 987 Weissner, In re, 8 A. B. R. 177 474 Weitzel, In re, 14 N. B. R. 466, 7 Biss. 289, Fed. Cas. No. 17365 120 In re, 191 Fed. 463, 27 A. B. R. 370 Welch, In re, 5 N. B. R. 248, 5 Ben' 230, Fed. Cas. No. 17366 775. 779 In re, 1 N. B. N. 533, 3 A. B. R. 93, 100 Fed. 65 580. 4095 1187 Welch T. PoUey, 177 N. Y. 117. 11 A B ,.r ,• ^^'v '■"'8 86 App. Div. (N. Y.) 260 624 Welge, In re, 1 Fed. 216 518, 971 Weller v. Stengel, 146 App, Div. (NY) 317, 26 A. B. R. 751 205 Welles, In re, 18 N. B, R. 525, Fed. Cas. No. 17377 315. 905, 914 Welhng, In re, 113 Fed. 189, 7 A. B, R 340 594 In re, 105 Fed. 762, 5 A. B. R. 308 i.r „ , » 751, 776, 782 Wells, In re, 3 N. B, R. 95, Fed, Cas. No, 17388 61, 76, 720 In re, 18 N. B. R. 525, Fed. Cas. No. 17377 910 ;„ If "• }^* ^^- 222, 8 A-. B. R. 75 542 Wells V, Lamprey, 16 N. B. R. 205 924 ^fi'l ^. ^P- T- E. V. Sharp, 208 Fed. V. Sharp, 208 Fed. 399, 31 A. B. R. ,„ , J*^ „ . , 1201, 1230 ^JJ?*?!"/ Heights Orchard Co., In re, 204 Fed. 674, 30 A. B. R. 401 87 Table of Cases 1569 [REFERENCHa Wenatchee Heights Orchard Co., In re, ,, 212 Fedi 787, 31 A. B. R. 550 404, 1019 Wenatchee-Stralford Orchard Co., In re, 205 Fed. 964, 30 A. B. R. 540 33, 344 Wenman, In re, 153 Fed. 910, 16 A. B. TR. 690 319, 320, 1143 Wente v. Young, 17 N. B. R. 90 843 Wentworth Lunch Co., In re, 191 Fed. 821, 27 A. B. R. 515 20, 254 In re, 159 Fed. 413, 20 A. B. R. 29 109, 113, 115 In re, 189 Fed. 831, 25 A. B. R. 612 215 Wermuth, In re, 179 Fed. 1009, 24 A. B. R. 785 1065. 1101 Weslund, In re, 99 Fed. 399, 3 A. B. R. 646 1002 Wesson, In re, 88 Fed. 855, 4 Hughes 522 815, 819, 1155 West, In re, 108 Fed. 940, 5 A. B. E. ■ 724 97 In re, 116 Fed. 767, 8 A. B. R. 564 284, 780 In re, 17 A. B. R. 393 407 In re, 128 Fed. 205, 11 A. B. R. 782 639, 669, 1119 West V. Bank of Lahoma, 16 Okla. 328, 16 A. B. R. 733 444, 722, 725, 726, 870 V. McLaughlin & Co., 162 Fed. 124, 20 A. B. R. 654 396,. 496, 1220 West Co., Geo. M. v. Lea Bros., 174 U. S. 590, 1 N. B. N. 79, 1 N. B. N. 298, IN B. N. 409, 2 A. B. R. 463, aff'g 91 Fed. 237, 1 A. B. R. 261 14, 185, 666 Westall V. Avery, 171 Fed. 626, 22 A. B. R. 673 26, 27, 284, 869, 873 Westbrook Mfg. Co. v. Grant, 6 Me. 88 714 Western Inv. Co., In re, 170 Fed. 677, 21 A. B. R. 367 181, 248, 266 In re, 170 Fed. 102, 1 A. B. R. 153 267 Western Sav. & Tr. Co., In re, 17 N. 13. R. 413, Fed. Cas. No. 17442, 4 Sawy. 190 142, 155, 163. 170 Western Tie & Timber Co. v. Brown, 196 . U. S. 502, 13 A. IB. R. 447, rev'g 129 Fed. 728, 12 A. B. R. Ill 441, 442, 468, 705, 730 Western Union Cold Storage Co. v. Hurd, 116 Fed. 442, 8 A. B. R. 633 1141 Western Union Telegraph Co. v. Massa- chusetts, 125 U. S. 530, 547 989 Westfall Bros. & Co., In re, 8 A. B. R. 431 361 Westheimer v. Howard, 47 Misc. (N. Y.) 145, 14 A. B. R. 547 1151 , West Norfolk Lumber Co., In re, 112 Fed. 759, 7 A. B. R. 648 1004 West Philadelphia Bank v. Gerry, 106 Fed. 467 1130 Weston, Ex parte, 12 Met. 1 138 Weston, In re, 206 Fed. 281, 30 A. B. R. . 647 1062, 1082 West Side Paper Co., In re, 162 Fed. 110, 20 A. B. R. 660, rev'g 159 Fed. 241, 20 A. B. R. 289 681 Wetmore. In re, Fed. Cas. No. 17466, 16 ■ N. B. R. 514 507, 509 In re, 108 Fed. 520, 3 N. B. N. R. 143, 6 A. B. R. 210 587, 606, 627 In re, 99 Fed. 703, 3 A. B. R. 700, 102 Fed. 290, 3 N. B. N. R. 143, 4 A. B. R. 335 525, 548, 607, 1066, 1082, 1097, 1187 Wetmore v. Markoe, 196 U. S. 68, 13 A. B. R. 1 1133, 1137 Weyhausen, In re, 1 Ben. 397 181 Whalen, In re, 1 N. B. N. 228 80, 660, 720 Whatley Bros., In re, 199 Fed. 326, 29 A. B. R. 64 543, 620 Whealton Restaurant Co., In re, 143 Fed. 921, 16 A. B. R. 294 681 Wheeler, Ex; parte, Buck, 25 610 Wheeler & Co., E. S., In re, 158 Fed. 603, 19 A. B. R. 461, rev'g 151 Fed. 542, 18 A. B. R. 421 373 Brandenburg — 99 AKE TO PAGES] Wheelock v. Lee, 10 N. B. R. 363, 17 N. B. R. 563 860 Whelpley, In re, 169 Fed. 1019, 22 A. B. R. 433 S94 Whipple, In re, 6 Biss. 516, Fed. Cas. No. 17512, 1 N. B. R. 373 794, 797 In re, 11 N. B. R. 524, 2 Lowell 404, Fed. Cas. No. 17513 910, 915, 916 Whitaker v. Crowder State Bank, 26 Okla. 786, 25 A. B. R. 876 444 White, In re, 135 Fed. 199, 14 A. E. R. 241 163, 164, lOS, 172 In re, 183 Fed. 310, 35 A. B. R. 541 314, 423 In re, 177 Fed. 194, 24 A. B. R. 197 442 In re, 174 Fed. 333, 23 A. B. R. . 90 599 In re, 205 Fed. 393, 29 A. B. R. 358 696 In re, 128 Fed. 513, 11 A. B. R. 556 758 In re, 3 N. B. N. R. 27, 103 Fed. 774. 4 A. B. E. 613 761 In re, 109 Fed. C35, 6 A. E. R.,451 J80 In re, 18 N. B. E. 106, Fed. Cas. No. 17533 1053, 1055 In re, 1 N. B. N. 302 1059, 1188 In re, 3 N. B. R. 179, Fed. Cas. No. 17532 1087 In re, 3 N. B. N. R. 536 1116, 1118 White, James, In re, 32 A. B. R. 200 715 White v. Bradley Timber Co., 116 Fed. 768, 8 A. B. R. 671 169, 173, 174, 243 V. Crawford, 9 Fed. 371 479 v. Griffin, 18 N. B. R. 399 603, 604 V. Hill, 148 Mas'!. 396 992 V. Jones, 6 N. B. R. 175, Fed. Cas No. 17550 185, 542, 626 V. Parish, 20 Tex. 688 610 V. Schloerb, 178 U. .S. 542, 2 N. B. N., R; 721, 4 A. B. R. 178 259, 269, 276, 843, 854 Whithead, In re, 2 N. B. R. 599 787 Whithead v. Pillsbury, 13 N. B. R. 241, Fed. Cas. No. 17572 453, 577, 700 Whiting, Ex parte, 14 N. B, R. 307, 2 Lowell 472, Fed. Cas. No. 17573 421 446 Whitehead, In re, .2 N. B. R. 180, Fed.' Cas. No. 17562 , 768, 993 Wliitehouse, In re, 4 N. B. R. iS, 1 Lowell 429,, Fed. Cas. No. 17564 319 White Mountain Paper Co. v. Morse, 127 Fed. 643, 11 A. B. R. 633, aff'g 127 Fed. 180, 11 A. B. R. 491 32, 109, 111, 305, 114 Whitener, In re, 105 Fed. 180, 5 A. B. R. 198 1206 White Star Laundry Co., In re, 117 Fed. 570. 9, A. B. E. 30 113 Whitley Grocery Co. v. Eoach, 115 Ga. 918, 8 A. B. E. 505 714 Whitlock's License, 39 Pa. Super. Ct. Rep. ,34, 22 A. B. E. 262 305, 618 Whitmer v. Field, S3 Vt. 556 763 Whitney, In re, 14 N. B. R. 1, 3 Lowell 455, Fed. Cas. No. 17580 918 In re, 18 N. B. R. 563, Fed. Cas. No. 17581 1133 Whitney v. Crafts, 10 Mass. 33 1132 V. Dresser, 200 U. S. 532, 15 A. B. E. 326, aff'g 135 Fed. 495, 13 A. B. R. 747 487, 492 V. Wenman, 198 U. S. 539, 14 A. B. R. 45 22, 884 V. Wenman, 140 Fed. 959, 14 A. B. R. 591 28, 210, 211, 692, 862, 863 Whitten v. State, 36 Ind. 196 1159 V. Tomlinson, 160 U. S. 241 323 Whittlesey v. Becker & Co., 142 App.i Div. (N. Y.) 313, 25 A. B. R. 672 82, 195, 200 Whitwell V. Wright, 136 App. Div. ,(N. Y.), 246, 23 A. B. R. 747 390, 738 Whvte; In re, 9 N. B. R. 267, Fed. Cas. No. 17606 451, 452 Wiase, In re, 2 N. B. N. R. 151 472 1570 Bkandenbubg on Bankeuptcy tBBrEBENCilS Wickham v. Valle's Ex'rs, 11 N. B. R. 83, Fed. Cas. No. 17613 556 Wicks V. Perkins, 13 N. B. R. 208, 1 Woods 383, Fed. Cas. No. 17615 648, 957 Wickwire v. Webster City Savings Banl?, 153 Iowa 225, 27 A. B. R. 157 705, 724, 874 Wielarskie, In re, 4 N. B. R. 130, 4 Ben. 468, Fed. Cas. No. 17619 504 Wiesebrook, In re, 188 Fed. 757, 26 A. B. R. 745 1173 Wiesel & Knaup, In re, 173 Fed. 718, 23' A. B R. 59 316, 317, 618 Wicsen Bros., In re, 135 Fed. 442, 14 A. h K. 347 895 Wiggers, In re, 2 Biss. 71, Fed. Cas. No. 17623 320,' 323 Wight V. Muxlow, 8 Ben. 52, Fed. Cas. No. 17629 735 Wilbur V. Stockholders, 18 N. B. R. 178, Fed. Cas. No. 17636 440, 859 V. Watson, 111 Fed. 493, 7 A. B. R. 54 382 Wilcox, Iv re, 156 Fed. 685, 19 A. B. R. 241 296 In re, 1 N. B. N. 286, 494, 94 Fed. 84, 2 A. B. R. 117 61;2,- 1036, 1037, 1039 In re, 1 N. B. N. 188, 1 A. B. R. 544 1025 In re, 109 Fed. 628, 6 A. B. R. 362 1068, 1077, 1101 Wilcox V. Hawley, 31 N. Y. 648 780 V. Kell, 11 Ohio 394 610 Wilcox & Co., In re, 155 Fed. 704, 19 A. B. R. 91 1030 Wilcox & Howe Co., In re, 70 Conn. 224 563 Wilcox & Wright, In re, 1 N. B. N. 188. 1 A. H. R. 544 433 Wild & Co. V. Provident Life Trust Co., 214 U. S. 292, 22 A. B. R. 109, rev'g 153 Fed. 562, 18 A. B. R. 506 475, 729 Wilde's Sons, In re, 133 Fed. 562, 13 A. B..R. 217 434, 435 Wilder, In re, 2 N. B. N. R. 629, 101 Fed. 104, 3 A. B. R. 761 313,465,485 Wilder v. Watts, 138 Fed. 426, 15 A. B. R. 57 73, 174 Wildman v. Taylor, Fed. Cas. No. 17654 602 Wilds' Sons, In re, 131 Fed. 142, 11 A. B. R. 714 375 In re, 144 Fedw 972, 16 A. B. R. 386, aff'g 137 Fed. 517, 13 A. B. R. 217 289 Wiley, In re, 4 Biss. 214, Fed. Cas. No. 17656 1040 Wilk. In re, 155 Fed. 943, 19 A. B. R. 178 1167 Wilkens, In re, 191 Fed. 94, 27 A. B. R. 235 924 Wilkes, In re, 112 Fed. 975, 7 A. B. R. 574 274, 784 Wilkesbarre Furniture Mfg. Co., In re, 130 Fed. 796, 12 A. B. R. 472 1027 Wilkesbarre Light Co., In re, 208 Fed. 539, 31 A. B. R. 451 360 Wilkins, In re, 2 N. B. R. 113, Fed. Cas. No. 17875 1047 Wilkins V. Davis, IS N. B. R. 60, 2 Lowell 511, Fed. Cas. No. 17664 247, 336, 503, 542, 613, 1047, 1130 Wilkinson, In re, 3 N. B. R. 74, Fed. Cas. No. 17667 1056 Wilkinson v. Babbitt, Fed. Cas. No. 17668 1016 V. Goodfellow-Brooks Shoe Co., 141 Fed. 218, 15 A. B. R. 554 253 Willarski, In re, 4 N. B. R. 390, Fed. Cas. No. 17619 137 William Branfoot, The, 52 Fed. 390, 8 U. S. App. 129 996 Williams, Ex parte, 11 Ves. 3 610, 611 Ex parte, L. R. 10 Eq. 55 919 Williams, In re, 120 Fed. 38, 9 A. B. R. 741 15", 19, 37 In re, 123 Fed. 321, 10 A. B. R. 538 30 ABE TO FAOBS] Williams, In re, 9 A. B. R. 736 32 In re, 99 Fed. 544, 3 A. B. R. 677 35, 38, 1075 In re, 2 N. B. N. R. 206 52, 1077, 1188 In re, 2 N. B. N. R. 419 758, 775 In re, 4 N. B. R. 132, Fed. Cas. No. 17706 60, 177, 225, 226 In re, 3 N. B. R. 74, 1 Lowell 406, Fed. Cas. No. 17703 129, 176, 226, 721, 1038 In re, 3 N. B. R. 285 241 In re, 11 N. B. R. 146, 6 Biss. 233, Fed. Cas. No. 17700 142, 322, 323, 803 In re, 2 N. B. R. 79, Fed. Cas. No. 17705 401, 410, 1013 In re. Fed. Cas. No. 17702 1036, 1037 In re, 31 A. B. R. 717 1137 In re, 105 Fed. 906, S A. B. R. 198 1233 In re, 26 Pa. St. 18 1159 Williams' Estate, In re, 118 N. Y. S. 562, 23 A. B. R. 394 381, 1137 In re, 156 Fed. 934, 19 A. B. R. 389 956, 1225 Williams v. Butcher, 12 N. B. R. 143 1052 V. Harkins, 15 N. B. R. 34 433, 1139 V. Heard, 140 U. S. 529 597, 628 V. Virginia-Carolina Chemical Co., 62 So. 755, 31 A. B. R. 64 1142 Williams & Co. v. U. S. Fidelity & Guar- anty Co., 11 Ga. App. 635, 28 A. B. R. 802 385, 1131, 1151 Williamsburg Knitting Mill, In re, 190 Fed. 871, 27 A. B. R. 178, aff'd 193 Fed. 1020, 27 A. B. R. 578 544, 955 Williamson, In re, 114 Fed. 190, 8 A. B. R. 42, 114 Fed. 192 8 A. B. R. S3 780 Williamson v. Richardson, 205 Fed. 245, 30 A. B. R. 559 623 Willis V. Carpenter, 14 N. B. R. 521, Fed. Cas. No. 17770 230, 479, 1210 Willis Cab & Automobile Co., In re, 178 Fed. 113, 23 A. B. R. 593 112 Willis W. Russell Card Co., In re, 174 Fed. 202, 23 A. B. R. 300 281, 519 Wilmot V. Mudge, 103 U. S. 217 1142 Wilson, In re, 13 N. B. R. 253, 2 Lowell 453, Fed. Cas. No. 17784 238 In re, 101 Fed. 571, 4 A. B. R. 260 609, 660, 760, 771 In re, 107 Fed. 83, 5 A. B. R. 849 917 In re, 108 Fed. 197, 6 A. B. R. 287 758 789 In re, 116 Fed. 419, 8 A. B. R. 612* 1162, 1168 In re, 194 Fed. 564, 27 A. B. R. 867 578 In re, 23 A. B. R. 814 719 In re. Fed. Cas. NIo. 17783 1185 In re, 18 N. B. R. 300, Fed. Cas. No. T.r-> 1^785 910, 915, 916 Wilson V. Bank, 9 N. B. R. 97, 17 Wall *'^ B , , „ , 76, 77, 720 V. Bank, 3 Fed. 91 1227 V. Brinkman, 2 N. B. R. 149, Fed. Cas. No. 17794 720 V. Mitchell-Woodbury Co., 31 A. B „R- 837 70S, 710, 875, 876 V. Nelson, 183 U. S. 191, 7 A. B. R „ "2 69 v. Parr, 115 Ga. 629, 8 A. B. R. 230 , . 11. 42, 248, 669, 854, 995 V. Pennsylvania Trust Co., 114 Fed 742, 8 A. B. R. 169 996, 1012 V. Stodart, 4 N. B. R. 76, Fed. Cas. No. 17838 733 Wilson Bros. v. Nelson, 183 U. S 191 7 A- B. R 142 rev'g 98 Fed. 76, 1 "n. B. N. 567 1 A. B. R. 63 76 77, 80, 722 Wilson & Shafer v. Bank, 10 N. B R 289, Fed. Cas. No. 894 410 Wilt V. Stickney, 15 N. B. R. 23, Fed. Cas. No. 17854 ' ggs Wimm In re, 1 N. B. R. 131, Fed. Cas. No. 17876 Winchester, In re, 155 Fed. 505, 19 A. B. -At 227 662 1100 Table of Cases 1571 [SBFEBENCISS Winchester v. Heiskell, 119 U. S. 450, 120 U. S. 273 836 Windt, In re, 177 Fed. 584, 24 A. B. R. 536 77, 78, 145 Winfield Mfe. Co., In re, 137 Fed. 984, 15 A. B. R. 24 996, 1013 In re, 140 Fed. 185, 15 A. B. R. 257 1012 Wing Yick Co., In re, 13 A. B. R. 757 149, 192, 1041 In re, 13 A. B. R. 360 155 Wink, In re, 206 Fed. 348, 30 A. B. R. 298 509 Winkels, In re, 132 Fed. 590, 12 A. B. R. 696 408 Winkens, In re, 2 N. B. R. 113, Fed. Cas. No. 17875 129, 192, 1130 Winn, In re, 1 N. B. R. 131, Fed. Cas. No. 17876 25, 478, 500, 541, 797, 799, 816, 1005 Winship v. Phillips, 14 1^. B. R. 50 663 Winsor, In re, 16 N. B. R. 152, Fed; Cas. Na 17885 1086, 1087, 1185 Winter v. Claiter, 54 Miss. 341 185 V. Iowa, M. & N. P. Ry. Co., 7 N. B. R. 289, 2 Dill. 487, Fed. Cas. No. 17890 71, 116, 117 WintemiU, In re, 4 N. B. R. 127 12 Winters v. Clayton, 18 N. B. R. 533 639 Winton Lumber & Mfg. Co., In re, 17 A. B. R. 117 999 Wise, In re, 2 N. B. N. R. I5l 149, 451, 469, 471, 474, 498. 728., 740 Wise Coal Co. v. Columbia Zinc & Lead , Co., 157 Mo. App. 315, 27 A. B. R. 445 I 655, 1128 Wiseman & Wallace, In re, 159 Fed. 236, '20 A. B. R. 293 552 Wishnefsky, In re, 181 Fed. 896, 24 A. B. R. 798 751, 781 Wiswall V. Campbell, 15 N. B. R. 421, 93 U. S. 347 451, 499, 1242 Witherbee, In re, 202 Fed. 896, 30 A. B. R. 314 246, 535, 944, 948, 1226, 1234, 1235 Witkowski, In re, 10 N. B. R. 209, Fed. Cas. No. 17920 4, 361, 364, 1112, 1118, 1157 Wittenberg, In re, 160 Fed. 991, 20 A. B. R. 398 1061 Wittenberg Veneer & Panel Co., In re, 108 Fed. 593, 6 A. B. R. 71 706 Witthaus V. Zimmerman, 91 App. Div. (N. Y.) 202, 11 A. B. R. 314 604. 1128 Wolcott, In re, 140 Fed. 460, 15 A. B. R. 386 781 Wolf, In re, 2 N. B. R. 908 408 In re, 98 Fed. 84, 3 A. B. R. 555 674 In re, lS9 Fed. 299, 20 A. B. R. 304 1076 In re, 156 Fed. 543, 19 A. B. R. 70 1084 Wolf V. Stix, 99 U. S. 1 1128 Wolff, In re, 165 Fed. 984, 21 A. B. R. 452 597 In re, 100 Fed. 430, 4 A. B. R. 74 1049 In re, 132 Fed. 396, 13 A. B. R. 95 1052, 1072, 1075 Wolfstein, In re, 1 N. B. N. 202 187, 276, 1063 WoUowitz, In re, 192 Fed. 105, 27 A. B. R. 558 1074 Wolpert, In re, 1 N. B. N. 238, 1 A. B. R. 436 976 Wong, In re, 30 A. B. R. 125 962, 963, 973, 1099 Wood, In re, 13 N. B. R. 96, 6 Ben. 339, Fed. Cas. No. 17935 163 In re, 95 Fed. 946, 2 A. B. R. 695, 1 N. B. N. 430 458, 495, 1008, 1009 In re, 98 Fed. 972, 3 A. B. R. 572, 3 N. B. N. R. 141 525, 548, 607, 1066, 1097, 1187 In re, 5 N. B. R. 421, Fed. Cas. No. 17937 643, 687 In re, 147 Fed. 877, 17 A. B. R., 93 /o6, /o2 ▲KID TO PAGES] Wood V. Bailey, 12 N. B. R. 132, 21 Wall. 640 1218 V. Fisk, 141 N. Y, S. 342, 31 A. B. R. 824 1142 v. Hazen, IS N. B,. R. 491 817, 1123 V. Ovvings, 1 Cranch 239 715 ,v. United States, 143 Fed. 424, 16 A. B. R. 21 ' , 703, 718 V. Wilbert's Sons Shingle & Lumber Co., 226 U. S. 384, 29 A. B. R. 220 838 Wood & Henderson, In re, 210 U. S. 246,, 20 A. B. R. 1 743, 744 Wood Co. Vj Eubanks, 169 Fed. 929, 22 A. B. R. 307 558 Wood Mowing & Reaping Mach. Co. v. Brooke, 9 N. B. R. 395, 2 Sawy. 576, Fed. Cas. No. 17980 560 V. Vanstory, 171 Fed. 375, 22 A. B. R. 740- 548, 557 Woodard, In re, 1 N. B. N. 430, 2 A. B. R. 692, 95 Fed. 955 213, 289, 790, 962, 964, 967 In re,, 1 N. ,B. N. 385, 95 Fed. 260, 2 A. B. R. 339 418, 752, 765 Woodbury, In re, 2 N. B. N. R. 284, 98 Fed. 833, 3 A. B. R. 457 508, 835, 836, 842, 843, 846 Woodbury v. Warren, 67 Vt. 261 763 Woodbury Dermatol^gical Institute, In re, 191 Fed: 819, 27 A. B. R. 497 253 Woodend, In re, 133 Fed. 593, 12 A. B. R. 768 910 Woodford, In re, 13 N. B. R. 575, Fed. Cas. No. 17972 141, 145 In re, 3 N. B. R. 113, 4 Ben. 9, Fed. Cas. No. 18029 350 Woodford v. Rice, 207 Fed. 473, 30 A. B. R. 455 581 Woodruff V. Cheeves, 105 Fed. 601, 5 A. B. R. 296, rev'g 96 Fed. 317, 2 A. B. R. 679 776, 831 Woods, In re, ,7 N. B. R. 126, Fed. Cas. No. 17990 4, 60, 76,' 112 ^ In re, 133 Fed. 82, 13 A. B. R. 240 403, 440, 606 In re, 98 Fed. 972, 3 A. B. R. 572 1095 In re, 143 U. S. 202 1246 Woods V. Buckewell, 7 N. B. R. 405, 2 Dill. 38, Fed. Cas. No. 17991 1230 V. Klein, 223 Pa. 256, 22 A. B. R. 722 661, 717 V. Little, 134 Fed. 229, 13 A. B. R. 742 1073, 1099, 1102 Woodside Coal Co., In re, 105 Fed. 56, 5 A. B. R. 186 115 Woodward, In re, 3 N. B. R. 477, 4 Ben. 102, Fed. Cas. No. 17999 358 In re, 1 N. B. N. 352, 2 A. B. R. 233 , 96, 642, 689, 714, 722 In re, 12 N. B. R. 297, 8 Ben. 112 1172 Woolford V. Diamond State Steel Co., 138 Fed. 582, 15 A. B. R. 31 150, 164, 172, 175 Woolscy V. Cade, 15 N. B. R. 238 ,1143 Wooten, In re, 118 Fed. 670, 9 A. B. R. 247 406, 417, 418, 491, 492, 507, 966 Worcester County, In re, 102 Fed. 808, 4 A. B. R. 496 11, 388, 1014, 1201, 1203, 1204, . 1209, 1220, 1227, 1231, 1232 Worden v. Searls, 121 U. S. 14 1159 Work, In re, Fed. Cas. No. 18044 129 Worland, In re, 1 A. B. R. 450, 1 N. B. N. 316, 92 Fed. 893 25, 273, 938, 939, 985 World Co. V. Brooks, 3 N. B. R. 146 810 Worrell v. Whitney, 179 Fed. 1014, 24 A. B. R. 749 63, 707 Worsham, In re, 142 Fed. 121, 15 A. B. R. 672 181, 248, 1226 Worth, In re, 130 Fed. 927, 12 A. B. R. 566 434, 975, 1040 Worthington, In re, 14 N. B. R. 488, Fed; Cas. No. 18052, ,s. c. 16 N. B. R. 52, 7 Biss. 455, Fed. Cas. No. 18051 662 1572 Brandenbueg on Bankkuptcy [BBFEBENCB8 Wrede v. Clark, 132 App. Div. (N. Y.) 293, 21 A. B. R. 821, rev'g 61 Misc. (N. Y.) 530, 21 A. B. R. 170 499, 617, 668 Wright, Ex parte. Fed. Cas. No. 18064 1144 Ex parte, 65 Ind. 504 1159 Wright, In re, 1 N. B. N. 428, 95 Fed. 807, 2 A. B. R. 592 11, 395, 1004, 1013 In re, 1 N. B. R. 191, Fed. Cas. No. 18069 290 In re, 6 Biss. 317, Fed, Cas. No. 18068 418 In re, 1 N. B'. N. 405, 2 A. B. R. 497 513 In re, 177 Fed. 578, 24 A. B. R. 437 525 In re, 157 Fed. 544, 19 A. B. R. 454, aff'g 151 Fed. 361, 18 A. E. R. 198, rev'g 16 A. B. R. 778 567 In re, 1 N. B. N. 381, 2 A. B. R. 364, 96 Fed. 187 634, 636 In re, 107 Fed. 428 673 In re, 8 N. B. R. 430, Fed. Cas. No. 1806 765, 766 In re, 2 N. B. R. 57, 2 Ben. 509, Fed. Cas. No. 18065 1103 In re, 177 Fed. 578, 24 A. B. R. 437 1109, 1110, 1111 In re, 2 N. B. R. 14, Fed. Cas. No. 18070 ' 1141, 1142, 1145 In re, 3 A. B. R. 184, 96 Fed. 820 1218 In re, 96 Fed. 820, 3 A. B. R. 184 1220 Wright V. Bank, 18 N. B. R. 87, Fetf. Cas. No. 18078 555, 556 V. Filley, 4 N. B. R. 197, Fed. Cas. No. 18077 76 V. Rogers, 3 McLean 229, Fed. Cas. No. 18090 440 V. Sampter, 152 Fed. 196, 18 A. B. R. 355 581, 638, 739 V. Skinner, 136 Fed. 694, 14 A. B. R. 500 861, 869, 871 Wright-Dana Hardware Co., In re, 212 Fed. 397, 31 A. B. R. 816, mod'f'g 207 Fed. 636, 31 A. B. R. 192 444, 445, 475, 1027 In re, 211 Fed. 907, 31 A. B. R. 764, aff'g 205 Fed. 335, 30 A. B. R. 582 558 Wright Lumber Co., Ed. W., In re, 114 Fed. 1011, 8 A. B. R. 345 472, 722 Wrights V. William Skinner Mfg. Co., 161 Fed. 644, 20 A. B. R. 527 732 Wrisley Co., In re, 133 Fed. 388, 13 A. B. R. 193 521, 929, 930 Wronkow, In re, 18 N. B. R. 81, Fed. Cas. No. 18105 307, 908, 917 Wunder, In re, 133 Fed. 821, 13 A. B. R. 701 754, 757, 759 Wyatt, In re, 2 N. B. R. 94, Fed. Cas. No. 18106 592, 1191 Wylie, In re, 153 Fed. 281, 18 A. B. R. 503, aff'g 148 Fed. 907, 17 A. B. R. 404 951 Wyley, et al.. In re, 116 Fed. 38 469 Wynkoop, etc., Co. v. Gaines, 227 U. S. 4, 29 A. B. R. 369 1242 Wynne, In re, 4 N. B. R. 5, Chase 227, Fed. Cas. No. 18117 414, 526, 545, 715, 810 Wyoming Valley Co-operative Ass'n, In re, 198 Fed. 436, 28 A. B. R. 462 147,, 395 Wyoming Valley Ice Co., In re, 145 Fed. 267, 16 A. B. R. 594 • 988, 989 Yaple V. Dahl-Millikan Groc. Co., 193 U. S. 526, 11 A. B. R. 596 729 Yates, In re, 114 Fed. 365, 8 A. B. R. 69 102, 136, 432 In re, 4 Johns. 317, 9 Johns. 395 1180 Yates V. Hollingsworth, 5 Har. & H. 216 1126 Yeager, In re, 182 Fed. 951, 25 A. B. R. 51 784, 978 Yeatman v. Sav. Inst., 17 N. B. R. 187, 95 U. S. 764 689 ADE TO PAGES] Yoder, In re, 127 Fed. 894, 11 A. B. R. 445 125 Yodleman-Walsh Foundry Co., In re, 166 Fed. 381, 21 A. B. R. 509 205 Yoke Vitrified Brick Co., In re, 180 Fed. 235, 25 A. B. R. 18 631, 984, 1004 York, In rej 4 N. B. R. 156, Fed. Cas. No. 18139 1218, 1219 York Mfg. Co. v. Brewster, 174 Fed. 566, 23 A. B. R. 474 564 V. Cassell, 201 U. S. 344, IS A. B. R. 633 7, 24, 541, 564, 633, 634, 677 V. Merchants' Refrigerating Co., 168 Fed. 108, 21 A. B. R. 748 ' 911 York Silk Mfg. Co., In re, 188 Fed. 735, 26 A. B. R. 650, aff'd 192 Fed. 81, 27 A. B. R. 525 404. 638, 989 Yost, In re, 117 Fed. 792, 9 A. B. R. 153 780 Young, In re, 15 N. B. R. 205, Fed. Cas. No. 18149 388 In re, 208 Fed. 373, 31 A. B. R. 29 596, 597 In re, 2 A. B. R. 673, 1 N. B. N. 428, 96 Fed. 606 401, 649 In re, 3 N. B. R. Ill, Fed. Cas. No. 18148 771 In re, 142 Fed. 891, 16 A. B. R. 106 973 In re, 140 Fed. 728, 15 A. B. R. 477 1101, 1106 Young V. Allen, 207 Fed. 318, 30 A. B. R. 261 585 V. Ridenbaugh, 11 A. B. R. 563, 3 Dill. 239, Fed. Cas. No. 18173 299, 501, 1110 V. Upson, 8 A. B. R. 377, 115 Fed. 192 71, 712 ,. Young, 35 Misc. (N. Y.) 335, 7 A. B. R. 171 1136 Young & Holland Co. v. Brande Bros., 162 Fed. 663, 20 A. B. R. 612 181 Youngstrom, In re, 153 Fed. 98, 18 A. B. R. 572 753, 766, 1232 Yukon Woolen Co., In re, 1 N. B. N. 420, 96 Fed. 326, 2 A. B. R. 805 542, 852 Yungbluth v. Slipper, 185 Fed. 773, 26 A. B. R. 265 83 Zabelo v. Reeves, 227 U. S. 625, 29 A. B. R. 493 1192 Zach, In re. 196 Fed. 909, 28 A. B. R. 138 789 Zahm y. Fry, 9 N. B. R. 546, Fed. Cas. No. 18198 721, 813 Zarega's Case, Fed. Cas. No. 18204 1119 Zartman v. First Nat. Bank of Waterloo, 189 N. Y. 267, 19 A. B. R. 27, aff'g 109 App. Div. (N. Y.) 406, 16 A. B. R. 152 675, 677 V. First Nat. Bank, 216 U. S. 134. 23 A. B. R. 635 541 Zaugas Case, Fed. Cas. No. 16786 1135 Zavelo V. Reeves, 227 U. S. 625, 29 A. B. R. 493 394, 909, 911, 912, 925, 1125 Zehner, In re, 193 Fed. 787, 27 A. B R. 536 22, 23, 24, 552, 810, 934, 938, 956 Zeiber v. Hill, 8 N. B. R. 239, Fed. Cas. No. 18206 991 Zeigler Co., In re, 189 Fed. 259, 26 A. B. _ K. 761 40, 199, 1169, 1173 Zeltner Brewing Co., In re Henry, 117 Fed. 799, 9 A. B. R. 63 62, 85, 88 Zepennk v. Card, 11 Fed. 295 1143 Zephyr Mercantile Co., In re, 203 Fed. 576, 30 A. B. R. 203 560 Zier & Co., In re, 142 Fed. 102, 15 A. B. R. 646, aff'g 127 Fed. 399, 11 A. B. R. 527 384 Zimmerman v. Ketchum, 66 Kan. 98, 11 A. B. R. 190 1152 Zimmermann, In re, 202 Fed. 812. 30 A. B. R. 361 775 Table op Cases 1573 [RBFBRENCDS Zinn, In re, 4 N. B. R. 145, 4 Ben. 500, Fed. Cas. No. 18215, s. c. 4 N. B. R. 123, Fed. Cas. No. 18216 508 Zinner, In re, 202 Fed 197, 29 A. B. R. 860 694, 1226 Zitron, In re, 203 Fed. 79, 30 A. B. R. 172 485, 593 Zom & Co., In re, 193 Fed. 299, 27 A. B. R. 433 418 Zotti, In re, 186 Fed. 84, 26 A. B. R. 234 540 IB TO PAGES] Zotti, In re, 23 A. B. R. 607 998 Zug, In re, 16 N. B. R. 280, Fed, Cas. No. 18222 314 Zugalla V. International Mercantile Agency, 142 Fed. 927, 16 A. B. R. 67, rev'g 13 A. B. R. 725 86, 88, 109, 112, 115 Zueg, In re, 16 N. B. R. 280, Fed. Cas. No. 18222 610 Zumpfe V. Schultz, 35 Pa. Super. Ct. 106, 20 A. B. R. 916 777 •I'}'- miifi/r Vi :•,', ./. •A M .A au INDEX [EEPEBENCES ABE TO SECTIONS] A ABANDONMENT of lien, 871. of property by trustee, 1058. form of petition, 17^5. ABATEMENT OF ACTIONS bankruptcy does not abate action by bankrupt, 1090. ABSCONDING DEBTOR as establishing a preference, 974. state law relating to, not superseded, 7. ABUSE OP PROCESS claim for, does not pass to trustee, 765. ACCOMMODATION INDORSEE provability of claim 'of, 519. ACCOMMODATION MAKER cannot receive preference, 927. ACCOUNTANT competency as a witness, 1628. fees of experts, 1312. ACCOUNTS assignment of, as a preference, 955. by officers of the court, 1344. notice of filing and settlement, 1425. making false, as an offense, 1612. manner of making proof, 609, 611. of trustee, 721. appealable orders, 1641. payments on, as preferences, 626, 959. referee must pass upon, 346. ACKNOWLEDGMENT necessity of seal, 463. venue, 463. 1575 1576 Bbandenbueg on Bankbuptcy [eepeeences ake to sections] ACTIONS AGAINST BANKEUPT see, also, Stay of Proceedings. bankrupt should plead bankruptcy proceedings, 1044. defense by trustee, 1079. costs, 1085. effect of trustee's appearance, 1083. manner of becoming party, 1082. what trustee may plead, 1084. effect of discharge, 1534. may be prosecuted in absence of application for discharge, 1042. permission to sue, 1077. plea of pendency of bankruptcy proceedings, 21. form, 1782. removal to federal court, 1086. stay of proceedings bankruptcy proceedings act as supersedeas, 9. class of suits stayed, 424, 1047. court to which application made, 1072. dissolution of stay, 1076. form of application, 1071, 1783. form of distraining order, 1073, 1785. ■ ground of stay must be pleaded, 1074. grounds in general, 1040. jurisdiction of bankruptcy court, 1040. jurisdiction of referee, 1041. nature and effect, 1045. notice of application, 1071. period during which stay may be had, 1069. procedure to procure stay, 1040. proceedings on execution, 876. restraining order necessary, 1046. review of order granting stay, 1075, 1653. stay compulsory, 1042. ACTIONS AGAINST TRUSTEE actions against trustee and sureties, 738 effect of death or removal of trustee, 1141. jurisdiction, 1092, 1095, 1104, 1110. may be enjoined, 1040. ACTIONS BY BANKEUPT intervention of trustee, 1091, 1092. plea setting up bankruptcy. form, 1781. right to institute suits after bankruptcy, 1091. ACTIONS BY TRUSTEE see, also. Fraudulent Transfers, Preferences, Trustee in Bankruptcy. answer, 1158. appeal to supreme court, 1660. cross-biU, 1159. Index 1.577 / [RBFEBENOEg ARE TO SECTIONS] ACTIONS BY TETJSTEE— continued, defenses. attack upon adjudication, 1138. limitations, 1139. res adjudicata, 1137. demurrer or plea, 1157. effect of death or removal of trustee, 1141. form of suit, 1124, 1127. jurisdiction, 1092, 1095, 1104. • jnay be stayed, 1066. petition or complaint, 1151. allegations, 1153, 1154. caption, 1152. prayer for judgment, 1155. variance, 1156. rights of action, in general, 765, 1112, 1113. accounting from assignee, 1118, action for conspiracy, 1121. assignment and sale of, 1143, 1269, 1298. conditions precedent, 1128. contest of administrator's account, 1117. fraudulent conveyances, 1115. liability of corporate ofScers, 1122. preferences, 1116. rights as to collateral, 1120. stockholders' liability, 1125. usurious contracts, 1126. rules of practice, 1150. security for costs, 1166. form of affidavit, 1797. form of order, 1798. ACTS OF BANKBUPTCT admitting inability to pay debts and willingness to be adjudicated, admission must be in writing, 53. admission must be unqualified, 53. by corporate directors. form, 1688. , by individual. form, 1687. by partnership or members, 53. by stockholders, form, 1689. insolvency immaterial, 53. powers of ofScers and directors of corporation, 53, 84. receivership, not equivalent to, 53. state courts cannot prevent, 53. allegation of, 160. application for or appointment of, receiver or trustee, 52, insolvency essential, 52. 1578 Bbandenbukg on Bankeuptcy [EErEBBNCES ARE TO SECTIONS] ACTS OF BANKEUPTCY— continued, assignment for creditors. by partnership, 105. general assignment, defined, 52. insolvency not essential, 52. need not be ■with preferences or fraudulent intent, 52. receivership not equivalent to, 52. assignment of insurance policy, 49. burden of prodtf, 254. chattel mortgages, 47. defined and classified, 37, 38. essential in involuntary proceedings, 250, 251, estoppel to assert, 39. exchange of property, 50. fraudulent transfers or concealment. bona fide transfers, 44. by partnership or member, 42, 45. concealment defined, 42. conveyance of property in trust, 42. failure to take legal proceedings, not, 42. insolvency not essential, 42. intent may be inferred, 42. intent to defraud essential, 42. where concealment not implied, 44. incompetent cannot commit, 43. insolvency as an element, 55. may be committed by agent, 43. necessity in proceedings against firm by member, 193. need not be alleged in voluntary petition by partners, 190. not essential in voluntary proceedings, 58. pledges, 49. preference through legal proceedings. activity on part of debtor immaterial, 51. after dissolution of partnership, 51. confession of judgment, 51. creditor defined, 51. enforcement of lien, 51. failure to vacate judgment or attachment essential, 51. "final disposition" defined, 51. insolvency essential, 51. intent immaterial, 51. preference to creditor essential, 51. preferential transfers. confession of judgment, 43 (n68). conveyance of property in trust, 42. includes every mode of disposing of property, 43. insolvency essential, 43. intent essential, 43. intent may be inferred, 43. reasonable cause to believe, not essential, 43. real estate mortgages, 48. Inpex 1579 [BErERENOES ABE TO SECTIONS] ACTS OP BANKEUPTCY— continued, relatives, conveyances to, 46. sales, 50. ADJOXTRNMENT of examination of bankrupt, 489. of first meeting, 437, 440, 448, 464, 456. of hearing on petition, 245. to enable creditor to obtain evidence, 471. ADJUDICATION acquiescence in, by proof of claim, 671. appeal to supreme court, 1661. as evidence of bankruptcy, 292. by default, see Default Adjudication. cannot be reviewed by petition, 1653. collateral attack of, 23, 55, 122, 296, 1138, 1481. conclusiveness as to validity of petitioner's claim, 648. date of, 288. does not revoke will, 835. effect of, 289. a judgment in rem, 290. upon claims, 294. upon contracts, 294. upon corporations, 295. upon partnership, 295. upon title to property, 293. effect of denial of motion for, 279. effect of failure to record decree, 741. form of adjudication of bankruptcy, 1709. form of adjudication that debtor is not bankrupt, 1708. guardian of partner cannot consent to, 391. must be pleaded in state court, 1074. not conclusive on issue of reasonable cause, 977. not per se an injunction, 1046. not reviewable by mandamus, 1644. notice of, 287. order of, is appealable, 1636. parties bound by, 291. parties to appeals, 1637. plea in action by bankrupt. form, 1781. setting aside and vacation of. appealability of order refusing to set aside, 1636. creditor may appear specially, 300. form of petition, 1710. grounds, 300. laches, 301. procedure, 302. review of order, 1652. time of application, 301, 302. 1580 Brandenburg on Bankruptcy [BEFEBENCES ABE TO SECTIONS] ADJUDICATION— continued. setting aside and vacation of — continued. voluntary proceedings, 298. want of notice, 300, 301. who may apply, 297. who may oppose, 298. trustee must file decree, 719. upon failure to plead, 277. who may contest, 175. writ of error to review, 1643. ADMIEALTY priority of maritime liens, 1388. vessel cannot be taken from receiver, 210. ADVANCES provability of claim for, 508. validity of lieu for, 909. ADVERSE CLAIM how determined, 1169. review of orders by petition to revise, 1652. what constitutes, 1170. ADVERSE CLAIMANTS ancillary jurisdiction, 1173. answer to order to show cause. form, 1780. appeal to supreme court on questions affecting, 1662. appeals in actions by or against, 1641. compelling surrender of property, 1179. consent as affecting summary jurisdiction, 1172. enjoining sale of property in possession of, 876. jurisdiction of bankruptcy court, 1092. jurisdiction of referee, 380, 1174. jurisdiction of state courts, 1104. petition for accounting by trustee. form, 1778. possession of property pending suit, 1146. prosecution of suits in state court, 1106. review of orders against, 1652, 1653. sale of property in possession of, 1268. summary jurisdiction over, 9, 1167. who are, 1094, 1169, 1170, 1171. ADVERSE POSSESSION effect of bankruptcy of occupant, 763. title of trustee to real estate occupied by adverse claimant, 779. ADVICE OF COUNSEL as affecting right to discharge, 1488, 1500. as defense in contempt proceedings, 1597. as defense in criminal proceedings, 1614. Index 1581 [rbfebences abs to sdotions] AFFIDAVIT who may take, 459, 460. AFFINITY defined, 124, 315. AFFIRMATIONS see Oaths and Affirmations. affirmation sufficient, 461. AFTEE-ACQUIEED PROPERTY validity of chattel mortgage on, 906. AGENT authority need not be alleged, 155. compelling surrender of property by, 1179. contempt for failure to turn over assets, 1582. corporation conducting business through, may be adjudicated, 82. discharge or release from liability, 1557. knowledge of agent, is knowledge of principal, 972. may verify pleadings, 186. proof of- claim by, 595. right to commissions passes to trustee, 776. ALIEN effect of discbarge on debt due, 1526. , jurisdiction over crimes committed by, 1609. may act as trustee, 686 (n43). may become voluntary or involuntary bankrupt, 59, 69. place of business, residence or domicile, 17. right to exemptions, 1012. ALIENATION OF AFFECTIONS liability for, not discharged, 1560. ALIMONY effect of discharge on liability for, 1552. proceedings to enforce payment, not stayed, 1049. provability of claim for, 509. ALLOWANCE OF CLAIMS see Proof and Allowance of Claims. AMENDMENT of complaint in suit to set aside transfer, 1153. of decrees and orders, power of court, 18, 25. of judgment of state court, 19. of petition in bankruptcy. See Petition in Banhruptcy. of proof of claim, 610, 615. of schedules, 406. of verification to proof of claims, 614. AMOUNT IN CONTROVERSY as affecting jurisdiction of federal courts, 1093. 1582 Beandenbueg on Bankkuptct [BEFEBENCES ABE TO SECTIONS] ANCILLARY JUEISDICTION defined, 13. general rules, 12, 13, 1103. review of orders, 1652. to determine adverse claims, 1173. to sell- property, 1253, 1254. ANCILLARY RECEIVEE appointment, 13, 242. compensation, 13. must account to court appointing him, 13, 242. ANIMALS discharge as release from liability for injuries by, 1560. exemptions, 1012. ANNUITY provability of claim for, 509. title to, 811. ANSWER demurrer to, 173, 181. effect of admissions in, 285. effect of failure of bankrupt to, 181. form and sufSciency, 181, 1694, 1695. form of withdrawal, 1696. in suit to set aside transfer, 1158. sufficiency of general denial, 181. time for, 178, 181, 277. APPEAL AND REVIEW allowance of appeal, 1648. appeal and petition to revise in same case, 1632. appeal and petition to revise mutually exclusive, 1631, 1651. appeal in forma pauperis, 1646. appeals in bankruptcy proceedings proper. appealable cases, 1636. arguments and briefs, 1638. form of petition, 1845. from whose decisions, 1635. general rules, 1634. in contempt proceedings, 1605. order appointing receiver not appealable, 206. parties to the appeal, 1637. scope of review, 1638. assignee for creditors may appeal from adjudication, 138. assignment of errors. form, 1847. bond on appeal. form, 1846. not jurisdictional, 1645. certificate to transcript. form, 1855. Index 1583 [BEFEBENCES ABE TO SEOITIONB] APPEAL ANB EEVIEW— continued, citation not jurisdictional, 1645. controversies arising in bankruptcy proceedings. appealable cases, 1641. general rules, 1640. scope of review, 1642. writ of error, 1643. criminal proceedings. petition for writ of error, 1849. cross-appeal, 1638. effect of appeal from order disallowing claim, 664. effect of appeal to circuit court of appeals, 1648. from order granting or refusing confirmation of composition, 1240. modes of review provided are exclusive, 1631, 1653. order staying action is not appealable, 1075. procedure in taking appeals, 1646. assignment of errors, 1646. bill of exceptions, 1646. bond, 1646, 1647. citation, 1646. rehearing in circuit court of appeals, 1649. review of referee's decisions, see Seferees. revision of bankruptcy proceedings proper. designation of record, 1830. dismissal, afirmance or reversal, 1656. dismissal of petition to revise, where appeal taken, 1632. form and sufficiency of petition, 1655, 1842. form of notice, 1843. general rules, 1651. in contempt proceedings, 1605. practice, 1655. time for presenting petition, 1654. what may be reviewed, 1652. what may not be reviewed, 1653. substitution of trustee as appellant in appeal by bankrupt, 1090. supersedeas, 1648. form of order, 1848. supreme court of United States. appeals from courts not in organized districts, 1663. appeals from state courts, 1660. appeals from district court, 1664. appeals in bankruptcy proceedings proper, 1661. certification of cases and certiorari, 1665. form of certificate, 1854. controversies arising in bankruptcy proceedings, 1662. effect of appeal, 1668. practice in taking appeals, 1666. right to appeal or error under Acts of 1915 and 1916, 1662. statutory provisions as to appeals, 1658. stay of proceedings, 1668. 1584 Brandenburg on Bankruptcy tsEFEBENCES ABB TO SECTIONS] APPEAL AND REVIEW— continued. supreme court of United States — continued. time of appeal, 1667. what constitutes matter or amount in controversy, 1659. time for appeal, 1645. writ of error. form of order allowing, 1850. form of petition for, 1849, 1851. form of writ, 1852. lies to review judgment in district court, 267. to circuit court of appeals, 1643. APPEARANCE as consent to jurisdiction, 9. as waiver of defects in petition, 162. bankrupt cannot be deprived of right, 179. by receiver, 177. cannot be withdrawn, 179. confers jurisdiction over person, 179. mode of, 177. special appearance to set aside adjudication, 300. time for, 178. APPRAISEMENT see, alsb. Sales in Banlcruptcy Proceedings. before sale, 1279. of exempt property, 994. APPRAISER see, also, Sales in Banlcruptcy Proceedings. allowance of fees, 1313. cannot purchase property, 1290. form of appointment, 1711. form of oath, 1711. form of report, 1711. payment by receiver, 235. payment of fees out of proceeds of sale, 1307. ARBITRATION AND COMPROMISE see, also. Compromise. application for compromise or arbitration, 1190. form of application, 1811. compounding claims, 1188. findings of arbitrators, 1194. order authorizing compromise. form, 1813. order to show cause. form, 1812. plan of settlement not authorized, 1189. referee may hear application, 1192. rights and duties of trustee, 1186. selection of arbitrators, 1193. when compromise granted, 1187. Index 1585 [RErEBENOES ABE TO SECTIONS] ABREST OF BANKRUPT effect of composition, 427. injunction discretionary, 427. jurisdiction of court, 18. manner of procuring protection or release, 427. form of order, 1721. form of petition, 1720. period during which exemption applies, 425. right to release upon discharge in bankruptcy, 1536. when bankrupt exempt, 422, 423, 426. when bankrupt not exempt, 424. writ of ne exeat, 428, 429. ARTISAN lien for labor performed after bankruptcy, 914. ASSAULT AND BATTERY discharge as release from liability, 1560. provability of claim for, 570 (n26). upon of&cers, as a contempt, 1589. ASSETS AND LIABILITIES see, also, Property of Bankrupt. assets not essential to adjudication, 58, 68. bankrupt must disclose, 393, 395. omission of claim from schedule, not an abandonment, 405. ASSIGNEE FOR CREDITORS see, also. Assignment for Creditors. allowance of attorneys' fees, 1325,- as adverse claimant, 1170. compelling surrender of property by assignee, 18. debts of, not payable as expenses of administration, 1363. may appeal from decree of adjudication, 138. may be examined, 466. may be petitioning creditor, 128. may intervene in involuntary proceedings, 138. preservation of lien acquired by, 898. priority of claims of, 1357. provability of claims of, 511. referee's examination of account, 353. right to appeal, 1637. right to possession as agamst receiver in bankruptcy, 202. sale by, not restrained, 1050. time for filing claims by, 606. trustee may demand accounting, 1118. trustee may sue on bond of, 898. violation of injunction as contempt, 1049%. ASSIGNMENT FOR CREDITORS see, also, Assignee for Creditors. as a bar to a discharge, 1499. Brandenburg — 100 1586 Beandenbueg on Bankruptcy [eefbeences aeb to sections] ASSIGNMENT TOR CEED1T0R8— contmued. as aet of bankruptcy. See Acts of Bankruptcy. creditors participating in, cannot be petitioning creditors, 132, 136. effect upon exemptions, 1016. general assignment, defined, 52. may constitute a preference, 955. right to profits of business, 848. state laws relating to, not superseded, 7. suit in state court stayed, 1049%. validity as affected by bankruptcy, 898. ASSIGNMENTS see Equitable Assignments, Parol Assignments. may constitute a preference, 955. , of claim by bankrupt. rights of assignee, 765, 766. of claims provable in bankruptcy. allowance to assignee not set aside, 668. as affecting right to become petitioning creditor, 122, 128, 132. manner of making proof, 596, 610. notice of assignment, 596. provability of assigned claims, 510. right of assignee to vote, 450. scheduling assigned claims, 1569. of money, 899. of trustees' right of action, 1269, 1298. of wages. See Wages and Salary. assignee not entitled to priority, 1375. validity, 899. trustee may assign claim to property, 760. ASSUMPSIT plea of discharge, 1549. ASSUMPTION OF DEBTS BY BANKRUPT creditor's claim not postponed, 1378. ATTACHMENT after adjudication, effect, 11, 864. after bankruptcy, as a contempt, 1584. after filing of petition is void, 864. attaching creditor as secured claimant, 630. attaching creditor may contest adjudication, 175. attaching creditor may prove claim for expenses but not costs, 529. bond released by bankruptcy, 890. effect of composition, 1204, 1235. effect of discharge in bankruptcy, 1532, 1534, 1554. effect of proof of claim, 672, 1034. failure to discharge, as act of bankruptcy. See Acts of Bankruptcy. foreign. as preference, 619 (n34), 950. effect of, 586. formal discharge, 874. Index 1587 [BEFERENOES ABE TO SECTIONS] ATTACHMENT— continued. lien may be preserved for estate, 896. motion to set aside. form, 1786. of dividends, 1422. of exempt and non-exempt property, 1033. of funds in hands of trustee, 729. of property in hands of receiver, 210. priority of claim for costs of, 1357, 1381. right to proceeds of sale, 895. stay of proceedings, 1050. suit may be enjoined, 876. trustee may intervene in suit, 1119. trustee may retain benefit, 860. validity as affected by bankruptcy, 890. void if acquired within four months, 870. ATTORNEY agreement to pay claim, does not disqualify petitioning creditor, 120. appearance by, 177. authority to practice, presumed, 177, 1454. concealment of contingent contract as an offense, 1611. contempt of, 1594. discharge as release from liability, 1557. effect of discharge on claims of, 1553, 1559. employment by receiver, 219. employment by trustee, 734. may accept claims in good faith for voting purposes, 450. may act as notary, 614. , may pay client money collected from bankrupt, 802. may verify pleadings, 186. may vote claim, 454. must be admitted to practice in federal courts, 177. non-admission to practice, effect of, 9, 279. notice to, 177. payment by, as a preference, 959. payment by, as act of bankruptcy, 43. payments to in contemplation of bankruptcy, 983. as a preference, 927. procedure to contest, 983. form of petition, 1776. reasonableness, 983. validity, 983. privileged communications, 480. proof of claim, by, 595. right to appear at examinations, 476. right to take affidavit, 460. ATTOBNET FOR BANKRUPT bankrupt must pay for services in composition proceedings, 1213. cannot act as trustee, 688. 1588 Beandenburg on Bankbuptcy [BEFEBENCES ABE TO SECTIONS] ATTOENET FOE BANKEUPT— continued, cannot appear for creditor, 642. cannot represent creditors, 1320. cannot take part in examinations, 476. fees in involuntary cases, 1319, 1320. fees in voluntary cases, 1318. priority of claim for services, 1368. referee may reduce allowance, 336. ATTORNEY FOE CEEDITOES allowance of fees, 1320, 1321, 1322, 1331. cannot represent bankrupt, 1320. no allowance for services to receiver, 1321. priority of claim for services, 1359, 1368. ATTORNEY FOE GENERAL ASSIGNEE allowance for services, 1325. ATTOENEY FOE EECEIVEE allowance for services, 1324. no allowance for services to creditors, 1321. priority of claim for services, 1358. ATTOENEY FOR TRUSTEE allowance for services, 1323. review by petition to revise, 1652. may make out proof of claim, 595. priority of claim of, 1356. ATTORNEY GENERAL statistics of bankruptcy proceedings, 36. ATTORNEYS' FEES attorney for bankrupt in involuntary cases, 1319. attorney for bankrupt in voluntary cases, 1318. attorney for general assignee, 1325. , attorney for non-petitioning creditors, 1322, 1331. attorney for petitioning creditors, 1321. attorney for receiver, 1321, 1324. attorney for trustee, 705, 1323. attorney representing bankrupt and creditors, 1320. claimant not entitled to, 645. general rules, 1315, 1317. jury trial to determine fee, 1160. mortgagee entitled to reasonable fee, 1307. not recoverable on dismissal, 307. parties entitled to object, 1326. priority of claim for, 1368. procedure to obtain allowance, 1326. provability of claim for, 512. reasonableness, 1316. review of order ^elating to, 1652, 1653. when allowed to defendant in action by trustee, 1166. Index 1589 [BEFEREKCES ABE TO SECTIONS] ATTORNEY'S LIEN. nature and extent, 900. priority, 1390. recognized by bankruptcy court, 900. AUCTIONEEE priority of claim for fees, 1364. AWAUDS exemptions in government award, 1012. title to government award, 854. BAIL priority of claim against surety, 1394 stay of proceedings against surety, 1057. surety on bond as adverse claimant, 1170. BAILMENTS bailor not a creditor, 630, 927. contempt of bailee for failure to turn over assets, 1582. discharge of bailee as release from liability, 1557. transfer to bailor, not a preference, 927. trustee's title, 768. what constitutes,, 769, 770. BANK as adverse claimant, 1170. bound by knowledge of cashier, 972. cannot be adjudicated, 60, 67, 70, 80. compelling surrender of deposits by, 1179. discharge as release of officer 's liability, 1557. effect of discharge upon stockholder's liability, 1533. lien of bank. extent of, 901. validity of, 901. may honor checks after filing of petition, 743 (nl2). priority of claims of depositors, 1382. private banker may be adjudicated, 70. provability of claims of, 513. right of set-off, 582. set-off against preferential deposit, 982. summary jurisdiction to determine title to deposits, 1168. title to funds in, 842. validity of pledge of stock, 918. BANKING COEPORATION see Barik. cannot become involuntary bankrupt, 67, 70, 80. cannot become voluntary bankrupt, 60. 1590 Bbandenbukg on Bankruptcy [references are to sections] BANKBUPT attendance at meetings, 393, 1467. cannot bid at trustee's sale, 1284. cannot maintain suit in own name, 1090. cannot petition for re-examination of claim, 663. compelling surrender of property by, 1178. competency as witness, 484, 495. compliance with orders, 394. disclosure of assets, 395. disclosure of combination to safe, 416. disclosure of liabilities, 393. duty to attend hearings for discharge, 1467. duty with reference to schedules, 397. see, also. Schedules. examination of, see Examinations, Examination of Bankrupt. examination of claims, 396. living expenses allowed, 1328. may object to claims, 653. may prove claim against another bankrupt, 628. may sue prior to appointment of trustee, 765. may waive protest on note, 418. must assist receiver, 417. must execute bill of sale, 1294. must join in application for transfer of license, 414, 417. must surrender property, 413. BANKRUPTCY ACT OP 1898 constitutionality of act, 6. construed as a whole, 925. effect of amendments, 748, 1442. history, 5. not retroactive, 7. statute not retroactive, 52. supersedes state insolvency laws, 7. BANKRUPTCY LAWS distinguished from insolvency laws, 2. history, 1, 4, 5. nature and object, 3, 4. a system of remedy, 4. not a mere personal action, 4. purpose, 3. repeal, effect upon state insolvency laws, 7. BANKRUPTCY PEOCEEDINGS equitable nature, 10, 243. proceedings are in rem, 11, 1043. BASTARDY bankrupt subject to arrest, 424. judgment not released, 424. provability of judgment in, 542. Ikdex 1591 [SEFEBENOES ABE TO SECTIONS] BILL OF EXCHANGE Bee Negotiable Instruments. as an equitable assignment, 910. BILL OF BEVIEW to review decisions of referee, 354. BILL OF SALE by trustee. form, 1809. BILLS AND NOTES see Negotiable Instruments. BONA FIDE PURCHASER burden of proof, in case of note, 517. title of, is protected, 863. who is, 863, 864, 981. BONDS corporate, provability of claims based on, 564. effect of discharge on liability on, 1554. fraudulently procuring execution of, as bar to discharge, 1495. liability of petitioners upon, 307. practice, 308. obligee as petitioning creditor, 130. of petitioners for a receiver, 204. form, 1706. of referee, 318. of trustee, 690. provability of claim based on, 514. in partnership cases, 556. to procure release of property provisionally seized, 204. BONDS AND SECURITIES title of trustee, 851. BONUS provability of claims for, 533. ^ BOOKS AND PAPERS admissibility in criminal proceedings, 1628. examination of, 503. failure to produce, as a contempt, 1586. open to inspection, 723. production of, 503. appealable orders, 1636. form of petition for production, 1773. in discharge proceedings, 1473. review of order by petition, 1653. surrender to receiver, 222. use before grand jury, 1623, 1592 Bbandenbukg on Bankbuptcy [references ase to sections] BOOKS OF ACCOTTNT AND EECOEDS destruction, concealment or failure to keep, as bar to disebarge, 1489, 1490, 1491, 1492, 1493, 1494. BEEACH OF PEOMISE TO MAEET liability released by discharge, 1560. provability of judgment, 542. stay of proceedings in state court, 1051. BEOKEB commissions for selling property of the estate, 1329. delivery of stock, not a preference, 927. discharge as release from liability, 1557. effect of bankruptcy of, upon title to securities, 764. not a creditor, 43. provability of claims by and against, 515. BUILDING AND LOAN ASSOCIATION right to profits, 849. BTTEDEN OF PEOOF change of domicile,. 15. contest on claim, 644. defense of solvency, on hearing for adjudication, 55. in actions by trustee, 1161. in proceedings for a discharge, 1471. payments on note, 517. place of business, residence or domieil, 14. proceedings to set aside adjudication, 302. solvency at time of filing petition, 42. that debtor is subject to act, 68, 94. to show preference, 451. . upon hearing for adjudication, 254. BTTEIAL LOTS exemptions in, 998. BUSINESS AND OCCUPATION OF DEBTOE allegation of, 159. BUSINESS COEPOEATION what constitutes, 80. BUYING OFF OPPOSITION TO DISCHAEGE as ground for revoking discharge, 1510. CANCELLATION OF INSTEUMENTS surrender of instruments for cancellation, 18. Index 1593 [BEFEBENOES ABE TO SECTIONS] CASE AND PRESERVATION OF PROPERTY priority of claim based on. , expenses of attaching or judgment creditor, 1357. expenses of receiver in bankruptcy, 1358. general rules, 1356. property recovered for estate by creditor, 1359. services of assignee for creditors, 1357. services of receiver in state court, 1357. wages subsequent to bankruptcy, 1372. CARRIERS provability of claim for freight and demurrage, 521. CAVEAT petition in bankruptcy is a caveat, 864. CERTIFICATION OF QUESTIONS by referee, 362. to supreme court. See Appeal and Bevlew. CERTIORARI form of petition for, 1853. form of stipulation as to transcript, 1856. issuance of writ by supreme court, 1665. to supply omissions from record on appeal, 1646. CHATTEL MORTGAGE as act of bankruptcy, 43 (n74) , 47. decision of state court binding, 903. failure to re-file, 1115. necessity of change of possession, 904, 905. necessity of recording, 904. procedure to declare invalid, 861. receiver may attack, 210. recital of mortgage in note, 907. right of mortgagee to possession as against receiver, 202. rights of trustee, 903, 1115. sale 9f mortgaged property, 1270, 1282. state law governs, 858, 904. stay of foreclosure proceedings, 1058. sufficiency of description, 904. trustee is proper party to attack, 861. validity as to after-acquired property, 906. validity in general, 904. void as preference if filed within four-month period, 948. CHECKS bank may honor checks after filing petition, 743 (nl2). priority of claims evidenced by checks, 1380. trustee must make payments by, 728. 1594 Beandenbueg on Bankbuptcy [BEFERENCES ABE TO SECTIONS] CH08ES IN ACTION rights of assignee of, 765. title to bankrupt's, 765. validity of parol assignment, 910. CLAIMS AGAINST BANKEUPT ESTATE see Proof of Claims. adjustment by receiver, 216. aUowanee and rejection of. admissibility of evidence, 646. appeal to supreme court, 1661. appealable orders, 1636, 1641. at first meeting, 440. conclusiveness of adjudication, 648. decision as res adjudicata, 549. discretion of referee, 641. examination of claimant and witnesses, 645. judgment of state court conclusive, 649. jury trial, 643. order of proof, 646. ■parties to appeals, 1637. proof makes prima facie case, 644. review of orders by petition to revisej 1652, 1653. review of referee's finding, 650. who may object, 653. witnesses, 647. assignment of. right of assignee to vote, 450. bankrupt must examine, 396. burden of proof, 658. conclusiveness of adjudication, 294. expunging claim. form of order, 1761. how listed in schedules, 399, 403. objections, 651. form, 1758. jurisdiction of referee, 652. manner of making, 656. proof in ease of, 658. time of hearing, 657. time of making, 655. postponement of, for fraud, 10. postponement of hearing, 660. presentment of false claim, an offense, 1615. proof of claims. See post. Proof of Claims. provable debts. See post, Provable Debts. reduction. form of order, 1760. re-examination of claims. appealable orders, 1636. burden of proof, 668. Index 1595 [bepkbenoes aee to sections] CLAIMS AGAINST BANKRUPT ESTATE— continued, re-examination of claims — continued, consolidation of proceedings, 665. costs and expenses, 669. notice, 663. on hearing for discharge, 1470. petition for review, where application refused, 663. presumption and burden of proof, 1471. procedure, 666, 667, 668. form of order, 1763. form of petition, 1762. propriety of setting aside disallowance, 1645. time for asking, 664. who may petition, 663. secured claims. proof of. See post. Proof of Clavmt. right of claimant to vote, 451. withdrawal, 661. CLEARING HOUSE payments by, may be preference, 959. CLEEK defined, 1370. payments to, not preferences, 942. priority of claim for wages, 1369. referee may employ a, 366. CLEBK OF COUET custody of papers, 33. delivery of papers to referee, 33. deputy may make reference, 320. duties in general, 29, 30. duty to collect fees, 31. fees and compensation, 34. issuance of subpoenas, 473. may administer oath, 459. must enter suit on docket, 148. powers and duties in absence of judge, 30. powers of deputy, 30. CLOSING ESTATE withholding settlement, to permit proof of claim, 606. CO-DEBTORS OF BANKBUPT effect of discharge upon liability of, 1539. COLLATEEAL ATTACK of adjudication, 55, 296. See, also, Adjudication. of appointment of receiver, 207. of decree in composition proceedings, 1229. of decrees and orders, generally, 23. of referee's orders, 325. of sales, 1279. 1596 Bbandenbueg on Bankruptcy [BEFBB&NOES ABE TO SECIIOMS] COMMENCEMENT OF PROCEEDINGS what constitutes, 21. COMMERCIAL AGENCY false reports to. as affecting exemptions, 1020. as affecting operation of. discharge, 1559. as affecting title to goods, 844. as bar to discharge, 1489, 1495. provability of claim of, 521. statements to, as evidence, 492. COMMERCIAL PAPER see Negotiable Instruments. COMMISSIONS I see Compensation, Fees, Marshal, Beceivers in Banlcruptcy Proceedings, Beferees, Trustee in Bankruptcy. COMMITTEE OP CREDITORS cannot intermeddle with estate, 761. COMPENSATION see" Cleric of Court, Fees, Marshal, Beceivers in Bankruptcy Proceedings, Beferees, Trustee in Bankruptcy. of marshal, 224. of receiver, 224. of referee, 370. of trustee, 702. COMPLAINT see Pleadings. COMPOSITIONS appeal and review in composition proceedings, 1240, 1636, 1652, 1653. appointment of trustee, 1227. as affecting surrender of preferences, 623. avoids arrest on civil process, 427. conclusiveness, 1229. confirmation of composition. application; 1212, 1806. as evidence, 1239. as res adjudicata, 1525. costs and disbursements cannot be recovered from estate, 1331. effect of failure to confirm, 1238. form of application, 1212, 1817. form of creditor's appearance in opposition, 1815. form of master's report, 1821. form of order confirming, 1822. form of order for hearing, 1818. form of order of reference, 1820. hearing and objections, 1213. order of comfirmation, 1220. Index 1597 [BEFEBENCGS ABE TO SECTIONS] COMPOSITIONS— continued. confirmation of composition — continued. powers of referee, 1214. refusal to confirm not conclusive on right to discharge, 1504. suspends right to examination, 471. when confirmed, 1215, 1216. when not confirmed, 1215, 1217, 1218, 1219. consideration for composition, 1207. amount, 1209. deposit, 1210. nature, 1208. duties of trustee where composition proposed, 713. effect of failure to perform, 1'226. effect on attachments, 1235. effect on bankruptcy proceedings, 1230. effect on bankrupt's debts, 1231. effect on bankrupt's property, 1234. effect on co-debtors and partners, 1233. effect on liens, 1235. effect on provability of claim, 520. effect on secured creditors, 1232. frauds and omissions corrected, 1219. injunction to restrain, 1236. jurisdiction of referee, 334. liquidation of claims by suit, 1077. meeting of creditors. form of petition for meeting, 1815. necessity, 1201. voting, 462, 496, 1202. must be pleaded, 1237. no bar to claim against partner, 558. offer of composition. form, 1814. form of acceptance, 1819. general rules as to procedure, 1197. may be made at first meeting, 1197, 1201. petition, 1198. statement or schedules, 1199. order of distribution. form, 1823. partnership compositions, 1206. performance of composition. distribution of consideration, 1223. general rules, 1222. proof of claims, 1224. postponement of appointment of trustee, 678. preference to creditor is voidable, 959. proof of claims, 1224, 1230. provability of note given to effect, 517. right of set-off, 1225. rights of attaching creditors, . 1204. 1598 Beandenbubg on Bankbuptcy [BEFEBENOES ABE TO SECTIONS] COMPOSITIONS— continued. rights of creditor who has not proved claim, 674. rights of minority creditors, 1204. rights of secured creditors, 1203. sale of property pending proceedings, 1258. schedules in, 410. setting aside and vacation. burden and quantum of proof, 1250. comparison of acts, 1242. disposition of property on setting aside composition, 1423. effect, 756, 1251. grounds, 1243. jury trial, 1249. notice of hearing, 1247. I order as evidence, 1252. petition, 1246. restoration or deposit of consideration, 1248. time for applying, 1245. who may apply, 1244. statute strictly construed, 1195. subsequent litigation, 1236. COMPOUNDING CLAIMS propriety, 1188. COMPEOMISB in bankruptcy proceedings. See Arbitration and Compromise. of action for malicious institution of proceedings, 303. payment under a compromise, not necessarily a preference, 975. COMPUTATION OF TIME see Time. CONCEALMENT OF ASSETS as a contempt, 1581. as an offense, 1611, 1614. evidence, 1628. presumptions and burden of proof, 1627. as bar to discharge, 1496. as ground for re-opening estate, 1428. conspiracy to conceal, as an offense, 1619. effect upon exemptions, 1017. indictment, 1624. form of indictment, 1840. limitations upon prosecutions for, 1622. omission from schedule, 405. statement to commercial agency, to prove, 492. title of trustee to concealed assets, 767. CONCEALMENT OF BOOKS as bar to discharge, 1489, 1492. CONDITIONAL SALES application of proceeds of property sold by trustee, 1307. Index 1599 [BEFEBENCES ABE TO SEOIIONS] CONDITIONAL SALES— continued. assumption of contract by trustee, 773. by what law determined, 770. effect of re-sale by bankrupt, 772. effect of watit of record upon priority of claims, 1398. necessity of recording, 774. not void as preference though filed within four mouth period, 948. proof of claim by vendor, 525, 530. provability of claims for rent, 546. recording of, as affecting trustee's title, 775. return of property to vendor not a preference, 927. title to property purchased by bankrupt from purchaser under unrecorded sale, 844. trustee is proper party to attack, 861. waiver of conditions, 771. what constitutes, 770. CONFESSION OF JUDGMENT as act of bankruptcy, 43, 51, 52. as a preference, 949. CONFUSION OF GOODS title of trustee in case of, 852. CONSANGUINITY defined, 124, 315. CONSENT as affecting jurisdiction, 9, 14, 1101. as affecting summary jurisdiction, 1172. cannot confer jurisdiction, 9. what constitutes consent to jurisdiction, 1101. when essential to jurisdiction of bankruptcy court, 1101. CONSENT ADJUDICATION of corporation, 85. of partnership, 275. CONSIDERATION statement of, in proof of claim, 609. CONSIGNMENT distinguished from a sale, 770. CONSOLIDATION OF PROCEEDINGS of bankruptcy proceedings proper, 248. of proceedings for re-ezamination of claims, 665. CONSPIRACY as an offense, 1619. bankruptcy court has no jurisdiction of action, 1096. claim for damages, does not pass to trustee, 765. indictment, 1624. 1600 Bbandenbueg on Bankruptcy [BEFEBENCES ABE TO SECTIONS] CONSPIEAOY— continued. limitations upon prosecutions, 1622. provability of judgment for, 541. trustee's right of action, 1121. CONSTITUTIONAL LAW constitutionality of bankruptcy act, 6. constitutionality of exemption laws, 990. constitutionality of provisions relating to liens, 881. constitutionality of state insolvency laws, 7. CONSUL ' may administer oath, 459. CONTEMPLATION OF BANKEUPTCY payments to attorney in, 983. CONTEMPTS advice of counsel, as a defense, 1597. as affecting right to appeal, 1637. as bar to discharge, 1503. before referee, 504. contempt of attorneys, 1594. contempt of purchaser at sale, 1593. contempt of receivers, 234, 1592. • contempt of trustee, 1591. contempt of witness, 475, 1595. discharge from imprisonment, 1608. disobedience of injunction, 1585. effect of discharge upon proceedings, 1535. failure to aid trustee, 1588. ' failure to appear for examination, 475, 1590. failure to file schedules, 1586. failure to pay expenses, 308. failure to produce books and records, 1587. failure to turn over property, 18, 1178, 1581. insanity as a defense, 1596. interference with the estate, 1584. jurisdiction of state court, 1052. jurisdiction over contempts, 1578. lawful order necessary, 1579. nature and classes of contempt, 1577. pardon of contempt, 1608. practice in contempt proceedings. answer is controvertible, 1604. application or petition, 1602. form of affidavit, 1838. certificate of referee, form, 1837. consolidation of proceedings, 1601. hearing, 1603. no right to jury trial,- 1603. Index 1601 [BEFEBGNOES ABE TO SEOTIONS] CONTEMPTS— continued. practice in contempt pioceedings — continued. notice of proceedings necessary, 1578. order to show cause, 1185. form, 1839. powers and duties of refferee and judge, 1600. proceedings may be summary, 1603. review of orders, 1605, 1652, 1653. sufficiency of proof, 1603. the order of the court, 1604. writ of error, 1643. punishment, 1606. right to imprison bankrupt for contempt, 424. right to purge contempt, 1598. stay of proceedings in state court, 1052. stay of proceedings may be vacated, 1076. violation of referee's orders, 1580. CONTINGENT INTEEESTS title to, 806. CONTINUING BUSINESS OF BA.NKEUPT see Beceivers in Bankruptcy Proceedings, Trustee in Bankruptcy. compensation to employees, 1333. priority of claim for expenses in, 1365. ' CONTEACTOB effect of bankruptcy upon mechanics' liens, 914. OONTEACTS adoption by receiver, 214. adoption by trustee, 725, 776. breach of, by trustee, as basis for set-off, 578. court may compel completion, 1175. effect of bankruptcy upon, 294, 776. effect of discharge, 1529, ^556. enforcement by purchaser of assets, 1298. provability of daim based on, 521. CONTEIBUTION provability of claim for, 549. CONTEOVEESIES AT LAW OE IN EQIHTY distinguished from proceedings in bankruptcy, 1094. CONTEOVEESIES IN BANKETJPTCT PEOCEEDINGS distinguished from bankruptcy proceedings proper, 1640. CONTUMACY as bar to a discharge, 1503. CONVEESION claim for, passes to trustee, 765. Brandenburg — 101 1602 BbANDENBUBG on BANKEtTPICy [BEFERENCES ABE TO SECTIONS] CONVEESION— continued. Jischargo as rdleaso rrom liability for, 1557, 1560. jurisdiction of bankruptcy court, 1096. provability of claim for, 528. provability of judgment for, 541 (n61). stay of proceedings in state court, 1053. ' trustee may sue in trover, 1124. CONVICT LABOR priority of claim for, 1394. COPIES OP PAPERS fee for making, 34. COPYRIGHTS title to, 841. CORPORATION see, also, Director's Liability, Stockholders' Liability. adjudication of. See, also, Who May Become Bankrupts. admission of willingness to be adjudicated, 53, 84. forms of, 1688, 1689. allegations of voluntary petition, 115. authority of president to file petition, collateral attack, 296. burden of proving nature of business, 254. consent adjudication, 85. dissolution of, does not prevent adjudication, 52, 83. effect, 295. assessments by bankruptcy court, 1125. form of order to show cause, 1793. form of petition, 1792. as sureties on ofSeial bonds, 318. books and records. form of petition to compel delivery, 1773. records pass to trustee, 777. dissolution i"ir6ceedings. effect of bankruptcy proceedings on, 9 (niai). will not defeat jurisdiction of bankruptcy court, 52, 83, 392. identity of management as affecting provability of claim, 535. is entitled to a discharge, 1443. liability -to stockholder and bond holders as provable debt, 564. liens of oflClcers of bankrupt, 916. may become sole surety on bond, 693. may be guilty of crime of concealment, 1611. not a party to proceedings against stockholder, 176. officers and directors. See, also, Director's lAability. as ad^'erse claimants, 1170. may be petitioning creditors, 125. not counted in determining number of petitioning creditors, 124, 125. president cannot file voluntary petition, 110. priority of claims of officers for wages, 1370. provability of claims of officers, 535. trustee's right to enforce liability of, 1122. Index 1603 Lkeferencgs are to sections] CORPORATION— continued. provability of claims against holding corporation, 521. provability of notes of, 517. service of process upon, 148. state insolvency laws relating to, not superseded, 7. stay of actions to compel delivery of stock, 1065. stockholders ' liability. See Stockholders' Liability. stockholders' rights. See Stockholders. subscriptions to stock. See Subscriptions. testimony of oflac^rs, 468, 469. title of trustee to assets of holding corporation, 794. title to stock of bankrupt stockholder, 851. treasurer should make proof of claim, 595. ultra vires act in forming partnership cannot be repudiated, 197. ultra vires contracts. postponement of claims based on, 1396. provability of claims based on, 523. verification of pleadings, 185. COSTS allowed upon contest of claim, 1332. in case of re-examination of claims, 669. in connection with application for a discharge, 1334. liability of trustee, 1085, 1090. pauper affld^it. effect of ownership of exempt property, 1028. provability of claim for, 529, 570. referee may tax, 336. security for, in actions by trustee or receiver, 1090, 1166. form of affidavit, 1797. form of order, 1798. to petitioning creditors, 1337. upon dismissal of petition, 306, 307, 1335. when creditor required to pay, in action by trustee, 1166. COSTS IN STATE COURT discharge is a release, 1555. incurred by creditor preserving property, allowance of, 877, 879. in lien proceeding, fall with lien, 877, 897. liability of trustee, 1090. priority of claims for, 1347, 1381. priority of payment in partnership cases, 557. proceedings on judgment for, not stayed, 1054. provability of claim for, 529, 570. COSTS OF ADMINISTRATION appealable orders, 1636. attorney's fees, 1314. cannot be allowed out of exempt property, 1028. payment out of proceeds of exempt property, 1036. priority of claims for, 1347. auctioneer's fees, 1364. 1604 Beandenbueg on Bankbuptcy [BEFEBENCES ABE TO SECTIONS] COSTS OF ADMINISTEATION— eontinued. priority of claims for — continued. debts of assignee for creditors, 1363. ' expenses of conducting business, 1365. general rules, 1362.. .rent, 1366. witness fees and mileage, 1367. COUNSEL FEES see Attorney's Fees. COUNTY provability of claims of, 521. COUETS OF BANKEUPTCY creation, 8. defined, 8. equitable powers, 18. jurisdiction. See Jurisdiction. not inferior courts, 9. of limited jurisdiction, 9 (n9). terms. See Terms of Court. COVENANT breach of, as provable claim, 570. • discharge as release of liability, 1556. inchoate right of dower, as breach of, 1556. CsilDIT extended may be set-ofE against preference, 982. obtaining property on, as bar to discharge, 1495. CEEDITOE broker not, 43. cannot be compelled to join in petition, 176. cannot compel institution of proceedings, 99, 112, 193. cannot contest voluntary proceedings, 181. defenses available to, in involuntary proceedings, 251. defined, 51, 927. duties at meetings, 446. entitled to hotel and traveling expenses, 645. indorser, as a creditor, 43. njay apply for examination, 470.. may be examined, 4691 may contest adjudication, 175. may intervene in suits to set aside conveyances, 1145. may, object to claims, 653. may petition for re-examination of claim, 663. may purchase security, 638. of third persons, may prove claims, 530. prosecution of suits by, 1113. right to prosecute actions for bankrupt, 1090. Index 1605 [BEFKBENCBS ABE TO SECTIONS] CEEDITOR— continued. rights in case of composition, 1203, 1204, 1205. surety a creditor, 51 (n46). ■who is, 43, 51, 927. CKEDITOR'S MEETINGS see Meetings of Creditors. CREDITORS' SUIT intervention of trustee, 1088. stay of proceedings, 1055. trustee may bring, 860. validity of lien acquired by, 891. waiver of lien, 891. CRIMES AND OFFENSES advice of counsel as a defense, 1614. bankrupt not a competent witness, 484. buying off opposition to discharge, 1617. concealment of assets, 1611. conspiracy, 1619. disqualification of judge, 1625. evidence at the trial, 1628. evidence before grand jury, 1623. exemption from prosecution, 1610. extortion, 1618. false oath or account, 1612. forms of indictment, 1840, 1841. habeas corpus, 1630. indictment or information, 1624. jurisdiction over, 1609. jury trial, 1626. limitations upon prosecution, 1622. offenses by referees, 1620. offenses by trustee, 1621. penalties, 1629. presentment of false claim, 1615. presumption and burden of proof, 1627. receiving property from bankrupt, 1616. subornation of perjury, 1613, CRIMINAIi CONVERSATION liability for, not discharged, 1561. CROPS exemptions in, 999. harvesting, as a cost of administration, 1356. trustee's title, 778. CROSS-BILL in action to set aside transfer, 1159. CROSS-EXAMINATION of bankrupt, 491, 494. 1606 Bbandenburg on Bankeuptcy [SEFEBENCES ABE TO SECTIONS] CUETEST effect of bankruptcy, 812. CUSTODIA LEGIS estate is in, 1043. CUSTODY OF PAPERS who entitled to, 33. DAIRY an exempted occupation, 95. • DAMAGES for breach of contract of sale, 525. right to set-ofE, 578. DEATH jurisdiction over deceased persons, 378. of bankrupt. competency of witnesses, 647. disposition of estate, 379. disposition of insurance proceeds, 380. effect, in general, 378, 379. in partnership proceedings, 391. prior to filing petition, 378. rights of next of kin, 382. rights of widow and children, 381. of partner, as affecting right to adjudication, 103. of trustee, 698, 701. effect upon pending actions, 1141. DEATH BY WRONGFUL ACT action for, passes to trustee, 765 (nl6). discharge as release from liability, 1560. stay of actions, 1068. DEBTOR OF BANKRUPT cannot petition for re-examination of claims, 663. DECEIT provability of claims for, 534. provability of judgment for, 541. DECREES see Judgments. amendment, 18, 25. DEED form of trustees, 1810. trustee may be directed to execute, 332 trustee to make, in case of sale, 1293. Index 1607 [BEjrERENGSS ABE TO SKCIIONS] DEFAULT in involuntary proceedings, 181. DEFAULT ADJUDICATION against partnership, 275. conclusiveness, 277. setting aside, 277. when proper, 277. DEFENSES in involuntary proceedings, 251. who may defend, 175. DELIVERY necessity in case of pledge, 918. t want of, as affecting chattel mortgage, 905. want of, as affecting validity of transfer, 796. DEMAND as condition precedent to trustee's right of action, 1129. DEMUERAGE provability of claim for, 521. DEMUEEER abolished, 180, 1157. effect of order sustaining, 180. is summary proceedings, 1181. . to amended pleading, 173. to answer, 181. waiver, 180. DEPOSITION alteration of, 501. before whom taken, 500. exhibits, 502. grounds for taking, 500. in support of objections to discharge, 1473. manner of taking, 501. notice, 499. what law governs, 498. who may take, 459. DEPOSITOR see, also, Deposits. not a secured creditor, 630. priority of claims of, 1382, 1383. set-off between banker and, 582. DEPOSITORIES bond, 728. form, 1745. designation, 728. 1608 Beandenbueg on Bankruptcy [BEFEBENCES ABE TO SECTIONS] DEPOSITORIES— continued. order designating referee to countersign warrants. form, 1746. powers and duties, 728. priority in funds in case of insolvency, 728. DEPOSITS see, also, Depositor. as a preference, 956. summary jurisdiction to determine title, 1168. title of trustee, 842. DEPUTY CLEEK see Clerk of Ctmrt. DESTEUCTION OF ASSETS as bar to discharge, 1496. DESTEUCTION OF BOOKS as bar to discharge, 1489, 1492. DETENTION OF BANKRUPT, 428, 432. see Arrest of Bankrupt, Ne exeat. DETINUE permission to sue in, 1077. DIRECTING VERDICT in involuntary proceedings, 259. DIRECTORS power to put corporation into bankruptcy, 53, 84. DIRECTOR'S LIABILITY. see, also, Stockholder's Liability, a provable debt, 563. creditor may become petitioner, 127. effect of discharge, 1533. DISCHARGE admissibility of petition for discharge on issue of insolvency, 936. allowance to creditor's attorneys, 1322. amendment of order, 1507. a personal privilege, 1522. appeal to supreme court, 1661. appealability of orders in discharge proceedings^ 1636. application or petition for. allowance of costs and attorneys' fees, 1334. by partner, 1445. dismissal, 1452. effect of failure to apply, 1453. filing, 1448. Index 1609 [EBrERENCES AEE TO SECTIONS] DISCHAEGE— continued. application or petition for — continued. form, 1446, 1824. form of, in case of adjudication of individual partner, 194. notice to creditors, 1450. form, 1825. notice to non-joining partners, 1544. time for making, 1449. withdrawal, 1451. bankrupt must attend hearings, 393. burden of proving, 1576. buying off opposition, not an ofEense, 1617. cancellation of judgment after. form of petition, 1834. collateral attack, 23, 1524. congressional control of right, 1442. certificate of, as evidence, 1576. debts released. alimony and support, 1552. bond and recognizances, 1554. burden of proof, 1549. costs, 424, 1555. ^ covenants, 1556. criminal conversation, 1561. debt created after bankruptcy, 1550. debt due alien, 1526. debt due the government, 1551. debt released by limitations, 1562. effect of proof of claim, 1547. executory contracts, 1556. finding of state court not conclusive, 1048. fines, 1558. form of action immaterial, 1549. fraud, embezzlement, misappropriation and defalcation, 1557. general rules, 1546. how character of debt determined, 1548. judgment for fine, 533. judgment for support of bastard, 424. judgment in trespass, 424. judgment recovered after bankruptcy, 1550. jurisdiction to determine, 1546. legal services, 1553. liability as surety, 1566. liability to surety, 1567. malicious injuries to person or property, 1560. obtaining property by false pretenses or representations, 1559. rent, 1564. seduction, 1561. taxes, 1551. unliquidated claims, 1568. unproved and unscheduled claims, 405, 1569, 1610 Beandenbukg on Bankeuptcy [bsfebences are to sections] DISCHARGE — continued. debts released — continued. warehouse charges, 1570. wife's debts, 1571. denial of discharge. as bar to composition, 1217. as res judicata, 1178 (n61). costs, 1505. dismissal of petition, 1505. effect, 1505. discovery of assets after discharge, 1537. effect of amendment of statute, 1442. effect of bankrupt's death upon right to, 378. effect of discharge, effect of failure to apply for, 1042. as bar to subsequent voluntary proceeding within six years, 269. foreign discharge, 1526. general rules, 1521, 1528, 1546. protection from fines and penalties, 1521. release from arrest, 1536. upon actions against bankrupt, 1534. upon bankruptcy proceedings, 1523. upon co-debtors of bankrupt, 1539. upon contempt proceedings, 1535. upon contracts, 1529. upon leases, 1530. upon liens, '1532. upon property of bankrupt, 1527. upon qualific^ion of bankrupt as witness, 1534. upon right to set aside fraudulent conveyance, 1115. upon right to stay proceedings against bankrupt, 1040. upon right to use corporate name, 1531. upon stockholders' and directors' liability, 1533. upon title to concealed properly, 1428. upon wages of bankrupt, 1527. fee of bankrupt's attorney, 1315, 1318, 1319. fee of creditor's attorney, 1322. fee of trustee's attorney, 1323. grounds for refusing. acts of partner, 1445. burden of proof, 1471. buying off opposition to discharge, 1484. contumacy, 1503. destruction, concealment or failure to keep books of account, 1489, 14!K), 1491, 1492, 1493, 1494. discretion of court, 1479. effect of advice of counsel, 1500. failure to pay costs, 1483. false oath, 1488. former discharge, 1502. fraud in preventing proof of claim, 1485. Index 1611 [befebencgs are to sections] DISCHARGE— eontinued. grounds for refusing — eontinued. ■ fraudulent conveyance, 1497. general assignment, 1499. general rules, 1478. how alleged, 1460. insanity, 1486. irregularity of proceedings, 1481. laches, 1482. larceny and embezzlement, 1487. obtaining property on credit, 1495. omission of non-dischargeable debts, 1501. order refusing to confirm composition as res judicata, 1504. preferences, 1498. statute not retroactive, 1480. transfer, destruction or concealment of assets, 1496. hearing on application. adjournment, 1476. admissibility of evidence, 1472. appearance of creditors, 1468. form, 1826. attendance of bankrupt, 1467. conclusiveness of findings and report, 1474. examination of witnesses, 1473. exceptions to referee's report, 1474. jury trial, 1469. motion for hearing, 1465. powers and duties of referee or master, 1466, 1472. reconsideration of claims, 1470. rehearing, 1475, 1506. injunction to restrain enforcement of discharged judgment, 1573 (n72). jurisdiction not affected by omissions in schedules, 405. jurisdiction of referee, 334. nature of right, 1442. necessity in case of composition, 1231. of partnership and members, 1544. opening of, to include claim omitted from schedules, 406 (n63). order granting discharge. as res judicata, 1525. form, 1829. parties to appeals, 1637. plea of. form of reply, 1833. forms, 1830, 1831. necessity, 1074, 1573. propriety, 1076. postponement and stay of, 1476. for non-payment of fees and expenses, 32. in case of waiver of exemptions, 1013. proof of, 1576. rehearing on application, 1475, 1506. 1612 BkANDENBUEG ok BANKKUPICr [SEFEBENCES ABE TO SECTIONS] DISCHAEGE— continued. replication to plea of discharge, 1575. form, 1833. review of orders by petition to revise, 1652, 1653. revival of debt after discharge, 1538. form of agreement, 1832. revocation and impeachment. burden of proof, 1517. deposit to cover fees, 1514. disposition of property upon setting aside, 1423. effect of revocation, 757, 1520. evidence, 1518. examination of bankrupt, 1519. form and sufficiency of application, 1513, 1835. grounds, 1510. jurisdiction, 1509. notice, 1516. reference, 1515. time for applying, 1512. who may apply, 1511. specification of objections. amendment, 1462. form and sufficiency, 1460, 1827. may be stricken out, 1458. necessity, 1456. objections by partnership, 1457. plea to specifications, 1461. form, 1828, signature and verification, 1463. time of filing, 1458. with whom filed, 1459. trustee may plead, 1084. under foreign law, not pleadable, 7. under state law, extraterritorial effect, 7. waiver of, 1572. when not pleadable, 1574. who is entitled to a discharge. corporation, 1443. general rules, 1443. non-resident, 1443. partner, 1445. partnership, 1443, 1444. who may oppose, 1454. effect of proof of claim, 673. who may plead. widow of bankrupt, 1573. DISMISSAL after adjudication, 281. after hearing. by petitioners, 279. Index 1613 [BEFERENOES ARE TO SECTIONS] DISMISSAL— oontinued. after hearing — continued. consent of creditors, 279. grounds, 279. amendment of order of, 284. applicability of order, 1636. effect upon jurisdiction of court, 9 (nl4). effect upon receiver's compensation, 230, 240. effect upon receivership, 240. liability for costs and expenses upon, 306, 307. practice, 308. motion to dismiss. form, 1699. notice of; 286. of voluntary petition, 269. postponement of hearing on motion, 282. power of referee, 328. reinstatement of petition, after, 285. review of orders by petition to revise, 1652. trustee may contest, 283. trustee may have action reinstated, 1112. DISTRIBTTTION OF ESTATE appealable orders, 1636. assets discovered after discharge, 1537. exceptions to scheme of distribution, 1425. individual and firm property, 1433. payment of liens out of wrong fund, 1426. upon setting aside composition or discharge, 1423. DISTRICT OF COLUMBIA appeals to supreme court, 1664. jurisdiction of courts over suits against trustee, 1110. DIVERSITY OF CITIZENSHIP as affecting jurisdiction, 1112. must be alleged, 1153. DIVIDEITOS attachment or garnishment of, 1422. declaration and payment, 1408. definition, 1407. effect of claimant's laches, 1416. effect of partial payment by third person, 514, 517. effect of subsequent allowance of claims, 1420. general rules governing, 1407. in case of foreign bankrupt, 1414. in case of joint obligations, 514. in case of single creditor, 1413. interest on claims, 1418. limitations upon right to collect, 1416. . list of claims and dividends, form, 1742. 1614 BKANDElirBUKG ON BANKRUPTCY [rkfebences are to sections] DIVIDENDS— eontjnued. may be applied on interest, 538. meeting for declaration of, 445. notice, 1408, 1410. form, 1744. on claim of partner, 559. on secured claims, 631. on stock held by creditor as collateral, 851. order declaring. form, 1743. payment by trustee, 733. postponement of payment in case of writ of error, 541. referee's duties. 341. setting aside and recovery by trustee, 1419. suspension of payment, 1415. time of declaring, 1409. unclaimed dividends, 1421. who entitled to, 1411. who not entitled to, 1412. withholding, to permit proof of claim, 606. DIVOECE as affecting exemptions, 997, 1004. effect of suit for, upon rights of widow, 381. DOCKET duty of clerk to keep, 30. entry of suit, 148. DOMICILE allegation of, 156. as affecting jurisdiction, 14. distinguished from residence, 15. length of, required, 16. not affected by temporary absence, 15. presumed to continue, 15. DOWEE effect of bankruptcy, 811. effect of surrender of preference, 811. in partnership assets, 381. not affected by sale by trustee, 1310. priority of claims for, 1362. release contained in preferential in,ortgage ineffective, 979. review of orders respecting, 1652. rights of widow, upon death of bankrupt, 381. sale of property free from, 1272. surrender of, is good consideration, 944. unrelinquished right, as breach of covenant, 1556. DBUGGIST discharge as release from liability, 1560. Index 1615 [REFEKENOES ABE 10 SECTIONS] DYING DECLARATIONS admissibility in discharge proceedings, 1472. E EDITOR priority of claim for wages, 1370. EJECTMENT stay of proceedings in state court, 1056. ELECTION OF TRUSTEE see Trustee in Bankruptcy, EMBEZZLEMENT as bar to discharge, 1486. by trustee, as an offense, 1621. discharge as release from liability, 1557; provability of claim based on, 528, 563. EMPLOYEE • not counted in determining number of petitioning creditors, 124. EMPLOYER'S LIABILITY provability of judgment, 541 (n61). EQUITABLE ASSIGNMENTS validity and extent, 908. EQUITABLE DEMANDS provability, 531. EQUITABLE LIEN delivery to lienor not a preference, 927. priority of, 1384. trustee takes subject to, 852. validity and extent, 908. EQUITY bankruptcy proceedings, equitable, 10. practice and rules of, prevail, 243. ESTOPPEL by failure to schedule claim, 402. of trustee to assert title, 755, 760. to amend proof of claim, 617. to assert commission of act of bankruptcy, 39. to become petitioning creditor, 122, 136. to continue involuntary proceedings by participating in voluntary, 280. to file claim, 606. to intervene in involuntary proceedings, 138. to plead set-off, 588. to question appointment of receiver, 205. 1616 Bbandenbubg on Bankbuptcy [BEFEBENCES ABE TO SECTIONS] ESTATES OF DECEDENTS see Executors and Administrators. cannot be administered in bankruptcy, 86. EVIDENCE see Examinations, Examinations of Bankrupt. admissibility, upon examinations of bankrupt, 492. expense of taking testimony, 366. general equitable rules apply, 255. in criminal proceedings, 1628. privilege of bankrupt, 493, 494. see, also. Witnesses. in proceedings for discharge, 1472. in summary proceedings, 1184. incriminating evidence, preservation of, by referee, 350. revenue law establishes rule of, 479. • rulings upon examination of bankrupt, 491. ( schedules as, 409. ' testimony of officers of corporation, 468, 469. EXAMINATIONS see, also. Examinations of Bankrupt, Examiners. application for, 472. form, 472, 1747. notice, 472. time, 472. attorney's fees and expenses, 506. before whom held, 474. claimant cannot be required to appear, 645. claimant may be examined, 658. conduct of, 478, 504. contempt of witnesses, 1595. effect of confirmation of composition, 471. order for, 473. form, 1748. penalty for failure to appear, 475. powers and duties of examiners, masters and referees, 504. privileged communications, 480. re-opening, 478. report of examination. form, 1749. right to counsel, 476. scope of, 477. use of testimony in discharge proceedings, 1472. use of testimony in summary proceedings, 1184. weight of evidence, 481. who may apply for, 470. who may be examined. assignee, 466. by what law determined, 465. creditors and third persons, 469. Index 1617 [BEFEBENOES ABE TO SECTIONS] EXAMINATIONS — continued. who may be examined — continued. officers of bankrupt, 468, 469. receiver, 466. trustee, 466. wife of bankrupt, 467. witness fees, 506. EXAMINATIONS OP BANKBUPT see, also. Examinations. adjournment, 489. admissibility of evidence, 492. after discharge, 1519, 1523. answers compulsory, 493. at first meeting, 439. attendance of imprisoned bankrupt, 486. bankrupt's failure to appear, as a contempt, 1590. before confirmation of composition, 1205. before election of trustee, 215. conduct of, 491. cross-examination, 491, 494. habeas corpus ad testificandum, 439, 486. incomplete examination, 496. incriminating evidence, 498, 494. claim of privilege as bar to discharge, 1503. length of, 488. notice, 485, 489. order of examination, 485. propriety, 484, 485, 487. scope of, 490. second examination, 489. time of, 487. use of testimony adduced, 492, 494. in discharge proceedings, 1472. in subsequent cross-examination, 1628. weight of evidence, 495. EXAMINEES powers and duties, 504. EXCHANGE OP PEOPEETY as act of bankruptcy, 50. not a preference, 943. EXECUTIONS levy after bankruptcy, void, 864. levy within four months, when not preference, 948. right to proceeds of sale, 895. stay of proceedings in state court, 1057. supplementary proceedings may be stayed, 876. trustee may recover proceeds, 861. validity of lien, 893. when sales under, permitted, 1077. Brandenburg — 102 1618 Beandenbtjkg on Bankeuptcy [BEFEBENCES ABE TO SECTIONS] EXECUTOBS AND ADMINISTRATORS cannot be adjudged bankrupt, 86. claim based on bond of, 514. discharge as release from liability, 1557. intervention in involuntary proceedings, 138. provability of claims of, 532. right to set-off debts, 578. trustee may contest account, 1117. EXEMPT OCCUPATIONS occupations exempted from act. See Who May Become Bankrupt. EXEMPT PROPERTY allowance for services in obtaining aUowanee, 1336. appeal to supreme court on questions affecting, 1662. as to what date exemption determined, 987, 988. bankrupt should claim, 991. amendment of schedule, 406, 993. effect of failure to claim, 992. sufficiency of designation, ' 992. time of claiming, 992. change of occupation as affecting, 1012. constitutionality and effect of laws, 990. deductions in general, 1027. costs and expenses, 1028. determined by state law, 988. exemptions granted by federal law, 996. fraudulent transfer of exempt property, 1037. homestead exemptions. See Homestead. in partnership property. firm exemptions, 1009. individual exemptions, 1010. partner cannot claim exemptions, 837. in property obtained by fraud, 1020. included in determining insolvency, 933. investment of proceeds, 1014. jurisdiction of bankruptcy court, 985. jurisdiction to order sale, 9 (n9). liens. acquisition after bankruptcy, 1032. acquisition within four months, 1031. how created, 1030. not waived by proof of claim, 1034. on exempt and non-exempt property, 1033. remedies of lien-holders, 1035, 1036. status of mortgagee, 630. loss of right to. assignment for creditors, 1016. concealment of property, 1017. failure to give security, 1019. fraud, 1020. fraudulent conveyance, 1017. Index 1619 [SEFEBENCES AKE TO SEOIIONS] EXEMPT PROPERTY— continued, loss of right to — continued. illegal business, 1018. purchase money borrowed from wife, 1022. purchase of property with embezzled funds, 1023. purchase of property with non-exempt funds, 1021. purchase price not paid, 1024. marriage as affecting right, 987. note containing waiver may be sued on, 1048. objections to setting aside, 994. order declaring property exempt. form, 1768. payment of taxes on, 1353. postponement of discharge for benefit of creditors holding waivers, 1476. proceeds cannot be used in payment of exijenses, 1343. property exempt in general, 995. allowance under state insolvency law, 995. burial lots, 998. crops, 999. domestic animals, 1012. government awards, 1012. Indian allotments, 1006. insurance policies, 817, 1007. necessaries, 1012. pension money, 1011. personal property, 1012. tools and implements, 1012. trust income, 995. wearing apparel, 1012. re-allotment, 1005. right to, not assertable as against claim for wages, 1025. rights of alien or non-resident, 1012. sales of, 1036, 1262. exemption out of proceeds, 1036. setting apart and appraisement, 994. statutes liberally construed, 989. successive allowances, 1014. taxes on exempt property, 1038. title to exempt property, 986. to head of family, 997. transfers of cannot be attacked, 799, 957. trustee's connection with exempt property, 732, 986, 994. trustee's report. form, 1766. form of exceptions to, 1767. waiver of exemptions. by failure to select before sale, 1036. effect of, 1013. jurisdiction of bankruptcy court in case of, 1013. postponement of discharge in case of, 1013. procedure in case of, 1013. ' 1620 Beandenbukg on Bankruptcy [befebenoes ABE TO sections] EXEMPT PEOPEETY— continued, waiver of exemptions — continued. what constitutes, 1013. wife's right, 1004. EXEMPTION PEOM AEEEST see Arresif of Bankrupt. EXHIBITS as part of deposition, 502. EXPECTANCY UNDEE WILL use as set-off, 578. EXPENSES OP PE0CEBDING8 accountant's fees, 1312. appealable orders, 1641. appraiser's fees, 1313. attorney's fees, 15 14. contest of claims, 1332. costs of obtaining composition, 1331. costs of obtaining exemptions, 1336. costs to petitioning creditors, 1337. expenses of continuing business, 1333. expenses of creditors in recovering assets, 1338. funds available for payment of expenses, 1343. general rules, 1330. in partnership cases, 1343. indemnity for, 34, 35, 1330. living expenses of bankrupt, 1329. of claimant summoned to appear, 645. of marshal, 224. of receiver, 224. of referee, 364. of trustee, 705. petitioner must pay, 32. procuring or preventing a discharge, 1334. rent, 1340. report and approval of expenses, 1344. notice, 1344. sending notices, 1344. EXTOETION . '''[ as an offense, 1618. EXTEADITION OF BANKRUPT manner of, 432. power of court, 431. F PACTOE discharge as release from liability, 1557. effect of bankruptcy of, upon title to property, 765. Index 1621 [BEFEBENOSS ABE TO SECTIONS] FACTOR— continued. priority of claim, 1370. validity of lien, 911. TALSE IMPEISONMENT discharge as release from liability, 1560. FALSE OATH AND PEEJUEY as a contempt, 1595. as an offense, 1612, 1614. as bar to discharge, 1488. indictment, 1624, 1827. penalty, 1629. subornation of perjury, as an offense, 1612. FALSE PEETENSES discharge as affecting liability for obtaining property by, 1559. effect of proof of claim for, 672. FALSE STATEMENT of financial condition, as bar to discharge, 1495. FARMEES AND TILLEE8 OF SOIL cannot be adjudicated involuntarily, 61, 95. corporation engaged in farming, may be adjudged, 80. defined, 94. exempte(^ from act, 94, 95. failure to keep books as bar to discbarge, 1489. may become voluntary bankrupts, 61. FEES see Cleric of Court, Marshals, Seceivers in Sanhruptcy Proceedings, Meferees, Trustee in Bankruptcy. duty of clerk to collect, 31. filing fees, 31, 320. allowed to bankrupt's attorney, 1318. failure to pay as bar to discharge, 1483. inability or pauper afSdavit, 32. inability to pay, effect of, 58. of clerk, 34. of marshal, 35. of referee, 363. of state court receiver, need not be paid, 898. of trustee, 704. payment out of proceeds of sale, 1307. priority of claims of petitioning creditors, 1360. provability of claims for official fees, 529. return of fees and advancements, 31. taxation conclusive, 35. FIDTTCIAET discharge as release of liability of, 1557. ' 1622 Bbandenbxjeg on Bankkuptcy [eepekences are to sections] PILING duplicate petition must be filed, 163. duty of clerk to file papers, 30, 33. what constitutes, 869. FINDINGS OF EEFEEEE see Beferees. FINES effect of discharge upon liability, 1558. provability of claims for, 533. FIXTURES bond against injury from removalj 1302. leave to sue to recover, 1077. machinery is, 915. trustee's title, 781. FORCIBLE ENTRY AND DETAINER discharge as release of judgment for, 1560. stay of suits, 1067. FORECLOSURE see Mortgage. of mortgage after bankruptcy, 876. stay of proceedings, 1058. FOREIGN ATTACHMENT as preference, 950. operates as payment pro tanto, 586. FOREIGN BANKRUPT dividends in case of, 1414. FOREIGN CORPORATION claims of, 522. jurisdiction over, 14. priority of claims of resident creditors, 1393. state laws relating to, not superseded, 7. FOREIGN CREDITOR effect of proving claim, 671. right to dividend, 1411. FOREIGN LIENS are voidable, 889. FORFEITURES see Penalties and Forfeitures. FORM OF ACTION by trustee, 1124, 1127. FORMER ADJUDICATION as defense to suit by trustee, 1137.1- .• ' Index 1623 [befebences are to sections] F0EM8 acceptance of composition offer, 1819. account of trustee, 1734. adjudication of bankruptcy, 1709. adjudication that debtor is not bankrupt, 1708. admission of willingness to be adjudicated, hj corporate directors, 1688. by individual, 1687. by stockholders, 1689. affidavit for-security for costs, 1797. affidavit for service by publication, 1692. affidavit in contempt proceedings, 1838. affidavit of lost bill or note, 1757. • agreement to revive debt after discharge, 1832. answer in bankruptcy proceedings proper, 181, 1695, 1696. answer of trustee in replevin suit, 1796. answer to order to show cause in summary proceedings, 1780. appearance of creditors in discharge proceedings, 1826. application for compromise or arbitration, 1811. application for confirmation of composition, 1212, 1817. application for order compelling surrender of property, 1774. application for stay of proceedings, 1071, 1783. application to amend petition in bankruptcy, 165, 166. appointment of appraisers, 1711, appointment of trustee, by creditors, 1727. by referee, 1728. assignment of errors, 1847. bill of sale by trustee, 1809. bond of depository, 1745. bond of petitioners for a receiver, 1706. bond of receiver, 1705. bond of referee, 1715. bond of trustee, 1731. bond on appeal, 1846. bond to marshal, 1707. certificate by referee to judge, 1719, certificate from circuit court of appeals to supreme court, 1854. certificate of contempt, 1837. certificate to transcript on appeal, 1855. complaint in action to recover preference, 1788, 1789, 1791, complaint in action to set aside fraudulent transfer, 1790, 1791. complaint to enforce liability of withdrawing stockholder, 1795. complaint to enforce stockholders' liability, 1794. demand for jury, 1695, exceptions to trustee 's report on exempt property, 1767. indictment for concealment of assets, 1840. indictment for false oath, 1841. indictment for receiving property from bankrupt, 1840. • involuntary petition, 153, 1683, 1684. list of claims and dividends, 1743, 1624 Beandenbubg on Bankexjptcy [BEFEBENCES ABE TO SECTIONS] FORMS— continued. list of debts proved at first meeting, 1724. marshal's return on subpoena, 1750. marshal 's return on warrant, 1701. master 's report in composition proceedings, 1821. motion to declare partner generally liable, 1770. motion to dismiss involuntary proceedings, 1699. motion to set aside attachment, 1786. notice of application for discharge, 1825. notice of application for receiver, 1703. notice of composition meeting, 1816. notice of dividend, 1744. notice of final account and meeting, 1736. notice) of first meeting, 1723. notice of petition for removal of trustee, 1739. notice to trustee of his appointment, 1729. oath of appraisers, 1711. oath of referee, 1714. oath to final account of trustee, 1735. oaths and affirmations, 462. objections to claim, 1758. offer of composition, 1814. order allowing account and discharging trustee, 1737. order allowing supersedeas, 1848. order allowing writ of error, 1850. order appointing receiver, 1704. order approving trustee 's bond, 1732. order authorizing compromise, 1813. order confirming composition, 1822. order declaring dividends, 1743. order declaring insurance policy exempt, 1768. order designating referee to countersign warrants, 1746. order distraining suit against bankrupt, 1785. order expunging claim, 1761. order for choice of new trustee, 1741. order for distribution of proceeds of sale, 1808. order for examination of bankrupt, 1748. order for hearing in composition proceedings, 1818. order for jury trial, 1700. order for redemption by trustee, 1800. order for re-examination of claim, 1763. order for removal of trustee, 1740. order for sale of property, 1799, 1801, 1802, 1803. order for service by publication, 1693. order granting discharge, 1829. order making creditor a party, 1772. order of distribution on confirmation of composition, 1823, order of protection from arrest, 1721. order of reference, 1712, 1713. in composition proceedings, 1820. special reference on claim, 1759. Index 1625 [eefebenobs aeb to sections] FORMS— continued. order reducing claim, 1760. order requiring security for costs, 1798. order requiring stockholders to show cause, 1793. order that no trustee be appointed, 1733. order to show cause in contempt proceedings, 1839. order to show cause in summary proceedings, 1775. prder to show cause upon application for compromise, 1812. order to show cause upon creditor 's petition, 1690. partnership petition, 1682. petition by adverse claimant for accounting by trustee, 1778. petition for appeal in bankruptcy proceedings proper, 1845. petition for assessment of stockholders, 1792. petition for cancellation of judgment after discharge, 1834. petition if or certiorari, 1853. petition for composition meeting, 1815. petition for discharge, 194, 1446, 1824. petition for examination of bankrupt or witness, 472, 1747. petition for leave to abandon property, 1765. petition for leave to file amended petition, 1686. petition for preservation of lien, 1777. petition for production of books and papers, 1773 petition for protection from arrest, 1720. petition for receiver, 1702. petition for reclamation of property, 1779. petition for redemption by trustee, 1800. petition for re-examination of claim, 1762. petition for re-examination of payment to attorney, 1776. petition for removal of trustee, 1738, petition for review of referee 's order, 1718. petition for revocation of discharge, 1513. petition for sale of property, 1799, 1801, 1802, 1803, 1804. petition for subrogation, 1777. petition for substitution of trustee as complainant, 1787. petition for surrender of preference before allowance of claim, 1762. petition for surrender of property to receiver, 221. petition for transfer of case from one referee to another, 1716. petition for writ of error, 1849, 1851. ^ petition for writ of habeas corpus, 1722. petition of intervention, 1698. . petition to make creditor a party, 1771. petition to re-open estate, 1431, 1836. petition to require surrender of property by receiver, 1786. petition to restrain non-assenting partner, 1769. petition to revise bankruptcy proceedings, 1655, 1842. notice of petition, 1843. petition to revoke discharge, 1835. petition to vacate adjudication, 1710. plea of adjudication; 1781. plea of discharge, 1830, 1831. 1626 Bbandenbueg "OKT Bankbuptcy [SEFEBENCES ABB TO SECTIONS] FORMS— continued. plea of pendency of bankruptcy proceedings. in action against bankrupt, 1782. in action by bankrupt, 1781. plea to specifications in opposition to dischargei 1828. power of attorney, 1725, 1726. printer 's affidavit of publication, 1694. process, 145. proof of debt by agent or attorney, 1755. proof of debt due corporation, 1753. proof of debt due partnership, 1754. proof of secured debt, 1752. proof of secured debt by agent, 1756. proof of unsecured debt, 1751. referee 's report on claim, 1717. replication to plea of discharge, 1833. report of appraisers, 1711. report of examination of bankrupt or witness, 1749. report of referee, 1717. report of sale by pledgee, 1807. schedules, 400, 1670-1681. special appearance by pledgee denying authority to sell, 1805. specifications of objections to discharge, 1460, 1827. stipulation as to transcript, 1856. stipulation for sale of property, 1806. subpoena, 145, 1691, 1750. trustee 's acceptance or rejection of trust, 1730. trustee's deed, 1810. trustee 's report on exempt property, 1766. trustee 's return of no assets, 1764. verification to petition in bankruptcy, 462. by attorney, 1685. voluntary petition, 1669. by partnership or member^, 190, 1682. warrant to marshal, 1701. withdrawal of answer to involuntary petition, 1697. writ of error, 1852. FOUE MONTH PERIOD as affecting validity of liens by legal proceedings, 878. effect of serving summons upon one partner within period, 869. fraudulent conveyance voidable though executed prior to, 869. how computed, 869, 870. in case of preference, 947, 948. liens on exempt property, 1031. petition must be filed within four months after act of bankruptcy, 54, 163. preference must be within, 945. transfers may be recorded within, 869. transfers may be valid though executed within period, 869. validity of liens by legal proceedings, 870. validity of liens or title acquired within, 868. Index 1627 [SETEBENaKS ASK TO SECTIONS] FKANCHI8E TAX entitled to priority, 1351. FRAUD as affecting exemptions, 1020. as affecting provability of claim, 508, 535. as bar to discbarge, 1485. as ground for revocation of discharge, 1510. as ground for setting aside composition, 1243. by creditor, as affecting priority of claim, 1385. claim for damages for, passes to trustee, 765. discharge as release from liability for, 1557. liability for obtaining property by false representations, not released, 1559, money procured by fraud may be recovered from trustee, 842. of firm's condition, as provable debt, 554. provability of claims for, 534, 538 (n50). provability of judgment for, 541. title to goods procured by, 844. PBAUDTJLENT TEANSFEES actions to set aside. amount of recovery, 1165. answer, 1158. appeal, 1641. burden of proof, 1161. construction of verdict, 1164. cross-bill, 1159. demand, 1129. demurrer or plea, 1157. form, 1790, 1791. form of suit, 1124, 1127. judgment at law not condition precedent, 1131. judgment or decree, 1165. jurisdiction of bankruptcy court, 1096. jurisdiction of state courts, 1106. jury trial, 1160. limitation of actions, 1139. may be joined with suit to set aside preference, 1154. parties defendant, 1144. parties plaintiff, 1143. petition or complaint, 1151. review by petition, 1653. tender of purchase price, 1130. trustee's right of action, 1115. adequacy of consideration not decisive, 792. as act of bankruptcy. See Actg of BoMhruptcy. as bar to discharge, 1496, 1497. bona fide transfers for a gonsideiation, 802. conveyances by partners, 798. conveyances to relatives, 797. deposits in bank, 842. discharge of grantee as affecting, his liability, 1558, 1628 Beandenbueg on Bankexjptcy [BEFEEGNCES ABE TO SECTIONS] FRAUDULENT TRANSFEES— continued. distingviiBhed from preference, 793. effect of restoration of property to grantor, 891. effect upon exemptions, 1017. effect upon homestead right, 1003. effect upon provability of claim, 535. evidence of fraudulent intent, 804. excluded in determining solvency, 40. existence of other creditors essential, 802. gifts, 801, 813. grantee cannot plead bankrupt 's discharge, 1522, 1528. insolvency essential, 791. intent to defraud essential, 789. must be subsequent to act, 784. need not be within four months, 788. of exempt property, 799, 1037. participation of transferee in fraud unnecessary, 790. presumptions, 804. priority in proceeds, 1404. purchase of homestead, not, 1001. rent on property, not provable claim, 546. right to rents and profits, 847. rights of trustee in general, 786. sales out of due course, 795. state laws, not suspended, 7. statutory provisions, 783. substitution of securities, 803. summary jurisdiction over transferee, 1167. transferee as adverse claimant, 1170. trust for benefit of third person, 800. validity determined by local law, 787. validity of fraudulent mortgages, 915. validity of lien acquired by creditors' suit, 891. validity of particular transfers, 794. voidable if acquired within four mouths of bankruptcy, 869. voidable though acquired prior to four-month period, 869. want of record or delivery, 796. what constitutes a transfer, 785. FREIGHT provability of claim for, 521. FUTURE CONTINGENT INTERESTS title to, 806. GAMBLING CONTRACT as basis of petitioning creditors' claim, 132. legality, 522. GARNISHMENT effect of principal debtor's discharge, 1544. Index 1629 [BEFEBBNOES ABE TO SECTIONS] GARNISHMENT— continued. funds in hands of trustee not subject, 864. judgment against trustee, provable, 543. of dividends, 1422. of trustee, 729. provability of claim of creditor, 517. stay of discharge for benefit of plaintiff, 1476. validity of lien, 892. GENERAL ASSIGNMENT see Assignments for Creditors. GIFTS as fraudulent conveyance, 801. provability of claims, 536. provability of note based on prior, 517. to claimant, cannot be set-off against claims, 536. validity .between husband and wife, 813. GOOD WILL sale of, 1263, 1298. effect of discharge upon purchaser 's rights, 1531. title to, 807. GRAND JURY evidence which may be introduced, 1623. GREATEST CONVENIENCE OF PARTIES . as determining jurisdiction where several petitions filed, 27. GUARANTEE provability of claim based on, 519. GUARANTOR cannot receive preference, 927. not released by composition, 1233. not released by principal's discharge, 1542. provability of claim of, 519. GUARDIAN discharge as release of liability, 1558. GUARDIAN AD LITEM adjudication set aside for want of, 300. in case of insane bankrupt, 177, 386. HABEAS CORPUS petition for writ. form, 1722. right to writ, 1630. to procure bankrupt 's release from arrest, 427. to review order in contempt proceedings, 1604. 1630 Beandenbueg on Bankbuptcy [BEFEBENCES ABE TO SECTIONS] HABEAS CORPUS AD TESTIFICANDUM to produce bankrupt for examination, 439, 486. HEAD OF FAMILY -who is, 997. HEAEIN6 adjournment of, 245. duty of court to proceed promptly, 26. in case of several petitions. order of hearing, 27, 247. place of hearing, 27, 247. in voluntary proceedings, 269. HIGHWAYS AND STREETS damages for change of grade, how applied, 7€5r HISTORY OF BANKRUPTCY LAWS in England, 4. in general, 1. in United States, 5. HOLIDAY see Sundays and Holidays. HOMESTEAD see, also, Exempt Property. abandonment, 1002. effect of false mercantile reports, 1020. exemption of crops, 999. head of family, 997. in personal property, 1001. in property held under contract or lease, 1001. in property mortgaged or transferred, 1003. jurisdiction of bankruptcy court, 985. lien of judgment obtained after bankruptcy, 1032. nature and extent of right, 1001. priority of claims to proceeds, 1370. purchase on eve of bankruptcy, 1001. remedies of lien-holders, 1035. rights of partners, 1010. sale of, 1036. succe^ive allowances, 1014. title to reversionary interest, 986. under federal laws, 996. waiver, 1013. waiver notes are not liens, 1030. HUSBAND AND WIFE see Married Women, Wife. dation en paiement not a preferenee, 942. discharge as affecting liability for paraphernal property, 1557. Index 1631 [refekgnces akb to sections] HUSBAND ANB WIFE— continued, effect of bankruptcy upon property. in general, 809. joint estate, 810. entitled to witness fees, 506. liability for support of wife, not released by discharge, 1552. may file joint petition, 114. priority of claims against community property, 1401. provability of claims, 536. validity of conveyances, 797, 809. validity of gifts, 813. wife may be petitioning creditor, 129. wife's choses in action do not pass to husband's trustee, 765. wife's right to homestead exemption, 1004^ HYPOTHETICAIi QUESTIONS certification by referee, 362. ILLEGAL CLAIMS eoimty may waive illegality, 517. creditor holding illegal claim cannot be petitioner, 132. provability, 522. IMPRISONMENT EOB DEBT state law relating to, not superseded, 7. ^ unauthorized, 424. INCOMPETENTS see Insane Person. cannot commit act of bankruptcy, 43. court will protect, 10. state insolvency laws relating to, not superseded, 7. INCRIMINATING EVIDENCE see Evidence. as affecting production of books, 503. general rules, 493, -494. privilege of witness, 1628. schedules containing, need not be filed, 398. use of schedules as evidence, 409. INDEMNITY for necessary expenses of officers, 34, 35, provability of claim for, 514. » INDEX of petition and discharges, 30. INDIAN ALLOTMENTS exemptions, 1.006. 1632 Bbandenbukg on Bankbuptcy [EEFEKENCES ABE TO SECTIONS] INDIANS to what extent subject to act, 62, 87. INDICTMENT AND INPOEMATION for offenses under act, 1624. form for concealment, 1840. form for false oath, 1841. form for receiving property from bankrupt, 1840. INDOESBE as creditor, 43. cannot receive preference, 927. effect of bankrupt's discharge upon liabUitj of, 1540, 1541. may be adjudged bankrupt, 89. provability of claim of, 519. INFANTS emancipation, 524. holder of claim against, as petitioning creditor, 132. infant partner cannot join in voluntary petition, 63, 88. may become voluntary bankrupt, 63. minority of partner as affecting right to adjudication, 107. right to earnings, 855. right to priority in payment, 1404. INFORMATION referee shouli furnish, 344, 345. INJUNCTION against interfering with estate, 18, 876. against person receiving preference, 981%. against prosecution of attachment or replevin suit, 876. against sale or transfer of bankrupt's property, 210. against transfer of property pending suit, 1147. appeal to supreme court, 1662. appealable orders, 1641. application for writ to enjoin suits against bankrupt, 1071. does not make person a party to bankruptBy proceedings, 175. jurisdiction of referee, 333. sale of property in possession of adverse claimant, 876. sale of stock of merchandise, 876. to enjoin bankruptcy court, 1043. to restrain enforcement of discharged judgment, 1573 (n72). to restrain performance of composition, 1236. to stay proceedings against bankrupt.. See Actions Against BanTcrupt. violation of, as a contempt, 1585. will not issue to restrain trustee 's dealing with property, 756. INSANE PERSON see Incompetents, Insanity. cannot become a bankrupt, 64, 90. guardian ad litem, 177. jurisdiction over, 383. should be served by publication, 149. Index 1633 [refeuences are to sections] INSANITY see Incompetents, Insane Person. adjudication of insanity, admissible, 255. as defense in contempt proceedings, 1596. burden of proof, 254, of bankrupt. after commission of act of bankruptcy, 385. as bar to discharge, 1486. burden of proof, 388. effect upon receivership, 390. examination as to sanity, 387. excuses attendance at meetings, 393, 439, 486. guardian ad litem, 386. in partnership proceedings, 391. prior to filing petition, 384. rights of bankrupt's wife, 389. of partner, 103, 176. INSOLVENCY adjudication is conclusive, 290. as element of act of bankruptcy, 40, 43, 51, 52, 53, 55. as element of preference, 931. burden of proof, 55, 56, 254. conclusiveness of adjudication, 885. creditors cannot attack debtor's title, on issue of, 255. defined, 40, 55. essential to avoid lien by legal proceeding, 885. essential to avoid transfer as fraudulent, 791. evidence of, on hearing for adjudication, 56, 57. hearing in state court, not res adjudicata, 250. how determined, 933. exempt property an asset, 40, 933. fair valuation, 40. mortgagor's equity as an asset, 40. property fraudulently transferred not an asset, 40, 933. property preferentially transferred an asset, 40. prospective profits, not considered, 40. must be alleged, 160. in proceedings against firm and members, 195. not essential in voluntary proceedings, 40, 58. of partnership, 41, 195. practice where solvency of debtor alleged, 57. preferred, creditors precluded on issue of, 250. receivership not equivalent to, 40. voluntary adjudication cannot be attacked for want of, 55. want of, as a defense, 55. INSOLVENCY LAWS see State Laws. INSOLVENCY PROCEEDINGS IN STATE COTJET effect of bankruptcy, 7, 1061. Brandenburg — 103 1634 Bbandenbubg on Bankbuptcy [references are to sections] INSTJEANCB assignment as act of bankruptcy, 49 (n21). assignment of claim, as preference, 955. change of beneficiaries is a transfer of property, 785. distribution of proceeds upon death of bankrupt, 380. exempt policies, 817, 1007. form of order declaring policy exempt, 1768. power to change beneficiary, not an asset, 818. provability of claims for premiums, 537. provability of claims for proceeds of, 537. provability of debt secured by policy, 537. title to dividends, 821. title to fire-insurance policy or proceeds, 814. title to life-insurance policies, 815, title to policy on life of third person, 824. title to proceeds upo^ death of bankrupt, 823. title to unearned premiums, 822. validity and effect of pledge of policy, 918. INSURANCE COMPANIES cannot become involuntary bankrupt, 67, 80, 81. cannot become voluntary bankrupt, 60. trustee may sue for assessments, 1125. unincorporated company may be adjudicated, 92. INSTRUCTIONS in action to set aside transfer, 1163. reasonably construed, 258. suflSciency and propriety, 258. INTENT to prefer, as element of preference, 929. to receive preference may be inferred, 930. INTEREST application of dividends, 538. in actions to set aside transfers, 1165. liability of trustee, 730. on claims, 538, 1418. on secured claims in case of sale, 1305. on taxes, 569, 1418. provability of claim for, 538. INTERFERENCE WITH THE ESTATE after appointment of receiver, 210. as a contempt, 1584. before appointment of receiver, 209. by committee of creditors, 761. jurisdiction to require return of property, 9. INTERNAL REVENUE priority of payment of claims based on, 1438. Index 1635 [BEFEBENOES ABE TO SEOTIONS] INTEBVENTION appealable orders, 1636, 1641. by creditors in suits to set aside conveyances, 1145. by receiver in actions against bankrupt, 1089. by trustee in foreclosure suit, 724. by trustee in suits against bankrupt, 1079, 1088. does not require new process, 147. estoppel of creditor, 138. intervening petition treated as original, 155. intervening petitioners become parties, 141. intervening petitioners counted, 142. manner of, 140. form of petition, 1697. time of, 139. who may intervene, 138. INTOXICATING LIQUOES exemptions lost by engaging in business, 1018. provability of claims, 522. INVENTION title to, 841. INVENTORY trustee must prepare, 720. INVOLUNTARY PROCEEDINGS see Petition in Bankruptcy, Petitioning Creditors. cannot be converted Into voluntary proceedings, 181, 250. effect of voluntary proceedings, 249. good faith of petitioner, 120. nature, 117. pendency as affecting voluntary proceedings, 14, 58, 113. ISSUES determined by pleadings, 250. what are, in involuntary cases, 250. JOINT CONTRACTOR - effect of bankrupt 's discharge upon liability of, 1540. JOINT DEBTOR OF BANKRUPT effect of discharge upon liability of, 1539. JOINT OBLIGATIONS provability of claim based on, 514, 519, 539, 541. set-off of joint and several debts, 581. JOINT PETITION in voluntary proceedings, 114. husband and wife, 114. 1636 Bbandenbukg on Bankbuptcy [BEFEBENCES are to SEOTIONsl JUDGE absence of, power and duty of clerk, 30. disqualification to act in criminal proceedings, 1625. duty and conduct, 28. erroneous recital of absence of, 296 (n95). qualifications, 28. JUDGMENTS after bankruptcy. may create lien, 1032. when not binding on trustee, 1087. against trustee. levy improper, 864. as evidence on issue of insolvency, 255. conclusiveness. judgment of bankruptcy court, 9. judgment of state court, 19, 649. confession of judgment, see Confession of Judgment. effect of proof of claim upon lien of, 671. failure to discharge, as act of bankruptcy. See Acts of Bankruptey. lien on partner's property, 558. operation of discharge on, 1550. partner may purchase, 559. preference from procuring or suffering judgment, 949. priority of claims based on, 1386. provability, 540. See, also, Provaile Debts. stay of proceedings in state court, 1057. valid as to after-acquired property, 893. validity of lien, 893. void if acquired within four month period, 870. JUDICIAL NOTICE of existence and contents of papers filed, 936. of vesting of title in trustee, 741. referee takes, of decrees, 325. JURAT to depositions, 501. JURISDICTION of bankruptcy court. acquired by voluntary appearance, 179. after dismissal of proceedings, 9 (nl4). aliens and non-residents, 17. ancillary. See Ancillary Jurisdiction. at law and in eqviity, 10. consent, as affecting, 9, 14, 1101. consent cannot confer, 9, 179. controversy between two estates in bankruptcy, 628. court cannot decline jurisdiction, 9. creditor may set up want of, 251. proof of claim not essential, 9. Index 1637 [BEFEKENOES ABE TO SECTIONS] JURISDICTION— continued. of bankruptcy court — coutinued. ' dissolution proceedings against corporation as affecting, 83. exclusiveness, 9. general rules, 8, 9, 18. in summary proceedings, 1167. need not aflSrmatively appear, 9. over adverse claimant, 9. over bankrupt's property and liens thereon, 1043. over contempts, 1578. over crimes and offenses, 1609. over deceased person, 378. over exempt property, 985. in case of waiver of exemptions, 1013. over insane persons, 383. over lien claimants, 9. over persons not parties and not in district, 18. place of business, residence or domicile of bankrupt, 14. presumption in favor of, 9. prior to adjudication, 198. prior voluntary or involuntary proceedings, 14. stay of proceedings in state court, 1039. suits by and against trustee, 1092, 1095. territorial jurisdiction, 12. to determine priorities, 1345. to determine validity and extent of mortgage, 915. waiver of objections, 9, 14, 22. when attaches, 21. where several petitions filed, 27. of federal courts. as affected by citizenship of trustee, 1112. of state courts. actions by and against trustee, 1104. when trustee cannot deny, 1109. JTTBT TRIALS see, also, Verdicts. in actions by and against trustee, 1060. in contempt proceedings, 1603. in contests on claim, 643. in criminal proceedings, 1626. in discharge proceeding's, 1469. in involuntary proceedings proper, 261, application for, 262. form of demand, 1695. form of order, 1700. on insuflacient petition, 264. on intervening petition, 265. questions submitted, 94, 263. in summary proceedings, 1184. summoning jury, 266. waiver of right, 267. 1638 Beakdenbukg on Bankbuptcy [references are to sections] JUSTICE OF PEACE may administer oatha, 459. may take acknowledgment, 454. LABOB see WorTc and Labor. LACHES in asking reconsideration of claim, 664. LANDLOED AND TENANT see, also. Lease, Bent. claim of landlord for taxes paid not entitled to priority, 1352. distraint for rent after bankruptcy, 828. injunction against interference with trustee's possession, 832. landlord's claim of title as a contempt, 1584. lien of landlord. failure to discharge, as act of bankruptcy, 51 (n55). for rent accruing after bankruptcy, 546. priority, 1348, 1389, 1392. sale by receiver, subject to, 220. validity and extent, 812. offsets against rent, 847. priority of claim of lessee depositing rent in advance, 1383. provability of claims, 570. damages for breach of lease, 546. rent, 546. repairs, 547. taxes and water rents, 548, recovery of payments and deposits, 833. stay of proceedings in ejectment, 1056. stay of suits of forcible detainer, 1067. title to fixtures, 832. waiver of right to priority, 1392. LARCENY as bar to discharge, 1437. LEASE see, also. Landlord and Tenant. bankrupt's liability not released, 829. by trustee. effect of composition, 1234. effect of bankruptcy of lessor, 834. effect of discharge upon bankrupt's liability, 1530. forfeiture for non-payment of rent, 828. liability of receiver, 214. not terminated by bankruptcy, 826. of personal property distinguished from sale, 770. receiver or trustee not a trespasser, 830. Index 1639 [B£F£B£NC£S ABE TO SECTIONS] LEASE — continued, sale of, 1266. effect of sale by trustee, 1311. not a breach of ooyenant, 1311. trustee may assume or reject, 827. LEAVE TO SUE actions against receiver, 237. actions by receiver, 236. actions by trustee, 1112, 1134. LEGACY title to, 835. validity of lien on, 920. LEGAL PROCEEDINGS defined, 884. liens by. See Liens iy Legal Proceedings. preference by, as act of bankruptcy. See Acts of BanTcruptcy. perf erence by, as a voidable preference. See Preferences. LEVY see Attachment, Executions. LIBEL AND SLANDER allegations in petition are privileged, 304. claim for, does not pass to trustee, 765. , discharge as release of judgment for, 1560. trustee cannot be substituted as plaintiff, 1090. LICENSE see Liqiior License. priority of claim for license fee, 1351. title to, 843. LIENS see Bank, Mortgage, Priority of Claims. acqvured by assignee may be preserved, 898. appeal to supreme court on questions affecting, 1661, 1662. appeals in controversies over, 1641. cannot be acquired within four months of bankruptcy, 868. claimants may become petitioning creditors, 134. claimants not represented by trtistee, 862. comparison of provisions of acts of 1898 and 1867, 857. creditor may waive, 631. effect of composition, 1235. effect of discharge, 1532. effect of proof of claim, 671, 672. effect of sale by trustee, 1309. effect of want of record in general, 866. enforcement of, as act of bankruptcy, 51. incumbered property may be sold, 1265. jurisdiction of bankruptcy and state courts, 9, 1043. 1640 Bbandenbukg on Bankbuptcy [BEI^BENCES ABE TO SECTIONS] LIENS — continued. method of enforcing, 876. must be perfected before bankruptcy, 866. not affected by surrender of property to receiver, 221. on exempt property, 1029. jurisdiction of bankruptcy court, 985. payment out of wrong fund, 1426. priority of, 1348, 1390. See, also. Priority of Claims. procedure where creditor petitions to be awarded lien, 861. recognized, if properly recorded, 867.- redemption by trustee, 872. release and abandonment, 871. formal release of, 874. right of claimant to possession as against receiver, 202. rights of trustee in general, 859. rights of trustee where lien invalid only as to some creditors, 860. sale by receiver, subject to, 220. sale of property free of, 1270. See, also. Sales. stay of proceedings to enforce, 1058. trustee cannot protect lien of creditor, 862. trustee is proper party to attack, 861. trustee may become subrogated to creditor's rights, 860. trustee should not perfect, 715. vaUd liens recognized, 856. validity and priority determined by state law, 858. validity where acquired after bankruptcy, 864. waiver, 639. LIENS BY LEGAL PEOCEEDINGS active participation by bankrupt not essential to avoid, 886. conflict in statutory provisions, 882. constitutionality of statute, 881. costs in proceeding to enforce, fall with lien, 877. creditor need not be reimbursed for costs, 897. creditors' suits, 891. garnishments, 892. insolvency essential to avoid, 885. invalid if acquired within four month period, 870. judgment and execution liens, 893. lien acquired by state, voidable, 888. lien acquired in foreign country, voidable, 889. liens affected, in general, 884. preservation of lien for the estate, 896. reasonable cause to believe, not essential to avoid, 887. sale under attachment or execution, 895. seizure under writ of replevin, 894. statutory provisions, 879, 880. apply to voluntary proceedings, 883. validity of attachments, 890. LIMITATIONS, STATUTE OF as affecting provability of claim, 549. Index 1641 [BEFEBENOES ABE TO SECTIONS] LIMITATIONS, STATUTE OF— continued. 33 defense to suit by trustee, 1138. barred ulaim cannot be used as set-off, 576. creditor permitted to sue to avoid bar of, 1077. effect of discharge on debts barred by, 1562. new promise. effect of scheduling claim, 407. petitioning creditors' claim must not be barred, 132. postponement of claims barred by statute, 1387. rule in criminal proceedings, 1622. state laws do not control filing of claim, 606. that petitioners' claims barred, as ground of demurrer, 157. LIQUIDATED DAMAGES provability of claim for, 521. LIQUIDATION OP CLAIM what constitutes, 606. LIQUOB LICENSE application for, not restrained, 1048. bankrupt must join in application for transfer of, 414, 417. mortgage of, is invalid, 904. rights of trustee in case of pledge, 918. sale of, 1267. by receiver, 220. title of receiver, 213. title to, 843. LIS PENDENS cancellation of notice, 1135. necessity of notice where trustee sues, 1135. LIVEEY STABLE KEEPER failure to discharge lien, as act of bankruptcy, 51 (n55). validity of lien, 913. LIVING EXPENSES allowance out of estate, 1328. bankrupt may retain money for, 1178. M MACHINEET is a fixture covered by mortgage on realty, 915. MAILS use of, by referee, 347. MALICIOUS INJURIES discharge as a release from liability, 1560. 1642 Beandenbueg on Bankruptcy [BEFEBENCES ABE TO SECTIONS] MALICIOTJS PROSECUTION claim for, does not pass to trustee, 765. discharge as release from liability, 1560. of bankruptcy proceedings, 303. MANAGER priority of claim for wages, 1370. MANDAMUS does not lie to review appointment of receiver, 206. to enforce obedience of mandate of supreme court, 1668. when proper, 1644. MANUFACTURING CORPORATION what constituted under law prior to 1910, 75. MARITIME LIENS priority, 1388. MARRIAGE see Husband and Wife, Married Women, Wife. effect upon exemptions, 987. promise of, as consideration of transfer, 794. MARRIED WOMEN see, also, Husbarid and Wife, Wife. entitled to set-off, 583. farmer's wife may be adjudged, 95. may become voluntary or involuntary bankrupt, 65, 91. when wage-earners, 96. MARSHAL ' authority outside of district, 199. compensation and fees, 35. for care and preservation of estate, 226. no extra compensation allowable, 232. notice of application, 233. compensation of deputy, 35, 226. fees of field marshal, 35. . liability for wrongful seizure, 305. must make verified return, 1344. personal liability, 199. property subject to seizure, 202; to what court accountable, 199. unauthorized seizures, 305. MARSHALING OF ASSETS general rule, 1403. in ease of secured claims, 635. in partnership cases, 1440. in payment of taxes, 1350. Index 1643 [bei'bbenoes ars to sections] MASTER AND SERVANT see Servants. priority of claims for wages. See Wages and SaXa/ry. MASTERS see Special Masters. MATERIALMAN'S LIEN see Mechanic's Lien. MECHANIC'S LIEN may be enforced after bankruptcy, 1059. priority, 1389, 1391. subcontractor's lien. effect of completion of contract by trustee, 776. valid though not completed until after adjudication, S64. validity and extent, 914. waiver of, 914. MEETINGS OF CREDITORS bankrupt must attend, 393. composition meetings, 1197, 1200. dividend and final meetings, 445, 1408. duties of creditors, 446. first meeting, 433. adjournment, 437, 440, 448, 454, 456. aUffwanee or disallowance of claims, 440. appointment of trustee, 441. bankrupt's attendance, 439. compliance with statute, 434, 436. judge or referee presides, 340, 438. . list of debts proved, form, 1724. nature and purpose, 434. non-appearance of creditors, 434. notice, 436. form, 1723. place of meeting, 435. time, 435. necessity, 1481. notice, 444. power of attorney. forms, 1725, 1726. special meetings, 443. to oppose discharge, 1466. voting. See Voting at Creditors' Meetings. when called, 443. MERCANTILE AGENCY, see Commercial Agency. MERCANTILE CORPORATION what constituted iinder law prior to 1910, 74. 1644 Beandenburg on Bankextptcy [kefebences ase to sections] MEEGEE of cause of action into judgment, 1548. of debt and judgment, 543. MINING provability of claim for breach of lease, 546 (n78). provability of claim for royalties, 546 (nSl). validity of lien created by lease, 912. MINING COEPOEATION8 what constituted under law prior to 1910, 76. MINOES see Infants. MISTAKE correction of, in judgment, 10. money paid by, may be recovered from trustee, 842. MONEY paid by mistake may be recovered from trustee, 842. MOETGAGE see Mortgagee, Mortgagor. after bankruptcy, as an offense, 1616. allowance of interest, 1418. as act of bankruptcy, 43, 48. as fraudulent transfer, 782 et seq. attorney's fees to creditor upon foreclosure,''1322. distribution of proceeds of sale of mortgaged property, 1303. duties of trustee with respect to, 915. effect of discharge, 1532. effect of foreclosure upon mortgagee's claim, 638. effect of proof of claim upon right to foreclose, 672. expense of caring for property, 584. foreclosure after bankruptcy, 876. foreclosure in state court not restrained, 1048 (n41). interference with mortgaged property prohibited, 915. jurisdiction of bankruptcy court, 915. jurisdiction of state courts over suits to foreclose, 1106. may be recorded within four month period, 869. method of enforcing, 876. mortgaged property may be surrendered, 760. priority of claims in case of, 1348, 1358, 1391. redemption by trustee, 872. right to rents and profits, 846. sale of property, 637, 1265. right to proceeds of sale, 1274. sales may be enjoined, 9 (n25). stay of foreclosure proceedings, 1058. validity as affected by bankruptcy, 915. validity where executed after bankruptcy, 864. Index 1645 [BEFEBENCES ABE TO SECTIONS] MORTGAGEE see Mortgage. manner of making proof of claim, 630. not secured claimant, if property exempt, 630. provability of claim, 550, 562, 570 (n30). MOETGAGOR see Mortgage. efCect of bankruptcy upon receivership proceedings, 1061. MOTION for adjudication on pleadings, 279. MOTIVE immaterial in determining provability of claim, 507. MOTOR VEHICLES validity of lien on, 914. MULTIFARIOUSNESS OF PETITION see Petition in BanTcruptcy. MUNICIPAL CORPORATIONS cannot become involuntary bankrupt, 67, 80. cannot become voluntary bankrupt, 60. defined, 81. payment to, as a preference, 927. priority of claims of, 1394. MUSICIAN priority of claim for wages, 1370. teacher may be adjudicated, 96. MUTUAL DEBTS AND CREDITS as affecting provability of claim, 551. right of set-off, 572 et seq. N NAME mistake may be cured by amendment, 169. of claimant, must fully appear, 608. NATIONAL BANKS see Bank. not subject to act, 70. validity of pledge of stock, 918. NECESSARIES exemptions, 1012. NE EXEAT application for writ, 428. jurisdiction of bankruptcy court, 18. 1646 Beandenbueg on Bankkuptcy [KEFEBENCES ABE TO SECTIONS] NE EXEAT— continued. order issued nunc pro tune, 428. power to issue writ, 428. release on bond, 429. NEGATIVE PEEGNANT in answer, 181. NEGLIGENCE discharge as release from liability, 1560. provability of claim, 570. NEGOTIABLE INSTRUMENTS bankrupt may waive protest, 418. bill of exchange or draft as equitable assignment, 910. bona fide purchaser. burden of proof, 523. effect of discharge upon liability of co-debtors, 1539. indorsement by trustee, 1294. indorser not released by failure of holder to prove claim, 674. liability of maker to surety, discharged, 1567. manner of making proof, 609, 613. note must be filed with claim, 602. proof of claim by indorser or surety, 597. proof of claim on secured note, 634. provability of claims based on, 516. in partnership eases, 552. title of trustee, 766. ultra vires indorsements, 523. NEW CREDITS set-off in case of preferential transfers, 982. NEW PROMISE see Limitations, Statute of. after confirmation of composition, 1281. to pay a discharged debt, 1538. NEWSPAPER designation of, 436. NON-NEGOTIABLE NOTE provability, 517. NOTARY PUBLIC acknowledgments by, 463. may administer oath, 459. priority of claim of, 1360. seal, 463, 614. NOTICE expense of publishing, 34. expense of sending, 1344. Index 1647 [SEFBBKNOES ABE TO SKCIIONB] NOTICE— continued, hew addressed, 342. of adjudication, 287. of amendment of schedules, 406. of amendment to petition, 168. of application for attorneys' fees, 1326. of application for discharge, 194, 1450, 1544. of application for examination, 472. of application for extension of time to apply for discharge, 1449. of application for receiver, 203. of application for stay, 1071. of application to confirm a sale, 1287. of application to set aside composition, 1247. of assignment of claim, 596. of composition hearing, 1197, 1213. of creditors' meetings, 444. of final meeting, 445. of first meeting, 436. of dismissal, 286. of dividends, 1408, 1410. of examination of bankrupt, 485, 489. of filing, and settlement of accounts, 1425. of filing of petition, 113, 150. of hearing in summary proceedings, 1182. of hearing on application for compromise, 1192. of hearing on application of receiver for allowances, 1330. of motion to amend order of dismissal, 284. of pendency of action by trustee, 1135. of petition for re-examination of claim, 663. of petition to revise, 1655. of proceedings to vacate discharge, 1516. of receivers' sales, 220. of referee's decision, 348. of sale of collateral by claimant, 637. of sales, 1278, 1309. of settlement and allowance of costs of administration, 1344. of taking depositions, 499. of withdrawal of voluntary petition, 269. petition in bankruptcy is a caveat, 864. proof of publication. form, 1694. referee must give, 342. service, 342. setting aside adjudication, for want of, 300, 301. to agent as notice to principal, 972, 1569. to attorney, 177. to creditors, where voluntary and involuntary petition filed, 249. to non-petitioning partners, 193, 300. want of, as affecting operation of discharge, 1569. want of, as affecting right to file claim, 606. 1648 Bbandenbueg on Bankbuptcy < [BEFEBENCES ABE TO SECTIONS] NOVATION substitution of securities, not a, 944. O OATHS AND AFFIRMATIONS' afBrmation sufSeient, 461. f^rm, 462. who may administer, 335, 459, 460, 501. OBJECTIONS TO CLAIMS see Claims Against Bankrupt Estate. OCCUPATION OF DEBTOR allegation of, 159. OFFICERS see, also, Corporations. discharge as release from liability, 1557. of corporation, may be wage earner and exempt from act, 96. OPTION CONTRACTS claims based on, 522. ORDER must contain name of party or attorney, 177. of referee, 348. of reference, 322. referee cannot modify or set aside court's order, 325. service on attorney, 177. to turn over assets, 1185. OVERDRAFT not evidence of insolvency, 977. PARDON of contempts, 1608. PARENT AND CHILD parent may prove minor's claim for wages, 1375. right to infant's earnings, 855. PAROL ASSIGNMENTS validity, 910. PARTIES additional, how brought in, 176. cannot be added after hearing, 170. defendant in injunction suit not a party to bankruptcy proceedings 175. in case of bankrupt's death, 378. making creditors parties. form of order, 1772. form of petition, 1771. Index 1649 [BEFEBENCES ABE TO SECTIONS] PAETIE8— eontinued. proper defendants in actions to recover property, 1144. proper plaintiff in suit to set aside conveyances, 1143. to actions against bankrupt, 1081. to an appeal, 1637. to voluntary proceedings by partnership or members, 192. PARTIES IN INTEEEST defined, 27, 1454, 1511. PARTNER adjudication of, as affecting attachment, 890. as adverse claimant in partnership proceedings, 1170. as petitioning creditor, 131. claims between partners, jurisdiction, 9 (n9). contribution to firm capital, not provable, 559. death or insanity of, as affecting right to adjudication, 103. discharge of, 1445. acts of co-partner as a bar to discharge, 1491. as affecting liability of co-partners, 1540. as release from liability inter se, 1557. effect of discharge, 15'44. from liability for malicious acts of co-partner, 1560. from liability for obtaining property by false representations, 1559. false statement by, as bar to discharge, 1495. individual property. conversion into partnership property, 837, 839. title and rights of trustee, 840. what constitutes, 838. insanity of, 176. intervention by administrator of, 138. lien of judgment on property of, 555. may be compelled to surrender assets, 1179. may be enjoined in suit for accounting, 1112. may make proof of claim, 596. must join in objections to a discharge, 1457. non-joining partner may be required to show cause, 176. not released by composition, 1233. notice of filing of petition, 300. order declaring partner generally liable. form of motion, 1770. provability of claims between partners, 559. restraining non-assenting partner. form of petition, 1769. right to be adjudicated, 104, 107. nominal and dormant partners, 106. special partner, 105. silent, who is, 192, 559. validity of conveyances by, 798. wife of, may prove claim, 555. Brandenburg — 104 1650 Bkandenbueg on Bankeuptcy [BErEBENOES ABE TO SECTIONS] PAETNEESHIP acts of bankruptcy. admitting willingness to be adjudicated, 53. failure to discharge lien by legal proceeding, aa act of bankruptcy, 51. fraudulent transfer by firm or member, 42, 45. general assignment by, as act of bankruptcy, 52. as petitioning creditor, form of petition, 155. burden of proof, 254. cannot complain of preference to individual creditor, 942. defined, 98. description of, in schedules, 1569. effect of adjudication, 295. effect of bankruptcy upon mortgages, 915. effect of discharge, 1544. entitled to a discharge, 1443, 1444. former discharge of partner as bar to discharge of, 1502. how existence of, determined, 251. infant cannot join in petition by, 88. insolvency of. as element of preference by, 934. what constitutes, 41, 195, 934. may be adjudicated, 97. consent adjudication, 101. creditor cannot compel institution of proceedings, 99. dissolution as affecting right, 102, 103, 107. good faith of petitioner, 99. minority of partner, effect of, 132. period during which adjudication may be had, 102. solvency of partner, effect of, 108. when exempted from provisions of act, 94, 109. payment by firm, as preference, 954. power of attorney by, 454. set-off of debts and credits, 578. transfers by firm or members as preference, 958. PAETNEESHIP AND MEMBEBS.— PE0CEEDING8 AGAINST adjudication of individual partners, 194. allegations of petition, 194. form of notices and application for discharge, 194. allowance of attorney's fees, 1319. appointment and election of trustee, 677. compositions, 1206. consent adjudication, 275. consent of silent partner implied, 840. consolidation of proceedings, with proceedings against corporation, 248. default adjudication, 275. default of non-petitioning partner, 179. defenses, 274. distribution of assets. absence of firm assets and solvent partner, 1435. assumption of Arm assets and debts by partner, 1436. Index 1651 [BEFEBENCES ABE TO SECTIONS] PABTNEBSHIP AND MEMBERS.— PEOCEEDINGS AGAINST— continued, distribution of assets — continued. claims for taxes, 1437. claims of the United States, 1438. general rules, 552, 553, 1434. marshaling of assets, 1440. subrogation of creditors of partner, 1439. filing fees, 31. individual estate cannot be summarily taken, 1168. involuntary petition against firm or members, 195. allegations and form of petition, 153, 195. defect in caption of petition against, 301. insolvency essential, 195. petition against may be amended, 169. who may petition, 195, 196. nature of proceedings, 271. partners are necessary parties in firm proceedings, 179. payment of expenses of administration, 1343. proceedings against firm by member, 193. creditor cannot compel institution, 193. proceedings opened to bring in dormant partner, 301. proof of claims. effect of proving firm debt against partner's estate, 558. joint creditor may prove against both estates, 636. proof of firm debt in proceedings against partner, 593. proof of partnership, 272. question of law and fact, 273. provable debts. claim of partner against partner, 1441. claims between estates, 1440. firm debts, 554, 556, 557. individual debts, 553. joint and individual debts, 555. schedules in, 399. separate adjudication of firm and members, 276. transfer of claim from one estate to other, 617. voluntary petition by partnership or members. amendment, 192. form and allegations, 190, 1682. necessity of separate petitions, 191. parties, 192. voting at creditors' meetings, 449, 451. PABTNEBSHIP PBOPEETY conversion into individual property, 837, 839. distribution of, 559, 1433. distribution of proceeds of, 1304. dower in, 381. effect of classification in schedules, 409. exemptions in. firm exemptions, 1009. individual exemptions, 837, 1010. 1652 Bbandenbtjeq on Bankeuptcy [kefebences are to sections] PARTNEESHIP PROPERTY— continued, firm property, in name of partner, 553. title and rights of trustee, 837. what constitutes partnership property, 837. PATENTS provability of claim for royalty, 561. restrictions in license to sell patented article binding, 843. title of trustee, 841. PAUPER AFFIDAVIT effect of ownership of exempt property, 1028. excuses payment of fees, 31. PAWNBROKER extent of lien, 917. PAYMENT application of, in ease of secured claims, 635. by or to bankrupt after bankruptcy, validity, 412, 842. by trustee, 728. may constitute preference, 959. of claims, as a defense to adjudication, 251. to trustee may be recovered, 724, 842. to trustee of money due bankrupt, 776. PENALTIES AND FORFEITURES for offenses under the act, 1629. provability of claim for, 533. PENSION MONEY exemptions, 1011. PERISHABLE PROPERTY defined, 220. sale of, 1278. by receiver, 220. PERJURY see False Oath and Perjury. PERSONAL INJURY bankrupt may prosecute action, 1090. provability of claim, 570. PETITION FOR REVIEW see Appeal and Review, Referee. PETITION IN BANKRUPTCY admissibility in evidence, 1162. allegations of involuntary petition. act of bankruptcy, 160. authority of agent, 155. Index 1653 [befxkences are to seoiions] PETITION IN BANKEUPTCY— continued. allegations of involuntary petition — continued. business or occupation of debtor, 159. forms, 1683, 1684. insolvency, 160. names of petitioning partners, 155. nature of petitioner 's claim, 157. non-esempt nature of property, 155. number and amount of claims, 158. on information and- belief, 154, 155. residence and place of business, 156. amendment. amended petition not treated as original, 172. by whom allowed, 165, 343. defective allegation as to occupation of debtor, 159 (n4). demurrer or answer to, 173. effect of, 171. form of application, 165, 166, 1686. notice, 168. objections to, 168. special showing required, 166. time of filing, 167. to include firm and co-partners, 192. where allowed, 169. where denied, 170. caption, 153. defects as affecting computation of four month period, 869. defects not jurisdictional, 296. form, 153. multifariousness, 161. must be filed in duplicate, 163. time for filing, 54, 163. verification of. See Verification. waiver of defects, 162. PETITIONING CEEDITOES allowance of attorney's fees to, 1321. allowance of costs to, 1337. amount of claims required, 122. assignment of claim, effect of, 122, 128, 132. claims counted, 132. , claim must be provable. See Provable Vehts. corporate ofScers not counted, 124, 125. employees not counted, 124. preferred creditor, not counted, 122. relatives not counted, 124., , corporation acting as purchasing agent is not creditor, 126. creditor cannot be compelled to become petitioner, 121. creditor joining in general assignment as, 132, 136. creditors participating in act of bankruptcy as, 1§6. estoppel to become, 122. 1654 Bkandenbueg on Bankeuptcy [EEFERENCES ABE TO SECTIONS] PETITIONING CREDITOES— continued, general assignee may be, 128. good faith, 120. lien claimants may be, 134. may withdraw, 143. number required, 122. preferred creditor may be, 135. priority of claim for attorney's fees, 1368. obligee in bond may be, 130. of what date included, 123. state may be, 130. stockholders may become, 125. surety may be, 130. wife of debtor may be, 129. PETITION TO EEVISE see Appeal and Beview. PHYSICIANS AND SURGEONS discharge as release from liability, 1560. good will may be sold, 1263. PLACE OP BUSINESS allegation of, 156. as affecting jurisdiction, 14. burden of proof, 254. defined, 14. length of period of existence, 16. PLEADINGS Petition in Bankruptcy. determine issues, 250. in suits by trustee. See, also, Acticms by Trustee. answer, 1158. cross-bin, 1159. demurrer or plea, 1157. general rules, 1151. petition or complaint, 1151. trustee's representative capacity need not be pleaded, 741. PLEA OE ANSWER see Answer. in bankruptcy proceedings proper, 181. PLEDGE as act of bankruptcy, 49. nature, extent and validity, 918. pledgee as adverse claimant to stock pledged, 1170. pledgee may prove claim, 517. pledgor may make proof of claim, 598. redemption by trustee, 872. rights and duties of trustee, 918. trustee may recover collateral, 1120. Index 1655 [BEFERENCES ABE TO SECTIONS] PLEDGE— continued. sale under valid pledge not restrained, 918. sale within four-month period not a preference, 948. waiver of lien, 918. POBTO RICO appeals from district court, 1663. POSSESSION change of, as affecting chattel mortgage, 905. pending suit to determine title, 1146. POSTPONEMENT of claims, 660. of hearing on claims, 660. of meetings. See Adjournment, Meetings of Creditors. POWER OF ATTORNEY should be filed by referee, 350. to vote at meetings, 454. PREFERENCES actions by trustee. amount of recovery, 1165. appeal, 1641, 1660. burden of proof, 451, 1161. demand before suit, 980, 1129. complaint or petition, 1151. form, 1788, 1789, 1791. form of suit to set aside, 1124, 1127. instructions, 1163. judgment at law not condition precedent, 1131. judgment or decree, 1165. jurisdiction, 1092, 1095, 1104. jury trial, 1160. may be joined with suit to set aside conveyance as fraudulent, 1154. parties defendant, 1144. parties plaintiff, 1143. review by petition, 1653. ,. trustee's right of action, 861, 1116. active agency by debtor not essential, 949. advantage over other creditors. creditors of same class, 942. exchange of property or securities, 943. payments by partner, 942. transfer for present consideration, 942, 943, 944. affirmative action by debtor unnecessary, 928. as act of bankruptcy. See, Acts of Bankruptcy. as affecting provability of claim, 535, 541. as bar to discharge, 1498. as of what date determined, 926. creditors' intent inferred, 930. 1656 Bbandbnbubg on Bankeuptcy [BEFE££NC£S AE£ TO SECTIONS] PEEFEEENCES— continued. deliverj of stock by broker, not a, 927. delivery to equitable lienor, not a preference, 927. depletion of bankrupt's estate, 938. where right of set-off exists, 940. distinguished from fraudulent transfer, 793. does not discharge indorser or surety, 597. effect of, 978. aU liens founded on preference fall, 979. bona fide purchasers, 981. release of dower rendered ineffective, 979. upon exemptions, 1017. voidable only, 980. effect of proof of claim upon right to avoid, 671. foreign attachment, 619, 950. immaterial whether given voluntarily, 928. included in determining solvency, 40. indorser, guarantor or surety caimot receive, 927. injunction against transferee, 981%. insolvency. admissibility of schedules to show, 936. as of what date determined, 932. conclusiveness of adjudication, 937. evidence of, 936. how determined, 933. partnership insolvency, 934. question of fact, 935. intent to prefer not essential, 929. jurisdiction of state courts, 1106. mortgage of exempt and non-exempt property, 1033. must be within four months of bankruptcy, 945. computation of time, 747. date of transfer, 748. nature and elements, in general, 925. payments to attorney, 927, 983. payments to municipality may be, 927. payments to working servants and clerks, 942. prior to four-month period not voidable, 869. priority in proceeds of property preferentially transferred, 1404. procuring and suffering judgment as a preference, 749. reasonable cause to believe a preference would be effected. absconding of debtor, 974. adjudication not conclusive, 977. an essential element, 968. , as of what date determined, 969. evidence of, 492, 976, 977. knowledge of agent or attorney, 972. knowledge or belief in insolvency not alone sufiScient, 971, payment under compromise, 975. questions of fact, 976. suspicious circumstances, not sufficient, 970. Index 1657 [befe&bnces abb to sections] PEEFEEENCES— continued. reasonable cause to believe a preference would bb effected — continued. transactions out of due course, 973. what constitutes, 970. return of property to bailor or vendor not a preference, 927. set-offs against, 982. state laws relating to, not superseded, 7. summary jurisdiction over transferee, 1167. surrender of, before receipt of dividend, 1411. surrender of, prior to proof of claim, 618. cannot be surrendered to referee, 331. surrender of, to entitle creditor to vote, 451. through legal proceedings, as act of bankruptcy, see Acts of Bankruptcy. transfer of property, 951. assignments, 955. creditor must receive some property, 953. deposit of money, 956. exempt property, 957. indirect transfers, 954. partnership transfers, 958. payment of money, 559, 960. performance of labor, 961. reclamation by vendor, 962. restoration of stolen money, 963. retention of funds held in trust, 964. stoppage! in transitu, 965. taking possession under contract, 966. transferee as adverse claimant, 1170. transferee must have been a creditor, 925, 927. creditor defined, 927. waiver of, as affecting right to priority, 1386. PEErEEEED CEEDITOE claims counted in determining sufSeiency of petition, 122, 135. may be petitioner, 135. may contest adjudication, 175. precluded on . issue of insolvency, 250. right of set-off, 584. right to dividends, 1411. right to vote, 451, 456 (n94). PEESEEVATION OF LIENS for benefit of estate, 896. form of trustee's petition, 1777. PEINCIPAL BUSINESS OF BANKEUPT a question of fact, 257. PEINTEE8 AND PUBLISHEES what constituted under law prior to 1910, 77. PEIOEITT between voluntary and involuntary petitions, 113. 1658 Beandenbueg on Bankeuptcy [beferenoxs ase to sections] PEIOEITY OP CLAIMS allegations in proof not prima faeie true, 671. as between creditors of firm and of individual members, 1433. attorney or counsel fees, 1368. burden of proof, 1405. care and preservation of property. care prior to bankruptcy, 1357. ^ general rules, 1356. property recovered for estate by creditor, 1359. receivership, 1356, 1358. claims by and against receiver in bankruptcy, 1358. costs of administration. auctioneers' fees, 1364. compensation and expenses of receiver, 1356, 1358. debts of assignee for creditors, 1363. expenses of conducting bankrupt's business, 1365. general rules, 1362. rent, 1366. witness fees and mileage, 1367. debts entitled to priority under state or federal law. claims against community property, 1401. claims barred by limitations, 1387. claims based on ultra vires contracts, 1396. claims for rent,' 1392. claims of bankrupt's wife, 1400. claims of cestui que trust, 1379. claims of creditor guilty of fraud, 1385. claims of depositors, 1382, 1383. claims of stockholders, 1395. claims of United States, 1397. claims of unpaid vendor, 1399. claims on checks, or orders, 1380. 'costs and fees, 1381. debts assumed by bankrupt, 1378. debts due state, municipality or officers, 1394. equitable liens, 1384. general rules, 1377. judgments, 1386. maritime liens, 1388. mechanics' liens, 1389, 1391. miscellaneous liens, 1390. mortgages, 1391. priority between residents and non-residents, 1393. unrecorded liens, 1398. wages, 1374, 1377. dower, 1362. expenses of conducting business, 1365. filing fees in involuntary cases, 1360. jurisdiction to determine priority, 9, 1345. manner of making proof, 612. order of priority in general, 1346. Index 1659 [BEFEBENCES ABE TO SECTIONS] PRIOEITY OF CLAIMS— continued. priority in proceeds of fraudulent transfer, 1404. procedure to obtain priority, 1405. right of priority creditor to participate in proceeds of incumbered property, 1304. right of priority creditor to vote, 451. taxes, 1349, 1397. wages and labor claims, 1369. waiver of priority, 1402. PRIVILEGED COMMUNICATIONS communications to attorney, 480. PROCEEDINGS IN BANKRUPTCY distinguished from controversies, 1094. PROCESS see Notice. clerk's duty to attest, 30. exemption of witness, 505. form of, in general, 145. in case of non-resident claimant, 1149. in case of several defendants, 147. order to show cause upon creditor's petition. form, 1690. service of, 148. by publication, 149. form of affidavit, 1692. form of order, 1693. effect of delay in serving, 163. personal service within district unnecessary, 1149. upon lunatic, 149. when issued, 147. when returnable, 148. PRODUCTION OF BOOKS AND PAPERS appealable orders, 1636. by bankrupt, 503. by third person, 503. failure to produce, as a contempt, 1587. form of petition for, 1773. in discharge proceedings, 1473. incriminating contents, 503. on issue of insolvency, 56. review of order by petition, 1653. PROFITS as element of damage for breach of contract, 525. future, not considered in determining solvency, 40. PROOF OF CLAIM see, also, ante. Claims Against Bankrupt Estate. acknowledgment of proof, 463. 1660 Bbandenbubg on Bankbtjptcy [befebences ase to sections] PEOOF OF CLAIM— continued, affidavit of lost bill or note. form, 1757. admissibility in evidence, 1628. amendment of proof, 610. by setting up security, 639. general rules, 616. time during which allowed, 617. by whom proof made. agent, officer, partner or attorney, 595. form of proof, 1755. assignee or receiver, 596. indorsers, sureties and persons secondarily liable, 597. pledgee of note, 517. state court receiver, 563. trustee in bankruptcy, 606, 628, 724. double proof not permissible, 633. duty of court to receive proofs, 604. effect, 670. estops creditor from attacking adjudication, 298. makes prima facie case, 644, 671. proving firm debt against individual estate, 558. upon operation of discharge, 1547. effect of failure of proof, 674. effect of prior proof by another, 599. expenses of contest, 1332. filing proof, 600. delivery to trustee, sufficient, 606. in composition proceedings, 1224, 1230. manner of making proof. assigned claims, 610. forms, 1751-1756. general rules, 608. instruments in writing, 613. open accounts, 611. priority claims, 612. statement of consideration, 609. must comply with statute, 642. necessity for proof, 593. failure to prove as affecting operation of discharge, 1546. not condition precedent to attack upon jurisdiction, 9. not condition precedent to suit by trustee, 1133. not a waiver of lien, 871. of firm debt in proceedings against partner, 593. proof and allowance, 592. right to prove claim, 593. rights of creditors accrue upon, 671. secured claims. application of credits, 635. determination of value of securities, 636. effect of proving as secured or unsecured, 639, 1034. Index 1661 QBEFEEENCES ABE TO SECTIONS] PBOOF OF CLAIM— continued, secured claims — continued. manner of proof, 631. form, 1752. * marshalling of assets, 635. may be proved, 631. necessity of proof, 631. purchase of security by creditor, 638. security on property of third person, 634. special reference. form of order, 1759. form of report, 1716. surrender of preferences. effect of composition, 623. effect of non-surrender, 625, 668. effect of surrender, 627. form of petition to require, 1762. four-mouth period, 620. in case of new credit, 626. involuntary surrender, 625. prior to 1903, 621. to whom surrendered, 622. what must be surrendered, 619. time of making proof, 606. trustee should contest fraudulent claims, 715. unliquidated claims, 405. verification of proof, 614. amendment, 614. PROPERTY OF BANKRTJPT bankrupt must surrender, 413. bankruptcy court may enjoin interference, 1043. by what law title determined, 758. cannot be attached after adjudication, 729. equitable titles to, 779. estoppel of trustee to assert title, 755. extent of trustees' title. property acquired after adjudication, 753, 1528. property acquired between filing of petition and adjudication, 752, 1528. property acquired prior to filing of petition, 751. property transferred after filing of petition, 754. umder act of 1867. failure to turn over, as contempt, 1581. in partnership cases. conversion of joint into separate estate and vice versa, 837, 839. partnership and individual property distinguished, 837, 838. title and rights of trustee, 840. interference with, after appointment of receiver, 210. interference with, before appointment of receiver, 209. jurisdiction of referee, 329-333. jurisdiction to order return, 918. 1662 Bbandenbueg on Bankhuptcy [BEFESENCES ABE TO SECTIONS] PEOPEETY OP BANKEUPT— continued, nature of trustee's title, 744. possession pending suit, 1146. property acquired after bankruptcy. judgment enforceable against, 893. title, 1528. property fraudulently transferred, see, Fraudulent Transfers. provisional seizure, see Marshal, Bec^vers in Bankruptcy, Provisional Seizure of Property. purpose for which title vests in trustee, 746. receiver cannot sue to recover, 236. receiving from bankrupt, an offense, 1616. state court cannot administer, 1044. title in ease of confusion of goods, 759. title on setting aside composition or discharge, 757. title to specific property. annuity in lieu of dower, 811. choses in action, 765. claims against United States, 854. commercial paper, 766. concealed assets, 767. corporate records, 777. crops, 778. fire-insurance policies, 814. fixtures, 781. forfeited public lands, 806. future contingent interests, 806, 835. good will, 807. leases, 826 et seq. legacies, 835. life-insurance policies, 815. patents and copyrights, 841. payments and deposits, 842. personal privileges, licenses and memberships, 843. property held as bailee, 768. property held in trust by bankrupt, 852. property held in trust for bankrupt, 853. property held under conditional sale contract, 768. property in possession of broker or factor or customer, 764. property of husband and wife, 808. property purchased prior to bankruptcy, 844. property sold prior to bankruptcy, 850. rents and profits, 845. stocks, bonds and other securities, 851. wages, 855. title vests in trustee by operation of law, 741. trustee's failure to take possession or abandonment, 760. form of petition for leave to abandon, 1765. trustee's return of no assets. form, 1764. trustee's title cannot be collaterally attacked, 23. when title passes to trustee, 743. Index 1663 [BUrSBENCES ABE TO SECTIONS] PROVABLE DEBTS see, also, ante, Claims Against Bankrupt Estate. advances, 508. alimony, 509. annuities, 509. as basis for inToluntary proceediuga. claim against infant, 132. claim barred by limitations, 132. claim based on gambling contract, 132. claims for accrued interest, 132. claims of assignees for creditors, 128. claims of preferred creditor, 135. claims of subcontractor, 132. illegal claim, 132. secured and priority claims counted^ 134. need not be due, 132. as of what date provability determined, 507, 517, 518, 521. assault and battery, 570 (n26). assigned claims, 510. attorneys' fees, 512. bastardy judgment, 542. bonds, 514, 556. bonus, 508, 533. breach of promise, judgment for, 542. breach of warranty, 525. claims barred by limitations, 549. claims by and against brokers, 515. claims of another bankrupt estate, 628. claims of assignee for creditors, 511. claims of banks, 513. claims of corporate officers, 535. claims of ^corporation under same management as bankrupt, 535. claims of creditors of bankrupt's fraudulent transferee, 530. claims of Creditors of third persons, 530. claims of executors and administrators, 532. claims of foreign corporation, 522. claims of garnishing creditor, 524. claims of husband or wife, 536. claims of landlord, 545, 570. claims of mortgagee, 550, 562, 570 (n30). claims of relatives, 535. claims of state court receiver, 511. claims of sureties, 514. claims of tenants in common, 546. claims of United States, 514, 533, 566. composition as affecting provability, 520, 558. conspiracy, judgment for, 541. contracts for services, 524. wife of bankrupt, 536. contracts in general, 521. contracts of subscription, 527. 1664 Beandenbuhg ON Bankkuptcy [BEFEBENCES ABE TO SECTIONS] PEOVABLE DEBTS— continued, contribution, 549. conversion, 528. judgment for, 541 (n61). costs, 570. debt secured by insurance policy, 537. debts due the United States or state, 566. effect of mutual debts and credits, 551. effect of payments by third persons, 514, 517, 518. embezzlement, 563. employers liability, 541 (n61). equitable demands, 531. essential to jurisdiction in voluntary proceedings. 111. expenses of attaching creditor, 529. expenses of caring for property, 511. fines, 533. fraud and deceit. as affecting provability, 508, 535. provability of claim for 534, 538 (n50). provability of judgment, 541. fraudulent transfer as affecting provability, 535. freight and demurrage, 521. gambling contracts, 522. general tests of provability, 507. gifts, 536. guarantees, 519. illegal claims, 522. county may vfaive illegality, 517. indemnityj 514. insurance policies and premiums, 537. interest, 538. joint obligations, 539, 541. judgments, 540. against trustee, 544. foreign judgment, 541. liability of corporation to holders of stocks and bonds, 564. liquidated damages, 521. negotiable instruments. claims of persons secondarily liable, 519. in partnership eases, 552. liability of bankrupt as indorser or surety, 518. provability in general, 517. ultra vires contracts, 523. unstamped notes, 522. partnership cases. claims between partners, 559. firm debts, 554, 556, 557. individual debts, 553. joint and individual debts, 555. patents, 561. penalties and forfeitures, 533. Index 1665 [BEFEBENCES ABE TO SECTIONS] PROVABLE DEBTS— continued, personal injury, 570. preference as affecting provability, 535, 541, 597. provability, a question of law, 257. provisions of act construed as a whole, 507, 521, recognizances, 514. redeeming a pawn, 508. rent, 546, 570. of personalty, 525, 546. royalties, 561. sales of personalty, 525, 530, 570. conditional sales, 546. sales of liquors, 522. sales of real property, 526. secured claim, 562. seduction, judgment for, 542. stockholder's and director's liability, 563, 570. support, 536. judgment for, 542. taxes, 548, 569. tort, 570. of partner, 556. trade certificates, 565. ultra vires contract, 523. unliquidated claims, 570. usurious contracts, 570. wages and salary, 510, 570. of bankrupt's wife, 536. water rents, 548. PEOVISrONAL SEIZUEE OF PEOPEETY See Beceivers in Bankruptcy. application for, 203. bankrupt cannot reclaim property unlawfully seized, 421. bond of bankrupt to marshal. form, 1707. bond of petitioners, 204. form, 1706. forthcoming bond of alleged bankrupt, 205. property subject to seizure, 202. warrant to marshal. form, 1701. form of return, 1701. PEOXT proof of claim by, 595. voting by, 454. PUBLIC LANDS title to forfeited lands, 806. PUBLIC OFPICEE effect of bankruptcy upon proceedings to remove, 1060, priority of claim of, 1394. Brandenburg — 105 1666 Bbandenbueg ON Bankbuptcy [BBFEBENCES ABE TO SECTIONS] PUBLIC POLICY claims void as against, 522. PUBLIC SERVICE CORPOEATION amenable to act, 81. PUBLICATION service by, 149. PUECHASEK AT TRUSTEE 'S SALE rights, duties and liabilities, 1295. PURCHASER IN" GOOD FAITH see Bona Fide Purchasers. PURCHASING AGENT corpoTation acting as, is not creditor, 126. Q QUESTIONS OF LAW AND FACT business of bankrupt, 257. insolvency at time of alleged act of bankruptcy, 52. provability of debt alleged in petition, 257. reasonable cause to believe a preference ^11 result,- 976. QUIETING TITLE jurisdiction of state court, 1106. RAILROAD CORPORATIONS cannot become bankrupts, 60, 67, 78, 80. REASONABLE CAUSE TO BELIEVE as element of preference. See Preferences. RECENT POSSESSION presumed to continue, 1178, 1179, 1583. RECEIVERS IN BANKRUPTCY PROCEEDINGS accounts, 235. objections, 235. surcharging of, 234, 235. actions against, 237. not condition precedent to suit against trustee, 1132, actions by, 236. cannot sue outside district, 212 (n63). form of petition for substitution of trustee, 1787. security for costs, 1166. adjustment of claims, 216, adoption of bankrupt 's contracts, 214. allowance for attorney's fees, 1321, 1324. Index 1667 [befebences are to sections] RECEIVERS IN BANKRUPTCY PROCEEDINGS— continued, ancillary proceedings, 13, 198, 241, 242. appealable orders in receivership proceedings, 1636, 1641. application for. form, 1702. appointment. appeal and review, 206, 1636, 1641. application, notice and hearing, 203. bond of petitioners, 204. form of order, 1704. mandamus to review, 206, 1644. power to appoint, 18, 198, 329. propriety, 201. upon re-opening of estate, 1432. authority cannot be attacked collaterally, 207. authority outside district, 212, 236. bankrupt must assist, 417. bond. form, 1705. claims against, 217. compensation and expenses. allowance of expenses, 224. appraiser's fee, 235. discretion of court, 229. effect of dismissal of proceedings, 230, 240. extra compensation, 232. for care and preservation of estate, 226. for continuation of business, 227. for examination of books, 228. insurance, 235. jurisdiction to determine, 225. notice of application, 233. notice of hearing for fixing allowances, 1330. priority of claim for, 1356. withholding of, 231. contempt of, 234, 1592. costs of receivership in ease of dismissal, 306, 307, 308. effect of bankrupt's insanity, 390. employment of attorney, 219. estoppel to question appointment, 205. examination of bankrupt, 215. intervention in suits against bankrupt, 1089. liability on contracts, 214. liability on leases, 214. may apply for examination, 471. may assign lease, 214. may borrow money, 218. not a bona flde purchaser, 210 (n57). not proper party to action to set aside conveyance, 1143. notice of application for. form, 1703. 1668 BeANDENBUEG on BANKEUPTCr [BEFEBEKCES ABE TO SECTIONS] EBCBIVERS IN BANKRUPTCY PE0CEEDING8— continued, payments and deposits by, 218. may be ordered restored, 1179. personal responsibility for acts, 237. priority of claim for attorney's fees, 1358. priority of claims against, 1358. priority of claims of, 1347, 1357, 1358. property subject to seizure, 202. receiver 's certificates. nature of, 218. right to priority, 1358. removal and discharge, 238. appointment of trustee, 241. dismissal of proceedings, 240. fraud or interest, 239. sales by, 220. contempt of purchaser, 1593. surrender of bankrupt's books to, 222. surrender of property by, 223. surrender of property to, 221. form of petition, 221. title, 213. EECEIVEES IN STATE COTJETS appointment cannot be collaterally attacked, 19. appointment in supplementary proceedings, 876. appointment of, as act of bankruptcy, see Acts of Bankruptcy. claims for negligence of, 570. contempt of, 1592. creditor participating in proceedings, cannot be petitioning creditor, 136. effect of bankruptcy proceedings, 20, 898, 1061. may appear for corporation, 177. may be examined, 466. may contest adjudication, 175. may make proof of claim, 596. may prove claim to enforce stockholder's liability, 563. priority of claims of, 1357. provability of claims of, 511. receivership as affecting priority of claims, 1357. right to possession. as against receiver in bankruptcy, 202, 898. not affected by proof of claim, 671. seizure by, as a preference, 949. surrender of property. petition to require, 221. stay of sale by, 1061. RECEIVEESHIP not equivalent to insolvency, 40. RECEIVING PROPERTY FROM BANKRUPT an offense, 1616. form of Indictment, 1840. Index 1669 [beferekces ase to sections] RECLAMATION OF PROPERTY by bankrupt, 419. \ by vendor, 844, not a preference, 962. form of petition, 1779. proceedings referred to special master, 321. title to goods conditionally sold, 768. RECOGNIZANCES effect of discharge on liability on, 1554. provability of claims based on, 514. RECONSIDERATION OF CLAIM see Claims Against Bankrupt Estate. RECORD cannot be impeached without notice, 351. RECORD OF TITLE bankruptcy does not dispense with necessity of recording lien, 866. liens properly recorded are valid, 867. mortgage may be recorded within four month period, 869. necessity in case of real estate mortgage, 915. time of recording as affecting preference, 948. want of record. as affecting chattel mortgage, 904. as affecting provability of claim, 535. as affecting validity of lien, 866. as affecting validity of transfer, 796. priority of unrecorded liens, 1398. RECORDS OF REFEREE as evidence, 351. preparation and preservation, 350. REDEMPTION by trustee, 724, 726, 872. form of petition and order, 1800. jurisdiction of proceedings, 1101. sale of right of, 876. RE-EXAMINATION of claims. See Claims Against Bankrupt Estate. REFEREES appointment, 311. in case of vacancy, 313. notice, 314. who may appoint, 312. bond required, 318. form, 1715. certificate to judge. form, 1719. 1670 Bbandenbtjkg on Bankbxjptcy [refeeencbs aee to sections] EEFEEEES— continued, compensation and fees. commissions, 370. extra compensation, 371, 375. filing fees, 363. in pauper cases, 369. review of allowance, 374. where reference revoked, 373. conclusiveness of findings and orders, 353, 1137. contempts before, 504. creation and nature of office, 309. districts, 310. expenses, 364. account of, 367. exceptions to charges, 368. indemnity, 365. manner of payment, 367. stenographic and clerical help, 366, 501. judicial notice of decrees, 325. jurisdiction, 324. appointment of receiver, 329. cannot determine issues presented by .original pleadings, 253. cannot modify or set aside court's order, 325. collection of assets, 331. compositions, 334. consent will not confer, 326. costs and fees, 336. discharges, 334. dismissal of petition, 328. injunctions, 333. not lost by composition offer, 334. over adverse claimant, 330. over contempts, 1596, 1600. sale of property, 332, 1256. seizure and release of property, 329. stay of proceedings against bankrupt, 1041. surrender of preference, 331. territorial limits, 327. to set aside fraudulent conveyance, 1096. waiver of objections, 338. notice of decisions, 348. number, 310. oath of office, 317. form, 1714. offenses by, 1620. officers of the court, 309, 325. order of reference. forms, 1712, 1713, 1759, 1820. orders of, 348. collateral attack, 348. setting aside, 348. Index 1671 [BSrEBENCES ABE TO SECTIONS] REFEREES— eontinued. powers and duties. adjournment of creditors' meetings, 437, 454. cannot issue subpoena, 146. in case, of compositions, 1197,, 1214.. may administer oaths, 335, 459, 501. may allow amendments to petition, 165, 169. may appoint appraisers, 1279. may determine attorney's fee, 1316. may employ stenographer, 501. may hear application for compromise, 1192i • may pass on application to amend- schedules, 406. may pass on objections to claims, 652. must furnish information, 325, 344, 345. must give notices, 342. must pass upon accouiits, 346. must return petition, where insufficient, 156. on hearing for discharge, 1466, 1472. presiding at first meeting, 340, 438. with reference to dividends, 341. with reference to examinations, 504. with reference to schedules, 343, 344. preservation of evidence, 350. qualifications, 315. records. as evidence, 351. preparation and preservation, 350. removal, 319. review of order by petition, 1653. reports. form, 1717. semi-annual reports, 352. review of decisions. action of district court, 359. by referee himself, 360. certification of hypothetical questions, 362. effect of appeal, 361. form of petition, 1718. no appeal for referee's action, 1635. practice, 356. scope of review, 358. time of application, 357. what decisions reviewable, 355. where re-examination of 'claim refused, 663. who may apply, 355, 356. summary jurisdiction, 1167, 1174, 1177. findings in summary proceedings, 1185. tenure of office, 316. , transfer from one referee to another, 32J, 323. form of petition, 1716. use of mails, 347. violation of order of, as contempt, 1580. 1672 Bkandenbubg on Bankbuptcy [BEFEBENCES ABE TO SECTIONS] BEFEEENCE after adjudication, 321. before adjudication, 320. clerk may make, 320. special reference, when superseded, 320. change of, 321. clerk may make order, 30. form of master's report, 1821. form of order, 1820. in discharge proceedings, 1466. in summary proceedings, 1183. of proceedings to vacate discharge, 1515. order of, 322. re-reference. review of order, 1652. EEFOEMATION of defective mortgage, 915. to enable creditor to join in petition, 181. BEHEAEING before referee, when not allowed, 357. in bankruptcy proceedings proper, 260. in circuit court of appeals, 1649. to revive right of appeal, 260, 1645. EEINSTATEMENT OF PETITION" after dismissal, 285. EELATIVE8 conveyance to, as act of bankruptcy, 46. not counted in determining number of petitioning creditors, 124. provability of claims of, 535. validity of conveyances to,- 797. BELEASE creditor releasing mortgage by mistake, reinstated, 915. fraud vitiates release of claim, 535. of liens, 871. EEMAINDEE failure to schedule, as an offense, 1611. EEMANDING CASE district court may remand case to referee, 359. BENT as an expense of administration, 1340, 1366, 1392. discharge as release of liability for, 1564. paid before exemption set apart, 1028. payment of, as preference, 959. priority of claim for, 1392. in case of waiver of exemptions, 1036 (n3). BENT — eontinued. provability of claim, 546, 570. rent of personalty, 525. right to rents and profits. building and loan association, 849. in case of composition, 1234. in case of fraudulent conveyance, 847. in case of general assignment, 848. in case of mortgage, 846. stay of sale of goods distrained, 1067. trustee not personally liable for, 737. ■what constitutes, 1392. EE-OPENING OF ESTATE after confirmation of composition, 1230. appointment of receiver, 1432. form and sufficiency of petition, 1431, 1836. general rules, 1428. jurisdiction, 24. limitations and laches, 1430. re-election of trustee, 698. time for filing claim, 606. to permit proof of claim, 606, 664. when not allowed, 1569. who may petition, 1429. REPEAL OF BANKRUPTCY LAW effect upon state insolvency laws, 7. REPLEVIN abandonment by surrender of property, 221. action may be enjoined, 876. after appointment of receiver, 210. answer of trustee. form, 1796. before appointment of receiver or trustee, 209. plaintiff's right to a dividend, 1411. seizure under writ as a contempt, 1584. seizure under writ is voidable, 894. stay of suits, 1062. trustee may recover goods replevied, 1119. writ cannot issue after adjudication, 1043. REPLICATION necessity, 182. REPORTS of referee, 352. of trustee, 721. RES ADJITBICATA adjudication of bankruptcy, 648. decision on claim, 549. judgment of state court, 649. Index 1673 [BEFEBENOES ABE TO SECTION'S] , 1^74 Beandbnbueg - on Bankeuptoy [EEPEBENOES ABE TOlSliCTIOKS] RESCISSION by seller of personalty, 844, 922, 923. BESIDENCE allegation of, 156. as affecting juisdietion, 14, 15, 16. distinguished from domicile, 15., length of, required, 16. need not be alleged by trustee, 1153. not affected by temporary absence, 15. EETEOACTIVE EFFECT OF BANKRUPTCY LAW, 7. EETUEN OF PROCESS, 148, 149. EETTJEN OF PROPERTY court may compel, 1179. REVENUE LAW establishes rule of evidence, 479. provability of unstamped note, 517, 522. ROYALTIES , provability of claim, 546 (n81), 561. RULES IN BANKRUPTCY power to make, 18. SAFE bankrupt must disclose combination, 416. SALARY see Wages and Salary. SALES bankruptcy may enjoin third person, 1040. by insolvent, as act of bankruptcy, 50. effect of proof of claim for purchase price, 672. jurisdiction to determine title to property sold, 9 (n21). of property in possession of adverse claimant, enjoined, 876, of property under decree of state court, enjoined, 876. of securities. in general, 637., purchase by creditor, 638. out of due course. as fraudulent transfers, 795. priority of claim of unpaid vendor, 1399. provability of claims based on sales of personalty, 525, 530. claim for rent, 546. rescission as affecting claim, 570. ,.''*.". t. • , ■• purchaser prior to bankruptcy as adverse claimant, 1170^. reclamation by vendor, not a preference, 962; Index - 1675 / [eefeeences are to sections] SALES — continued. return of property to vendor, not a preference, 927. seller not a secured claimant, 630. stoppage in transitu, 924. taking possession under contract of purchase as preference, 966. title to property purchased prior to bankruptcy^ 844. title to property sold prior to bankruptcy, 850. to bankrupt. trustee necessary party to action to rescind, 1081. trustee proper party to attack fraudulent, 861. vendor's lien, 921. SALES IN BANKRUPTCY PROCEEDINGS ancillary jurisdiction, 1254. appealable orders, 1636. bankrupt to execute papers, 1294. by receiver, 220. confirmation and setting aside. appeal and review, 1291. grounds for setting aside," 1290. inadequacy of price, 1290. manner of making objections, 1289. necessity of confirmation, 1286. notice of application, 1287. parties entitled to be heard, 1288. want of notice as ground, 1290. contempt of purchaser, 1593. distribution of proceeds. as between creditors, 1304. deduction of payments by bankrupt, 1306. expenses, fees and costs, 1307. form of order, 1808. in partnership cases, 553. interest on secured claims, 1305. duty of trustee, 727. effect of sale. sale of lease, not a breach of covenant, 1311. upon dower rights, 1310. ■ •' ' upon liens, 1309. forms of petitions and orders, 1799, 1801, 1802, 1803, 1804. jurisdiction and powers of referee, 332, 1256. jurisdiction of state courts, 1255. lien on proceeds, 1283. liquidation without sale, 1257. notice of sale, 1309. of exempt property, 1036. exemptions in property not paid for, 1020, 1024, 1030. jurisdiction of court, 9 (n9). of incumbered property, 876. procedure. appraisal, 1279. auctioneer, 1278, 1283. 1676 Bbandenbueg on Bankbuptcy [BEFEBENCES ABE TO SECTIONS] SALES IN BANKRUPTCY PROCEEDINGS— continued, procedure — continued. bids and acceptance thereof, 1284. general rules, 1276. notice of sale, 1278. order of court, 1276, .1277. place of sale, 1281. private sales, 1278. sales -in parcels and in bulk, 1282. time of sale, 1279, 1280. property which may be sold, 1260. interest in real estate, 1264. perishable propertjr, 1278. report of. form, 1807. resale by trustee, 1292. review of orders by petition to revise, 1652, 1653. rights, duties and liabilities of purchaser. application of liens to purchase price, 1297. payment of taxes and water-rents, 1299. performance of contract, 1296. recovery for deficiency, 1300. removal of fixtures, 1302. resale to bankrupt, 1301. sale free from dower, 1272. sale free of liens, 9, 1270. sale pending composition proceedings, 1258. special appearance by pledgee. form, 1805. stipulation for sale. form, 1806. title of purchaser, 1298. trustee to make conveyances, 1293. SALESMAN defined, 1370. may be wage-earner and exempt from act, 96. priority of claims for wages, 1369. SCHEDULES amendment, 343, 406. to claim exceptions, 993. admissibility in evidence, 409, 1162. in criminal proceedings, 1628. on issue of solvency, 936. duty of referee, 343, 344. effect of including claim, 407. not equivalent to proof of claim, 617. errors and omissions in, 405, 410, 606. as an offense, 1611, 1612, 1614. as bar to discharge, 1496, 1501. Index 1677 [BEFEBENOES ABE TO SECTIONS] SCHEDULES — continued. errors and omissions in — continued. as ground for revoking discharge, 1510. discharge from debts not scheduled, 1969. failure to file is a contempt, 1586. false oath to. as an offense, 1612. as bar to discharge, 1488. form and contents, in general, 400. assets to be listed, 402. creditors and claims listed, 403. giving names and addresses of creditprs, 1569. oflSeial forms, 1670-1681. partnership cases, 399. scheduling assigned claims, 1569. in composition proceedings, 1199. necessity of filing, 398. in partnership cases, 399. preparation, 344. relation to composition proceedings, 410. review of orders respecting, 1652. use before grand jury, 409, 1624. verification, 401. need not be separately verified, 184. SCHOOL TEACHER failure to keep books as bar to discbarge, 1489. liability for assault not discharged, 1560. SEAL notary public must use, 614. upon acknowledgments, 463. upon subpoena, 473. SECURED CLAIMS proof of, 629. See, also. Proof of Claims. provability, 562. what are, 630. SECURED CREDITORS see Proof of Claims. claims counted in determining sufSciency of petition, 134. right of set-off, 584. right to vote, 451. rights in case of composition, 1203, 1232. waiver of security, 639. SECURITIES creditor releasing, is liable for loss, 573. determination of value, 636. sale of, 637. 1678 Bbandenbukg on Bankkuptcy [BEFESENCES ABE TO SECTIONS] 8ECUEITY FOB COSTS suits by receivers, 236. trustee required to give, 1090. SEDUCTION liability for, not released by discharge, 1561. provability of judgment for, 542. stay of proceedings in state court, 1051. SEIZUEE OP PROPERTY see Provisional Seizwre of Property, Beceivers in Bankruptcy. SEQUESTRATION pending suit by trustee, 1147. SERVANTS see Salesman, Wages And Salary. ■■ ' defined, 1370. payments to, not preferences, 942. priority of claim for wages, 1369. SET-OFFS AND COUNTERCLAIMS aflarmative judgment cannot be rendered on, 1165. against dividends, 1411. against preferential transfers, 982. against usurious note, 585. between banker and depositor, 582, 587. by married woman, 583. claims against receiver or trustee may be used, 573, 578. claims barred by limitations, not available, 576. claims must be provable, 574. claims must not be purchased in view of bankruptcy, 579. claims need not be of same nature, 580. ' claims not filed within statutory time may be used, 576. costs may be used, 577. estoppel to plead,' 588. ' foreign attachment, 586. in case of composition, 573. joint and separate debts, 581. mutual debts and credits, 572 et seq. must be in same right, 578. provability, 541. -.■ review of orders by petition to revise, 1652. right of, as affecting validity of preference, 940. •' secured and preferred creditors, 584. time and place of, 589. unliquidated damages, 575, 580. waiver, 587. SETTLEMENT OF ESTATE plan not authorized, 1189. • Index 1679 [BErERENCES ARE TO SECTIONS] SHERIFF as adverse claimant, 1170. may prove claim for fees, 529. priority of claim for fees, 1381. proper defendant in suit to recover property, 1145. SICKNESS excuses attendance at meetings, 393. SOLVENCY see Insolvency. as a defense, 55. SPECIAL MASTERS 6ee, also, Beferees. compensation, 375. not appointed to do business of referee, 321. powers and duties at examinations, 504. powers and duties on hearing for discharge, 1466; 1472. reclamation proceedings referred tOj 321. reference to, in summary proceedings, 1183; SPECIFICATIONS of objections to discharge. See fiischa/rge. STATE as petitioning creditor, 130. lien acquired by, is voidable, 888. priority of claims of, 1394. STATE COURTS acts binding federal courts, 1109. appeals to federal supreme court, 1660. cannot abridge right to become bankrupt, 58. cannot administer bankrupt's estate, 1044. cannot enjoin commission of act of bankruptcy, 53. cannot enjoin officers of bankruptcy court, 1043. decisions not binding, 1109. jurisdiction. over exempt property, 985. over lien claimants, 9. over sales, 1355. over suits by and against trustee, 1104. when trustee cannot urge want of jurisdiction, 1109. must obey bankruptcy law, 1108. . STATE INSOLVENCY PROCEEDINGS effect of bankruptcy upon, 7, 1061. STATE LAWS determine right to exemptions, 988. determine title to property, 758. determine validity of lien, 904, 909, 912, 914, 918. ' "" ' 1680 Beandewbtjbg on Bankexjptct [BEFEBEKCES ABE TO SECTIONS] STATE LAWS— continued, insolvency laws. allowance under, may be exempt, 995. California Building and Loan Commissioners' Act, 7 (n45). constitutionality, 7. •extent to which superseded, 7. may be enacted, amended or repealed, 7. persons excepted from bankruptcy act are subject to, 7. repeal of bankruptcy law, effect of, 7. validity in absence of bankruptcy law, 7. STATISTICS OF BANKRUPTCY PROCEEDINGS preparation, 36. STATUTE OF LIMITATIONS see Limitations, Statute of. STAY OF PROCEEDINGS in bankruptcy court, 1148. pending appeal to supreme court, 1668. in state court. See Actions Against Bankrupt. bankruptcy court may stay proceedings on execution, 876 bankruptcy proceedings act as supersedeas, 9. form of motion, 1783. form of order, 1785. STENOGRAPHER employment of, by referee, 366, 501, 504. STOCK EXCHANGE sale of, 1294. title to seat, 843. STOCKHOLDERS see, also. Corporations. cannot act as trustee, 688. cannot contest sale of assets, 1288. cannot defend in behalf of corporation, 175. cannot move for reconsideration of claim, 663. cannot require trustee to answer a petition, 738. complaint against withdrawing. form, 1795. may become petitioning creditor, 125. may object to claims, 653. postponement of claims of, 1395. stay of suit by, 1064. STOCKHOLDERS' LIABILITY a provable debt, 563, 570. claim should be liquidated, 570. complaint to enforce, forms, 1794, 1795. Index 1681 [BSFXBENCES ABE TO SECTIONS] STOCKHOLDERS' LIABILITY— continued. order requiring stockholders to show cause, 1793. petition for assessment, 1792. effect of discharge upon, 1533. enforcement of, 735, 1125. cannot be enforced in summary proceeding, 668. how listed in schedules, 1569. judgment creditor in suit to enforce, may be petitioning creditor, 127. nature and extent, 1125. trustee's right of action, 1125. STOCKS AND BONDS title to, 851. STOLEN GOODS restoration of, not a preference, 963. STOPPAGE IN TEANSITU nature and extent of right, 924. not a preference, 965. SUBCONTKACTOE as petitioning creditor, 132. lien of. See Mechanic's lAen. SUBPOENA see, also. Process. form of, in general, 145. to alleged bankrupt, 1691. to witness, 145, 1691, 1750. marshal's return. form, 1750. non-issuance of, as affecting adjudication, 296. seal, 473. when returnable, 473. who may issue, 146, 473. SUBPOENA DUCES TECUM, 503. SUBE06ATI0N of assignee of claim, 596. of creditors of partner, 1439. of indorser, surety or guarantor, 519, 597. of mortgagee in case of mistake, 915. of person compelled to pay bankrupt's debt, 597. of trustee, 860. in case of redemption, 724. to rights of lien creditor, 896. to rights of mortgagee, 634. petition for. form, 1777. right of creditor paying secnred debt, 873. right of surety, 873. Brandenburg — 106 168S Brandenburg on Bankruptcy [REPEEENCES ABE TO SECTIONS] STJBSCEIPTION discharge as release of liability, 1556. payments may be returned, 842. provability of claims, 527. right of set-off, 578. trustees' right of action, 1125; unpaid subscriptions are property, 724. SUBSTll'TJTION OF SECURITIES not a preference, 943. SUMMARY PROCEEDINGS against non-residents, 1173, appealable orders, 1636, 1641. consent of adverse claimant, 1172. general test of jurisdiction, 9, 1168. . jurisdiction of referee, 1174. jurisdiction over adverse claimants, 9. review by petition to revise, 1652. sale of property in possession of adverse claimant, 1269. to compel completion of contract, 1175. to compel surrender of property. against assignee or receiver, 898. answer to order to show cause, form, 1780. application of petition, 1180, 1772. demurrer, 1181. evidence, 1184. jurisdiction, 1177. jury trials, 1184. notice of hearing, 1182. order, 1185. form, 1775. propriety of order to turn over assets, 413. reference, 1183, 1185. to determine reasonableness of advancement to attorney, 983, to determine title to land, 1176. to diminish or expunge claim, 668. to enforce stockholder's liability, 668. SUNDAYS AND HOLIDAYS excluded in computing time, 947, 994, 1449, 1645. holiday defined, 947. SUPERSEDEAS form of order allowing, 1848. petition to review referee's decision, not a, 361, upon appeal to supreme court, 1668. SUPPLEMENTAL PETITION by bankrupt, after discharge, 1429. SUPPLEMENTARY PROCEEDINGS ■'■■■'■ may be stayed, 1057. Index 1683 [BEFEBENOES ABE TO SECTIONS] SUPPORT AND MAINTENANCE see, also, Hushand and Wife. effect of discharge on liability for, 15S4. provability of claim for, 536. provability of judgment for, 542. SUPREME COURT see Appeal and Review. SURETY as adverse claimant, 1170. as creditor, 43, 51 (n6). as petitioning creditor, 130. cannot receive preference, 927. discharge as release from liability as, 1543, 1554, 1557, 1566. discharge as releasing liability to, 1567. may be charged by special judgment notwithstanding discharge, 1543. not a secured claimant, 630. not released by composition, 1233. on note, proof of claim by, 634, . on ofScial bonds. corporation may be, 318. on partnership note, claim of, 556. proof of claim by, 597. provability of claim of, 519. right of set-off, 575. subrogation, 597, 873. SURRENDER OF PREFERENCE see Preferences. SURRENDER OF PROPERTY form of application for order, 1772. power to compel, 18. summary proceedings to compel,, 1177. T TAILOR priority of lien, 1390. TAXES interest on, 569, 1418. lien of, 919. marshaling of assets in paying, 1350. not released by discharge, 1551. on exempt property, 1038, 1353. payment by trustee, 731. payment of, in partnership proceedings, 1437. penalties and interest allowed, 1350. priority of claim for, 1347, 1349, 1397. production of tax statement, 503. 1684 Bbandenbubg on Bankbupicy [BEFEBENCES ABE TO SECTIONS] TAXES— continued. provability of claim for, 569. provability of landlord's claim for taxes paid, 548. purchaser of property is liable for, 1299. state court will not enjoin collection, 1043. taxation of property after bankruptcy, 762. time of filing claims for, 606. what are, 1351. who may claim priority, 1351. TEAMSTER exempt from provisions of act, 96. priority of claim for wages, 1370. TENANTS IN COMMON ' claims for rent, 546. rights of trustee of, 1112. TENDER as condition precedent to trustee's right of action, 1130. TERMS OF COURT court always open, 25. court may act in vacation, 25. no regular terms, 25. TIME computation, 606. four month period, 869, 870, 947. in determining jurisdiction, 21. rules governing applications for a discharge, 1449. Sundays and holidays, 148, 947, 994, 1449, 1645. for liling petition, 54, 163. ' for making proof of claim, 606. fraction of day considered in determining priority, 1377. TITLE TO LAND cannot be determined on afSdavits, 1176. TITLE TO PROPERTY see Property of Bankrupt. TOOLS AND IMPLEMENTS exemptions, 1012. TORT by partner, as provable claim, 556. chose of action in, does not pass to trustee, 765. judgment for, provable, 541. liquidation of claim, 570. TOWAGE priority of lien for, 1388. Index 1685 [BETERENCES ABE TO SECTIONS] TOWNSHIP may be sued for fraudulent transfer, 1144. TRADE CERTIFICATES issued hj bankrupt corporation, provability, 565. TRADING CORPORATION what constituted under law prior to 1910, 73. TRANSFER OF CASES from one district to another, 27. greatest convenience of parties, 27. in, case of partnership, 27. review of order by petition, 1653. several petitions against same debtor, 27, 247. from one referee to another, 321, 323. from state court to federal court, 1040. TRANSFER OF PROPERTY see Fraudulent Transfers, Preferences. as bar to discharge, 1496. what constitutes, 785, 952. TRESPASS ON THE CASE to recover for appointment of receiver, 303. TROVER discharge not a defense, 1549. TRUCKMAN priority of lien, 1390. TRUST DEEDS see, also, Chattel Mortgages. as fraudulent conveyances, 800. validiiy as affected by bankruptcy, 902. TRUST FUNDS can be rebovered from receiver, 210. retention of, not a preference, 964. title to, 852. validity of lieu upon, 920. TRUSTEE IN BANKRUPTCY acceptance or rejection of trust. form, 1730. accounts and reports, duty to make, 721. failure to file as contempt, 1591. final account. form of notice, 1736. form of oath, 1735. form of account, 1734. 1686 BeANDENBUES ,0N BANKEtrPTCY [references are to sections] TBXJSTEB IN BANKRUPTCY— continued, accounts and reports — continued. open to inspection, 723. order allowing, form, 1737. a competent witness, 466. actions against. See Actions Against Trustee. actions by. See Actions hy Trustee. acts cannot be collaterally attacked, 23. additional trustees. election, 696. majority must concur, 717. ancillary trustee. by whom appointed, o76. an officer of the court, 713 appointment. appointed at first meeting, 441. form, 1727. by judge or referee, 683. form, 1728. effect of composition, 678, 1227. effect upon receivership, 241. notice of, 684, 1481. form, 1729. when unnecessary, 678, bond, 690. form, 1731. liability under, 737, 738. order approving bond, form, 1732. must be recorded, 741. cannot attack his trust, 715. cannot be enjoined by state court, 1043. compensation. apportionment between several trustees, 710. attorney's fees, 705, 709. commissions for continuing business, 707. commissions in general, 706. commissions where composition confirmed, 708. effect of no assets, 703. expenses, 705. extra compensation, 709, 1324. fees, 704. is not salary or wages, 1025. procedure to procure, 712. withholding compensation, 711. compromise of claims, 1186. contempt of, 1591. corporation as trustee, 689. creditors must act through, 716. deposit and payment of money, 728. Index 1687 [bepebences are to seoIions] TEUSTEE IN BANKRUPTCY— continued, discharge. form of order, 1737. does not become tenant in common, 1112. duties. accounts and reports, 721, 1591. filing decree of adjudication, 719. defense of suits against bankrupt, 1079. ' in respect to exemptions, 732, 994. in respect to sales, 727. must collect and reduce estate to money, 724. must furnish information, 723. preparation of inventory, 720. where composition proposed, 715. effect of failure to file decree of adjudication, 741. election. approval of creditor's choice, 682, 685. at first meeting, 441, 447. by minority creditors, 454. in partnership cases, 677. interference by bankrupt, 686. postponement, 437, 448, 454, 456. time of, 680. employment of attorney, 734.' ' ^ allowance for attorneys, 1323. evidence of election and qualification, 1162. execution of deeds, 1293. expenses. review of orders relating to, 1652. fiduciary relation to bankrupt and creditors, 714. has powers of board of directors, 718. in partnership cases, 677. judgment against, 544. cannot be enforced by levy, 864. is provable claim, 544. liability of trustee and sureties, 736. for costs, 1085, 1090. for interest, 730. may be compelled to act, 716. may be examined, 467. may be subrogated to rights of lien creditor, 896. may complete bankrupt's contracts, 725. may contest dismissal, 283. may intervene in bankruptcy proceedings against another, 138. may intervene in foreclosure suit, 724. . ^. , , ,j,,., . ,', may object to claims, 653. may oppose discharge, 1454. may petition for re-examination of claim, 663. may prove claim against another bankrupt^ 628, 724. may redeem property, 724; ' • • ■ ' • may refusQ tP take possession of property; 760.- 1688 Bbandenbueg on Banketjptct [BEFXBENCES ABE TO SECTIONS] TBUSTBB IN BANKEUPTCY— continued, no official or general trustee, 675. not a bona fide purchaser, 748. notice of acceptance of trust, 684. notice of appointment, 684. effect of failure to publish, 1481. offenses by, 1621. order that no trustee be appointed. form, 1733. payment of dividends, 733. payment of taxes, 731. powers limited, 713. proper party to appeal, 1637. proper party to attack liens, 861. proper party to enforce lien creditor's rights, 860. prosecution of actions, 1090. qualifications,, 685. redemption of property, 724, 726, 872. removal. for cause, 700. for failure to file report, 721. form of notice, 1739. form of order, 1740. form of order appointing successor, 1741. form of petition, 1738. review of order, 1652. representative character need not be alleged, 1090. right to apply for re-opening of estate, 1429. title to property. See Property of Barikrupt. cannot be collaterally attacked, 23. in general, 724. title under amendment of 1910, 859. vacancy in of&ce. death of trustee, 698. effect of, 701. failure to give bond, 694. resignation or abandonment of oflSce, 699. upon re-opening of estate, 698. when vacancy exists, 698. TKUSTEB PE0CES8 see Garnishment. funds in hands of trustee, not subject to, 864. TEUSTS income under, may be exempt, 995. priority of claims of cestui que trust, 1379. title to property held in, 852-853. trust property cannot be reached by suit in bankruptcy court, 1099. trustee as a secured claimant of cestui que trust, 630. trustee in bankruptcy may enforce liability under, 1112, 1115. trustee of lien claimants as adverse claimant, 1170. Index 16S9 [betebences ase to sections] u ULTRA VIRES see Corporations, UNINCORPORATED COMPANIES may be adjudicated, 92. UNITED STATES debts to, not released by discharge, 1551. priority of claims of, 1370, 1397. in partnership proceedings, 1438. provability of claims, 514, 668. time for filing claims, 606. title to claims against, 854. UNITED STATES COMMISSIONER may administer oaths, 459. UNLIQUIDATED CLAIMS availability as set-off, 575, 580. effect of discharge, 1568. holder cannot be petitioning creditor, 132. liquidation, 570. before answer, 133. may be used as set-off, 575. provability, 570. time for filing, 606. USURY burden of proof, 570. claim for usurious interest passes to trustee, 765. provability of usurious contract, 571. set-off against usurious note, 585. trustee should plead, 915. trustee's right of action on contract, 1126. V VARIANCE in actions by trustee, 1156. in bankruptcy proceedings proper, 482. VENDOR AND PURCHASER assignment of contract as a preference, 955. court may compel completion of contract by trustee, 1175. priority of claim of unpaid vendor, 1399. provability of claim of vendor, 526. trustee may sue for breach of contract to convey, 842. vendee in bond is secured claimant, 630. VENDOR'S LIEN effect of discharge, 1532. enforcement against exempt property, 1030, 1036. validity and extent, 921. waiver, 922. 1690 Bbandenbukg on Bankruptcy [references abb to sections] VENUE change of, 244. in case of several petitions, 247. wrong venue, as ground for collateral attack, 296. VEEDICT conclusiveness, 268. construction of general verdict, 1164. , does not render claim provable as judgment, 541. VEBIFICATION answer may be verified on information and belief, 188. by whom made. agent, attorney or partner, 186. form, 1685. in case of corporation, 185. defect may be cured by amendment, 187. defect may be waived, 186, 187. insufSeiency, effect of, 187. may constitute false oath, 1612. necessity in general, 184. to objections to discharge, 1463. to petition in bankruptcy. amendment, 169. form, 462. to petition to set aside composition, 1246. to proof of claim, 614. to schedules, 401. VOLUNTAEY ASSIGNMENT see Assignment for Creditors. VOLUNTAEY PETITION allegations, 115. by partnership or members. form and allegations, 190, 1669. necessity of petitions, 191. creditor cannot oppose, 175, 181. form, 1669. joint petitions cannot be filed, 114. must be based on provable debt, 111. not grounds for dismissing involuntary proceedings, 279. pendency of, as affecting subsequent proceedings, 113. who may file, 110. withdrawal, 115. VOLUNTAEY PEOCEEDINGS see Voluntary Petition. creditor cannot compel institution, 58, 112. creditor cannot contest, 175, 181. effect of involuntary proceedings, 58, 249, 300. hearing, 269. suspension of, to expedite involuntary proceedings, 249. Index 1691 [EBFEBENOES ABE TO SECTIONS] VOTING AT CEEDIT0E8' MEETINGS assigned claims, 450, 454, 457. at composition meetings, 1202. by attorney, agent or proxy, 454. change of vote, 455. creditor must own provable and allowed claim, 448. fraudulent voting, 453. individual and partnership creditors, 449, 451. majority required, 457. objections to claims, 440, 456. power of attorney should be file(J, 350. relatives may vote, 452. secured, priority and preferred creditors, 451, 456. stockholder may vote, 452. W WAGE-EAENEE defined, 96. exempted from provisions of act, 96. WAGES AND SALAEY assignment of. assignee as adverse claimant, 1171. assignee enjoined from collecting, 1058. effect upon right to priority, 1375. right of assignee to wages after bankruptcy, 1528. summary jurisdiction over assignee of, 1171. validity of assignment of, 899. claim should be liquidated, 570. discharge in bankruptcy as affecting right to, 1527. exemptions cannot be claimed as against claim for, 1025. payment of, as a preference, 959. by assignee, 510. priority of claims for, 1347, 1348, 1369. application of payments, 1373. effect of assignment, 1375. effect of discharge by employer, 1371. effect of judgment, 1375. general rules, 1370. priority of lien, 1389. priority under state law, 1374, 1377. wages subsequent to bankruptcy, 1372. proof of claim for, 609 (n88, 91). provability of claims for wages and salary,' 524, 536. wife of bankrupt, 536. title to wages and salary earned by bankrupt, 855. WAIVES of discharge, 1572, 1573. of lien, 631, 871. of priority of payment, 1402. 1692 Beandenbueg our Bankbuptoy [BEFEBENCES ABE TO SECTIONS] WAREHOUSE CHARGES discharge as a release, 1570. WAEEHOtJSE RECEIPTS nature, 918. validity of transfers of, 918. WAREHOUSEMAN payment to, as preference, 922. WARRANT OF ATTORNEY entry of judgment on, as a preference, 949. WARRANTY claims for breach of, 525, 570. WATCHMAN receiver must pay, 226. WATER RENTS purchaser liable for, 1299. WEARING APPAREL exemptions, 1012. WHO MAY BECOME A BANKRUPT excepted classes are subject to state laws, 7, exempted occupations. corporations not included, 94. farmer's wife not exempt, 95. farmers and tillers of soil, 95. in case of partnership, 94, 109. married woman not included, 06. music teacher not included, 96. officer of corporation, 96. salesman, 96. teamster, 96. time of act of bankruptcy controls, 94. wage-earners, 96. history of laws, 66. involuntary bankrupts, aliens, 69. amount of assets and liabilities required, 68. banks and bankers, 70. corporations. admission of insolvency, 84. business conducted through agent, 82. consent adjudication, 85. corporation engaged in farming, 80. effect of dissolution proceedings, 52, 83. moneyed, business and commercial corporations, 80. prior to amendment of 1910, 71. estates of decedents, 86. Index 1693 [REITERINOGS are to SEOTIONd] WHO MAT BECOME A BANKEUPT— continued, involuntary bankrupts — continued. executors and administrators, 86. Indians, 62. indorsers, 90. infants, 88. insane persons, 90. married women, 91. unincorporated companies, 92. partnership and members. consent adjudication, 101. creditor cannot compel institution of proceedings, 99. death or insanity of partner, effect of, 103. dormant partner, 106. effect of dissolution, 102, 103, 107. good faith of petitioner, 100. jurisdiction in general, 97. minority of partner, effect of, 107. nominal partner, 106. period during which adjudication may be had, 102. solvent partner, 108. special partner, 105. state court cannot abridge right, 59. statute liberally construed, 72. voluntary bankrupts. aliens, 59. corporations. authority of directors, 60. municipal, railroad, insurance and banking corporations, excepted, 60. discretion of congress, 59. farmers, 61. Indians, 62. indorsers, 89. infants, 63. insane persons, 64. married women, 65. WIDOW OF BANKRUPT allowances upon death of bankrupt, 381. WIPE see, also, Eushand and Wife, Married Women. of bankrupt. concealment of conveyance to, as an offense, 1611. duty to turn over money or property, 1179. effect of husband's discharge, 1571. entitled to witness fees, 506. may be adverse claimant, 1170. may be examined, 467. may be scheduled as creditor, 403. 1694 BBANDENBUBGf ON BaNKEUPTCY [BSFEBENCES ABE TO SECTION^] WIFE— continued. of bankrupt — continued, priority of claim, 1400. claim for wages, 1370. provability of claims, 536. of partner. may prove claim, 555. WILL interest under will is property, 724. not revoked by bankruptcy, 835. WITHDRAWAL of claim, 661. of petitioning creditors, 143. of voluntary petition, 269. WITNESSES compelling attendance, 1595. competency, 465. ' in proceedings against deceased bankrupt, 647. of bankrupt, 484, 495. contempt of, 1595. conviction of misdemeanor, effect of, 256. for failure to appear, 475. disqualification of bankrupt as, removed by discharge, 1534, effect of failure to produce, '475. exemption from process, 505. fees and mileage, 506, 1367, 1595. fees of expert, 1367. how length of attendance determined, 351. liability of petitioners under bond, 307. priority of claims for fees and mileage, 1367. impeachment by creditors, 256. length of attendance, how determined, 351. need not attend outside of state, 475. privilege as to incriminating testimony, 492, 493, 1628. who may be examined, 464. WORK AND LABOR performance of, not a preference, 961. priority of labor claims, 1369. stay of action for, 1063. WORKMEN see Wages and Salarif. defined, 1369. payments to, not preferences, 943. priority of claim for wages, 1369. WRIT OF ERROR see Appeal and Seview. '•'■■ KF 1^24 b81 1917 Author Vol. Brandenburg, Edwin Charles Title , , , Copy Brandenburg on bankruptcy. Date Borrower's Name