Qaruell Law School Library s ‘i LAW AND PRACTICE IN BANKRUPTCY. THE PRACTICE IN BANKRUPTCY, WITH THE BANKRUPT LAW OF THE UNITED STATES AS AMENDED, AND THE RULES AND FORMS; TOGETHER WITH NOTES REFERRING TO ALL DECISIONS REPORTED TO SEPTEMBER 1, 1877. wl iV N By ORLANDO F. BUMP, REGISTER IN BANKRUPTCY, Genth Edition. NEW YORK: BAKER, VOORHIS & CO., PUBLISHERS, 66 NASSAU STREET. 1877. / asee Entered, according to Act of Congress, in the year eighteen hundred and seventy-seven, by ORLANDO F. BUMP, In the office of the Librarian of Congress at Washington. / Bagrzn & Gonwin, Printees, 25 Park Row, N. Y. PREFACE TO THE TENTH EDITION. Tus edition contains references to all cases reported to Sep- tember 1,1877. The decisions that have appeared since the work was in press have been placed in Addenda. The whole work has been carefully revised so as to correspond with the late important decisions. The references have also been carefully verified so as to eliminate all errors that may have crept in from inadvertence or from mistakes incident to successive editions, Tnaccuracies in language and conclusions not drawn with sufficient care, have been corrected. In fine, no pains have been spared to make the work worthy of the approbation which the profession have thus far accorded to it. The aim has been to make a prac- tical, not a theoretical work, to show what is established, not what may be decided, to follow rather than anticipate decisions, to fur- nish a practical guide rather than brilliant theories. This plan, though not as tempting as others that might have been pursued, has stood the test of trial and met with approbation. In this edition, all the cases decided under the acts of 1800 and 1841, so far as they are applicable, have been cited, and the work now contains references to all which are of any value that have ever been decided in this country. In this particular it is o any former edition. The greater part of that which perior t ig been added pertains not to the practice in bankruptcy, but iv PREFACE TO THE TENTH EDITION. in the State courts. A glance at the topics indicated will at once show the fullness of the citations and the value of the ad- ditions. In this edition the citations from the Bankrupt Register are all taken from the octavo volumes, and the references are accord- ingly made to the reprint and not to the original quarto volumes.. The Bankrupt Register has taken its place among the regular re- ports, and the author has deemed it best to refer to that edition which will hereafter be most frequently used. The author takes the opportunity to return his thanks to those judges, registers and lawyers who have called his attention to new decisions and to defects or errors in his work, and to request similar favors from the profession generally. Those who examine only one particular point, will from the very nature of the case discover defects, which others taking a survey of the whole field would not perceive. It is only by the combined efforts of all that a harmonious and symmetrical system can be developed. ORLANDO F. BUMP. Batrimorg, September 1, 1877. ABBREVIATIONS USED IN THIS WORK. SDD Ce Oho nicdeanuihuarrdgenn owes Abbott’s United States Reports. Aa Vas Sica vain eana ns apsiciesoaeianse anita ee Albany Law Journal. BD REG a citar noanohpardanemyiigiua vowel cow American Law Register. Av Ti Revises seesoessseeciean cate ween American Law Review. Ae Bas, ica cnssla teil eushag dears lateearceannsavacbeyetiarees , American Law Times. BON caw seer xeer aces coves scenes sreeawwe Benedict’s Reports. AUPSISS 3 sys che dateicac easiest avavige ma tanayaveraeetaxe Bissell’s Reports. Be Resiwssuviensda sated oem emaemeceey Bankrupt Register. Be Da eacccsosaicieaiae Bethe tihac cages Baltimore Law Transcript. Chis (Bis ciacaann antetanaulonvammemane Cincinnati Law Bulletin. GUD: Nexceass costa taste verse dees eee Chicago Legal News. CORE. Te SD hccorayers: nace Seine SMPs esis Central Law Journal. Tes Re Ride seayienssore chap a tine nates taraeavionanns Costieiass Internal Revenue Record. TADS cass ante nea ames seme OEY ,....Lansing (N. Y.) Leg. Int... 6. cece eee cence cece eens Legal Intelligencer. Tis Dad cee Ries ape OSE ORR RO oes aig Louisiana Law Journal. Tan Te Basses ce ceca cee oboe sere e aa wes Law Times Bankrupt Reports. MiGs Disersseaagis eogudiscese dyaraiete araroeasieees anetan Michigan Lawyer. MOD :sibie's avciaonepeosuere BOAR Bae HOTT Montana, N.Y. Sup... cece eee eee teen eens New York Superior Court Reports. fe ts) en New York Supreme Court Reports. Pac. L. Ri... eee eee eect renee tetas Pacific Law Reporter. Pitts. L. Tice cece eee etter eens Pittsburgh Legal Journal. Gween....ccce cece cece centre eet: -.. Sweeny (N. Y.) B Chcccggecn duit nt ARR E eos Same Case. Wed. c ccc ccc cece ee ee re ere reset erces Western Jurist. WW Ncw sugiaee ee Re mie ed GH Holes cee Weekly Notes. L CONTENTS. CHAPTER I. CoMMENCEMENT or VoLuNTARY BanKRUPTCY CHAPTER IIL. CoMMENCEMENT OF InvoLUNTARY BANKRUPTCY . CHAPTER III. ProckEDINGS TO HAVE PARTNERSHIP DECLARED BANKRUPT CHAPTER IV. Powers oF Reaisters AND Mope or Revisine THEIR PRocgep- INGS CHAPTER V. Proor or Dzxrs CHAPTER VI. First Mentine . CHAPTER VII. Doriss of ASSIGNEES AND Mopz or Removan CHAPTER VIII. Exemprions CHAPTER IX. SALES CHAPTER X. gray or Proczzpines. Hasgas Corpus PAGE 28 65 72 81 119 140 152 167 181 Vili CONTENTS, CHAPTER XI. Examinations ‘ ‘ ; ‘ ; ‘ ‘i CHAPTER XII. Courts or Original JURISDIOTION CHAPTER XIII. Distrisvtion =. ‘ 3 CHAPTER XIV. Costs CHAPTER XV. DiscuarcE CHAPTER XVI. Mops or Revistne Procerpines in Marrers 1n BankruPrcy BANKRUPT LAW AND NOTES. ‘CONSTITUTION TITLE XIII. SEC, THE JUDICIARY. 568.—Original jurisdiction 566.—Mode of trial “ 648.—Mode of trial in circuit courts ~ 711.—Jurisdiction exclusive . TITLE LXI. CHAPTER ONE. COURTS OF BANKRUPTCY, THEIR JURISDICTION, ORGANIZATION AND POWERS, 4972.—Scope of the jurisdiction of courts of bankruptcy 4978.—Authority of district courts and judges ; 4974,—Sessions of the district courts 4975.—Powers of district courts to compel obedience ‘ A976.—Powers of circuit judge during absence, sickness, or disability of district judge ‘ : : ‘ PAGE 191 206 235 249 267 288 305 PAGE 312 315 316 316 324 340 341 341 341 CONTENTS. ix ‘BECO, PAGE 4977.—Powers of the supreme court for the District of Columbia . 841 4978.—Powers of the district courts for the Territories. 342 4978a.—Clerks of supreme courts to transmit papers to district courts 342 4978b.-Jurisdiction after transmission of papers : 342 4979,—Jurisdiction of actions between assignees and persons claiming adverse interest ; ; : ; : 343 4980.—A ppeals to circuit court . 3 ‘ ‘ 356 4981.—How taker : ; : . : . 369 4982.—How entered . : ; ‘ . ‘ 361 4983.—Waiver of appeal . : ‘ : . 862 4984.—Appeal from decision rejecting ; ‘ ‘ 363 4985.—Costs 3 . 363 4986.—Power of general superintendence conferred on circuit court 363 4987.-Superintendence by supreme courts of Territories ‘ 3871 4988.—Power of a district judge in a district not within any organized circuit . : . 371 4989.—Appeal and writ of error to supreme court. : 371 4990.—Supreme court may prescribe rules : 4 . 374 4991.—What constitutes commencement of proceedings 7 ; 376 4992.—Records of bankruptcy proceedings © 3 : . 876 4993.—Registers in bankruptcy : : 378 4994.—Who are eligible. : ‘ : 378 4995.— Qualification j ‘ ‘ ‘ 378 4996.—Restrictions upon registers ‘ ; . 378 4997.—Removal of registers . : i ; 3879 4998.—Powers of registers . : ‘ . 379 4999,—Limitation upon power of registers d : 382 5000.—Registers to keep memorandum of proceedings , 382 5001.—Registers to attend at place directed by judge 382 5002.—Power to summon witnesses ‘ ; . 882 5008.—Mode of taking evidence. 383 5004.— Depositions and acts to be reduced to w riting : . 3883 5005.—Witnesses must attend : : . 3838 5006.—Contempt before register . : ‘ , . 883 5007.—Registers may act for each other i 384 5008.—Payment of fees of registers é . + 884 5009.—Contested issues to be decided by judge. ‘ 3 385 5010.—Certificate of matters to be decided by judge. . 885 5011.—Appeal from judge’s decision upon asta submitted 387 5012.—Penalties against officers . 387 5013.—Definitions . : : i : ; . 387 CHAPTER TWO. VOLUNTARY BANERUPTCY. 5014.—Petition and schedules. ; é 5 ; . 389 5015.—Schedule of debts. ‘ ks : . 395 5016.—Inventory of property. ‘ : F ' 396 5017.—Oath to petition and schedules : : F 398 5018.—Oath of allegiance g ; ‘ 398 5019.—Warrant to marshal . ; 3 3 5 399 5020.—Amendment . ; ‘ ‘ 3 3 . 400 CHAPTER THREE. INVOLUNTARY BANKRUPTCY. 5021.—Acts of bankruptcy ‘ ‘ ‘ ‘ : . 402 5022.—Prior acts of bankruptcy : : ; : 446 x CONTENTS. BEO, 5024.—Proceedings after filing petition . 5025.—Service of order to show cause 5026.—Proceedings on return day 5028.— Warrant : 5029.—Distribution of property of debtor 5030.—Schedule and inventory 5031.—Proceedings when debtor is absent CHAPTER FOUR. PROCEEDINGS TO REALIZE THE ESTATE FOR CREDITORS. 5032.—Contents of notice to creditors 5033.—Marshal’s return 5034.—Choice of assignee 5035.—Who are disqualified . 5036.—Bond of assignee . 5037.—Assignee liable for contempt 5038.—Resignation of the trust . 5039.—Removal of assignee ‘ 5040.—Effect of resignation or removal . 5041.—Filling vacancies 5042.—Vesting estate in remaining assignee 5043.—Former assignee to execute instruments 5044,— Assignment ‘ 5045.—Exemptions . 5046.—What property vests in assignee . 5047.—Right of action of assignee . . 5048.—No abatement by death or removal 3 5049.—Copy of assignment conclusive evidence of title 5050.—Books of account . 5051.—Debtor must execute instruments 5052.—Chattel mortgages 5053.—Trust property 5054.—Notice of “appointment of assignee “and record of assignment 5055.— Assignee to demand and receive all assigned estate 5056.—Notice prior to suit against assignee . 5057.—Time,of commencing suits 5059.—To keep money and goods separate and distinct. 5060.—Temporary investment of money “ 5061.—Arbitration 5062,—Assignee to sell property 5062a.—Continuance of the business . 50626.—Mode of selling 5063.—Sale of disputed property 5064.—Sale of uncollectible assets 5065.—Sale of perishable PIARERY 5066.—Discharge of liens 5067.—Provable debts 5068.—Contingent debts . 5069.—Liability of bankrupt as surety 5070.—Sureties for bankrupt : 5071.—Debts falling due at stated periods ; 5072.—No other debts penis F 5073,.—Set-off . 5074.—Distinct Habilities 5075.—Secured debts . 5076.—Taking proof of debts PAGE 446 452 455 470 470 ATL 471 472 473 474 482 482 483 483 485 485 485 485 485 485 517 532 542 ‘B51 551 552 553 553 554, 555 557 557 558 562 562 563 563 567 567 569 B71 B71 572 572 585 588 591 592 596 596 601 601 628 CONTENTS. xi SEC, PAGE 50762,-Notaries may take proof . , - 629 5076.—-Notaries may take depositions and d acknowledgments ‘i 630 5077.—Creditor’s oath =. ; . : - 630 5078.—By whom oath may be made . ‘ ; , : 637 5079.—Before whom oath may be taken : ; : . 639 5080.—Proof to be sent to assignee . , ; ‘ 639 5081.—Examination by court into proof of claim ‘ ‘ . 641 5082.— Withdrawal of papers : i . ‘ : 644 5083.—Postponement of proof . : : : : . 645 5084.—Surrender of preference ‘ i ease . 646 5085.—Allowance and list of debts : . 2 ; . 650 5086.—Examination of bankrupt. : Ff : : 650 5086a.—Parties may be witnesses : ‘ : ; . 658 5087.—Examination of. witness ‘i 7 : . : 658 5088.—Examination of bankrupt’s wife. ‘ - 661 5089.—Examination of imprisoned or disabled bankrupt ‘ , 662 5090.—No abatement upon death of debtor : 3 : - 662 5091.—Distribution of bankrupt’s estate . i ‘ ‘ 663 5092.—Second meeting of creditors ; : ; F . 663 5093.—Third meeting of creditors . : ‘ - ‘ 665 5094.—Notice of meetings’ ‘ ‘ ‘ : ‘ . 666 5095.—Creditor may act by attorney : ji i; . 667 5096.—Settlement of assignee’s account : . . . 668 5097.— Dividend not to be disturbed s ‘ A ; 669 5098.—Omission of assignee to call meetings . ‘ é - 669 5099.—Compensation of assignee. ‘ ‘ , : 669 5100.—Commissions 3 3 a . : . 673 5101.—Debts entitled to priority : : : : : 674 5102.—Notice of dividend to each creditor ; ; . . 680 5103.—Settlement of een estate by trustees . 3 . 682 5103a,-Composition : : : . 686 CHAPTER FIVE. PROTECTION AND DISCHARGE OF BANKRUPTS. 5104.—Bankrupt subject to order of court ; ‘ ‘ . 697 5105.— Waiver of suit by proof ; i ‘ ‘ : 698 5106.—Stay of suits a 3 : : ; . - 700 5107.—Exemption from arrest ‘ : . : ; 706 5108.—A pplication for discharge ; . ‘ . . 709 5109.—Notice to creditors. ; ; a ‘ 710 5110.—Grounds for opposing discharge ‘ ‘ : é . TAL 5111.—Specifications of grounds of opposition ‘ ; 730 5112.— Assets equal to thirty per cent. required : ‘ . 736 5112a.-Not required of involuntary bankrupts : : : 736 5113.—Final oath of bankrupt. ‘ ‘ ‘ . 739 5114.—Court to grant discharge ‘ ‘ j ‘ : 739 5115.—Form of certificate of discharge . : ‘ : > (T41 5116.—Second bankruptcy . : ; : ; 741 5117.—Debts not released . . : - TAL 5118.—Liability of other persons not released . » ‘ 746 5119.—Effect of discharge ‘ ; ‘ : . 748 5120.—A pplication to annul discharge ‘ : : . 773 xii CONTENTS. CHAPTER SIX. PROCEEDINGS PECULIAR TO PARTNERSHIPS AND CORPORATIONS. SEC. 5121,—Bankruptcy of partnerships ; 5122.—Of corporations and joint stock companies ; 5123.—Authority of State courts proceeding against corporations CHAPTER SEVEN. FEES AND COSTS. 5124.—Fees 5125.—Traveling and incidental expenses 5126.—Marshal's fees 5127, Justices of the supreme court may change tariff for fees 5127a.—Reduction of fees . ‘ ‘ : : 51276.—Returns CHAPTER EIGHT. PROHIBITED AND FRAUDULENT TRANSFERS. 5128.—Preferences by insolvent . ‘ 5129.—Transfers of property to defeat the act 5130.—Presumptive evidence of fraud 5130a,.-Limitations in involuntary bankruptcy 5131.—Fraudulent agreements ° F 5182.—Penalties against fraudulent bankrupts Norses ro tHe Rouuzs Norses to Forms ADDENDA GENERAL OrprErs In ‘BANKRUPTCY Forms in Banxrurtcy GENERAL InpEx PAGE 778 791 798 800 804 804 806 807 807 810 843 852 853 853 854 859 865 867 875 899 969 THIS TABLE CONTAINS A LIST OF THE BANKRUPT LAWS SHOWING THE TIME OF REPEAL AND THE PART OF THE REVISED STATUTES WHERE AN ANALOGOUS PROVISION MAY NOW BE FOUND. OrieinaAL Statute, REPEALED, Revisep Statutes, Date. Ch, Sec. Vol.Page Date. Ch. Sec. Vol.Page April 4, 1800 19 1 2 19/Dec. 19,1808 6 1 2 248/5021, 5023, ete Rupees Cad, pAD™ Gee WDTT Kacey ahtenk otc siosy sre 5021, 5023. os 3 Q2) ee. cece ne ne ve oe e524, 5025, 5026, 295 net 4 sill’! Skgae Aiwa> Bee, ods AER RS 5024. ae Bie key “DBP Gaede “aed soe ae 4a5.tee 5028. : 6 oe cel cece eee ce ee ve ve 5027, 5032, 5034, 5044, 5076, 5095. . 3 Wo Sire! vat | badness iaGAt: ah, Stas ab raneed : ne 8 tal’ Sains’ Gigs (Wes Say Spercdsa 5089, 5043, ; es 9 94 | Gascns “Ene Ute Joe ceeds 5048, : ao 10° Say) gal) dee Bees Ges BY Gua 5044, : oa Te. Gee. eel) See tates tae Yee. ie oses 5044, 5054. gage oes 1D): ee), eal) neues “gegen ete nes “es Sete |D06 6s Mee ee 18 2s (25) wcws weve Go ae ye wes |1b046, BOLT, 3 534 TAO eek Sees | Gaeints ek es. Sats Cee. | aes lehed 5006, 6087. ees : Too of cool | weenie ceeten-. dete Hea? le, ate 5005. aie keel cnn ap O: «RN DG) aah earn aie Uae Ue Asie 5081. A pieee cas ROSES mls) eiseae atees. Uae Lae. Vee cage [046 BE oe wit ABE Gs dll GGwdre Geees “ME ORE gees 5044, 5045, 5086, 589. : es Be TO’ whe, 1 DUN) catin'ee Beas OO: OR Ea sae 2 0 ba. veel’) Resets Guess oS es. avy aac [SOE : D1 er el Gaile. aoe SR ee Cercety’s [BLO seg vee) 2% ster Cocll aaa fae ER ee we ee DIOR sivigier ee BBS ie BB) cease, wee SS aa “ee ees 5086, 5132. hay 2 he AES wees call ceeleies. Bpates SEO Ae aan ehe a BOBB, Coe uid Bee ches pital Gakic. Spedade ay aaseee pA, eabbe Rh 5006. See Mines oa PID te eel) Eic'sy ees. chee ow, eee 5044, sane Petiniates Sriginer OO «die “seek | aden, WAehee> Tae, Sag sasenezen 5128. laatic Sri ALO sake DON Dahman aos ae KGas Sees aes 5092, 5099, 5102. tee deve las, BO Gg -aell ‘eeu awe. ee Gem Abaco 0008. eee were ete BL: Gee 1BOl Gases’ daw ite Aes (da ges OOO mee. Fei BO ae) Saal Neuse ceeds Oo Gir, Beka 5058, BB aa. eal “Gugine gues xD atee “hb ae 6104, B44 yall eae eaate aa. ee tos wos 5045, 5118, 5119, 5120. eta ain: Oe ABBY. aes name staat sine nie. Men ig 5045, : eae airs bat IBOn Saya aa eee eee (SAL hah. eho ear 5110, 5113. dodo cal agd wah ats “See aude. ee? AS) Heads 5110. ve) BB kay 82) ates Seah eee. ae SSeS 5107. s5 BOO ace inl sabaaner “Geen alae ae hare tiers 5067, 5068. he gece nes) AD ae BS cae alee ae ee te eee 6078. sive. ewOREBS owe sooalh tender BatRo een SF aes 5061. eevee wateas gt, “AMS ee ail) eke hues aie OR Se tes 5046, 5062. Sie wee a ADS ty ad) eke) hacddo sae Gen eens [DOGO wae (te AO oa Seal aces cea ae a ga Gas 5124, sega (tee AD da, aro] Sede? Seek a, aa, Oe St 6124, eeee ewles a's AD oy . Francke, Charles J., 736. INDEX TO CASES CITED. Frank, M., 83, 116, 194, 477, 638, 667, Frank v. Houston, 312, 340, 376. Frank v. Tolman, 333. Franklin Fund Saving Society, 884,563. Frazier v. Banks, 699, 769. Frazier v. Hallowell, 599. Frear, Alexander, 576, 786. Fredenberg, Michael W., 77, 196, 200, 385, 886, 658, 660, 668. Freedley & Wood, 48, 50, 468, 469. Freelander v. Holloman, 534, 559, 560. Freeman, Robert H., 15, 398, 715, 721, 728, 729, Freeman v. Denning, 847. Freeman v. Fort, 320. Freeman v. Warren, 766. Freeman’s Nat'l Bank v. Smith, 798. Freeny v. Ware, 212, 627. French vy. Carr, 490. French v. First National Bank, 353. French y. Morse, 586, 587. French v. O’Brien, 310. Frentress v. Markle, 586. Frenzel v. Miller, 840. Friederick, John, 283, 737, 738. Frisbie, Frank, 49, 439. Frisbie, James W., 195, 197, 652, 654. Fritsch v. Van Mittledorfer, 217,320,550. Frizelle, S. F., 177, 197, 624, 652. Frizelle et al., 195, 781, 739. Frost, Jacob, 28, 52, 439. Frost (Richard H.) et al., 577. Frost v. Hotchkiss, 232, 338. Frost v. Tibbetts, 770. Frostman v. Hicks, 704. Fuller, Henry W., 491. Fuller, Price, 44, 218, 228, 230, 329, 405, 449, 541, 610, 815. Fulweiler v. Singer, 545. Fulwood v. Bushfield, 591, 755. Funkenstein, J., 62, 454. Funkenstein & Co., 479. Gaffney v. Signaigo, 537, 845. Gage v. Gates, 315, 467. Gainey, Eliza, 165, 527, 582, 860. Galbraith, Cromwell & Co., 781. Gale v. Vernon, 549. Gallinger, A. B., 54, 415, 416, 443, 444. Gallison e¢ al., 82, 583, 710, 730. Gardner v. Cook, 82, 511, 512. Garnett v. Roper, 746. Garrett, Edward, 527, 755. Garrett v. Carow, 182, 702. Garrison, Edward, 726, 728. Garrison vy. Markley, 201, 349, 350, 660. Garwood, George M., 723, 790. Gary v. Bates, 543. XXVii Gassett v. Morse, 420. - Gattman v. Honea, 821, 838. Gay, Benjamin C., 721, 725, 728, 812. Gaytes v. American, 346. Gebhart, 54, 56, 456, 458, 461. George & Proctor, 282, 727, 728, 784, 790, 817, 818. Gettleson, Henry, 881, 711. Geward v. Dunbar, 769. Ghiradelli & Co., 182, 185, 701. Gibson v. Dobie, 824. Gibson v. Green, 515, 769. Gibson v. Lewis, 574. Gibson v. Warden, 505, 615, 686, 816, 844. Giddings v. Dodd, 817, 821. Gies, R. Frederick, 249, 250, 251, 675. Gifford v. Haviland, 870. Gilbert, Joseph F., 198, 196, 652, 654, 661 Gilbert v. Bradford, 719, 735. Gilbert v. Crawford, 233, 339. Gilbert v. Lamphier, 790. Gilbert v. Priest, 238, 339. Gilday, John B. 691. Gile, John, 19, 891, 392. Gillenwaters v. Miller, 849. Gillespie v. McKnight, 537. Gillies e¢ al. v. Cone e¢ al., 430, 431. Gilmore v. Bangs, 547. Givens v. Robins, 182, 184, 702. Glaser, Louis, 8, 187, 189, 207, 231, 825, 875, 881, 884, 707, 708. Glaser, Samuel, 384. Glen v. Johnson, 539. Glendon Company v. Townsend, 627. Glenham Manuf’g Co., 471. Globe Insurance Co. v. Cleveland Ins. Co., 292, 312, 359, 422. Glyn, Charles H, 573. Goddard v. Weaver, 214, 217, 228, 320. Goedde & Co., 243, 786. Gold Mining Co., 612. Golden y. Prince, 307. Goldschmidt, Abm., 408, 410, 421, 729,. 730. Goldsmith v. Hapgood, 493. Goldstein, Isidor, 699. Golson y. Neihoff, 828, 832, 836. Goodall v. Tuttle, 222, 226, 231, 306,. 814, 816, 335, 341, 343. Goodfellow, Joseph, 1, 2, 4, 7, 8, 21, 889, 391, 394, 713, 716, 723, 750. Goodman, Rachel, 2, 57, 459, 579. Goodrich v. Dobson, 869. Goodrich vy. Hunton, 758. Goodrich v. Remington, 496. Goodrich v. Wilson, 251, 326, 339, 814, 831, 851. xxviii Goodridge, aia H., 716, 717. Goodwin, William F., "861. Goodwin v. Sharkey, 534, 593, Goodwin v. Stark, 748. Gordon, McMillan & Co. v. Scott & Allen, 194, 251, 466, 653, 675, 736. Goss v. Gibson, 590, Gove v. Lawrence, 724. Grady, John W., 70, 780. ‘Graham, 158, 159, 519, 522, 531, Graham, William H. , 288, 787. Graham yv. Hunt, 768. Graham v. Pierson, 82, 574, 758. Graham v. Stark ef al., 812, 814, 818, 821, 825, 829, 833, 835, 836, 839. Granger & Sabin, 102, 588, 589, 685. Grant, Benjamin B., 158, 332, 488,502, 508, 528, 618, 672. Grant, John C., 183, 480. Graves, Alexander, 17, 131, 890, 479. ‘Graves, John, 179, "563, 569, 571. Graves v. Winter, 407. Gray v. Farran, 744, Gray v. Heslep, 569. Gray v. Rollo, 91, 598. Great West. Telegraph Co,, 61, 298, 299, 371, 464, 468. Greely v. Scott, 529, Green, John, 580. Greentield ‘Thompson, 298, vag, 780, 91 ‘Greenleaf v, Maher, 755. Green Pond R. R. Co. 28, 406, 439. penis & Columbia R. R. Co. 427, 93 Greery’s Appeal, 867. Grefe, Henry M., 277, 732, 861. Gregg, 817, 819, 836, 888. Gregg, Thomas By 139, 257, 488, 672. Gregg v. Hilsen, 310. Gregg v. Wilson, 641, Griffen, William, 660, 661. Griffin, Jesse H., 159, 195, 519. Griffiths, 736. Griffiths, Charles W., 55, 5538, 615. Grinnell, George B., 624. Grinnell’ & Co,, 628. Griswold v, MeMill: an, 543. Griswold v. Pratt, 308, Grover v. Clinton, 745. Grow v. Ballard & Hall, 834, 848, Guild, Moses, 735. Gulick vy. Mclver, 681. Gunther e¢ al. v. ’Greenfield et al., 146, 547. Gupton v. Connor, 749, 774. Gurney, Thomas U., 505. Haake, J. C., 528, 578, 616. INDEX TO CASES CITED. Haas v. O’Brien, 846. Haas & Sampson, 134, 480. Haber v. Klauberg, 513. Hadley, Joseph F., 30, 34, 35, 38, 39,40, 45, 55, 417, 495, 430, 431, 433, 435, 436, 437, 438, 444, 450. Hafer & ’Bro., 159, 518. Hafer & Bro. (In re Beck), 231, 331, 611, 811, 819, 832. Hagan, Edward, 247, 681. Haggerty v. Amory, "187. Haggerty v. Morrison, 772. Hahnlen, Jacob F., 619. Haines v. Stauffer, 764. Haldeman v. Michael, 827. Hale v. Wiggins, 250, 675, 677. Haley, Leonidas B., 628. Hall, 289, 358, 425, 431. Hall, Erie L., 25, 26, 121, 271, 399, 400, "473, 474, 740, 860. Hall, Horace, T, 41, 894, 779, Hall, Jack, 525. Hall, Robert L., 129, 484, 438. Hall v. Allen, 302, 372. Hall v. Bliss, 625. Hall v. Cooley, 423, 424, 425. Hall v. Cushing, 485. Hall v. Deshler, 312. Hall v. Fowler, 746, 769. Hall v. Hayner, 815. Hall v. Scovel, 562, 565, 607, 608, Hallam v. Maxwell, 558, 685. Halle, Abraham, 105, 636. Halliburton v. Carter, 745. Halsey v. Norton, 784. Hambright, Abner, 161, 490, 518, 603, 620, 625, 676. Hamburger & Frankel, 595. Hamilton v. Bryant, 515. Hamilton v. National Loan Bank, 499. Hamlin v. Hamlin, 115, 699. Hamlin v. Pettibone, 445, 464, 837,838. Hammond & Coolidge, 717, 791, 725, 727, 728, 730. Hammond v. Rice, 144, 547, Hampton v. Rouse, 23, 487. Handell, Richard, 679. Handlin, Venny, 159, 526. Hanibel, John R., 38, 39, 412, 487. Hanna, 380, Hanna, Samuel, 124, 476, 619, 634. Ha ansen, Hans Jv 733. Hanson’ v. Herrick, 508. Hapgood et al., 417, 555. Harbaugh, Mathias & Co., 67, 891. Harden, Herman P., 11, 396, 581, 752. Hardin ° v. Osborne, 499. Hardison, John, 713. 435, 436, INDEX TO CASES CITED. Hardy et al. v. Binninger et al., 56, 412, 416, 421, 423, 431, 448, 444, 402. Hardy v. Carter, 591, 751. Hardy et al. v. Clark et al., 2, 61, 895, 412, 417, 421, 423, 462. Hare, Uttely, 259, 805. Hargroves v. Cloud, 718, 719. Harlow, 606. Harmason v. Bain, 848, 851. Harmon v. Jamesson, B12. Harper, John B., 721, 722, 724, Harrell v. Beal, 541. Harrington v. Fish, 569. Harrington v. McNaughton, 756. Harris, Jabez, 739. Harris, Samuel, 19, 20, 891, 892, 487. Harris, William, 62, 466. Harris v. Collins, 560, 562. Harris v. Peck, 763, 764. Harris, Rice & Co., 799. Harrison v. McLaren, 813, 836, 842. Harrison v. Sterry, 242, 508, 512, 678, 783. Harrod v. Burgess, 510. Hart v. Strode, 378. Hartel, J., 614. Harthill, Alexander, 46, 451. Harthorn, 243, 679. Hartough v. Hayden eé al., 67, 778. Hartz, Mark, 777. Harvey v. Crane, 505,506,535,617,821. Harwood, 104, 636. Hasbrouck, Abraham E., 380, 859. Haskell, Stephen V., 78, 887, 689, 692, 693, 694, Haskell v. Ingalls, 827, 834. Haskill v. Fry, 816. Haskins v. Warren, 877. Hastings v. Belknap, 47, 467... Hastings v. Fowler, 232, 306, 338, 542. Hatch v. Seely, 102, 508, 516, 635, 636. Hatcher, Benjamin H., 18, 859. Hatcher v. Jones, 161, 164, 521. Hathaway v. Brown, 315, 508, 840. Hathaway v. Quimby, 495. Hathorn vy. Batchelor, 778, 780. Hatje, 51, 457, 461, 511, 580. Hatton v. Speyer, 753. Haughey v. Albin, 219, 225, 845, 423, . 612, 811, 813, 8I7, 819, 826, 838, Haughton, Joseph, 37, ’38, Bd, BS, 413, 415, 448, 444, Haughton v. Eustis, 508, 602. Havens, James W., 188, 481. Havens v. National City Bank, 817. Hawkeye Smelting Co., 56, 58, 458,461. Hawkins (Geo. A.) et al., 310, 846. Hawkins vy. First National Bank of Hastings, 536, 614, 615. xxix Hawkins v. Hastings National Bank, 291, 361. Hawkins v. Learned, 810. Haworth v. Travis, 161, 164, 520, 609. Haxtun v. Corse, 115, 489, 69, Hay, Ira, 158, 533, Hayden, I. P. , 450. Hayes v. Dickinson, 617. Hayes v. Flowers, 767, 768, 769. Hayes v. Ford, 315, 745, Hayman v. Pond, 744, Haynes, David, 129, 247,478, 681, 682. Hazard v. Boykin, 774. Hazleton, 762. ° Hazleton’ v. Valentine, 186,189,190,708. Heard v. Arnold, 760. Heard v. Jones, 628. Heard v. Patton, 760, 771. Heath v. Hughes, 198, 653. Hecht v. Wassell, 510, 511. Heffren v. Jayne, 745. Heffren v. Leroy, 745. Heffron, P. H., 48, 466. Heirschberg, Louisa, 250, 251, 675. Heller, 415, Heller, B., 22, 400, 401. Heller Brothers & Co., 398, Hellmer, F. L., 258, 260, 861, 862. Hendricks v. Judab, 753. Henkel, William, 159, 527, 580, 534. Henkelman et al. v. Smith, 509. Henly v. Lanier, 544, 762. Hennocksburg & Block, 183, 578, 584, 703. Piercules Mutual Life Ins. Co., 425, 426, 428, 429. Herman, A. H. &H., 94, 95, 475, 644, 645, 646. Herpich, August, 828. Herndon v. Givens, 762. Herndon v, Howard, 146, 552. Herrick, Charles H., 776. Herrick, Hugh T., 245, 246, 682, 775, 781, 782. Hervey v. Devereux, 744. Hester, John H., 518, 608. Hester v. Baldwin, 578, Heusted, 51, 192, 457, 653. Hewett v. Norton, 321, 546, 828. Heydette, Frank, 56, 458, 460. Heyes, Julius, 25, 26, 400, 473. Hezekiah, 526. High (Wm. C.) et al., 100, 178, 477, 623, 624. Hill, Joseph M., 61, 465. Bul M. W. , 280, 330. Hill, Willian D., 11,15, 21,26, 120,123, "282,395, 36, 399, 473, 476, 668, 716, 717,730, 731, 738, 734, 859, XXX Hill v. Bonaffon, 353. Hill v. Bowers, 603. Hill v. Fleming, 211, 318. Hill v. Robbins, 750, 762, 764. Hill v. Van Valkenburgh, 376,433,436, 443. Hilton v. Telegraph Co., 416. Hinds (J.A.) et al.,503,579, 610,613,788. Hinsdale, Richard H., 686. Hirsch, Francis A., 183, 184, 208, 314, 841, 706. Hiscock v. Green, 603, 636, 785. Hislop v. Hoover, 815. Hitchcock v. Rollo, 91,92,598,.600. Hitchings, 566. Hoadley v. Cawood, 102, 635. Hobart v. Haskell, 182, 548. Hobson v. Markson, 465, 846. Hodges, Joseph H., 194, 654. Hogendobler v, Lyon, 184, 702.. Holbrook v. Brenner, 170,560,565,569. Holbrook v. Coney, 139, 169, 490, 556, 564. Holbrook v. Dickinson, 557. Holbrook v. Foss, 757. Holland, D. G., 100, 650. Holland, George B., 46, 451. Holland v. Seaver, 550. Holleman v. Dewey, 574, 580. Hollenshade, Jacob W., 720. Hollis (J. A.) e¢ al., 426, 481. Hollister v. Abbott, 756. Holloman v. White, 528. Holmes, Charles W., 512, 723, 729,846. ‘Holmes, D. K., 710. ° Holmes v. Hunt, 869. Holmes & Lissburger, 689, 690, 691, 859, 863. Holt, Asa, Jr., 655. Holyoke v. Adams, 513, 747, 766. Home Insurance Co. v. Hollis, 549. Hood et al. v. Karper e¢ al., 96, 99, 648, 828, 834. Hood v. Spencer, 495, 750. Hook, Leonard L., 575. Hoover v. Robinson, 232, 338. Hoover v. Wise, 836. Hope Mining Co., 104, 608, 609, 636, 676 Horner v. Speed, 396, 768, 764, 765. Horner v. Spielman, 748, 766. Hornthal v. McRae, 764, Horter v. Harlan, 331, 708. Horton, Eli, 308. Horton, Joseph H., 99, 649, 822. Hosie, Robert, 554. Hoskins, 186, 708. Hosmer v, Jewett, 554. Hotchkiss, 595. INDEX TO CASES CITED. Hough v. First Nat’l Bank, 823. Houghton, Charles P., 16, 284, 890, 724, 731, 732, 738. Houghton, S. 8., 276, 277. Houghton et al, 594. Housberger (Doris) e¢ al., 510, 511. House, Samuel A., 418. House v. Swanson, 509. Houston v. City Bank, 618, 619. Houston v. State, 768. Hovey v. Home Insurance Co., 92,600. Howard, Cole & Co., 245, 579,592,781. Howard v. Prince, 537. Howe v. Union Insurance Co., 509. Howes v. Macy, 62, 470, 471. Howland, Cornelia M., 2,55,57,459,460. Hoyt, 608, 609. Hoyt, A. W., 241, 247, 248, 680, 682. Hoyt, Rufus, 424, 838. Hoyt e¢ al. v. Freel et al., 115,184,185, 635, 699, 702. Hubbard, E., 106, 636. Hubbard v. Allaire Works, 99, 445, 815, 843. Hubbell & Chapel, 238, 255, 665. Hubbell v. Cramp, 750. Huber v. Ely, 758. Hubert v. Horter, 309. Hudgins v. Lane, 751. , Hudson v. Bingham, 287, $96, 774. Hufnagel, Peter, 830, 592,595, 612,413. Haghes, William H., 205, 254, 267, 884, 669, 674, 709, 710, 740. Hughes v. Oliver, 753. Hughes & Son, 612, 613. Hull, John W., 440, 781. Hulst, William W., 451, 553, 658. Halverson v. Hutchinson, 626. Humble ¢ al. v. Carson, 758. Hummitsh, 14, 15, 398, 718. Humphreys v. Blight, 84, 575, 600, 688. Humphreys v. Swett, 749. Hunt, 807. Hunt, ©., 161, 164, 520, 581. Hunt, Josiah D., 179, 221, 335, 336, 570, 811, 829, 852, 860. Hunt v. Holmes, 868, 869. Hunt v. Hornell, 29, 96, 442, 647. Hunt e¢ al. v. Pooke e¢ al., 38, 39, 406, 411, 435, 456, 662. Hunt v. Taylor, 752. Hurst, James T., 694, 695. Hurst v. Teft, 296, 883, 369. Hussman, Earnest, 14, 897, 504, 536, 587, 540, 716, 717, 720. Hutchings v. Muzzy Iron Works, 212, 319, 617, Hutchins v. Taylor, 412. Hutto, Solomon, 161, 519, 530, 607. INDEX TO CASES CITED. Hyde v. Hyde v. Hyde v. Hyde v. Hyde v. Hyde v. Hyde v. Baker, 784. Bancroft, 228, 827, 380, 332. Cohen, 540. Corrigan, 819, 820, 832, 834. Ely, 560. Findlay, 495. Sontag, 533. Hyde v. Woods, 823. Hyman, Louis, 75, 881, 668. Hymes, Jacob, 30, 52, 487, 438, 443. Hynson v. Burton, 493, 549, 550. Hyslop v. Hoppock, 345, 354. Independent Insurance Co.,309,407,574. Indianapolis R. R. Co., 468. Ingalls, William, 244, 785, 787. Ingalls v. Savage, 761. Ingersoll v. Rhodes, 757, 764. Ingraham v. Phillips, 508, 514, 761. Innes y. Carpenter, 428. Insurance Co. v. Comstock, 56,289,292, 801, 356, 358, 362, 374, 457. Insurance Co. v. Ketterlinus, 749. Tron Mountain Co., 177, 212, 830, 626. Tronsides, The, 211, 319, 609. Irving, Mary, 44, 450, 549. Irving v. Hughes, 36, 48, 218, 219, 228, 229, 231, 827, 331, 344, 433, 448. Irwine, 306. Isaacs v. Cohn, 786. Isidor & Blumenthal, 197, 652. Israel, M. C., 30, 439. Tsrael v. Ayer, 815. Ives v. Tregent, 170, 564. Jack, Francis M., 51, 428, 457. Jackson, Alfred, 384. Jackson (George) eé al.; 85, 94, 95, 125, 130, 135,478,481,639, 645,646. Jackson v. Allen, 520, Jackson Iron Manuf’g Co., 821. Jackson v. McCulloch, 846. Jackson v. Miller, 681, Jackson & Pearce, 165, 527, 532, 860. Jacobson v. Horne, 586, 769. Jacoby, 133, 645, 705. Jacoby, Henry, 481. James, B. F., 247, 681, 682, 801. J: bss Atlantic Delaine Co., 407, 462, 4. Janes v. Beach, 511, 545. Janeway, John L., 554, 555. Jaycox & Green, 89, 102, 250, 251, 252, 363, 476, 504, 580, 602, 632, 635, 675. Jefferson Insurance Co., 794. Jelsh & Dunnebacke, 61, 461, 462, 464. Jemison v. Blowers, 586, 587, 751. Jenks, H. EH. P., 512. XXxi Jenkins v. Armour, 91, 597, 598, Jenkins v. Mayer, 540, 615, 885. Jenkins v. Stanley, 770. Jenks v. Opp, 746. Jerome v, McCarter, 351, 548, 605, 607, 620, 624. Jersey City Window Glass Co., 431. Jervis v, Smith, 633, 684. Jewett, Frederick, 248, 786, 787, 790. Jewett, S. A, 401, 438. Jewett & Co., 791. Jewett v. Preston, 490, 505, 614. Jobbins v. Montague, 209, 226, 314, 825, 382, 343, 845. Johann, 28, 439. Johnson, 41, 482. Johnson, Ralph, 39, 416, 435, 780. Johnson v. Ball, 767, 768, 770. Johnson ¥, Bishop, 510, 516. Johnson v. Collins, 514, 515. Johnson v. Fitzhugh, 548, 756. Johnson v. Geisriter, 488. Johnson v, Patterson, 506, 536. Johnson v. Poag, 627. Johnson v. Price, 344. Johnson v. Rogers, 604, 605, 611, 612. Johnson v. Worden, 382, 744. Johnston, John J., 283. Johnston & Hall,259, 260, 376, 861, 862. Joliet Iron & Steel Co., 434, 454. Jones, 159, 487, 526, 527, 528, 531, 671, 676. Jones’ Appeal, 789, Jones, B. F., 461. Jones, David W., 355, 578. Jones, Decatur, 21, 26, 94, 106, 395, 400, 475, 641, 645, 683. Jones, G. C., 196, 653. Jones, Oliver L., 723, 724. Jones v. Clark, 742. Jones v. Emerson, 186, 709. Jones v. Howland, 412, 817. 820. Jones v. Hoyt, 734, 736. Jones v. Kinney, 847. Jones v. Knox, 586, 745, 750, 771. Jones v. Leach, 23, 171, 211, 213, 217, 228, 317, 318, $19, 327, 830, 331, 347, 611, 628, 719. Jones v. Lellyett, 761. Jones v. Milbank, 735. Jones v. Russell, 744, 746. Jones v. Sleeper, 405, 415, 418. Jones v. State, 751. Jordan, 162, 524. Jordan, James, 616, 649, 650. Jordan, William G, 614. Jordan, Willis A., 524. Jordan v. Downey, 233, 838, 829. Jordan v. Hall, 309, Xxxii Jorey & Sons, 724, 725, 727. Joseph, Adolph, 110, 367, 642. Joslyn et al, 514, 598. Joy v. Berdell, 566, 569. Judd, Bela, 308. Judd vy. Ives, 308. * Judson, Curtis, 200, 655. Judson v. Kelty e¢ a., 850, 852. Judson y, Lathrop, 560, 566, 784. Kahley et al., 283, 585, 536, 619, 787, 789, 840. Kaiser vy. Richardson, 517. Kallish, 715. Kane v. Jenkinson, 494. Kane v. Pilcher, 489, 548, 560. Kane v. Rice, 503, 504, 506, 822. Kansas City Manf. Co., 499, 500, 5038, 576, 649, 816, 841. Kappner v. St. Louis & St. J. R. R. Co., 109, 643. Karr v. Whittaker, 62, 465, 663. Kasson, Chester 8., 158, 502, 522. Keach, William, 725, 726, Kean et al., 157, 162, 518, 524,525, 526, 527. Keating v. Arthur, 702. Keating v. Keefer, 159, 519, 587, 538, 541, Keefer, Henry M., 250, 714, 723, 729. Keeler, James R., 34, 58, 434, 454. Keenan v. Shannon, 828, 354. Keene v. Mould, 306, 767, 769. Kehr v. Smith, 537, 539. Keller v. Denmead, 608. Kellogg v. Russell, 830, 350. Kellogg v. Schuyler, 755, 756, 757. Kelly v. Holdship, 545, Kelly v. Scott, 500, 783. Kelly v. Smith, 224, 326, 337. Kelly v. Strange, 174, 527, 529, 622. Kemmerer v. Tool, 233, 339, 823, Kempner, 380. Kempner, David, 612, 614. Kennedy e¢ al., 68, 120, 250, 471, 675. Kennedy v. Rust, 627. Kent v. Downing, 510. Kenyon & Fenton, 420, 424, 426, 456. Kerlin, John, 217, 328. Kerosene Oil Co., 172, 176, 211, 222, 228, 293, 316, 318, 319, 333, 835, 836, 344, 368, 623. Kerr, W. W., 609, 611, 612, 826, 837. Kerr v. Hamilton, 754. Kerr vy. Roach, 162, 524, 525. Kimball, George W., 655, 708. Kimball, John H., 118, 188, 189, 298, 368, 707, 708, 744, 749. INDEX TO OASES CITED. King, 736. King, Brown, 382. King, Dwight B., 415, 730. King, John G., 676. King, Robert G., 464. ‘King, Samuel, 28, 424, 440. King et al., 677. King v. Bowman, 102, 104, 174, 476, 622, 623, 634, 636. King v. Centra] Bank, 746. King v. Dietz, 507, 716, 770. King v. Loudon, 510. King v. Morrison, 144, 549, 650. Kingley v. Cousins, 765. Kingon, James, 381. Kingsbury et al., 100, 650, 811, 819, 833, 838, | Kingsland v. Spalding, 744. Kingsley, Daniel P., 11, 396, 581, 752. Kingsley, Norman W., 197, 656. Kingsley v. Prentiss, 753. Kingston v. Wharton, 587, 762. Kinkead, 1, 407, 787. Kinsman, Israel, 5, 393. Kintner, J. M., 461. Kintzing, 44, 422, 448. Kinzie v. Winston, 490, 492. Kinzing v. Bartholew, 814. Kipp, Joseph M., 96, 99, €48. Kirby v. Garrison, 748, 769. Kirkland, Chase & Co., 242, 609, 678, 679. Kirtland, Frederick S., 175, 208, 384, 335, 620. Kittredge vy. Emerson, 508, 510, 514, 516. Kittredge v. McLaughlin, 495. Kittredge v. Warren, 307, 508, 514. Klancke, Julius, 517. Klein, Edward, 305, 306, 807. Kline vy. Bauendabl, 543. Knabe v. Hayes, 750. Knapp v. Anderson, 746. Knickerbocker Ins. Co. v. Comstock, 50, 419, 469. Knight, 248, 695, 786. Knight v. Cheney, 180, 222, 290, 301, 833, 848, 344, 356, 357, 364, 372, 378, 570, ag William H.,88, 116, 477,632, 567. Knott, Rooney & Dibest, 564. Knowlton v. Moseley, 533, 540, 661. Pee al. vy. Exchange Bank, 146,551, Koch, Jacob A., 655, 656, 657. Kohlsaat v. Hoguet ef al., 826, Krogman, P. H., 559. Krueger e¢ ai., 427, INDEX TO CASES CITED. Krum, Uriah, 826. Krumbaar v. Burt, 502. Kunzler v, Kohaus, 805, 306, 767. Kyle v. Bostwick, 591. Kyler, Morris, 108, 110, 209, 291, 361, 642, 644. Labron v. Woram, 772. Lacey, Downs & Co., 47,48, 49,50, 467, 469. Lacy, W. Y., 617. Lacy v. Rockett, 144, 547, 550. Lady Bryan Mining Co., 2, 215, 216, 217, 228, 827, 448, 798. Lain v. Gaither, 489. Lains, George, 868, 871. Laird v. Laird, 318, Lake, J. J., 488, 489. Lake Superior Ship, Canal, Railroad & Tron Co., 89, 94, 95, 135, 128, 130, 135, 475, 476, 478, "632," 633, 646. Lakin v. First Nat'l Bank, 3852, 813. Lalor v. Wattles, 306. Lamb v. Brown, 750. Lamb v. Damron, 348. Lamb v. Lamb, 796. Lambert, Hugh G., 161, 164, 174, 518, 519, 622. Lammer, 528. Lamprey v. Leavitt, 516. Lane, Joseph M., 381. Lane (G, H.) & Co, 251, 788, 815, 816. Lane, Brett & Co., 92, 600. Laner, P., 429. Lang, George, 428, Lang, J. B. H., 388. Langdon, 694. Lanier, 191, 192, 195,381,651, 653, 654. Lansing v. Manton, 467, Lapsley, 104, 636. Large v. Bosler, 586, 753, 760. Larrabee v. Talbot, 308. Lathrop (Robt.) et al., 109, 581, 583, 639, 642, 648, 682. Lathrop, Cady & Burtis, 659. Lathrop, Luddington & Co., 734. Lathrop v. Drake, 226, 227, '314, 343, 344, 352, 558, 840. Lathrop Vv. Stewart, 899, 749, 767,770, 774. Lathrop v. Stuart, 399, 768. La Tourrette v. Price, 764, 766. Laurie, Blood & Hammond, 252, 257, 595, 673. Lavender », Gosnell, 808, 311, 762. Lawson, James H., 133, 282, 481, 523, 527, 729, 734. Leach vy. Green, 545. C XXxi$i Leachman, Stephen B., 204, 654. Leavenworth Savings Bank, 31, 439. Leavitt v. Baldwin, 756. Lee, John F., 99, 100, 647, 650, 838, Lee, Thomas D., 192, 652. . Lee v. Franklin Ave. German Savings Institution, 347, 623. Lee v. Phillips, 757, "758. Leeds, William, 416, 431. Lefler v. Hunt, 546. Lehman v. Strassberger, 358, 461, 580. Lehmer vy. Smith, 583. Leibenstein e¢ al., 704, 707. Leighton, J., 40, 482, 714. Leighton v. Atkins, 755. Leighton v, Harwood, 558, 571. Leighton v. Kelsey e¢ al., 214, 321, 514, 761. Leiter v. Payson, 61, 466,,794. Leland, Simeon, 445, 493, 495, 508, 506, 648, 649. Leland (8.) et al., 493. Leland & Leland, 779. Lemcke v. Booth, 113, 188, 744. Lemoins v. Bank, 577. Lenihan v. Haman, 214, 548. Leonard, 40, 444, 447, 461. Levin, Lewis, 277, 732. Levy (Sam‘l W.) et al., 22, 76, 79, 193, 196, 199, 208, 204, 385, 886, 487, 654, 655, 657, 658, 730, 745. Lewis, A. T., 789. Lewis, Henry, 71, 201, 660, 779. Lewis (Adolph) et al, 721. Lewis v. Fisk, 320, 331, Lewis v. Gibson, 345, Lewis v. Hawkins, 760. Lewis vy. Sloan, 233, 339, 812, 838. Lewis v. U. 8., 242, 244, 344, 606, 678, “785, ° Lewis v. Webber, 513. Lezynski, 184, 705. Lightner v. National Bank, 607. Lincoln v. Cherry, 288, 737. Lingan v. Bailey, 186, 708. Linkman vy. Wilcox, 817, 826. Linn v. Hamilton, 747, 759. Linn ef al. v. Smith, 28, 440. Linthicum v. Fenley, 310, 546, 622. Linton y. Stanton, 711, 749, 762. Lipscomb vy. Grace, 755. Litchfield, E. C., 662. Little, William H., 5, 8, 65, 278, 394, 401, 714, 780. Little v. Alexander, 827. Littlefield, Hiram, 137, 196, 236, 271, 272, 281, 556, 654, 664, 725, 728, 740. Littlefield vy. Delaware & Hudson XZxiv Canal Co., 293, 294, 296, 297, 298, 299, 364, 365, 366, 368, 369, 370. Livermore, George, 275, 731. Livermore vy. Bagley, 312, 407. Livermore v. Swazey, 146, 552. Livingston v. Bruce, 823, 847. Livingston v. Livingston, 609. Lizardi v. Cohen, 760. Lloyd, Wm. L., 29, 30, 438, 439, 602, 608, 649. Locke, Worthington §., 404, 405, 722. Locke vy. Winning 721, 838. Lockett v. Hill, 212, 351, 625. Loder, Benj. H., 89, 104, 588, 640, 738. Loder, Lewis B., 108.133, 284,481, 738. Loder Brothers, 78, 2638, 6382, 674, 801. Lomax v, Spear, 760. Lomme v. Kintzing, 702. Lonergan v. Fenelon, 353, 412. Long, William H., 381, 497, 587, 578, 653, 717, 719, 7383. Long (Walter P.) et ai., 244, 781, 786, 787. Long v. Converse, 491. : Long v. Rogers, 626. Longacre v. Myers, 749. Longis v. Creditors, 308. Longley v. Swayne, 772. Longstreth v. Pennock, 593. Lord, 200, 655. Lord, F. C., 828. Lord, Horace, 744. Loring, J.C. 863. Lering v. Kendall, 589, 590, 754, 768. Loucheim v. Henszey, 828. Loud v. Pierce, 806, 716, 717, 734. Loudon v. Blanford, 321, 509, 511, 548, 593, 609, 612, 799. Loudon vy. First Nat’l Bank, 827, 837, 838. . ’ Loudon v. King, 510, 511, 512. Louis, Solomon, 694. Lount, Ira A. & Chas. W., 107, 108, 863. Love v. Love, 415, 423, 427, 812, 828, 836. Lovett v. Cutter, 146, 552. Lowe v. Richards, 788, Lowenstein, 710. Lowenstein (Sam’l) e¢ al, 259, 426, 431, 466, 710, 805. Loweree, James M., 104, 105, 636, 687, Lowry v. Morrison, 761. Luca8 v. Morris, 338, 484. Ludlow, Edward H., 157, 158, 502, 521, 522, 623, Lumwmus v. Fairfield, 749. Lumpkin v. Eason, 529, Lutgens, J. H. C., 540, 716, 720, 729. INDEX TO CASES CITED. Lyall v. Miller, 565. Lynch, Robert V., 639. = Lynch v. Bernstein, 592, 595. Lyon, 655. Lyon, J. H., 493. Lyon vy. Isett, 766. Lyon v. Marshall, 250, 729, 749. Lyons, Julia, 1, 407, 460. Lyttle, J: L. & Co., 695. Mabry v. Herndon, 745. Macdonald v. Moore, 847, 848. Mace v. Wells, 591, 755. Macey v. Jordan, 751. Machad, Jobn A., 270, 739. Macintire, James, 191, 193, 204, 264, 384, 653, 801. Mackay et al., 728. Magee, George R., 467, 701. Magie, William H., 5, 394, 801. Magoon v. Warfield, 750, 768. Main v. Mills, 798. Major, William, 130, 180, 384, 479, 482, 569, 570. Malcolm, Robert, 9, 15, 396, 860. Mallory, 133, 134, 135, 136, 148, 250, 397, 480, 482, 483, 484, 851. Mallory, E., 216, 217, 219, 228, 229, 330, 331. Maltbie v. Hotchkiss, 310, 311, 846. Manly, T. M., 535, 536, 541. Mann, Henry A., 34, 434. Mannheim, William, 428, 429. Manning v. Hunt, 550. Manning v. Keyes, 742. Mansfield, A. S., 583. Mansfield, John, 677, 678. Manwarring v. Kouns, 757, 758, 766. Maples v. Burnside, 770, Marcer, 29, 442. March v. Heaton e¢ al., 225, 347, 570, 719. Marionneaux, A. P., 775. Maris v, Duren, 217, 320, 547. Marks, Isaac, 47, 230, 330, 385, 339, 450. Marks vy. Barker, 91, 356, 597, 599. Markson vy. Heaney, 100, 176, 208, 211, 226, 228, 298, 313, 314, 319, 343, 368, 370, 570, 619, 628. Markson v. Hobson, 814, 832, 834, 836. Marrett v. Atterbury, 109, 643. Marrett v. Murphy, 789. Marsh, Daniel, 368. Marsh v. Armstrong, 47, 3338, 339, 451, 541, 571. : Marshall, 724. Marshall vy. Knox, 217, 222, 296, 320, 828, 333, 386, 344, 354, 369, 593. INDEX TO CASES CITED. Marston, Wm. H.. 281, 720, 725. Marston v. Stickney, 517. Marter, Charles J., 43, 422, 447. Martin Ansor, 278, 710. Martin, Henry, 69, 779. Martin, James, 226, 314, 330. Martin, Nicholas, 161, 519. Martin v. Berry, 308, 310. Martin v. Kilbourn, 747, Martin v. Smith et al., 535, Marvin, 58, 460. Marvin vy. Chambers, 616. Marwick, Albert, 247, 786. Mason & Hamlin Organ Co. y. Ban- croft, 696; Mason vy. Hughart, 764, 765. Mason v. Larawson, 771. Mason v. Nash, 307. Mason v. Warthens, 509, 703. Massachusetts Brick Co., 427, 462. Mastbaum, 531. Masterson, John, 222,333,336,344,559, Masterson v. Herndon et al., 373, Matteson v. Kellogg, 744. Maurer v. Frantz et al., 99, 815. Maus v. McKellip e¢ al., 616. Mawson, George 8., 79, 195, 196, 276, 278, 281, 386, 655, 660, 715, 729, 731, 783, 734. Maxim v. Morse, 762, 765, 766. Maxwell et al. v. Faxton, 702. Maxwell & McCune, 164, 520. May, Henry, 164, 526, 530. May v. Courtney, 214, 514. May v. Harper, 437. May v. Merwin, 592, 596. Maybin, J. W., 581, 584, 637. Maybin v. Raymond, 367, 487, 499, 669, 670, 754. Mayer v. Gimbell, 769. Mayer v. Hellman, 310, 832, 836, 846. Mayer v. Hermann, 835, 836, 837. Mays v. Fritton, 627, 811. Mays v. Manufacturers’ National Bank, 487, 488, 489. McAdoo v. Loomis, 745. McAllister v. Richards, 884. McBride, 802. McBrien, Charles, 192, 204, 651, 657. McCabe v. Cooney, 489, 770. McCanee v. Taylor, 212, 627, 760. McCarty, John Q., 716, 717, "734, McCausland v. Waller, 748. McClellan, J., 174, 618, 622, 865. McConnell , William, 104, 243, 636, 679. McCormick v. Buckner, 828. McCormick v. Pickering, 306, 767. McCullough v. Caldwell, 760. McDermott Patent Bolt Mfg. Co., 426. XXxXV McDonald, David A,, 732, 739, 745, McDonald, John V., 662. McDonald v. Ingraham, 756. McDougald v. Reid, 758. McDowell et al,, 694. McDuffee, 116, 630. McEwen & Sons, 246, 787, 788. McFaden, James, 136, 482. McFarland & Co., 66, 774. McFarland v. Goodman, 162, 519. McGie (Fitch e¢ al. v. McGie ez parte Sanger), 219, 826, 837, McGilton e¢ al., 1 17, 212, 300, 365,622, 623, 628, McGrath & Hunt, 678. McGready v. Harris, 626. McIntire, Charles H., 269, 711, 774. McIntosh, Milton, 105, 609, 611, 686. McIver & Moore, 545. ‘| McIver v. Wilson, 598. McKay & Aldus, 496,818, 820,821,849. McKay v. Funk, 627, 703. McKeon, Thomas, 467, 468, 695. McKercher & Pettigrew, 154, 159, 528, 526, 528. McKibben, James A., 45, 52, 55, 484, 437, 444, 450. McKiernan v, Fletcher, 565. McKiernan v. King, 339. McKinley, John H., 62, 454. McKinley v. O’Keson, 764. McKinsey et al. v. Harding, 85, 89, 102, 610, 635, 639, 643. McLean, Archibald, 529. McLean, John & Son, 578, 788. McLean et al. v. Brown, Weber & Co., 428. McLean v. Cadwallader, 499. McLean v. Ihmsen, 783, 846. McLean v. Johnson, 846, 847. McLean v. Klein, 594. McLean v. Lafayette Bank, 226, 227, 344, 348, 850, 351, 354. McLean vy. Meline, 846, 848. McLean v. Rockey, 213, 317, 487, 612. McMechin v. Grundy, 821. McMenomy v. Ferrers, 498. McMenomy v. Murray, 760. McMillan y. Love, 551. McMinn v. Allen, 745. McMullin v. Bank, 575, 591. McNair, Neal A., 118, 195, 645, 654. McNaughton, Moses A., 39, 47, 428, 435, 455, 458. McNeil v. Knott, 589, 767. McNulty v. Frame, 749, 770. McSpedon v. Bouton, 551. McVey, W. C., 275, 276, 277, 278, 282, 714, 732, 738, 861. Xxxvi Mead & Co., 466, 676, 677. Mead v. National Bank of Fayette- ville e¢ al., 245, 781. Mead v. Thompson, 302, 372. Meador v. Everett, 614. Meador v. Sharp, 744. Mealy. Stephen A., 204, 384. Mebane, John A., 174, 611, 619. 622. Mechanics’ Bank v. Lawrence, 758. Medbury v. Swan, 766. | Meckins, Kelly & Co. v. Their Creditors, 308. Meeks v. Whatley, 620, 622 Melick, Isaac C., 28, 58, 44], 456, 785. Mellor & Co., 487. Melvin v, Clark, 704. Mendelsohn, 8., 51, 419, 457. Mendenhall, 48, 50, 192, 462, 467, 468, 469, 653. Mendenhall, Richard J., 469, 576. Mendenhall v. Carter, 425, 426, 427. Merchants’ Insurance Co., 2, 255, 309, 407, 417, 420, 664, 665, 793. Merchants’ Nat'l Bank v. Comstock, 635. Merchants’ Nat'l Bank v. Truax, 812, 829. Merkle, George, 459. Merrick, W. B., 628, 629, 631. Merrifield, Truman, 257, 595, 673. Merrill, E. C., 640. Merrill, William G., 406. Merritt v. Glidden et a/., 184, 705, Metcalf & Duncan, 181, 182, 184, 701, 705. Metz, Joseph, 595. Metz v. Buffalo, Corry_& P. R. R. Co., 567, 794, 795. Metzger, Jacob, 503, 534. Metzler & Cowperthwaite, 44, 179, 448, 449, 571. Meyer, Edward, 832, 836. Meyer v. Aurora Ins. Co., 708. Meyers, Louis, 182, 534, 587, 705. Michaels v. Post, 315, 442. Michener v. Payson, 377, 795, 796. Mifflin, 186, 187, 708. Migel, Solomon, 181,189,689, 701,707. Milhous v. Aicardi, 758, 774. Miller, Edmund I1., 241, 245, 681,782. Miller, 8. 8., 451. : Miller, William D., 467. Miller v. Black, 899, 487. Miller v. Bowles, 214, 215, 321, 509, Miller v. Gillespie, 748. Miller v. Jones, 359, 504, 506,536,615. Miller v. Keys, 414, 417, 580. Miller v. Mackenzie, 509. Miller v. O’Brien, 489, 516. Miller v. Parker, 499. INDEX TO CASES CITED. Mills, William, 236, 239, 243, 665, 666, 667, 786, 788. Mills v. Davis, 329. 829. Milner, Jonathan J., 580. Miltenberger v. Phillips, 561. |) Milwain, Elijab, 94, 646. Mims vy. Swartz, 168, 545, 563. Minon vy. Van Nostrand et al., 184, 708, 708. Minot v. Brickett, 549, 770. Minot v. Thacher, 762. Mitchell, J. C., 257, 605, 672. Mitchell (T. P.) et al., 66, 778. Mitchell v. Manufacturing Co., 207, 219, 227, 284, 306, 325, 326, 338, 344, 348. Mitchell v. McKibbin, 346, 537, 538. Mitchejl v. Singletary, 750. Mitchell v. Winslow, 500, 536, 617. Mittledorfer, Moses and Charles, 650, 676, 677. Mitzel, 460. Mixer v. Excelsior Co., 508, 514. Moffit v. Cruise, 551. Mollison vy. Eaton, 451. Monroe vy. Upton, 82, 584, 585, 756, 758. Montgomery, Henry B., 104, 105, 445, 583, 591, 637, 647, 677, 678, 788. Montgomery v. Bucyrus Mach. Co., 500. Mooney, Joseph, 370, 698. Moore, Chauncey W., 723. Moore, Rufus E., 66, 68, 779. Moore v. Jones, 226, 314, 315, 501. Moore v. Nat’l Exchange Bank of Columbus, 60, 462, 582. Moore v. Rosenberger, 397, 492. Moore v. Voss, 550. Moore v. Waller, 746, 748. Moore v. Walton, 425. Moore v. Young, 498, 505, 553. Moore & Bro. v. Harley, 55, 436. Moran v. Bogert, 382, 566, 672. Moran v. Schnugg, 605, 620. Morford, Charles A., 22, 400. Morgan v. Campbell, 508, 593, 594. aa Root & Co. v. Mastick, 412, 9. Morgan et al. v. Thornhill e¢ al, 227, 289, 294, 801, 302, 343, 357, 364, 867, 872. Morganthal, John, 121, 478, 478. Moritz & Pinner, 777, 779, 780. Morrill, George P., 534, 536, 553, 591. Morris, 88, 52, 55, 485, 436, 444, 632, 688, 689, 690, 694, Mira Rates 209, 318, 337, 467, 468, INDEX TO CASES CITED. Morris v. Davidson, 322. Morris v. First Nat’l Bank, 500. Morris v. French, 496. Morrison, Thomas, 605, 607, 823. Morrison y. Woolson, 749, 750, 767, 768. Morrow, J. H., 496. Morse, 148, 483, 484. Morse, Edward P., 244, 785, 787. Morse & Co., 584, 591. Morse v. Cloyes, 770. Morse v. Godfrey, 412, 817, 841. Morse v. Hovey, 305, 306, 591. Morse v. Hutchins, 742. Morse v. Lowell, 105, 636, 744. Morse v. Presby, 269, 315, 711, 750, 757. Morss v. Grittman, 546. Mosby v. Steele, 702. Moseley, Wells & Co., 526. Moses, S. J., 44, 450. Mott, Jacob H., 565. Mott v. Maris, 680. Moulton e¢ al., 826. Muirhead v. Aldridge, 539. Maller & Bretano, 35, 40, 42, 43, 44, 45, 46, 47, 331, 404, 482, 440, 448, 449, 450, 454. Muller v. Erich, 543. Munger & Champlin, 423. Munn, 408, 429, 430, 462. Munson v, B. H. & E. R. R. Co., 514, 516. Murdock, George A., 83, 84, 275, 638, 717, 730, 866. Murphy, Alonzo, 58, 465. Murphy v. Smith, 759. Murray, 581. Murray v. De Rottenham, 312, 590, 595, 751, 753, 760, Murray v. Jones, 541, 566. Murray v. Marsh, 377. Murray v. Murray, 783, 784. Murray v. Riggs, 91, 596. Mutual Life Ins. Co. v. Cameron, 757. Mutual Savings Bank, 555. Myer v. Crystal Spring Pickling & Pres’g Co., 321. Myers v. Seeley, 795. Myrick, Benj. H., 14, 104, 397,637,667. Napier v. Server, 538. Nassau v. Parker, 755, 756. National Bank v. Conway, 505, 506. National Bauk of Leavenworth v. Hunt, 505. National Bank v. Taylor, 702, 766. National Life Ins. Co., 406. National Iron Oo., 618. Nazro v. Cragin, 314. XXXxvii Neale, Charles E., 138, 189, 486, 556, Nebe, Henry, 86, 87, 629. Needham, Otis A., 11,715. Neilson, J., 61, 465. Nelms v. Pugh, 411. Nelson y. Carland, 298, 302, 870, 372. Nesbit v. Greaves, 309. Newhall, 487, 491. Newhall é al. v. Lynn Sav. Bank, 604. New Lamp Chimney Co., 250, 251,675. New Lamp Chimuey Co. v. Ansonia Brass & Copper Co., 4, 315, 699, 792, 794. Newland, Frank, 573, 604, 634. Newman, Abraham, 725, 727. Newman v. Fisher, 794. Nichols v. Bellows, 501. Nichols v. Eaton, 491. Nickodemus, Peter, 28, 31, 36, 3'7, 54, 405, 406, 408, 426, 427, 428, 456, 589. Nightingale, John, 449. Noakes, Thomas, 155, 521, 557, 571, 670. Noble, George W., 94, 125, 475, 645, Noble v. Scofield, 853. Noesen, Theodore, 438, Noonan, Joseph A., 66, 67, 68, 777, 778, 779. Noonan & Connolly, 728, 734. Noonan v. Orton, 144, 533, 542, 547. Norcross, Nicholas G., 15, 397. Norris, James W., 209, 222, 318, 383, 344. Norris v. Goss, 757. North American Ins. Co. v. Graham, 729. North v. House, 832, 8837, 842. Northern Iron Co., 88, 89, 94, 95, 124, 125, 476, 477, 681, 632, 646. Northman v. Insurance Co., 550. Norton, C. H., 122, 130, 475, 478, 479. Norton v. Barker, 560, Norton vy. Boyd, 320, 330. Norton v. De la Villebeuve, 558, 561. Norton v. Switzer, 183, 549, 551, 706. Nounnan & Co., 257. 464, 580,634,672. Noyes, B. B., 255, 256, 669, 670. Noyes, G. N., 384. Nudd v. Burrows, 824, 826. Nudd,v. Montanze, 840. N. Y. Mail Steamship Co., 148, 149, 255, 483, 575, 606, 666, 671, 676, 677, 678. O’Bannon, 14, 397, 726. O’Brien, Mary A., 1, 289, 357, 358,407. O’Brien v. Weld, 833. O’Connor v. Parker, 853. O’Donohue, John, 202, 659, XXXViii O'Dowd, Michael, 497. O'Fallon, 169, 170, 565. O'Farrell e¢ al., 270, 662, 789. O'Hara, 676. O’Hara v. Dilworth, 554. O’Hara v. MacConnell, 351, 355, 374, O’Hara v. Stone, 827. O’Mara, Michael, 186, 707. O’Neale, A. G., 491. O'Neil, 82, 89, 573, 644, 691. O'Neil v. Dougherty, 551. , Oakey v. Bennett, 490. Oakey v. Corry, 169, 488, 557, 564. Oakey v. Gardner, 507. Oakley, Charles, 400. Oates v. Parrish, 287, 774. Obear, 434. Ocean Nat. Bank v. Olcott, 287, 540, WTA, Odell v. Wooten, 747, 772. Ogden v. Cowley, 600. Ogden v. Jackson, 823. Okell, William, 195, 282, 654, 734. Olcott, Cornelius, 230, 331. Olcott v. Maclean, 824, 867. Oldens v. Hallet, 307. Olds (M.) et al., 785. Oliver v. Smith, 317, 680. Olmsted, 50, 469. Onion v. Clark, 490. Ontario Bank y. Mumford, 493, 544, 548. Orcutt, 724. Oregon Bulletin Printing & Publish- ing Co., 31, 294, 867, 371, 413, 418, 420, 439, 442, 460, 461, 500. Oregon Iron Works, 330. Orem & Son y. Harley, 35, 53, 480, 482, 456. Ormsby’ vy. Dearborn, 576. Orne, Freeman, 9, 11,14,21, 82, 91,94, 396, 397, 400, 572, 599, 644, 645, 7389, 860. Osage Valley & Southern Kansas R. R. Co., 459. Osborn v. Baxter, 569. Osborn v. McBride, 492, 785. Otis v. Gazlin, 764, 165. Otis v. Hadley, 238, 839, 814, 829, 881. Ouimette, L. H. , 28, BT, 58, "440, 442, 458, "459, 460, 837. Overton, W., 135, "481. Owen & Murrin, 488, Owens, John, 161, 519, 580. Owens v. Grimsley, 771. Owesley v. Cobia, 744. Oxford Iron Co. v. Slafter, 825, 837, Packard, D. C., 850. Paddock, S., 106, 108, 581, 641, 644. INDEX TO CASES CITED. Paget, 275, 781. Paige v. Loring, 814, 825, 829. Paine v. Caldwell, 208, 314, 345. Palmer, 832. Palmer, Charles N., 668, 780, 732. Palmer, E. V., 729. Palmer, James M., 40, 432. Palmer v. Merrill et al. , 704, Palmer v. Preston, 743. Pardee v. Leitch, 322, Park v. Casey, 757, 766. Parker, Renslow = 716. Parker v. Atwood, 287, 774. Parker v. Muggridge, 500, 618,783,784. Parker & Peck, 652, 679, 713. Parkes, J. F. %C. R., "124, 476, 477, 527, 531, 634, 636. Parks v. Goodwin, 772. Parks v. Shelden, 513. Parsons v. Topliff, 513, 825. Partridge v. Dearborn, 826, 828. Patrick v. Bank, 824. Patterson, Charles G., 20,22,76,81,106, 138, 188, 192, 199,203,376, 385,390, 895,487,551,573,630, 641,651,655, 656, 657,707,708, 743, 865. Pattison & Co. v. Wilbur, 750, 760. Paulson, 782, Payne et al. v. Able et al,, 214,745,747, 750, 761, 769. Payne v. Solomon, 418, 419. Payson v. Brooke, 377, 795, 796. Payson v. Dietz, 231, 234, 389. Payson y. Payson, 508, Payson v. Stoever, 497, 797. Payson v. Withers, 797. Pearce, Alonzo, 716, 717, 723, 729. Pearce v. Foreman, 760, Pearsall v. McCartney, 734, 735. Pearson, George W., 128, 130, 477,478. Pease, R. S., 248, 244, 785, 786. Pease ¢é al., "84, 109, 635, Pease v. Bennett, 644, Peck, Bronson, 79, 387. Peck, J.L. A. ” 514. Peck’ v. Jenness, 145, 214, 217, 328, 508, 514, 546, 603, 760. Peckham v. Burrows, 817, 830, 835, Peebles, Lemuel, 605. Peel v. Ringgold, 545, 784. Pegues, P. A., 252, 671. Peiper v. Harmer, 239, 838, 559. Penn (Jno. R.) et al., 68, ‘69, 70, 892, 714, 715, 785, 750, 779, 790. Penn v. Edwards, 549. Pennell v. Percival, 285, 741, 770, 771. Penniman v. Norton, 548, 549, 761, Pennington y. Lowenstein, 228, 327, 830, 347, 508. Pennington v. Sale & Phelan et al., 172, INDEX TO CASES CITED. 211, 213, 217, 295, 228, 315, 817, 819, 827, 380, 347, 611. Penny v. Taylor, 162, 519, 704, 759. People v. Brennan, 333. People v. Brooks, 709. People v. Dunean, 492. People’s Mail Steamship Co., 172, 211, 816, 318, 319, 335, 623. Perdue, Lindsay, 161, 531, 532, 607, 860. Perkins, 148, "149, 371, 484, 733. Perkins v. Gay, 287, 774, Perley, Daniel J., 717. Perley v. Dole, 488, 495. Perrin & Hance, 505, 506, 535,536,821, Perry, John S., 26, 121, 396, 400, 473, 478, 484. Perry v. Allen, 721, 727. Perry v. Chandler, 508. Perry v. Langley, 298, 298,307, 368,405, 408, 409, 410, 421, 422, 463. Perry v. Lorillard Fire Ins. Co., 497. Perry v. Somerly e¢ al., 214, 514. Perryman v. Allen, B54. Pesoa v. Passmore, 740, 749. Peterson v. Spear, 716, 728, 724, Petrie, H., 599. Pettis, Julius R. , 707, 708. Petty v. Walker, 718. Pfaff, Frederick, 862. Piromm, 128, 129, 135, 477, 478, 481. Phelps, Caldwell & Co., 132, 124, 126, 127, 475, 477, 667, "781. Phelps v. Classen, 28, 56, 289, 358, 440, 458, 462. Phelps v. Curts, 868, 870. Phelps v. McDonald. "491, 564, Phelps v. Sellick, 177, 212, 328, 847, 560, 625, 627. Phelps v. Stearns et al., 446. Philadelphia Axle Works, 30, 486, 438, 466. Phillips, William W., 86, 629, 630. Phillips v. Bowdoin, 761. Phillips v. Helmbold, 139,317,557,559. Phillips v. Russell, 744. Puillips v. Solomon, 747. Phipps v. Sedgwick, 868. Pheenix-v. Ingraham, 353,356,821,831. Pickering, William J., 434. Pickett v. McGavick, 562, 774. Picton, 293, 300, 368, 370, 408. Pierce v. Evans, 814, 835. Pierce & Holbrook, 14, 272, 896, 421, 428, 730, 740, 846, 847. Pierce v. Phillips, 626. Pierce & Whaling, 334, Pierce v. Wilcox, 177, 212, 627, 761. Pierson, William H., 268, 398,487, 710, 714,719,721, 722,726,728; 729,741. 165, 166, 519, XXxix Pike v. Crehore, 378, 546, Pike v. Lowell, 559. Pike v. McDonald, 754, 757. Pillow v. Langtree, 490. Pindell v. Vimont, 550, 616. Pioneer Paper Co., 191, 201, 658, 660. Piper v. Brady, 828, 829, 836, Pitt, Charles &., 55, 406, 444. Pittock, Robert, 672, 582, 643. Place & Sparkman, 110, 291, 858, 360, 362, 368. Planters Bank v. Conger, 144, 647. Platt, John H., 847. Platt v. Archer, 42, 809, 354, 453,456, 684, 799. Platt v. Parker, 750, Platt v. Stewart, 290, 358, 506, 594, 672, 812, 826, 830. Plimpton, Horace, 15, 21, 396, 400. Pogue v. Joyner, 754, Poleman, William C., 526. Pollock v. Pratt, 680. Pomeroy, C. W., 15, 898, 718. Poole v. McDonald, 689, 693. Porter v. Douglass, 534, 716, 724. Porter v. Porter, 763. Port Huron Dry Dock Co., 88, 89,103, 573, 629, 631, 632, 640. Portsmouht Savings Fund Society, 677. Post v. Corbin, 853, 821, 832. Post v. Rouse, 234, 339. : Potter v. Wright, 684. Potts v. Garwood, 409, 420; 462, 463. Powell, Allen F., 116, 133, 480, 481, 482, 667. Powell v. Knox, 613, 718. Prankard (F. ) et al., 780. Pratt, Charles C., 526, 528. Pratt, D., 58, 389. Pratt, Edward D., 429. Pratt, Jr., v. Curtis e¢ al., 225, 847, 351, 534, 538. Pratt v. Russell. 763, 766. Pray v. Torr, 115, 699. Prentiss v. Kingsley, 753. Prescott, Martin, 572, 582. Preston, Alvin B., 400. Preston, Charles H., 82, 88, 161, 168, 164, 266, 876, 510, 511, 512, 519, 520, 532. Preston vy. Simons, 717, 767, '769. Prewett v. Caruthers, 763, 764. Price, 484. Price, J. S. & J., 159, 526, Price v. Bray, 767, 769, 770. Price v. Miller, 447, 461. Price v. Phillips, 559. Princeton, Thomas, 96, 446. Pritchard ¥v. Ciandler, 227, 844, 561. 68, 69, 779, xl Providence Co. Savings Bank vy. Frost, BT4, 582. Pryor, Richard, 23, 165, 582, 571.. Puffer, Jonas, 2778, 731. Pugh v. Bussell, 307. Pugh v. York, 766. Pulver, Eugene, 270, 273, 739, 740. Pulver, John, 12, 26, 27, 76, 78, 120, 121, 385, 386, 396, 399, 400, 473, 474, Pupke, H. & G., 54, 461. Purcell v. Robinson, 625. Purviance v. Union Nat'l Bank, 498. Purvis, James J., 128, 124,477,478, 667. Pusey, A., 494, 849. Pusey v. Bradley, 316. Quackenboss, John M., 730. Quinike, 662, 739. Rado, Peter, 29, 442. Raffauf, Jacob, 434. Rahilly v. Wilson, 495, 852. Raiguel v. Gerson, 749. Rainsford, D. A., 588, 715, 716, 774. Ralph, 159. Rand v. Upham, 774. Randall & Co. v. McLain, 510. Randall & Reed, 19, 391. Randall & Sunderland, 35, 87, 58, 408, 410, 418, 421, 430, 482, 456, 461. Randall & Sutton, 750. Randolph v. Canby, 498. Rank, 186, 309, 708. Rankin & Pullan v. Florida, Atlantic & G. C.R.R. Co., 28, 420, 573, 799. Rankin y. Third Nat'l Bank, 834, 835. Ratcliffe, Robert, 121,400,473,478,484. Rathbone, Robert C., 278, 280, 281, 718, 714, 715, 716, 717, 733. Rathbone v. Blackford, 895, 596. Ray, James T., 11, 106, 192, 396, 581, 642, 651, 752. Ray v. Norseworthy, 175, 619,620, 622, 623 Ray v. Wight, 703. Rayl v. Lapham, 774. Raynor, Jacob, 39, 426, 4385. Reade v. Waterhouse, 144, 546, 551. Reakirt, John, 199, 655. Reavis v. Garner, 534, 566. Redfield, 11, 395, 740. Redman v. Gould, 877, 543. Redmond & Martin, 34, 36, 433, 456. Reece & Brother, 96, 647. Reed, C. W., 581. Reed, Horatio, 182, 183, 293, 705. Reed, J. K. P., 727, 728. Reed, John M., 289, 296, 297, 298, 857, 868, 369. INDEX TO CASES CITED. Reed, Timothy, 723. Reed v. Bullington, 774. Reed v. Emory, 754. « Reed v. Pierce, 752. Reed et al. v. Taylor, 308, 811, 846. Reed v. Vaughan, 306, 815, 749. 770. . Reed v. Vaughn, 767. Rees v. Butler, 757. Reeser v. Johnson, 848. Regan v. Regan, 770. Reid v. Martin, 743. Reiman & Friedlander, 30, 52, 305,306, 307,488,471, 688, 689, 693,694, 695. Rein, Philip, 875, 885, 862. Reitz v. People, 870. Repplier v. Bloodgood, 824, 853. Republic Insurance Co., 84, 588, 688, 795, 796, 797. Reynolds, 308, 309. Rhoades v. Blackiston, 144, 493, 544. Rhodes, 618. Rice, George, 248. 244, 786, 787. Rice v. Grafton, 818, 825. Rice v. Maxwell, 853. Rice v. Melendy, 451, 811. Richards, Andrew J., 202, 656. Richards v. Maryland Ins. Co., 485,561. Richards v, Nixon, 749, 767. Richardson, Clementina T., 385. Richardson (Henrietta) e¢al., 183, 226, 314, 348, 706. Richardson, S. H. & Co., 159, 526. Richter’s Estate, 96, 100, 647, 650, 811. Riggin v. Maguire, 586. Riggs, Lechtenberg & Co., 582. Riggs v. White, 771. Riordon, John, 97, 99, 446, 649. Rison v. Knapp, 2338, 812, 814, 817, 819, 832, 835, 836, 84], 852. Rison v. Powell, 233, 339. Rix v. Capitol Bank, 164, 518, 526, 528, 632, 823. Robb v. Powers, 187, 707. Roberts v. Woods, 761. Robertson, David H., 15, 897, 716, 725. Robinson, Jessie H., 24, 263, 264, 265, 376, 801, 802. Robinson, Julius A,, 677. Robinson, Ward E, 118, 276, 298, 868, 699, 707, 731. Robinson, Wm. L., 107, 863. Robinson & Chamberlain, 196, 652,714. Robinson v. Elliott, 535, 634, 541, 822. Robinson et al. v. Pesant et al., 586, 596, 752. Robinson v. Wadsworth, 718. Robinson v. Wilson, 159, 164, 512. Rockford, Rock Island & St. Louis R. R. Co. v. McKay & Aldus, 500. a 212, 287, 627, 769, INDEX TO CASES CITED. Roddin & Hamilton, 782. Roden v. Jaco, 626, 757. Rodgers v. Coryell, 412. Rogers, Davis, 876, 447. Rogers, W. M., 714, 719, 726. Rogers v. Stevenson, 146, 542, 552. Rogers v. West. Insurance Co., 751, 756. Rogers v. Winsor, 222, 838, 552. Rohrer’s Appeal, 218, 829, 841. Rollins v. ‘I'witchell, 92, 606. Rooney, CO. J., 445, 461. Roosevelt v. Mark, 312, 575, 578, 579. Rosenberg, Israel M., 212, 817, 623. Rosenberg, Myron, 181, 182, 184, 251, 675, 699, 701, 705, 749. Rosenfield, Isaac, 208, 250, 282, 487, 655, 657, 718, 719, 720, 721, 722, 725, 788, 734, 851. Rosenfields, 89, 40, 52, 55, 485, 486. Rosenthal, H. & M., 484. Rosey, Louis, 672. Rosey, Louis H., 82, 235, 584, 664, 678. Roswig v. Seymour, 709. Rowan v. Holcomb, 306, 767, 770. Rowe v. Page, 308, 310, 340, 516, 558. Rowell, Christopher C. 728, 729, 735. Rucknam v. Cowell, 315, 757, 759, "71, Ruddick v, Billings, 288, 289, 299, 2938, 294, 356, 357, 359, 364, '368, 369. Rudge vy. Rundle, 744, TB. Ruehle, Ferdinand, 101, 212, 218, 624, 625, 688, 684. Rugan v. West, 146, 877, 552. Rugely v, Robinson, 318, 487, 507,544, 717, 718, 761. Rundle & Jones, 183, 575, 706. Rupp, 526. Rusbin v. Gause, 529. Russell v. Cheatham, 212,806, 627,750. Russell v. Owen, 239, 601, Rust, Elam, 487, 508, 612. Ruth, David, 153, 154, 155, 156, 157, 521, 522, 523, 524, 526. Ryan, Thomas, 408, 409, 413, 459, 460. Ryan & Griffin, 169, 564, Ryerss v. Farwell, BOT. Sabin, Philo R., 177, 212,224,337, 608, 628. Sacchi, 149, 483, 617, 674. Sackett v. Andross, 305, 306, 768, 770, Safe Deposit & Savings Institution, 461. Salkey v. Gerson, 192, 197, 653, 656, 697. Sallee, William A., 16, 396, 397, 863. Salmons, L. T., 618. Samson ¥. Blake, 211,289, 294, 297,299, 800, 817, 384, 837, 357, 358, 865, 869, 871. Samson yv. Burton et al., 145, 214, 215, xl 274, 821, 829, 514, 515, 546, 553, 700, 702, "705, "gly, "329, Samson v. Clarke, 177, 216, 219, 228, 229, 289, 300, 327, 328, 833, 338, 355, 357, 870, 51D. Samuel v. Cravens, 764. Sandford, 408. Sandford vy. Sinclair, 772, 773. Sands Ale Brewing Co., 617. Sands, Comfort, 484. Sands, George E., 136, 483, 485. Sands v. Codwise, 534, 585, 541, 542. Sandusky vy. First National Bank, 340, 872. Sandford v. Lackland, 491. Sanford v. Huxford, 854. Sanford v. Sanford, 82, 551, 574. Sanger & Scott, 677. Sanger v. Upton, 795, 796. Sargent, Edward, 39, 48, 52, 55, 485, 436, 487, 466. Saunders v. Commonwealth, 745, 751. Saunders, Wm. A.,85,100,631,639,649. Sauthoff & Olsen, 161, 520, 605, 606. Savage v. Best, 320. Savings Bank v. Webster, 757. Savory v. Stocking, 753. Sawtelle v. Rollins, 549. Sawyer, James M., 665, 669, 678, 680, 693, Sawyer v. Hoag, 91, 504, 596, 597. Sawyer et al. v. Turpin et al., 505, 506, 812, 817, 821, 822, 824. Scammon, 58. Seammon, J. Young 34,53,434,439, 454, Scammon’v. Cole et al., 07, 226, 855, 811, 819, 814, 818, 830, 831, 832, 834, 835, 839, 852. Scammon v. Kimball, 91, 597, 598. Schapter, Samuel, B64. Scheiffer & Garrett, 129, 181, 182, 185, 188, 150, 478, ‘79, 480, "481, 485, 486, 781, 865. Schenck, 710. Schepeler (J. F.) e¢ al., 121, 474, 700. Schick, Julius, 408, 409, 423, 812. Schlichter >(Cathn. H.) e¢ al., 2, 57, 459, 460, 579. Schlitz v. Schatz, 828. Schnepf, F., 23, 216, 217, 228, 820, 327, 609, 612, 618, 719, 837. Schoenberger, Jos., 441i, 648. Schofield (D. G.) et al., 285, 715, 720, 790. Schofield v. Moorhead, 204, 384. Schonberg, J. A., 200, 661, 662. Schoo, 425, 784. , Schuharct, Frederick, 585. Schulenberg v. Kabureck, 859,845,852. Schuman y. Fleckenstein, 346, 84!. xiii Schumpert, 14, 492, 727, 728. Schuyler, S. D., 278, 282, 375, 463, 713, 734. Schwab, Julius, 676. Schwartz, M. T., 530. Schwarz, Henry, 585, 701. Scott, 6u9. . Scott, Dwight, 609. Scott, Samuel C., 185, 701. Scott, Collins & Co., 689, 690, 691, 692. 693, 695. Scott v. Kelly, 627. Scott & McCarty, 96, 446, 647. Scott v. Wilkie, 144, 546. Scrafford, C. G., 30, 51, 438, 457. Scudder, Wilcox & Ogden, 461. Scull, Isaac, 34, 38, 53, 415, 434, 454, 456. Scully v. Kirkpatrick, 310. Seabury, James M., 276, 731, 782, 783. Seaman v. Stoughton, 490, 848. Seaver v. Spink, 815, 816. Seckendori, J., 195, 276, 660, 781. Second Nat’! Bank v. Hunt, 821. Second Nat'l Bank v. Nat'l State Bank, 605, 621, 622, 761. Sedgwick v. Casey, 560. Sedgwick v. Fridenberg, 291, 361. Sedgwick v. Lynch, 845. Sedgwick v. Milward, 841. Sedgwick v. Minck et al., 214, 215, 320, 535. Sedgwick v. Place et al., 354, 537, 538, 541, 665, 846. Sedgwick v. Sheffield, 818, 829. Sedgwick v. Wormszr, 851, 852. Seibel v. Simeon, 322, 622. Seiling v. Gunderman, 544. Selby v. Gibson, 718. Seldner v. Smith, 747. Selfridge v. Gill, 681. Selfridge v. Lithgow, 755. Selig, M., 193, 661. Severy v. Bartlett, 704. Seymour, J. W., 113, 181, 188, 701, 707, 708, 743, 744, 861. Seymour v. Browning, 766. Shackletord v. Collicr, 504, 539. Shafer & Hamilton, $30. Shaffer v. Fritchery & Thomas, 89, 219, 333, 348, 827, 836, 843. Shaffer v. McMaken, 5u8. Shanahan & West, 783. Sharman & Howell, 217, 320. Shaw v. Mitchell, 602. Shawhan v. Wherritt, 552, 749, 813, 826, 827, 838, Shay v. Sessaman, 502. Shea et al, 427, 451. Shearman e¢ al. v. Bingham e¢ al., 226, "939, 806, 314,825,341, 343,366,815. INDEX TO CASES CITED. Shearon v. Henderson,. 515. Shears v. Solhinger, 308, 309. Shechan, Daniel, 28, 30, 46, 242, 438. 439, 441, 452, 459, 466, 685, 681, Shelden, George H., 736, 737. Shellington v. Howland, 113, 700, 704. Shelton v. Pease, 585, 587,750,752,774. Shepard, Thomas S., 777, 785, 816. Shepardson’s Appeal, 310, 811. Sheppard, L., 104, 275, 476, 581, 628, 639, 641, 780, 752. Sherburne, 48, 467. Sherman v. Hobart, 764. Sherry, 54, 461. Sherwood, B., 78, 249, 264, 381, 882, 886, 801, 803, 804. Sherwood v. Mitchell, 745. Shields, 688. | Shields, D., 164, 509, 531, 860. Shields v. Niagara Bank, 641. Shipman, 524. Shippen’s Appeal, 502. Shoemaker, Robert H., 714, 730, 733. Shomo v. Zeigler, 377. Shouse, J. A. & H. W., 31, 419, 402, 433, 488, 463. Shryock v. Bashore, 309, 810, 311, 884. Shuey, William H., 228, 329, 354. Shulze v. Fleischer, 186, 708. Shuman vy. Strauss, 743, 765. Shurtleff v. Thompson, 757. Sidener v. Klier, 815. Sidle, J. W., 250, 585, 714, 718, 722, 755, 851. Siebel v. Simeon, 322. ‘ Sigsby v. Willis, 29, 440, 441, 573, 575, 591. Silverman, Charles A., 163, 305, 306, 404, 417, 418, 460. Sime, John & Co., 641. Sime & Co., 366. Simmons, Solomon, 88, 39, 55, 485,436. Simpson, Marcus, 190, 708. Simpson v. Savings Bank, 810. Sims v. Jacobson, 510. Sims v. Ross, 546, 550. Sinclair vy. Smyth, 749. Singer v. Sloan, 837, $38. Skelly, William H., 56, 60,442,462,466. Skoll, Jacob, 567. Slafter v. Sugar Refining Co., 838. Sleek v. Turner, 828, Sloan, Franklin A., 710. Sloan v. Lewis, 315, 442, 673. Smalley v. Taylor, 144, 549. Smith, 715, 716. Smith, B, K., 241, 681. Smith, Charles, 604, Smith, Charles A., 497. Smith, Elijah E., 247, 786, 787. Smith, Elmer C., 658. INDEX TO CASES CITED. Smith, G. W., 869. Smith, John Harper, 44, 381, 449. Smith, John 0., 18, 94, 123, 182, 224, 835, 837, 382, 475, 478, 480, 624, 642, 865. Smith, John P. & James, 217, 820,610, 612, 618, 677. Smith, John W., 162, 524, 525. Smith, John W. A., 524. Smith, Moses C., 790. Smith, S. T., 36, 58, 59, 414, 421, 422, 459, 460. Smith, W. Fleming, 92, 585. Smith v. ———, 487, 489, 604. Smith v. Auerbach, 352. Smith v. Babcock, 754, 767. Smith & Bickford, 275, 276, 280, 714, 721, 730, 732, 733, Smith v. Brinkerhoff, 899, 600. Smith v. Brown, 513. Smith v. Crawford, 560. Smith v. Dispatch Co., 115, 699. Smith v. Ely, 585, 536, 614, 730, 822, 844. Smith v. Engle, 509, 695, 696. Smith v. Gordon, 507, 585, 548. Smith v. Lawton, , 510. Smith v. Little, 354, 829. Smith v. Manufacturers’ Nat'l Bank, 793. Smith v. Mason, 222, 227, 301, 333, Beh 844, 364, 372, 874, Smith v. McLean, 535, 813, 835, 852. ‘Smith v. Ramsay, 774. Smith e¢ al. v. Teutonia Insurance Co., 2, 420, 422. Smoot v. Morehouse, 489. Snedaker, J, M., 102, 211, 318,319,616, 623, 633. Snedaker, M. J., 616. Snow, George W., 334, 337, 502. Societe D’Espargnes v. McHenry, 627. Soldiers’ Business Messenger & Dispatch Co., 614. Solis, Andrew J., 192,195,267, 651,658, 709. Solomon, 725, 727, 728. Solomon, Joseph, 529. Son, Nathan A., 235, 664, 733. Sonneborn v. Stewart, 470. Sorden v. Gatewood, 212, 627, 770. Southern Express Co. v. Connor, 547, Southern Minnesota R.R. Co., 409, 576, 792. South Side R. R. Co., 332, 841. Spades, Michael W., "688, 690, 691. Spalding v. Dixon, BB, Spalding v. New York, 751. Sparhawk v. Broome, 752, Sparhawk v. Cochran, 501. xiii Sparhawk v. Drexel, 500, 597, 846. Sparhawk v. Richards, 821. Spaulding v. Dixon, 487. Spaulding v. McGovern, 234, 839, 350, 353. Speake v. Kunard, 565. Speyer, F. & A., 380. Spicer et al. v. Ward et al, 421, 468, Spillman, Benjamin, 689, 692, 861. Spillman v. Johnson, 627. Spooner v. Russell, 762. Springer v. Vanderpool, 547. Staff, John J., 256, 881. Stafford, Henry H., 256, 859. Stafford v. Grout, 641. Stansell, 28, 30, 102, 439, 685. Staplin, "429. Stanley v. Sutherland, 508, 570, 812, 814. Stark v. Stinson, 763. Starkweather v. Cleveland Ins. Co., 836, 497, State Bank v. Wilborn, 306. State v. Bethune, 716, 717. State v. Ferris, 487. State v. Pike, 658. State v. Rollins, 187, 3877, 707. State of Louisiana v. Recorder, 617. State of North Carolina v. Trustees of University, 232, 338, 344. State Savings Association v. Kellogg, 794, Steadman, Enoch, 211, 318, 719. Steadman v¥. Jones, 641. Stebbins v. Sherman, 764. Steel, Roscoe R., 868, Steele v. Towne, 544, Steelman v. Mattix, 309, 810. Steene v, Aylesworth, 495, 682, 717. Steevens v. Earles, 247, 493, 563, 682. '| Steiner, 243, 679. Steinman, Louis E., 52, 443. Steinmetz v. Ainslie, 753, Stemmons v. Burford, 627. Stephens, E. R., 89, 96, 99, 109, 632, 648, 647, 648, Stephens v. Brown, 287, 774. Stephens v. Ely, 768, Stepp v. Stahl, 311. Stern, 467. Stern v. Nussbaum, 750, 763. Stetson, Charles A., 27, 473. Stevens, Ezra M., 82, 94, 476, 584, 645. Stevens, R., 426, 427, 746, 778.. Stevens, W. S., 156, 159, 164, 512, 519, 520, 526. Stevens v. Hauser, 169, 559, 561, 568, 567. Stevens v. Mechanics’ Savings Bank, 232, 838, 458, xliv Stevens v. Palmer, 169, 563, 569. Stevenson v. Jackson, 245, 781. Stevenson v. McLaren, 451. Stewart, R. R., 60, 464. Stewart, Taylor R., 618, 624. Stewart v. Anderson, 761, 762. Stewart v. Colwell, 755.’ Stewart v. Emerson, 742, 743. Stewart v. Green, 758, 766. Stewart v. Hargrove, 490, 613, 715, 728, 758, 774. Stewart v. Isidor et al., 102, 214, 534, 535, 635. Stewart v. Nat, Union Bank, 492. Stewart & Newton, 159, 526, Stewart v. Reckless, 768, 763. Stewart v. Sonneborn, 4638. Stewart v. Warden, 515. St. Helens’ Mill Co., 614. Stickney v. Wilt, 292, 302, 348, 358, 364, 373, 874. Stiles v. Lay, 5, 393, 750, 770. Stillwell, J. R., 124, 477. Stillwell, William, 684. Stillwell v. Coope, 764. Stinson v. McMurray, 705, 706. Stobaugh v. Mills, 845, 847, 848. Stockwell v. Silloway, 186, 309, 514, 708, 751. Stoddard v. Locke, 214, 514. Stokes, Edward §., 147, 488, 713. Stokes v. Mason, 742, 743. Stokes v. State, 620, 679. Stoll v. Wilson, 767, 768, 769. Stone v. Miller, 589. Stone v. National Bank, 182, 704. Stone y. Parks, 770. Storm v. Davenport, 548. Storm v. Waddell, 535, 602, 604. Storms & Co., 582, 583. Story v. Nowlan, 417, Stotesbury v. Cadwallader, 348. Stow v. Parks, 311, 768, Stowe, 840. Stowers (J. R.) e¢ al., 67, 68, 70, 778. Strachan, 83, 109, 573, 574, 740. Strachan, William 8., 635. Strader v. Lloyd, 770. Strain v. Gourdin, 292, 359, 816, 825, 843. Stranahan v. Gregory & Co., 836. Strauss, Bernhard, 631. Street v. Dawson, 219, 225, 289, 347, 857, 811, 841. Streeter v. Sumner, 506, 507. Strong v. Clawson, 565, 750. Stuart v. Aumueller e¢ al., 42, 388,453, Stuart v. Hines, 42, 69, 1389, 172, 2138, 817, 894, 454, 557. 86, 87, 375, 628, INDEX TO CASES CITED Stubbs, 847. Sturgeon, Edward T., 79, 80, 386. Sturges v. Crowninshield, 305, 307. Stuyvesant Bank, 183, 200, 479, 481, 608, 658, 659, 660, 680, 684. Sullivan’ v. Bridge, 543. Sullivan vy. Heiskill, 810, 848. Summers, C. M., 580. Sutherland, Israel, 493. Sutherland, Robert, 56, 58, 59, 415, 418, 458, 460, 584. Sutherland, Robert A., 270, 276, 277, 282, 415, 782, 738, 734, 739. Sutherland v. Davis, 23, 144, 547. Sutherland v. Kellogg, et al., 298, 296, 297, 298, 366, 368, 36y, "370. Sutherland v. Lake Superior Canal Co., 214, 228, 328, 829, 449, 618. Sutro v. ‘Hoile, 494, Suydam v. Walker, 716, 718. Swain v, Barber, 590. Swan v. Littlefield, 729. Sweatt v. Boston, Hartford & ErieR. R. Co., 1, 2, 366, 869, 388, 792, 793. Sweet ef ai. , 252, 671. Swepson v. Rouse, 546, 547, 554. Switzer v. Zeller, 549. Swope ef al. v. Arnold, Assig., 613. Sykes, James W., 426, 428, 459, 462,463. Symonds v. Barnes, 750. Talbert v. Melton, 212, 627. Talbot, John, 119, 258, 259, 260, 804, 805, 806, 839. Talcott, 592. Talcott v. Dudley, 500, 783. Talcott v. Goodwin, 545. Tallman, Darus, 276, 657, 731. Tanner, Edward P., 195, 197, 198, 654. ‘Tappan v. Norvell, 771. Taylor, 679. Taylor, Samuel T., 819, 707, 745. Taylor, William, 153, 529. Taylor, William’ N., & Co., 434. Taylor v. Bonnett, 321. Taylor v. Nixon, 764. - Taylor v. Rasch, 226,348,577,578, 789. Taylor v. Renn, 743, 766. Taylor v. Whitthorn, 821. Tebbetts, John C.,275,396,713,714,780. Tebbetts v. Torr, 503. Ten Eyck & Choate, 595. Tenney et al. v. Collins, 775. Tenth Nat. Bank v. Sanger, 827. Terry, Lyman, 407. Terry & Cleaver, 819, 828, Tertelling, 124, ant, B31. Tesson, KE. P. & E, M., 246, 781.” Thames v. Miller, 317, 329, 366. Thiell, W. H. , 153, 158, 1€5, 166 522,582. INDEX TO CASES CITED. “Thomas, James S., 62, 466. Thomas, Veder G., 184, 705. Thomas v. Cruttenden, 567. Thomas v. Jones, 750. Thomas v. Hunter, 285, 774. Thomas v. Shaw, 758, Thompson, 283, 738. Thompson, James, 158, 250, 487, 528, 719. Thompson, John, 276, 731. Thompson v. Alger, 306. Thompson v. Hewett, 757, 758. ‘Thompson v. McClallen, 425, 428. Thompson v. Moses, 217, 320. Thompson v. Spittle, 789, 790. Thompson v. Wiley, 770. Thoms vy. Thoms, 752. Thornburgh v. Madren, 771. Thornhill e¢ al. v. Bank of Louisiana et al., 298, 809, 868, 369, 370, 373, 407, 798. ‘Thornhill v. Link, 400, 445. Thornton, Alvin G., 158, 523. Thornton v. Hogan, 750. Thorp, Stillman, 562 ' Thrasher v. Bentley, 846. Thurmond v. Andrews, 534, 750. ‘Tichenor v. Allen, 212, 561, 626. Tiernan v. Woodruff, 747. Tiffany v. Boatman's Savings Inst’n, 926, 348, 354, 501, 823, 843, 845, 849, 850. Tiffany v. Lucas, 814,845,849,850,852. Tills v. May, 504, 613. Timothy v. Reed, 734. Tinker v. Van Dyke, 826, 887. Tinkum v. O'Neal, 184, 702. Tivoli Brewing Co., 430. Tobias v. Rogers, 590, 755. Tobin v. Trump, 311. Todd v. Barton, 705. Tompkins v. Bennett, 751, 771, 774. | Tonkin & Trewartha, 98, 99, 405, 444, 445, 647, 811. Tonne, D, H., 154, 159, 522, 526. Toof et al. v. Martin, -37, 97, 811, 812, 817, 830, 836, 838. ‘Tooker, Samuel B., 695. Toombs v. Palmer, 566. Tower, Julius, 28, 438, 440, ‘Towle v. Robinson, 748. Town et al., 581. Town, R. M. & S. R., 247, 681. Townsend, William E, 269, 711. Townsend v. Leonard, 228, 329. Tracy (Wm. W.) e€ al., 713. Traders’ Nat’] Bank v. Campbell, 146, 219, 225, 228, 349, 851, 415, 546, 817, 819, 827, 833, 841, 842. Trafton, 690. xlv Traphagen, 275, 730. Trask, Benjamin J. H., 660. Treadwell v. Holloway, 744. Treat, 686. Trim et al., 593. Trimble v. Williamson, 490, 610. Trimountain, The, 672. Triplett v. Hanley, 251, 676, 677, 851. Trowbridge, 685, 686. Troy Woolen Co., 110, 170, 291, 294, 860, 3862, 367, 565, 576, 599. Truitt v. Truitt, 177, 212, 626,627,761. Tubbs v. Williams, 591. Tucker v. Daly, 500. Tucker et al, v. Opelousas & Great Western R. R. Co., 413, 427, 792. Tucker v. Oxley, 248, 312, 596, 597, 598, 681, 786. Tuesley v. Robinson, 161, 164, 519. Tulley, Riley, 671. Tunno v. Bethune, 591, 599. Turner v. Esselman, 590. Turner v. Gatewood, 702, 706. Turner v. Shenkmeyer, 489. Turner v, The Skylark, 320. Tuttle v. Truax, 832, 840. Tyler, 726. Tyrrell, Daniel, 733. Udall v. District, 544. Ulrich (Isaac) e¢ al., 208, 209, 336, 668. Ulrich, Isaac, 228, 327, 831, 333, 334. Underwood v. Eastman, 763, 764, 765. Ungewitter v. Von Sachs et al, 496, 575, 836. Union Canal Co. v. Woodside, 558,559. Union Pacific R. R. Co., 417. Upton v. Burnham, 795, 797, 798. Upton v. Englehart, 796. Upton v. Hansbrough, 355, 504,795,797. Uran v. Houdlette, 757. Usher v. Pease, 452. U.S. v. Bayer, 857, 858. v. Black, 658, 855. vy. Clark, 10,273,381,399,855, 857. v. Davis, 751. v. Deming, 398. v. Dobbins, 187, 707. v. Fisher, 678. vy. Frank, 856. v. Geary, 856. vy. Herron, 680, 751. v. King, 751. v. Latorre, 855. y. Mackoy, 321. v. Nikols, 398. vy. Penn, 856, 857. v. Prescott, 203, 657, 856. v. Pusey, 858. y. Rob Roy, 586, 742, 751, 754. eqcqceqsqesqqssrsqrsyRrss ThA Lat TAN Th Tn tn tA A TD cA Gn tT A xlvi U.S. v. Smith, 855, 857. U.S. v. Thomas, 856, 858. U.S. v. Throckmorton, 586, 751. Vairin v. Edmonson, 550, 551. Valentine, William H., 14, 88, 631. Valentine v. Holloman, 14, 144, 398, 549. Valk (Abm.) ef al., 188, 189, 707. Valliquette, 425. ' Vanderheyden v. Mallory, 574, 752, _Vandyke v. Tinker, 847, 445, Van Alstyne v. Crane, 444. Van Anken, Aaron, 691, 698. Van Hein v. Elkus, 310. Van Kleeck v. Thurber, 415, 463. Van Nostrand v. Carr, 307, 308. Van Riper, G. & J. J., 288, 737. Van Sachs vy. Kretz, 869. Van Tuyl, Andrew P., 195, 196, 203, 273, 652, 657, 661, 740. Vanuxem y. Hazlehursts, 807. Varnum v. Wheeler, 768. Versilius v. Versilius, 349, 351, 352. Vetterlein, Bernhard T., 191, 651, 658. Vetterlein, Theodore H., 584, 684, 788. Vickery, Jonathan J., 82, 583. Vidal v. Ocean Ins. Co., 317. Viele v. Blanchard, 768. Viele v. Ogilvie, 763. Vila, James, 571, 572. Vinton, 283, 737. Viosca v. Weed, 772. Vogel, Henry, 171, 201, 204, 211, 225, 316, 817, 835, 571, 628, 652, 657, 836. . Vogle v. Lathrop, 353, 827, 828. Vogler, E. A., 154, 523, 525, 528. Voight v. Lewis, 555. Voorhees v. Bonesteel, 351, 539. Voorhees v. Frisbie, 288, 339. Vorbeck, 710. Waddell, W. C. H., 816, 487, 602, 604. Wadsworth v. Tyler, 345, 346, 405, _ 811, 812, 835, 849. Wager v. Hall, 649, 812, 813, 818, 819, 820, 880, 832, 834, 838. Waggoner, Samuel D., 281, 733. Waite & Crocker, 36, 54, 66, 413, 438, 443, 444, 457, 676, 677, 777. Waite (W. H.) et al, 408, 419. Wakeman v. Hoyt, 424, 838. Walbridge v. Harroon, 765. Walbrun y. Babbitt, 359, 835, 845. Wald & Aehle, 691. Wales v. Lyon, 749, 774. Walker, Andrew J., 899, Walker, William A., 186, 708, Walker, William S., 4, 8, 393. INDEX TO CASES CITED. Walker v. Barton, oa 598, 595, 673. Walker v. Seigel, 498. ; Wallace, 23, S11, 218, 221, 224, 228, 299, 230, 317, 819, 381, 385, 337, 635, 719. Wallace v. Conrad, 635. Wallace & Newton, 780. Waller v. ee ; a ee Walshe, Beaney T., 693, : Walther (Pius) e¢ al., 103, 105, 681, 637. Walton (F. E.) et al., 85, 94, 96, 106, 124, 257, 476, 595, 631, 640, 641, 645, 647, 678, 812, 834. Walton, J. J. & C. W., 446. Ward, George S., 511, 512, 673, 677. Ward v. Barber, 756. Ward v. Jenkins, 232, 338. Wardwell v. Foster, 765. Warner (J. H.) et al., 441. Warner, S. P., 721, 728, 818, 820. Warner v. Cronkhite, 743. Warren, Henry, 246, 782. Warren vy. Delaware, L.& West. R. R. Co., 836, 837. Warren v. Garber, 838. Warren v. Homestead, 170,564,566,569. Warren v. Miller, 560. Warren Savings Bank vy. Palmer, 34, 434, Warren v. Syme, 567. Warren v. Tenth National Bank, 294, 330,348,367, $14, 817, $18,836,837. Warshing, J. & S., 671. Wartmough v. Gilliams, 589. Washburn, 673. Washington Marine Ins. Co., 42, 407, 417, 458. Waterman v. Robinson, 377. Watrous (Martyn) e al., 85, 639. Watkins v. Pinkney, 322, 604. Watson, 5, 393, 482. Watson, John, 530. Watson vy. Citizens’ Savings Bank, 316, 317, 328, 799. Watson v. Poague, 839. Watson & Reynolds, 710. Watson v. Taylor, 828. Watts, Henry M., 22, 76, 79, 385, 386, 400. Way v. Howes, 287, 774. Way v. Sperry, 765. Weakley v. Miller, 339, 558, Weamer, David, 828. Weaver, Christopher, 417, 423, 427. Webb, J. C. & Co., 598, 595. Webb v. Sachs, 812, 817, 821, 827, 829, 837. Webb & Taylor. 283, 737. Webb, Wm. A. & Co, 245, 782. INDEX TO CASES CITED. Weber Furniture Co., 688, 691, 692. Webster v. Upton, 795, 717. Webster v. Woolbridge, 613. Weeks, Churles R., 612. Weeks, George S., 583, 606. Weikert et al., 425, 430. Weiner v. Farnum, 846. Weisenfeld v. Mispelhorn, 213, 817. Weitzel, 58, 406. Welch, William, 158, 159, 523, 614. Weld v. O’Brien, 321. Wells e¢ al, (ex parte H. B. Claflin & Co.), 58, 378, 409, 410, 415, 421, 429, 425, 460. Wells, J. L., 418, 418. Wells v. Brackett, 315, 376. Wells v. Brander, 508, 510. Wells v. Dalrymple, 370. West v. Creditors, 308. Westbrook Mfg. Co. v. Grant, 509. Westcott, Charles S., 427, 428, 429. Westenberger v. Wheaton, 757. Western Ins. Co., 497. Western 8. & I’. Co,, 434, 486, 489, 444. Weyhausen (Wm.) eé al., 47, 455. Wheelock v. Lee, 501, 542. Whetmore, 735. Whipple, 694. Whipple, R. M., 320. Whipps v. Ellis, 840. Whitaker v. Chapman, 113, 744. White, William F., 727, 728. White v. Cushing, 765. White v. How, 767. White v. Jones, 352, 555. White & May, 168, 563. White v. Platt, 745. White v. Raftery, 405, 829, 842. Whitehead, John B., 161, 519, 529,676. Whitehouse, C. H., 18%, 707, 743. Whithed v. Pillsbury, 509,516,541,602. Whiting, Chester M., 185, 701. Whitman v. Butler, 212, 319, 330, 625. Whitney ¢ al, 729, Whitney v. Crafts, 749. Whitney v. Lodge, 317. Whitridge v. Taylor, 177, 212, 626. Whittaker, 633, Whyte, William, 85, 639. Wickham v. Valle, 502. Wicks & Co. v. Perkins, 622, 627. Wiener, 105, 686, 637. ‘ Wierlsski, Jacob, 390. Wiggers, 186, 708, 742, Wilbur, Jeremiah G., 217, 228, 230, 320, 350, 331. Wilbur vy. Wilson, 515. Wild, 582. Wily, William H., 607, 788. Wilkins v. Davis, 501, Xxivii Wilkins v. Warren, 756. Wilkinson’s Appeal, 821. Wilkinson, Joseph L., 271, 740. Wilkinson vy, Dobbie, 352, 354, Wilkinson v. Wait, 521, 523. Williams, Daniel, 676. Williams, David B., 252, 508, 511, 583, 673, 684. Williams, Elias G., 51, 457, 463, 464. Williams, Henry B., 244, 785. Williams, Ziba, 157, 158, 166, 521, 522, 528, 532, Williams v. Atkinson, 518, TAT. Williams v. Butcher, 750. Williams & Co., 36, 57, 66, 67, 407, 409, 412, 423, 433, "443, TTT, 812. Williams v. Harkins, 587, 752. Williams & McPheeters, 188, 444, 707. Williams v. Merritt, 213, 517. Williams v. Miller, 544. Williams v. Robbins, 762. Williams v. Vermeule, 566. Williams v. Whiting, 701. Williamson v. Colcord, 499. . Williamson v. Dickens, 745, 753. Willis v. Carpenter, 860, 643. Wilmott, Justus B., 710. Wilson, George, 715. Wilson, Guy, 428, 429. Wilson, W. F., 283, 787. Wilson’ v. ‘Brinkman et al, 219, 225, 330, 347, 820, 827, 842. Wilson vy, Capuro, 699. Wilson v. City Bank of St. Paul, $1, ~ 82, 405, 411, 813, 818, 820, 826, 827, 836. Wilson v. Harper, 377. Wilson v. Stoddard, 224, 837, 833. Wilson v. Turpin, 620. Wilt v. Stickney, 558, 561. Winkens, Daniel, 65, 780. Winn, Elijah E., 176, 625, 633. Winship, Edwin K,, ‘655, 656. | Winship v. Phillips, 761. Winslow v. Bliss, 91, 599, 824. Winslow v. Clark, 177, 626, 627, 812, 824, 825, 842 Winsor v. Kendall, 412, 493, 824, 833. Winsor v. McLellan, 500, 505. Winter (Jn re Barrow, re Loeb, Simon & Co., re Winter), 316. Winter v. Iowa M. & North Pacific R. R. Co., 419, 423, 425, 798. Winternitz, David, 310, 311. Winthrop, Greville T., 187, 707. Wise v. Decker, 547. Wiswall v. Campbell, 302, 372. Withrow v. Fowler, 783, 816. Witkowski, 653. Witt v. Hereth, 827. xlviii Wolcott v. Hodge, 745. Wolfe y. Bate, 753. Wood, Edward T., 401. Wood, J. P., 821. Wood v. Bailey, 291, 361. 2 Wood v. Boyd, 499. Wood v. Grundy, 377. Wood v. Hazen, 699. Wood M. &R. Co. v. Brooke, 333, 495, 555. Wood v. Owings, 816. Woodall v. Holliday, 547. Woodbury v. Perkins, 757. ‘Woodford v. Chamberlain, 30, 31, 488. “Woodin v. Frazee, 497. ‘Woods, Thomas, 416, 424, 462. Woods v. Buckwell, 365. Woods v. Forsyth, 227, 343. Woods v. Oakman, 493. ‘Woodward, George & Julius C., 199, 202, 659. Woodward, Wm. S., 194, 382, 659. “Woodward v. Herbert, 586, 589. Woolfolk v. Gunn, 322. Woolfolk v. Murray, 529. Woolfolk v. Plant, 747. Woolford, Staats D., 661. Woolsey v. Cade, 744. Woolums, B. W. & J. H., 278, 709. “Wooten v. Clark, 535. Work, McCough & Co., 69, 866, 790. ‘World Company v. Brooks, 185, 703. ‘Worthington, 334, 609. ‘Wright (Charles R.) e¢ al., 713. Wright, George C., 528. Wright, John S., 396, 581, 657, 682, 699, 749. INDEX TO CASES CITED. Wright, Joseph B., 416, 812, 826, 828, 829, 836. Wright, J. W., 79, 80, 386. Wright v. Filley, 415. Wright v. Foster, 598. Wright v. Johnson, 346, 486. Wright v. Watkins, 315, 749. Wyatt, W., 714, 715. Wylie, 155, 164. Wylie, William H., 138, 486, 524, 525. Wylie v. Breck, 592, 593, 595. Wynne, Charles H., 172, 173, 176, 211, 819, 505, 534, 553, 593, 594, 603, 616, 811, 815. Yarborough v. Wood, 600. Yates v. Hollingsworth, 762, 764. Yeaton, R. F., 594, 595. York & Hoover, 289, 349, 357, 360, 864, 368, 388, 615, 625. . Young, B. F. & J. M., 159, 526, 530. Young, Levi H., 713. Young, W. C., 530. Young v. Ridenbaugh, 270, 739. Yoxtheimer v. Keyser, 763. Zahm v. Fry, 219, 225, 228, 325, 349, 648, 828, 834, 840. Zantzinger v. Ribble, 487, 546, 552. Zarega, Augustus, 760. Zeiber y. Hill, 511, 512. Zeigler v. Shomo, 188, 486, 557, 620. Ziegenfuss, John, 308, 487. Zimmer v. Schleehauf, 183, 585, 708. Zinn et al., 684, 685. Zoller vy. Janvrin, 518, 514, 767. PRACTICE IN BANKRUPTCY. CHAPTER I. COMMENCEMENT OF PROCEEDINGS IN VOLUNTARY BANK- RUPTCY. Tae bankrupt law declares that any person residing within the jurisdiction of the United States, and owing debts provable in bankruptcy exceeding the amount of three hundred dollars, may apply for the benefit of its provisions (§ 5014). As to the parties who may apply, the statute is broad and comprehensive. Any person possessing the requisite qualifications may become a voluntary bankrupt. The term has been held to include aliens.’ It is also broad enough to include femes covert? and infants? There could be no question about the right of partners to apply jointly under this provision, even though there were not a distinct recognition of that right in other sections of the act ($ 5121). The term person also includes corporations ($ 5013), but in this sense is limited to moneyed, business, and commercial corporations.’ It does not, therefore, extend to municipal, charitable or ?In re Goodfellow, 3 B. R. 452; s. c. Lowell, 510; sc. 1L. T. B. 179; 8. c. 3 L. T. B. 69; Cutter v. Folsom, 17 N. H. 139. ? Tn re O’Brien, 1 B. R. 176; in re Harriet E. Collins, 10 B. R. 335; s. c. 3 Biss. 415; in re Kinkead, 7 B. R. 439; 8. c. 3 Biss. 405; in re Julia Lyons, 2 Saw. 524; 8.0.1 ALL. T. (N. 8.) 167. * In re Book, 8 McLean, 317; in re Samuel S. Cotton, 2 N. Y. Leg. Obs. 370. 4 Sweatt v. Railroad Co. 5 B. R. 234; 8. c.1L. T. B. 273; Adams v. Rail- road Co, 4 B. R. 314; s. c. 1 Holmes, 30; s.c. 6 A. L. Rev. 365, 1 2 COMMENCEMENT OF PROCEEDINGS literary corporations. It does, however embrace railroads,’ steamboat companies, and insurance companies” A vol- untary bankrupt who has contracted new debts since the filing of his petition may file a new petition* 7 The persons, however, who wish to file a petition, must possess certain qualifications before they can do so. They must, at the time of their application, reside in the United States, and owe provable debts to an amount ex- ceeding three hundred dollars. Persons who are non- residents, or whose provable debts are less than three hundred dollars, can not become bankrupts. The residence required by the statute will probably be held to mean domicile, so that citizens temporarily residing abroad may enjoy the benefits of its provisions.” What are provable debts is clearly defined in the act ($$ 5067 to 5072); and, unless the debtor’s liabilities are included among those enumerated, he can not file a petition. If a Jeme covert is not under the State laws liable for debts contracted by her, she is not embraced within the pro- visions of the statute.® An infant also is not embraced within its provisions, in respect to his general contracts." The petitioner must also set forth his inability to pay bis debts, and this inability has been construed to mean legal insolvency.® In the case of corporations there is an additional qualification. The officer who files the petition must be duly authorized to do so by a vote of a majority of the * Adams v. Railroad Co. 4 B. R. 314; 8.c.5 B. R 234; s. c. 1 Holmes, 30; s.c.6 A. L, Rev. 365. ? Sweatt v. Railroad Co. 5 B. R. 234; s. co. 1 L. T. B. 273. ‘In re Merchants’ Ins. Co. 6 B. R. 43; s. c. 3 Biss. 162; 8. c. 2L. T. B. 243; Smith v. Teutonia Ins. Co. 4 C. L. N. 180. ‘Tn re Drisko, 18 B. R. 112; s. c. 14 B. R. 551. * In re Goodfellow, 3B. R. 452; s. c. Lowell, 510; 8.c. 1 L. T. B. 179; 8. c.3L T. B. 69. * In re Rachel Goodman, 8 B. R. 380; 8. c, 5 Biss, 401; in re Schlichter, 2 B. R 336; in re Howland, 2 B. R. 357, 7In re Walter S. Derby, 8 B. R. 196; s co. 6 Ben. 232. ®° Hardy v. Clark et al. 3 B. R. 385; s.c.1L. T. B. 151; s.o. 3 L. T. B. 11. IN VOLUNTARY BANKRUPTCY. 3 corporators, at a legal meeting called for the purpose ($ 5122), The meeting at which the vote is given must be legal, and must also be called for the express purpose of considering the question of going into bankruptcy. But where all practical means have been taken to have a fair stockholders’ meeting, the vote will be deemed sufficient, although there was an irregularity in the call on account of the contumacy of some of the directors.’ It must be a meeting of those who are the corporators, according to the terms of the charter and the laws of the State in which the corporation is located. Such is the express requirement of the statute.” But a corporator, as understood in the law respecting corporations, is one of the constituents or stockholders of the corporation. The form prescribed for a corporation petition? also mentions directors or trustees; but, unless the directors, or trustees, as the case may be, are the actual corporators, their vote would not be sufficient; for the power of the justices of the Supreme Court to prescribe forms and rules does not enable them to dispense with an express requirement of the statute? A petition filed by direction of a board of trustees alone, without the consent of the corporators duly ob- tained in the prescribed mode, is illegal, although the board of trustees is authorized by the laws of the State to manage all the ordinary business of the corporation. Even a subsequent ratification by the corporators will not give validity to such a petition, for it is not a question of agency but of jurisdiction.* Whether the officer has been duly authorized to file the petition or not, is a ques- tion of fact which should not be determined without some ? Davis v. Railroad Co. 13 B. R. 258; s. c. 1 Woods, 661. ? Form No. 3. 5 In re L. Glaser, 1 B. R. 336; 3. c. 2 Ben, 180; s.c. 1 L. T. B. 57, ‘Jo re Lady Bryan Mining Co. 4 B. R. 144, 394; s.c. 1 Saw. 34938. o. 2 Abb. ©, C. 527; Ansonia Brass Co v. New Lamp Chimney Co. 10 B. KR. 335; 8s. ¢, 64 Barb. 435; 8. c. 53 N. Y. 123; 8. c. 13 B. R. 385; s. c. 91 U. 8. 656. is COMMENCEMENT OF PROCEEDINGS evidence having a legal tendency to establish it, for if there is a total defect of evidence to prove the essential fact, the proceedings will be void.’ The debtor may file an application in the district court of the United States for the district in which he has re- sided or carried on business for the six months next im- mediately preceding the time of filing such application, or for the longest period during such sixmonths. Where the debtor resides and carries on business in the same district, there is but one court in which he can file his application. But where he resides in one district and carries on business in another, he has an election, and may make his applica- tion in either district. It has been intimated that resi- dence, as used in the statute, is equivalent to domicile, and such was its meaning under the insolvent law of Massa- chusetts2 Ifthis should be the meaning ultimately at- tached to the term, then all questions in regard to residence would be determined by the law relating to domicile. That law has already been applied to the determination of one case. Thus, where a native of Massachusetts had for a time been domiciled in California, but had left Cal- ifornia with the intent. to return to his native State, going, however, in the mean time to France, and staying there eleven months, it was held that his native domicile revived eo instant? as soon as he left his acquired domicile.* It has, however, been held, that the term “ residence” is used specifically in the statute, as contradistinguished from domicile, so as to free cases under it from the difficult and embarrassing presumptions and circumstances upon which the distinctions between domicile and residence rest. The two terms certainly have distinct meanings; and it appears to be the better construction to hold that * New Lamp Chimney Co. vy. Ansonia Brass and Copper Co. 18 B. R. 885; s. c. 10 B. R. 335; s. c. 64 Barb. 485; s. oc. 53 N. Y. 128; 5. c. 91 U. S. 656. * In re Goodfellow, 3 B. R. 452; s. c. Lowell, 510; s. c. 1 L. T. B. 179; c. 8L. T. B. 69. ; , A 179; 8. * In re W. S. Walker, 1 B. R. 386; s. c. Lowell, 287; s. 6.1L. T. B. 38. IN VOLUNTARY BANKROPTCY. 5 the proceedings should be instituted with reference to the actual residence of the party, or his place of business, and not with reference to his domicile.! The term “residence” denotes an actual inhabitancy in contradistinction to a mere temporary abode in lodgings.” If the debtor has a family, his residence is where they reside, although he may make temporary sojourns in another State.* The phrase “carried on business ” has been compara- tively little considered or discussed. Business is a term of extensive import and indefinite meaning. In its broadest sense it includes nearly all the affairs in which an indi- vidual can be an actor. Indulgence in pleasure, participa- tion in domestic enjoyment, and engagement in the offices of merely personal religion, may be exceptions, but the employment of means to secure or provide for these is business. The term, as used in the statute, is not, how- ever, synonymous with employment or vocation. A min- ister may have a vocation, and an operative may have an employment, but neither a minister nor an operative can well be said to be in business. To bring himself within the terms of this phrase, the debtor must be engaged in something that is commonly denominated business. Thus, a person who merely has an office in the district, where he receives letters, and is engaged in winding up the affairs of an insolvent firm to which he belonged, does not carry on business.* It is not sufficient, however, to be engaged in it; he must carry it on. Hence, a clerk, although en- gaged in business, can not apply in the district where he is employed.’ There is also a difference between superin- tending business and carrying on business. A person who superintends a business can not be said to carry on the *In re Watson, 4 B. R. 613. * In re Israel Kinsman, 1 N. Y. Leg. Obs. 309. * Stiles v. Lay, 9 Ala. 795. ‘In re Little, 2 B. R. 294; s. c. 3 Ben. 25, °Jn re Magie, 1 B. R, 522; s. o. 2 Ben. 369; in re Israel Kinsman, 1N. Y. ‘Leg. Obs. 309. 6 COMMENCEMENT OF PROCEEDINGS business; for all his acts are, in fact and in contemplation of law, the acts of his principal There is, moreover, an- other objection. If he merely superintends the business, he does not furnish the capital; and no one carries on a business unless he provides the money that is needed in it, or bas an interest in it by contributing his labor. The capital may be borrowed, but it must stand in the debt. or’s name. From this it follows that the business which is carried on must be the debtor's own business, and uot that of another. Such would seem to be the proper con. struction of the phrase. There are, however, two cases that apparently conflict with this view. In both the debtors had carried on business within the district for a long time, and had failed. After their failure, one had been employed as a clerk and the other as an agent to superintend business, and both had been so employed dur- ing the whole of the six months that preceded their appli- cation; yet it was held that their applications were properly filed The court appears to have been influenced by the fact that they had always been engaged in business within the district. In one case, however, the debtor did receive a share of the profits of the business which he superintended,’” and hence might be considered to carry on the business, for a person may furnish labor as well as capital. The phrase “carrying on business” looks to the scheme and purpose to which all the transactions tend, the design and object which the party has in view. In carrying on a business there are many affairs which are merely inci- dental, and which may be, and often are, transacted else- where than at the place where the business is, located, and such transactions may be of such frequent and even daily occurrence as to require an agency of considerable dura- tion. Such collateral or incidental transactions do not "In re Bailey, 1 B. R. 618; 8. c. 2 Ben. 487 ; in re Belcher, 1 B. R. 666 ; 8. ©. 2 Ben. 468, * In re Bailey, 1 B. R. 618; s. c. 2 Ben. 437, IN VOLUNTARY BANKRUPTCY. qT constitute the business of the debtor, nor are they a carry- ing on of business in the sense of the law.! The time during which the debtor has resided or car- ried on business in the district must also be considered. If he has resided or carried on business within the district during the whole of the six months that immediately pre cede his application, then no question can arise. If, how- ever, he has resided or carried on business in different. districts during such six months, then the application must be made in the district in which he has resided or carried on business for the longest period during that time. The phrase “longest period” means the longest period during which the debtor has resided or carried on business in any district.” Thus, during the six months, the debtor may have resided or carried on business in one district for two months, in another for one month and three-quarters, in another for one month and one-quarter, and in another for one month. In such case, the proper district in which to make the application would be the one in which the debtor has resided or carried on busi- ness for the two months. So, also, if he has had but one residence in the United States of less than six months, his application may be made in the district where he has so resided, although it may be made on the day after his residence has been established, for no district can be shown in which he has had a longer residence.’ Although the debtor may select the district in the first instance, yet when proceedings have been once commenced in either district, similar proceedings can not be had in any other district, and the jurisdiction is exclusive in that court where the jurisdiction first attaches.’ *Inre Ala. & Chat. R. R. Co.6 BR. 107; 8. c. 9 Blatch. 391; s.c. 5 L. T. B. 76. * Yn re Foster, 3 B. R. 236; s.c. 3 Ben. 886; 8.c.1L. T. B. 127. *In re Goodfellow, 3B. R. 452; 8. c. Lowell, 510; 3.0. 1 L. T. B. 179; s.¢. 3 L. T. B. 69. ‘In re Horace Hall, 5 Law Rep. 269. 8 COMMENCEMENT OF PROCEEDINGS The jurisdiction, power and authority conferred upon the district courts in cases in bankruptcy, are also con- ferred upon the Supreme Court of the District of Colum- bia ($4977), and upon the district courts of the several territories, when the bankrupt resides in the District of Columbia, or in either of the territories ($ 4978 ; Act of 22d June, 1874, $16); and the power vested in the dis- trict courts of the territories may be exercised by either of the justices thereof while holding the district court in the district in which the petitioner or alleged bankrupt resides. ; The questions that have been considered thus far are all of vital importance, for they affect the jurisdiction of the court over the person of the debtor. If the court has no such jurisdiction, the proceedings will be a nullity. In such case any creditor may, on filing a petition for that purpose, have the proceedings discontinued at any time ;* or may defeat the application for a discharge by showing that the court had no jurisdiction over the case.” The application for the benefit of the statute must be made by a petition, with a schedule of liabilities and a schedule of property annexed ($5014). A petition alone, without these schedules annexed, would not be such a pe. tition as the statute requires. Several forms for petitions to suit the character of the petitioner have been prescribed by the justices of the Supreme Court. Forms for the sched- ules have also been prescribed,* and these must be annexed. to and accompany the petition, whatever may be the form selected. These forms must always be observed and used, but the petitioner is allowed to make such alterations as may be necessary to suit the circumstances of his par- ticular case.” Printed blanks are commonly used, and may ‘In re W. 8. Walker, 1 B. R 386; s. c. Lowell, 287; 8. c. 1 L.T. B. 88; in re Goodfellow, 3 B. R. 452; 8. c, Lowell, 510; s.c. 1L. T. B.179; sc. 3 L. T. B. 69. 2 In re Little, 2 B. R. 294; s. c. 3 Ben. 25. 5 Forms Nos. 1, 2 and 3. “Form No. 1. ° Rule XXXII, IN VOLUNTARY BANKRUPTCY. usually be obtained from dealers in law stationery. The preparation of the petition is a work that requires both clerical and legal skill. The petition and the schedules must be printed or written out plainly, without abbrevia- tion or interlineation, except where such abbreviation and interlineation may be for the purpose of reference." Abbre- viations and interlineations are not absolutely prohibited, but, on the contrary, are clearly permitted. Their use, however, is confined to reference only. When that is their sole purpose they are allowed. It has, however been de-. cided that dots can not be used to indicate anything which is necessary to be stated,’ and the practice has ever since conformed to that decision, and all matters necessary to be inserted in the appropriate blanks, are written out in full. These must be written out in a legible manner, or the peti- tion can not be filed.? The petition and the schedules must be prepared in duplicate, one for the court and the other for the register. The petition and schedules should be on sheets of uniform size, so that they may be bound to- gether at the termination of the proceedings.* The petition itself should always contain those aver- ments which are necessary to give the court jurisdiction, and should also set forth the petitioner’s place of residence, his inability to pay all his debts in full, his willingness to surrender all his estate and effects for the benefit of his creditors, and his desire to obtain the benefit of the statute. It should be addressed to the judge of the judicial district in which the application is made, and the name of the judge must be correctly stated. Where the petitioner has resided or carried on business within the district for more than six months, the petition need not set forth the full time, but may simply aver that he has resided or carried on business within the district for six months. The object * Rule XIV. >In re Orne, 1 B. R. 79; s. c. 1 Ben, 420, * Anon, 1 B. R. 216; in re Robert Malcolm, 4 Law Rep. 488. * Rule IV. ° Rule VII. 10 COMMENCEMENT OF PROCEEDINGS of the averment is to show that the court has jurisdiction in the premises, and the averment need only be such as is requisite for that purpose. The petition must also be ac- companied by an oath, and both the petition and the oath must be signed by the petitioner. If the petitioner is a citizen of the United States, he must also take the oath of allegiance, which is usually incorporated in the oath to the petition! The oath of allegiance, however, may be taken and filed after the petition bas been filed, and be- fore any proceedings have been had thereon, with the same effect.as if annexed to the petition.’ It is not neces- sary that there should be an averment that the petitioner is or is not a citizen of the United States,’ but, if he is not a citizen, it is advisable to set that fact forth, in the oath to the petition. The schedule of liabilities required to be annexed to the petition is called Schedule A, and consists of five sep- arate divisions, by means of which the debts are divided into as many distinct classes. Each class is usually placed upon a separate sheet. When the matters belonging to any class require more than one sheet for their proper statement, the several sheets should be placed together so as to form a book, and not attached to each other so as to form a roll. Under the provisions of the statute and the rules, the petitioner was only required to use those forms which were necessary to set forth his affairs correctly ;* but the rules of the various district courts now commonly require the use of all the separate divisions, whether there is anything to be stated under them or not. He may, however, use additional divisions and marks, whenever he deems it necessary, in order to set forth the condition of his affairs clearly and lucidly.” In Schedule A he must 1 Section 5018; Form No. 1. ° U.S. v. Clark, 4 B. R. 59; s.c.1L. T. B. 237; 3.0. 3 L. T. B. 223, °U.S. v. Clark, 4 B. R.59; s.c. LL. T. B. 287; 5.0.3 L. T. B. 228. * Rule XXXII; Anon. 1B, R. 123. * In re Sallee, 2 B. R. 228. IN VOLUNTARY BANKRUPTCY. 11 set forth 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 that it is not known, and the sum due to each creditor; also the nature of each debt or demand, whether founded on written security, obligation, contract, or other- wise, and also the true cause and consideration of such in- debtedness in each case, and the place where such indebt- edness accrued, and a statement of any existing mortgage, pledge, lien, judgment, or collateral, or other security given for the payment of the same ($ 5015). The state- ment of the debts should be full and accurate, as the peti- tioner may not otherwise be able to obtain his discharge.’ It has, however, been held that the omission of the name of a creditor may be made with his consent, where it is not fraudulent or injurious to others.” An omission that arises from mistake or inadvertence may be corrected at. any time before the discharge is granted.? Debts that are barred by the statutes of limitation should be placed upon the schedule.‘ A statement of the sum and date of the debts is suffi- cient, without a computation of the interest, for the exact amount can be ascertained at any stage of the proceedings by means of such a description.> Ifa note has been given or a judgment rendered on the debt, or if any person is hable with the petitioner as partner or joint contractor, the fact should be stated.? When the debt is due toa firm, the name of the firm, and not of the partners, should be given.’ When a debt is due to a newspaper, the names of the proprietors should be given. ‘In re Redfield, 2 Ben. 72; in re John HU. H. Cushman, 7 Ben. 482. * In're Needham, 2 B, R. 887; s. c. Lowell, 309; 5. c. 2 L. T. B. 39. * Rule VIL. : *In re Ray, 1B. R. 203; s. c. 2 Ben. 58; in re Kingsley, 1 B. R. 329; s. c. Lowell, 216; in re Harden, 1 B. R. 895; s.c.1 L. T. B. 48; in re John H. H: Cushman, 7 Ben. 482. °In re W. D. Hill, 1 B. R. 16; 8. c. 1 Ben. 821. ° In re Orne, 1 B. R. 79; s. c. 1 Ben. 420. 7 Anon. 1 B. R, 128. ® Anon. 2 PB. R. 141. 12 COMMENCEMENT OF PROCEEDINGS Whenever the petitioner states that the residence of a creditor is not known, he should show in the schedule, or in a separate affidavit, what efforts he has made to ascer- tain the present residence of the creditor. He must make efforts to ascertain it, and can not satisfy the law by re- posing on the information at hand, and the belief which he may possess without making any efforts to ascertain such residence.! In classifying the debts, the notes and instructions placed on each division of the forms should be carefully attended to. Thus, Schedule A—1 is expressly confined to those debts which are entitled to priority under the provision of the statute, and these consists only of debts due to the United States, and taxes and assessments under the laws thereof; debts due to the State in which the proceedings are instituted, and all taxes and assess- ments under the laws thereof; wages due to any operative, clerk, or house servant, to an amount not exceeding fifty dollars, for labor performed within six months next preced- ing the publication of the notice of proceedings in bank- ruptcy ; and all debts due to any persons who, by the laws of the United States, are or may be entitled to a priority or preference. Unless the debts are included within this enumeration, they should not be placed under that divis- ion. What are commonly known as secured debts should not be placed under this division, but should be put on Schedule A—2. This division is specially designed for those creditors who hold securities either by mortgage, pledge, lien, or collaterals. The securities must consist of the property af the petitioner. Hence the name of a creditor, who is merely, though fully, protected by an indorsement or some similar claim against a third party, for the debt should not be placed under this division. Schedule A—3 is designed fer creditors whose claims are unsecured; that ‘In re Pulver, 1 B. R. 46; s. c. 1 Ben. 381. IN VOLUNTARY BANKRUPTCY. 13: is, creditors who do not hold securities within the meaning of Schedule A—2. It is, moreover, intended only for those claims upon which the petitioner is liable as _princi- pal debtor, or which are not included in Schedule A—-4 or Schedule A—5. Schedule A—4 is appropriated to lia- bilities upon notes or bills discounted, which ought to be paid by the drawers, makers, or acceptors; and Schedule A—5 to accommodation paper. If a liability clearly falls within any one division, it ought not to be placed under any other, for it is not the intention of the form that any debt should be scheduled more than once. It is apparent, however, that the excess above fifty dollars of wages due to an operative, clerk or house servant, should be placed upon Schedule A—2 or Schedule A—=8, according to whether it is secured or unsecured. The oath to Sched- ule A should be placed after the sheets containing these five divisions. The inventory of the property is called Schedule B. In the mode prescribed by this form, the petitioner must. give an inventory of all his estate, both real and personal, assignable under the statute, describing the same, and stat- ing where it is situated, and whether there are any, and, if so, what incumbrances thereon (§ 5016). The property which is assignable under the statute consists of all the estate, real and personal, of the petitioner, with all his deeds, books and papers relating thereto (§$ 5044); all property conveyed by the petitioner in fraud of creditors; all rights in equity, choses in action, patents and patent rights and copyrights; 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, reat or personal, and for any cause of action which he has against any per- son arising from contract, or from the unlawful taking or detention, or of injury to his property, and all his rights of redeeming such property or estate (§ 5046). No prop- erty held by the petitioner in trust should be placed upon 14 COMMENCEMENT OF PROCEEDINGS the schedules (§ 5053). Property which is exempted un- der the statute should be described in the appropriate place and specially claimed. The inventory in Schedule B should also include a claim for unliquidated damages,! money advanced as secu- rity for the fees of the register, marshal, and clerk,’ a policy of insurance on his life for the benefit of his wife, whereon premiums have been paid by him after his insolvency,’ a vested interest expectant upon the termination of a life estate,‘ interest under a will in an estate in expectancy,’ growing crops,’ property conveyed to him in fraud of the creditors of the grantor,’ property conveyed by him in fraud of his creditors,’ property in his possession that belongs to a firm of which he has been a member, and prop- erty held de facto, though by a defeasible title,’ property conveyed to him in trust for the sole and separate use of his wite during his life, and after her death to be equally divided between him and her children,” and property conveyed by him in trust for the benefit of his creditors.” It need not include the right to a share of the net profits of a business conducted in his name, which is allowed as a compensation for his services,” money earned by his wife and invested in her name," a chose tn action which has been assigned in good faith and for a valuable consideration,“ property held by a trustee for the benefit of his wife, wherein his equitable intefest has been sold ‘Tn re Orne, 1 B. R. 57; 8. c. 1 Ben. 361, * Anon. 1 B. R, 128. ° Tn re Erben, 2 B. R. 181. “Tn re Bennett, 2 B. R. 181. °In re Connell, 3 B. R. 448. ° In re Schumpert, 8 B. R. 415. 7 In re O'Bannon, 2 B. R. 15. * In re Hussman, 2 B. R. 437; s. c, 2 L. T. B. 53; Ashley v. Robinson, 29 Ala. 112. ° In re Beal, 2 B. R. 587; 8. c. Lowell, 323; s. c. 2 L. T. B. 95. * Tu re Myrick, 3 B. R. 154. “Tn re Pierce & Holbrook, 3 B. R. 258. _ "In re Beardsley, 1 B. R. '304; in re George Brown, 5 Law Rep. 121. In re Hummitsh, 2 B. R. 12. ™ Valentine v. Hig iain, 63 N.C. 475. IN VOLUNTARY BANKRUPTOY. 15 under execution, property vested in a receiver appointed by a State court, property which has been duly assigned under the State insolvent laws when they were in force,’ or a claim against a person for falsely recommending another as worthy of trust. The statute has reference to some right or interest inherent in the bankrupt. What- ever that may be, however contingent or valueless, he must point it out. He is not permitted to exercise his own judgment as to its worth.’ The separate items of the estate must be set forth.® It is not necessary, how- ever, to give a perfect and complete exhibit of every article, but the schedule must be so explicit that the assignee can find the property if necessary." The sched- ule of an individual partner need not enumerate the effects of his firm in detail.* In claiming property as exempted in Schedule B—5, all property specifically exempted by the bankrupt law should be claimed under that statute. It is not necessary that every article of clothing shall be set out. The wearing apparel should be so set forth that the assignee can deter- mine whether the debtor can claim it or not. No prop- erty should be claimed as exempted under the State laws which is specifically designated as exempt under the bank- rupt law.” Schedule B contains six general divisions, and twenty-six subordinate divisions, by means of which the petitioner’s property is divided into as many different classes. The instructions contained in the form should be 1TIn re Pomeroy, 2 B. R. 14 ; inre Humwitsh, 2 B. R. 12. ? In re Freeman, 4 B. R. 64; s. c. 4 Ben. 245. ’ Day v. Bardwell, 3 B. R. 455 ; s. c. 97 Mass. 246. ‘ Crocket et al. v, Jewett, 2 B. R. 2:8; 8. c. 2 Ben. 514 353.c. 21.7. B. 2. * In re David H. Robertson, 1 N. Y. Leg. Obs, 20. °In re Robert Malcolm, 4 Law Rep. 488 ; in re Horace Plimpton, 4 Law Rep. 488. 7 In re Nicholas G. Norcross, 1 N. Y. Leg. Obs, 100 ; 8.c. 5 Law Rep. 124. | ° In re Robert Malcolm, 4 Law Rep: 488. *In re W. D. Hill, 1 B. R. 16; s.c. 1 Ben. 321. Tn re Feely, 3 B. R. 66. 16 COMMENCEMENT OF PROCEEDINGS carefully attended to; and the classification of the differ- ent kinds of property should be made in the manner thus designated. The oath to Schedule B should be placed after the various sheets which make up Schedule B. Whenever the petitioner omits to state, in the sched- ules, any of the facts required to be stated concerning his debts or his property, he must state, either in its appropri- ate place in the schedules, or in a separate affidavit, to be filed with the petition, the reason for the omission, with such particularity as will enable the court to determine whether to admit the schedules as sufficient, or to require the petitioner to make further efforts to complete the same according to the requirements of the law.’ After the schedules have been completed, the petitioner must sign _ each separate division: and where any division consists of more than one sheet, he must sign each separate sheet. The petition, oaths, and schedules should then be fastened neatly and firmly together. The oaths may be taken before the judge of the dis- trict court, or a register, or a commissioner of the circuit court ($5017), or a notary public? The petition will be deemed to be sufficient, although the jurat does not specify the particular day on which the oath was taken, if it gives the month and the year® The petition must have indorsed upon it a brief statement of its character. The proceed- ings in bankruptcy may be conducted by the petitioner in person, on his own behalf, or by his attorney or counsellor, who must be duly authorized to practice in the circuit or district court. All papers offered by an attorney to be filed, must be indorsed with his name, place of residence, and business; and the same entries must be made upon the docket.” The petition need not be presented to the court simultaneously with its attestation. The lapse of a ' Rule XXXIII. . * Act of Aug. 15, 1876. *In re Chas. P. Houghton, 4 Law Rep. 482. * Rule I. * Rule II, IN VOLUNTARY BANKRUPTCY. 17 few days between the taking of the oath and the filing of the petition will not bar the proceedings.' At the time of filing the petition, the petitioner must deposit fifty dollars with the clerk as security for the fees of the reg-- ister ($ 5124). He is also usually required to deposit fifteen dollars at the same time, as security for the fees of the clerk.” Parties can not conduct proceedings in forma pauperis, for the statute contemplates that they shall dis- charge all expenses incident to the prosecution of their application.® As soon as the petition is filed, the clerk enters upon it the day, and the hour of the day, upon which it is filed. He also makes a similar note upon every subsequent paper filed with him, except such papers as have been pre- viously filed with the register, and the papers in each case are kept in a file by themselves. The case is then entered in the docket, and numbered according to the order in which it has been filed, and the number of the case must be indorsed upon every paper. The docket must be so arranged that a brief memorandum of every proceeding in each case may be entered therein, in a man- ner convenient for reference, and is at all times open for public inspection. The clerk must also keep separate minute books for the record of proceedings in bankruptcy, in which he is required to enter a minute of all proceed- ings in each case, either of the court, or of a register of the court, under their respective dates. After the petition has been filed, and the proper en- tries made, it is referred to ove of the registers in such manner as the district court directs.” There is nothing in the statute that requires the reference to be made to one register rather than another. All are equally officers of ‘In re Aaron Abrahams, 5 Law Rep. 328. * Rule XXIX. *In re Alexander Graves, 1 N. Y. Leg. Obs. 213; s. c. 3 Law Rep. 25. * Rule I. * Rule IV. 2 18 COMMENCEMENT OF PROCEEDINGS the court. The selection of a register is regulated entirely by the rules of the district courts; and usually the case is referred to the register for the congressional district in which the petitioner resides. The reference’ designates the register, and names a day for the petitioner to appear before him. A copy of this order is sent by mail to the register, or delivered to him personally by the clerk or other officer of the court.? The requirement of the order is, that the petitioner shall appear on or before a certain day named therein. He may, therefore, appear at any time before the day named; but if he appears at any time subsequent to that day, he should file a written affidavit explaining the delay As soon as he appears before the register, he must furnish him with a copy of the pe- tition and schedules* This copy may be verified by his own affidavit, or certified by the clerk. After such copy has been filed, all the proceedings required by the statute must be had before the register, except such as are re- quired by the statute, or by a special order of the district judge, to be had in the district court, unless some other register is directed to act in the case.® But for improper conduct, a case may be transferred from one register to another;* and any register of the court may act for any other register thereof (§ 5007). From the time of his appearance before the register the petitioner is subject to the orders of the court in all matters relating to his bankruptcy; and may receive from the register 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.’ The protection, however, is practically worthless, because the register has no power to enforce it. 1 Form No. 4. * Rule IV. * In re Hatcher, 1 B. R. 390. ‘ Rule IV. * Rule IV. "In re J. O. Smith, 1 B, R. 248; s. c. 2 Ben. 113. T Rule IV. IN VOLUNTARY BANKRUPTCY. 19 The petitioner usually appears at the office of the register, but 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 the statute as may not be opposed ($ 5001). As there is, generally, no opposition, this power practically extends to all cases. The time when and the place where the register shall act upon the matters arising under the several cases referred to him, must be fixed by the special order of the district court, or by the register acting under the authority of a general order in each case made by the district court.’ These are usually inserted in the order of reference.’ The debtor by filing his petition submits himself per- sonally to the jurisdiction of the court, and becomes bound to obey its orders and directions in the matter of his pe- tition as well before as after an adjudication. The mere filing of a petition in conformity with the statute consti- tutes him a bankrupt before the adjudication or any action on his petition by the court. This jurisdiction is exer. cised on the ground that other persons besides the debtor have an interest in the matter at this stage of the proceed- ings.® The creditors have an interest in them from the moment that the petition is filed. Consequently he can not dismiss his petition at his own pleasure, but must show good reasons for doing so. The court may grant the lib- erty on terms, or refuse it altogether, as justice may re- quire, for it is ordinarily a matter of sound discretion.‘ If good reasons are shown, he may, however, be allowed to dismiss his petition before adjudication,’ as, for instance, if he effects a compromise with his creditors. On the ’ Rule V. ? Form No. 4. * In re Samuel Harris, 3 N. Y. Leg. Obs. 152. * In re Samuel Harris, 3 N. Y. Leg. Obs. 152; in re Randall & Reed, & Law Rep. 115; 8. c. 1 N. ¥. Leg. Obs. 199. ° In re Randall & Reed, 5 Law Rep. 115; s.c.1 N. Y. Leg. Obs. 199; in re John Gile, 1 N. Y. Leg. Obs. 87; s. c. 5 Law Rep. 224; in re Dudley, 1 Penn, L. J. 802; in re Anon. 1 Penn. L. J. 323; in re Bennett, 1 Penn. L. J. 145. t * Inre Randall & Reed, 5 Law Rep. 115; s. c. 1 N. Y. Leg. Obs. 199, 20 COMMENCEMENT OF PROCEEDINGS other hand, if he does not choose to proceed with the pe- tition, but allows it to remain in suspense, the creditors may intervene by a motion for an adjudication, or for any other matter necessary for the protection of their rights." As soon as a copy of the petition and schedules is filed, the petitioner should be adjudged bankrupt. This adjudication? may be made by the register (§ 4198) or by the court, but the register has no power to hear a dis- puted adjudication? The district court has power to hear_ and decide all contested questions, and to stay proceed. ings improvidently begun. he statute contemplates that voluntary petitions may sometimes be contested. But it is not the intent of the statute that the district court shall “inquire whether the petitioner is insolvent or not. When a debtor swears that he is unable to pay his debts in full, and files the requisite petition and schedules, he has com- mitted an act of bankruptcy. His act is for the benefit of all persons interested, and can not be retracted on the ap- plication of only one of them, either with or without the debtor’s consent.* Generally, there is no opposing party, and the register passes the order of adjudication. This order should not be postponed until the register has ex- amined the petition and schedules, and certified to their correctness.” No notice is required to creditors before ad- judication, and the judge or register is only to inquire whether the debtor owes three hundred dollars.6 The adjudication is merely a certificate or order, made by an authorized officer, to the effect that the petitioner has be- come a bankrupt—a judicial finding of the fact that an act of bankruptcy was committed at some period prior to the time it is made." It is made ev parte, without notice In re Samuel Harris, 8 N. Y. Leg. Obs. 152. * Form No. 5. ®* Section 4999; Rule V. * In re James L, Fowler, 1 B. R, 681; s. c. Lowell, 161. ° Inre Patterson, 1 B. R. 125; « c. 1 Ben. 508. * In re James L, Fowler, 1 B. R. 681; 2. c. Lowell, 161. " Inre Patterson, 1 B. R. 125; s. o. 1 Ben. 508. IN VOLUNTARY BANKRUPTCY, a1 to creditors, and is entirely under the control of the court, in a case where it is shown that it ought not to be made. It is conclusive upon the insolvency of the petitioner, his willingness to surrender his property, and his desire to take the benefit of the statute;' but it is not conclusive upon any other fact which goes to defeat the jurisdiction of the court? It is the duty of the register to examine the petition and schedules, and to certify whether the same are correct in form, or if deficient, in what respect they are so? If they are found correct, a certificate to that effect is usually indorsed upon them, and a memorandum thereof is duly forwarded to the clerk. But this certificate is not conclu- sive. If defects are subsequently discovered, an amend- ment may be ordered.* If, however, they are found deficient, then they must be amended. A register may order an amendment,’ either of his own motion,’ or upon the suggestion of a creditor." Amendments may'be made at any time prior to the discharge of the bankrupt.* The court ‘also has a co-ordinate power of ordering or allowing amendments. The order directing an amendment ought to specify par- ticularly the points in which the petition and schedules are deficient.? If the petitioner is of the opinion that his petition and schedules are correct, he may have the point adjourned into court, for in all matters where an issue of fact or law is raised, and contested by any party to the proceedings, it is the duty of the register to cause the ‘question or issue to be stated in writing, and he must ad- ‘In re James L. Fowler, 1 B. R. 681; s. c. Lowell, 161. * In re Goodfellow, 3 B. R. 452; s. c. Lowell, 510; s.c. 1 L. T. B. 179; s. c. 3 L. T. B. 69. * Rule VIL. ‘In re W. D. Hill, 1 B. R. 16; s. c. 1 Ben. 321. ° Rule V. °In re Orne, 1 B, R. 79; s. c. 1 Ben. 420. "In re Jones, 2 B. R. 59. ® Rule VII. “Tn re Orne, 1 B. R. 79; s.c. 1 Ben. 420; in re Horace Plimpton, 4 Law Rep. 488. 22 COMMENCEMENT OF PROCEEDINGS journ the same into court for decision by the judge." The ground of the objection should be stated, otherwise no point or question or issue is raised.” It is the duty of the register to adjourn the issue into court without any re- quest to that effect. But the adjournment is a proceeding that may be waived, and a party who waives it by sub- mitting the issue to the decision of the register, can not ask to have it adjourned after he finds that the point is decided against him.’ On the other hand, the petitioner, after a careful ex- amination of the petition and schedules, may come to the conclusion that they are defective, or may find that he has omitted something by mistake or inadvertence. In such case he may apply to the register for leave to amend.’ The application must state, under oath, the substance of the matters proposed to be included in the amendment, and the reasons why the same were not incorporated in the schedules as originally filed; or, if there has been an amendment, as previously amended.’ Such statement must show a proper cause for allowing the amendment.’ This application is ew parte, and no notice thereof need be given to any creditor, nor has any creditor the right to op- pose it." The register may refuse to allow the amend- ment,® and in such case the petitioner has the same right to have the issue adjourned into court, as when he is or- dered to make an amendment.’ Whenever amendments are allowed or ordered, they must be written and signed by the petitioner on‘a sepa- ’ Section 5009; Rule XI. ? In re Levy et al. 1 B. R. 186; s. c. 1 Ben. 496. *In re Patterson, 1 B. R. 100; s. c. 1 Ben. 448. ‘In re Morford, 1 B. R. 211; s. c. 1 Ben. 264. ° Rule XXXIII. ° Rule VIL. "In re Watts, 2B. R. 447; s.c. 3 Ben. 166; s.c,2L. T. B. 74; in re B. Heller, 5 B. R. 46; s. c. 41 How. Pr. 218. * In re B. Heller, 5 B. R. 46; s. c. 41 How. Pr. 213. "In re Watts, 2B. R. 447; s.c. 3 Ben. 166; s.c. 21. T. B. 74. IN VOLUNTARY BANKRUPTCY. 23 rate paper in the same manner as the original schedules were signed and verified; and, if the amendments are made to different schedules, the amendment to each schedule must be made separately, with proper reference to the schedules proposed to be amended, and each amend- ment must be verified by the oath of the petitioner in the same manner as the original schedules! The purport of this requirement is that where an amendment, or several amendments, are made to the same schedule, only the oath appropriate to that schedule need be used; but where the amendments are to different schedules, both oaths must be used. Of course the oaths must be modified to suit the circumstances of the amendments,’ for the petitioner can not swear that the amendments contain all his liabilities, or all his property. The title to the property remains in the debtor until an assignee is appointed and qualified, and an assignment made to him.’ The bankrupt is also made responsible for the care, custody and delivery of the property to the as- signee ($ 5110); but he can not sell any of it without authority from the court.’ If the property is likely to be sacriticed or injured by a hostile claimant, or a sale under an execution, he can and should apply to the court for an injunction, or take other proper measures to protect it.” On the application of any creditor, and on good cause shown by affidavit, the court may order the property to be taken possession of by the marshal, directions for which may be inserted in the original warrant or in a special warrant to be issued for that purpose.® "Rule XIV. ? Rule XXXII. * Hampton vy. Rouse, 11 B. R. 472; s. c. 22 Wall. 263; Sutherland v. Dayis, 10 B. R. 424; s. c. 42 Ind, 26. *In re Richard Pryor, 4 Biss. 262. * Jones v. Leach et al. 1 B. R. 595; in re Schnepf, 1 B. R. 190; 8. c. 2 Ben. 72; in re Wallace, 2 B. R. 134; s.c. 1 Deady, 433. ® Rule XIII. 24 COMMENCEMENT OF PROCEEDINGS The next step in the proceedings is to issue the war- rant This may be issued by the judge or the register ($ 5019). As there is not generally any opposing party, it is usually issued by the register having charge of the case. This must issue out of the court, under the seal thereof, and be tested by the clerk. Blanks, with the signature of the clerk and seal of the court, will upon ap- plication, be furnished to the registers” The warrant must be signed by the judge or register as the case may be, and directed to the marshal of the district, authoriz- ing him as messenger to publish notices in such news- papers as he may select, not exceeding two,’ to serve written or printed notices, 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 debtor; and to give such personal or other notice to any person concerned as the warrant specifies ($ 5019); but whenever the creditors are so numerous as to make any notice to them, by mail or otherwise, a great and disproportionate expense to the estate, the court may, in lieu thereof, in its discretion, order such notice to be given by publication in a news- paper or newspapers, to all such creditors whose claims, as reported, do not exceed the sums, respectively, of fifty dollars.‘ The register has the power to give the requisite direc. tions for notices and advertisements® in those cases where the court may select the newspapers. The newspapers are generally designated by the rules of the court, and, where such is the case, the register can not substitute other papers for those thus designated; but in the exer- cise of a wise discretion, he may add to them other papers not published in the district.’ This power is exercised ‘Form No. 6. * Rule II. * Act of 22 June, 1874, § 5. * Act of 22 June, 1874, § 5. ° Rule V. ‘In re J. H. Robinson, 1 B. R. 8; s. c. 1 Ben. 270. IN VOLUNTARY BANKRUPTOY. 25 rarely, and only in cases where a large number of the creditors reside in some other district. A complete list of the creditors, with their respective places of residence, and. the amount of their debts, must be inserted in the war- rant.' This is an essential part of it, and must be pre- pared by the register himself. There is no authority in the law for calling upon the bankrupt to furnish it. ‘It is the duty of the register to issue the warrant, and that is not complete without it. The time and place where the first meeting of creditors will be held must be designated in the warrant, and the time must be not less than ten, nor more than ninety, days after the issuing of the same (§ 5032). The fixing of this time is a matter resting entirely in the discretion of the register.” The interval should be neither too brief, nor too long; but should be sufficient to enable the marshal to serve and publish the notices properly. If the time is too brief, the service of the warrant may be defective. Twenty days will usually be found ample. If it is desired that personal service should be made upon any creditors, special directions to that effect should be inserted. If per- sonal service is not desired, the register should omit the word “personal,” and direct the service to be made by mail only. The issuing of the warrant, the certificate of correctness, and the order of adjudication, are all generally made and performed on the same day; and one memo- randum only is sent to the clerk, of the whole proceeding. This memorandum should state the day appointed for the meeting of the creditors. As soon as the warrant is completed, it should be placed in the hands of the marshal. The fees of this officer must be paid or secured before he can be compelled to perform the duties required of him.* This is usually ‘Tn re Hall, 2 B. R. 192. ? In re Heys, 1 B. R. 21; 8. ¢. 1 Ben. 333; 8. o. 36 How. Pr. 249. * Anon. 1 B. R. 216. “Rule XXTX. 26 COMMENCEMENT OF PROCEEDINGS done by making a deposit with him, varying from fifteen to thirty dollars, according to the number of creditors. When his fees are properly secured, it is his duty to pub- lish and serve the notices, as required by the warrant. Both the notice to be publisbed and the notice to be served upon the creditors, should state that a warrant in bankruptcy has been issued against the estate of the debtor; that the payment of any debts, and the delivery of any property belonging to such debtor, to him, or for his use, and the transfer of any property by him, are for- bidden by law; and that a meeting of the creditors of the debtor to prove their debts, and choose one or more as- signees, will be held at a court of bankruptcy, to be holden at a certain time and place designated therein.’ These notices should follow the exact language of the war- rant, but an immaterial variance will be disregarded.’ The omission to publish the notice in one of the news- papers designated by the warrant, will make the proceed- ings defective, irregular, and voidable.’ The publication must be made twice in each newspaper. The notices to be served upon the creditors are usually printed. Each notice should contain a complete list of all the names of the creditors, together with their respective places of resi- dence, and the amounts of their respective debts.’ This seems to be the plain requirement of the statute (§$ 5032), the rules,’ and the form.’ It is sufficient if the notice con- tains the names, residence, and the amount of the debts (in figures) due the several creditors, so far as known, and no more.’ ‘This notice should be served upon foreign cred- itors, a8 well as on those who reside in the United States.’ * Section 5082 ; Form No. 6. * In re Pulver, 1 B. R. 46 ; s. c. 1 Ben. 381; in re W. D. Hill, 1 B. R. 16; s. c. 1 Ben. 321. *In re Hall, 2 B. R. 192. * Form No. 6. * In re Jones, 2 B. R. 59; in re Perry, 1 B. R. 220; s.c.1 L. T. B. 4; in re Hall, 2 B. R. 192. * Rule XIII. 7 Form No. 6. * Rule XII. ° In re Heys, 1 B. R. 21; 8. c. 1 Ben. 333; 8. c. 36 How. Pr. 249. IN VOLUNTARY BANKRUPTCY. 27 It should also, as has been before stated, be served on all creditors whose names may be handed to the marshal, in addition to those contained in the schedules (§ 5019). Every envelope coutaining a notice must have printed on it a direction to the postmaster at the place to which it is sent, to return the same within ten days, unless called for! This direction is generally printed upon the back of the notice, and no envelope is used. In cases of voluntary bankruptcy, the marshal may appoint special deputies, to act as he may designate, in one or more cases, as messengers for the purpose of causing the notices to be published and served as required by the statute, and for no other purpose.” And the word “ mar. shal” includes the marshal’s deputies; and the word “messenger ” includes his assistant or assistants (§ 5013), wherever they are used in the statute. Where a notice has been duly mailed, the fact that the creditor did not receive it will not affect the regularity of the proceedings.’ A notice not addressed to a creditor by his name, does not amount to a notice ;* but an immaterial variance will be disregarded. The publication and the service of the no- tices must be completed before the commencement of the period of ten days immediately preceding the return day of the warrant.” * Rule XXIII. ? Rule XIII. 5 In re Stetson, 3 B. R. 726; s. c. 4 Ben. 127. * Anon. 1 B. R. 123, ° 8 ° In re Develin et al. 1 B. R. 35; s.c. 1 Ben. 335; in re Pulver, 1 B. R. 46; s. c. 1 Ben, 381. CHAPTER I. COMMENCEMENT OF PROCEEDINGS IN INVOLUNTARY BANKRUPTCY. In order to institute proceedings in involuntary bank- ruptcy, the debts of the petitioning creditors must consti- tute at least one-fourth in number, and one third in value of all the provable debts of the party against whom the proceedings are commenced. Subject to this requirement, the proceedings may be instituted by one creditor alone, or by several creditors jointly The debts held by the persons who institute such proceedings, must be debts provable under the bankrupt law. They need not be due.’ It is not necessary that they should have been in ex- istence at the time the alleged act of bankruptcy was com- mitted? They may be secured debts,‘ or be a fixed liabil- ity as an indorser,’ or a partnership debt, where the pro- ceeding is against one partner alone.’ When the proceed- ings are against partners, it is clear that they must consist of partnership debts; but they must, under all circumstances, * Act of 22 June, 1874, § 12. * Linn et al. v. Smith, 4 B. R. 46; s.c.1L. T. B. 229; 8. c. 38 L. T. B. 218; in re Ouimette, 3 B. R. 566; g. c. 1 Saw. 47; in re W. B. Alexander, 4 B. R. 178; s. c. Lowell, 470; s.c. 2 L. T. B. 238; in re Samuel King, 1 N. Y. Leg. Obs. 276; in re Tower, 1 N. Y. Leg. Obs, 8; s. c. 5 Law Rep. 214; 1 Penn, L. J. 209. * Phelps v. Classen, 8 B. R. 87; s.c. 1 Wool. 204. * In re Bloss, 4 B. R. 147; 3.c. 2 L. T. B. 126; Rankin & Pullan v. Florida, Atlantic & G.C. R. R. Co. 1 B. R. 647; s.c.1L.T. B. 85; in re Stansell, 6 B. R. 183; in re Daniel Sheehan, 8 B. R. 345; Ecfort v. Greely, 6 B. R. 438; in re California Pacific R. R. Co. 11 B. R. 193; s. c. 3 Saw. 240; in re W.'B. Alexander, 4 B. R. 178; s,. c. Lowell, 470; s.c.2L. T. B. 288; in re Hugo Broich, 15 B. R. 11; contra, in re Jacob Frost, 11 B. R. 69; s.c. 6 Biss. 213; in re Johann, 3 B. R. 144; s.c.4 B. R. 434; 5. ©. 2 Biss. 189; 8.c. 2L. T. B. 92; in re Green Pond R. R. Co. 18 B. R. 118. * In re Nickodemus, 3 B. R. 230; s.c. 1 L. T. B. 140. * In re Melick, 4 B. R. 97. INVOLUNTARY BANKRUPTCY. 29 be provable debts. A debt so purely contingent that it: may never becqme a real debt, will not be sufficient." A debt which is secured by the property of some third per- son is sufficient.” The debt must also be one that can be enforced, and must not be barred by the statute of limita- tions.’ If the creditor has received a preference, he may make a voluntary surrender of it, and prosecute his peti-. tion upon his original debt;* but without such a sur- render he can not maintain a petition.? In computing the number of creditors who must join in a petition, creditors whose debts do not exceed two- hundred and fifty dollars are not reckoned. But if there are no creditors whose debts exceed the sum of two hun- dred and fifty dolars, or if the requiste number of creditors holding debts exceeding two hundred and fifty. dollars fail to sign the petition, creditors having debts of a less amount are reckoned.® The creditors have the right to elect to obtain one-fourth in number of the chief creditors, or one-fourth of all the creditors without regard to the amount of their respective debts, provided that one-third in amount of all the debts is represented in the petition.’ It is not necessary that the chief creditors shall be re- quested to sign and refuse before the minor creditors can join in the petition, for a fajlure to sign may arise from any cause, such as sickness, or absence, and is plainly shown by not signing. The intent of the statute is that the petitioning creditors shall represent the requisite pro-' portion of all the creditors, or, if more convenient in any particular case, of the larger creditors. The joining of a due proportion of all the creditors is therefore sufficient, Sigsby v. Willis, 3 B. R. 207; sc. 3 Ben 371; s.c.1L. T. B. 71. ? Ia re W. B. Alexander, 4 B. R. 178; s.c. Lowell, 470; s.c.2L. T. B. 288; Fox v. Eckstein, 4 B. R. 373. ‘In re Cornwall, 4 B. R. 400; 5. c. 6 B. R. 805; s.c. 9 Blatch. 114. “In re Hunt & Hornell, 5 B. R. 483; in re Marcer, 6 B. R. 351. ° In re Peter Rado, 6 Ben. 280. 6 Act of 22 June, 1874, ch. 390, § 12; 18 Stat. 180. 7In re J. R, Currier, 18 B. R. 68; in re Robert L. Hall, 15 B. R. 31; in Te Wm. M. Lloyd, 15 B. R. 257. 30 COMMENCEMENT OF PROCEEDINGS and the failure of the larger creditors to join constitutes no defense. If the chief creditors join in the petition, the minor creditor$ are not to be counted in estimating the number, but if they do not join then the minor creditors may be counted, in order to obtain the necessary number.” In computing the value, the aggregate of the debts of the petitioning creditors must be equal to one-third of all the debts, irrespective of amount, for the minor creditors are only excluded in certain cases in estimating the proportion in number who must join in the petition® If the debtor is a member of a firm, one-fourth in number of all his creditors, both individual and partnership, must unite in the petition, and the aggregate of their debts must amount to at least one-third of all the debts both partnership and individual.t The debt of a creditor who has issued an at- tachment within four months before the filing of the petition cannot be counted in computing the number and amount.’ The amount at which the debt of a secured creditor is to be reckoned is merely the balance that remains after deducting the value of the security. The debt of a cred- itor who has received a preference is not counted in com- puting either the number of creditors or the value of the debts,’ nor will a surrender of the preference to the debtor render the debt provable so that it may be * In re J. R. Currier, 13 B. R. 68. ? In re Woodford & Chamberlain, 13 B. R. 575; in re J. R. Currier, 13 B. R. 68; in re John B. Bergeron, 12 B. R. 385; in re Reiman & Friedlander, 11 B.R. 21; s.c.7 Ben. 455; s.c, 13 B. R. 128; s.c. 12 Blatch. 562; in re Philadelphia Axle Works, 1 W. N. 126. * In re Joseph 8. Hadley, 12 B. R. 366; inre John B. Bergeron, 12 B. R. 385; inre J, R. Currier, 13 B. R. 68; in re Woodford & Chamberlain, 13 B. R.,575; in re Hugo Broich, 15 B. R. 11; in re Wm. M. Lloyd, 15 B. R. 257; contra, in reHymes, 10 B. R. 433; s.c. 7 Ben. 427. * Inre Wm. M. Lloyd, 15 B.,R. 257. * In re C.G. Sevafford, 14B. R. 184; s.c. 15 B.R. 104; contra, in re Hugo Broich, 15 B. R. 11. 6 In re California Pacific R. R. Co. 11 B. R. 198; s. c. 8 Saw. 240; in re Stan- sell, 6 B. R. 183; in re W. B. Alexander, 4 B. R. 178; s. c. Lowell, 470; 2 L. T. B, 228; Eckfort v. Greely, 6 B. R. 438; inre Daniel Sheehan, 8 B. R. 845. 7 In re M. C. Israel, 12 B. R. 204; 8.c. 3 Dillon, 511; Clinton vy. Mayo, 12 B. R. 39; in re J. R. Currier, 13 B. R. 68. IN INVOLUNTARY BANKRUPTCY. 31 counted." A creditor may purchase claims against the debtor in good faith, and thus enable himself to unite in the petition. Any person residing and owing debts, as required in a case of voluntary bankruptcy, may be subjected to pro- ceedings in involuntary bankruptcy.’ The term person includes corporations ($$ 5122, 5018), and the provisions of the act are extended to partnerships ($ 5121). The same proportion of creditors must join in a proceeding to put a corporation into bankruptcy as is required in the case of an individual The remarks that have already been made in regard to the amount and character of the debts, and the residence within the jurisdiction of the United States, apply equally to peoceeee in involuntary bankruptcy. To warrant or justify the institution of such proceed- ings, the debtor must have done, or allowed to ke done, something which the statute defines to be an act of bank- ruptcy. The statute was not intended to cover all cases of insolvency.’ It makes a discrimination between volun- tary bankruptcy and involuntary bankruptcy. The debtor upon filing a voluntary petition setting forth his inability to pay his debts and his willingness to surrender all his estate, is declared a bankrupt by the court. The allega- tion can not be traversed, nor is any issue or inquiry as to its truth permitted. But while the debtor may on this proad basis call on the court to administer his estate, the creditor who desires to do the same thing is limited to a few facts or circumstances, the existence of which are 1 Tn re J. R. Currier, 13 B. R. 68. 2 In re J. A. & H. W. Shouse, Crabbe, 482; in re Woodford & Chamber- lain, 13 B. R. 575. ®* Act of 22 June, 1874, § 12; in re Nickodemus, 3 B. R. 230; s.c.1L. T. B. 140 ‘Tn re Leavenworth Savings Bank, 14 B. R. 82, 92; in re Detroit Car Works, 14 B. R. 243; in re Oregon_B. & P. Co. 13 BR. 199; s. c. 14 BR. 405; s. co. 3 Saw. 614. ° Wilson v. City Bank, 5 B. R. 270; s.c.9 B. R.97; sc. 17 Wall. 478; 8. c. 1 Dillon, 476; Doan vy. Compton & Doan, 2 B. R. 607. 32 COMMENCEMENT OF PROCEEDINGS essential to his right to appeal to the court. The reason for this wide difference in the proceedings in the two cases is obvious enough. When a man is himself willing to re- fer his embarrassed condition to the proper court, with a full surrender of all his property, no harm can come to any one but himself, and there can be no solid objection to the course he pursues. But when a person claims to take from another all control of his property, to arrest him in the exercise of his occupation, and to impair his standing as a business man, the precise circumstances on which he is authorized to do this should be well defined in the law! An act of bankruptcy is accordingly the special creature of statute law, and nothing is an act of bankruptcy unless it is expressly made so by the statute itself. / No person commits an act of bankruptcy unless he departs from the State, district, or territory of which he is an inhabitant, with intent to defraud his creditors; or, being absent, with such intent remains absent; or con- ceals himself to avoid the service of legal process in any action for the recovery of a debt or demand provable un- der the statute; or conceals or removes any of his property to avoid its being attached, taken, or sequestered on legal process; or makes any assignment, 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 is arrested and held in custody under or by virtue of mesne process or ex- ecution, issued out of any court of the United States or 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 the stat- ute, and for a sum exceeding one hundred dollars, and such process remains in force and is not discharged by payment, . or in any other manner provided by the law of the United 1 Wilson v. City Bank, 5 B. R. 270; 8. c.9 B. R. 97; s.c. 17 Wall. 478; s,c. 1 Dillon, 476. IN INVOLUNTARY BANKRUPTCY. 33 States or of such State, district, or territory applicable thereto, for a period of twenty days; or is actually im- prisoned for more than twenty days in a civil action, founded on contract, for the sum of one hundred dollars or upward; or, being bankrupt or insolvent, or im conten- plation of bankruptcy or insolvency, makes any payment, gift, grant, sale, conveyance, or transfer of money, or other property, estate, rights, or credits, or confesses judgment, or gives any warrant to confess judgment, or procures his property to be taken on legal process, with intent to give a preference to one or more of his creditors, or to any per- ‘ son or persons who are or may be liable for him as in- dorsers, bail, sureties, or otherwise, or with the intent, by such disposition of his property, to defeat or delay the operation of the statute, or being a bank, banker, broker, merchant, trader, manufacturer, or miner, fraudulently stops payment, or heing a bank, banker, broker, merchant, trader, manufacturer, or miner, has stopped or suspended, and not resumed payment within a period of forty days, of his commercial paper (made or passed in the course of his business as such), or being a bank or banker, fails for forty days to pay any depositor upon demand of payment lawfully made.’ These are the only acts committed by a debtor that are acts of bankruptcy. Unless the act complained of by the creditor comes within this enumeration, it is not an act of bankruptcy, and can not be made the ground for instituting involuntary proceedings. If, however, the act is one of those enumerated, and the debtor is subject, under the statute, to proceedings in bankruptcy, then any creditor or creditors who may be a party or parties to such proceedings may apply to have him declared a bankrupt, provided that the application is made within six months after it was committed, and the requisite number join in the petition. ' Act of 22 Jung, 1&74, § 12. 34 COMMENCEMENT OF PROCEEDINGS This application must be by a petition in the prescribed form,! printed or written out plainly, without abbreviation or interlineation, except where such abbreviation and in- terlineation may be for the purpose of reference.” This petition should set forth all those matters that are req uisite to give jurisdiction to the court over the case, especially that the act of bankruptcy was.committed within the pe- riod of six months, and must be addressed to the judge of the district court of the United States in which it is to be filed. The name of the judge must be correctly given, or it can not be filed. It should set forth the names and resi- dences of both the creditor and debtor. It must also de- scribe the debt of the petitioning creditor sufficiently to show that it is provable* Where the debt consists of a note, a copy thereof may be inserted. Not unfrequently the note, bond, account, agreement, or whatever else may happen to constitute the basis of the creditor's claim, is annexed to the petition as an exhibit, and a proper refer- ence to it is made in that part of the petition which is designed to describe the debt. The petition must also affirmatively show that the requisite number of creditors have united therein. This allegation need not necessarily be so positive that the petitioner can be prosecuted for perjury on it, but it may be made on information and belief,” or on belief merely, without charging either knowledge or information.® ; The allegations in regard to the act of bankruptcy must be positive and unqualified. There is nothing in the statute or rules or forms or the nature of the proceedings which requires that the allegations should be made on the "Form No. 54. ? Rule XTY. > Anon. 1B. R. 216. Z ae re Redmond & Martin, 9 B. R. 408 ; in re Joseph S. Hadley, 12 B. *In re J. Young Scammon, 10 B. R. 66; 8. c. 6 Biss. 180; in re. Isaac Seull, 10 B. R. 165 ; s. c. 7 Ben. 371; Warren Savings Bank y. Palmer, 10 B. R. 239; in re James R. Keeler, 10 B. R. 419. : aes re Henry A. Mann, 14 B. R. 572 ; s. c. 18 Blatch. 401 ; s. c. 51 How. r. 174. IN INVOLUNTARY BANKRUPTCY. 35 personal knowledge of the petitioner. The petition must be made by the creditor generally, and in most instances can only be made upon information and belief The alle- gations, however, should be positive, and the information and belief set forth only in the affidavit to the petition. Tt has accordingly been held, in a case where the petition was filed by a firm, that an averment upon the information and belief of only the partner who executed the papers was insufiicient.? ‘ The petition should also state facts with certainty and detail, so as to inform the debtor of what he must meet and resist. The various statements of acts of bankruptcy given in Form No. 54, are mere outlines or skeleton state- ments to be filled in with the particular circumstances of each case.® Thus, where the act charged is a suspension of commercial paper, the allegation should state as nearly as possible the date of the paper of which the payment has been suspended, to whom made, for what amount, when payable, whether the debtor’is liable thereon as maker or indorser, and by whom the same was held when payment was neglected or refused.* But if the description is sufficient to identify the paper, it will not be deemed defective although the date is not given.” Where the act charged is a fraudulent stopping of payment of commercial paper, the petition need not set forth the facts that constitute the fraud.° Where the proceedings are instituted against a partnership, the allegations should set forth an act of bankruptcy on the part of the firm. An averment of an act of bankruptcy on the part of one of the members is *In re Muller & Bretano, 3 B. R. 829; s. c. 1 Deady, 518; 8. c. 2 L. T. B. 33. * Orem & Son vy. Harley, 3-B. R. 263. * In re Randall & Sunderland, 3 B. R. 18; s.c. 1 Deady, 557; s.c.2 L. T. B. 69. “In re Randall & Sunderland, 3 B. R. 18; s.c. 1 Deady, 557; sc. 2.1L. T. 69. *In re Joseph S. Hadley, 12 B. R. 366. °In re Joseph §. Hadley, 12 B. R. 366. 36 COMMENCEMENT OF PROCEEDINGS not sufficient! Where the alleged act of bankruptcy on the part of a firm consists in the transfer of property, the allegations should charge that the property so transferred, belonged to the partnership.’ When several acts of bankruptcy are charged in the same petition, they should be alleged conjunctively.’ This rule will apply not only to those cases where the acts charged are declared to be acts of bankruptcy by different clauses of the statute, but also to those cases where the acts charged are different from each other in their nature, but are declared to be acts of bankruptcy by the same clause. It will also apply to a case where the same act may be an act of bankruptcy under different clauses, according to the intention of the party who com- mitted it. Thus, an assignment may be made to defraud creditors, and to defeat the operation of the bankrupt law. In all such cases a description of the act complained of may be set forth only once in the petition, and the various intents alleged conjunctively.* It has, however, never been decided that, where the act is charged only under one clause containing several intents, the several intents may not be averred disjunctively in the very language of the statute. There is no express decision upon this point, and in numerous cases they are alleged conjunctively.’ It has been said, however, that an averment in regard to a fraudulent conveyance may charge that it was made by the debtor “ with intent to defraud or hinder his creditors,” though this point does not seem to have been directly before the court.6 When the act of bankruptcy consists in procuring property to be taken on execution issued upon a judgment confessed under a warrant of attorney, the ‘In re Waite & Crocker, 1 B. R. 373; s.c. Lowell, 207; in re Redmond & Martin, 9B R. 408. *In re Williams & Co, 3 B. R. 286; s. c. Lowell, 406; s.c. 2 L. T. B. 100. ‘In re Drummond, 1 B. R. 281; s.c.1L. T. B. 7. “In re 8. T. Smith, 3 B. R. 8773; s.c.4 Ben. 1; 5.0.1 L. T. B. 147. * Irving v. Hughes, 2 B. R. 62; 8. c. 7 A. L. Reg. 209. ° In re Nickodemus, 3 B. R. 280; s. c. 1 L. T. B. 140. IN INVOLUNTARY BANKRUPTCY. 37 petition should aver that the property was taken on the day of the levy, and not on the day of the giving of the warrant of attorney.’ If the alleged act of bankruptcy consists of a fraudulent conveyance, no averment of the insolvency of the debtor is necessary.” When the act charged is a preference or a conveyance made with the intent to defeat or delay the operation of the bankrupt law, the petition should aver that the debtor at the time of the transfer was bankrupt or insolvent, or in contemplation of bankruptcy or insolvency. The meaning of these terms should be carefully considered, and only those should be selected and used which apply to the facts in the case. Insolvency means an inability to pay debts in the ordinary course of business. Bankruptcy means a legal status to be ascertained and declared by ju- dicial decree? In contemplation of bankruptcy means in contemplation of committing what is made by the statute an act of bankruptcy, or of voluntarily applying to be decreed a bankrupt. In contemplation of insolvency means in contemplation of not being, or not continuing to be, able to pay debts in the ordinary course of business as they mature." When the facts merely show insolvency, or contemplation of insolvency, an averment that the debtor was in contemplation of bankruptcy would not be sufti- cient ;* nor would an averment that the debtor was in contemplation of bankruptcy and insolyency be correct.’ An allegation that the debtor was insolvent or in con- templation of bankruptcy is insufficient, on account of its- *In re Diblee et al. 2 B. R. 617; 8. c. 3 Ben. 2838. ° In re Randall & Sunderland, 3B R 18; s.c. 1 Deady, 557; s. c. 2 L.T. B, 69; in re Nickodemus, 3 B. R 280; s.c.1 L. T. B. 140, *Tn re Craft, 1 B. R. 378; s. c. 2 Ben. 214. ‘Toof v. Martin, 6 B. R. 49; s. c. 13 Wall. 40. ° In re Black & Secor, 1 B. R. 858; s. c. 2 Ben. 196; s,c.1L. T. B. 39. ° In re Craft, 1 B. R. 378; s. c. 2 Ben. 214. 7 In re Diblee et al. 2 B. R. 617; s. c. 3 Ben. 283. * In re Craft, 1 B. R. 378; 8. c. 2 Ben. 214. * In re Haughton, 1 B. R. 460. 38 COMMENCEMENT OF PROCEEDINGS uncertainty. The allegation may, however, be that -he was “insolvent or in contemplation of insolvency,’ and this is the safest, and the one that is usually made. Where the act of bankruptcy consists of a preference, the peti- tion should state the name of the preferred creditor, but need not allege that the preference was in fraud of the provisions of the bankrupt law.’ When the petition is completed, it must be subscribed and sworn to by the petitioning creditor or creditors. The petition may be sufficiently verified by the oaths of the first five signers, if there are so many.* If there are five or less signers, all must verify the petition by oath ; but if there are more than five signers, it is sufficient if the first five of them so verify it.> It will thus be seen that there may be more signers than those who verify the petition, and that all those who are petitioners must sign the petition. Where several petitioners join in separate and distinct rights, it is necessary that there should be a verification by or on behalf of each petitioner.’ If they join in the same right, a verification by one is sufficient.° A partner may execute the papers on behalf of his firm.’ If any of the first five signers do not reside in the district in which it is to be filed, it may be signed and verified by the attorney or agent of such signers.” This phraseology is peculiar, but it seems to be the design of the statute to allow all creditors who are absent from the district to sign *Jn re John R. Hanibel, 15 B. R. 233. *In re Haughton, 1 B. R. 460; in re Diblee et al. 2 B. R. 617; s.c. 3 Ben. 283. ‘In re Joseph 8. Hadley, 12 B. R. 366. * Act of 22 June, 1874, § 12. * In re Isaac Scull, 10 B. R. 165; 3. c. 7 Ben. 371; in re California Pacific R. R. Co. 11 B. R. 198; s. 0, 8 Saw. 240. °Tn re Isaac Scull, 10 B. R. 165; s. c. 7 Ben. 371. 7 In re Solomon Simmons, 10 B. R. 253. * In re Solomon Simmons, 10 B. R. 258. ’ In re Morris, 11 B. R. 443; Hunt v. Pooke, 5 B. R. 161; j a terfield, 6 B. R. 257. ferent * Act of 22 June, 1874, § 12. IN INVOLUNTARY BANKRUPTOY. 39 the petition by attorney or agent. In no other case, unless the creditor is a corporation, can it be subscribed and sworn to by an agent or special attorney of the creditor, and if it is, the proceedings will be defective and irregu- lar” The verification on behalf of a corporation may be made by an agent whether the corporation is a resident of the district or not, and such agent need not be an officer of the corporation.’ No officer of a corporation has authority, by virtue of his office, to sign and verify a petition, unless specially authorized by some statute, by-law or resolution of the board of directors. Wherever a person acts on be- half of another, his authority should be made to appear in the proceedings, either by his own oath or other. competent evidence. If an agent acts for a non-resident creditor, the fact of non-residence should be stated and sworn to in the affidavit. Ifa partner executes the papers on behalf of his firm, he may sign either the firm name or the names of the members of the firm to the petition, but the papers should show that he signed them on behalf of his firm. The affidavit should be changed so as to state that one only of the petitioners, being a member of the firm, took the re- quired oath. An agent should verify the petition on be- half of his principal,’ and the verification should state that the allegations are true to the best of the knowledge and belief of the principal, and not to the best of his own knowledgeand belief. The name of the party who verifies 1In re California Pacific R. R. Co. 11 B. R. 198; s. o. 3 Saw. 240. 2 Hunt v. Pooke, 5 B. R. 161; inre D. C. Butterfield, 6 B. R. 257; contra, in re Jacob Raynor, 7 B. R. 527; 8. c. 11 Blatch. 43. * In re John R. Hanibel, 15 B. R. 2338. + In re Moses A. McNaughton, 8 B. R. 44; in re Ralph Johnson, 1 N. Y. Leg. Obs. 166; s. c. 5 Law Rep. 313. ®TIn re Moses A. McNaughton, 8 B. R 44; in re Rosenfields, 11 B. R. 86; in re California Pacific R. R. Co. 11 B. R.198: s. c. 3 Saw. 240; in re Jo- seph §. Hadley, 12 B. R. 366; in re Edward Sargent, 13 B. R. 144; in re John R. Hanibel, 15 B. R. 233. * In re Solomon Simmons, 10 B. R. 253; in re Joseph 8. Hadley, 12 B. R. 366. 7 In re Solomon Simmons, 10 B. R. 253. *In re John Brown, 15 B. R. 416. 40 COMMENCEMENT OF PROCEEDINGS the petition should be contained in the body of the verifi- cation. Itis not sufficient that the name be merely append- ed to it! The affidavit may be taken before any register or commissioner of the circuit court, or notary public. In addition to the petition, there must be a deposition to the debt? and to the act of bankruptcy.’ In these it may be proper that the affiant should speak from his own knowledge, or at least disclose the grounds of his belief, or the sources of his informations If any fact in a deposi- tion to an act of bankruptcy is stated on information and belief, the information should be stated with such particu- larity and detail that the court may see from whom it was derived, the circumstances under which it was acquired, and the weight that should be attached toit.? The purpose of these depositions is merely to evince the good faith of the parties who file the petition, protect the court against issuing an order to show cause improvidently, and to es- tablish a prima facie case.’ At the trial the petitioning creditor will have to prove his debt and the alleged acts of bankruptcy the same as if they had not been filed. _ The statute does not expressly state in what district the petition may or must be filed. In this particular it is not as minute and precise as in the provisions relating to voluntary bankruptcy. The averment in the prescribed form is, that the debtor has resided in the district for six months. From this it would appear that it must be filed in the district in which he resides. It has been decided that it could not be filed in a district where he neither resided nor carried on business.’ It has also been decided that it could not be filed in a district in which he had not 1 Form No. 55. ? In re Rosenfields, 11 B. R. 86. 5 Form No. 56. * Jn re Muller & Bretano, 3 B, R. 829: s. c. 1 Deady, 513; s.c. 2 L.T. B- 33; in re Rosenfields, 11 B. R. 86; in re Joseph 8S. Hadley, 12 B. R. 366. ° In re Joseph 8. Hadley, 12 B. R. 366, 6 In re Leonard, 4 B. R. 563; s.c. 2 L. T. B. 177. " In re Palmer, 1 B. R. 213; in re Fogarty & Gerrity, 4 B. RB. 451; 5.6.1 Saw. 288; 5 co. 2L. T. B. 174. IN INVOLUNTARY BANKRUPTCY. 41 resided for the greater portion of the six months next im- mediately preceding the time of filing,’ and the tendency of the authorities is, that it may be filed in any district where the debtor could file a voluntary petition, but upon this point there is some doubt.” Where the members of a firm reside in different districts, the only court that has jurisdiction of a petition against the firm is the district court of the district where the firm carries on business.’ The petition roust be filed in the district court, and not the circuit court. When the debtor resides in the Dis- trict of Columbia, or any of the territories, 1t must be filed in the supreme court for the district or the district court for the territory, as the case may be (§$§ 4997, 4998).° The papers must be properly indorsed, and the same en- tries made upon filing as in a case of voluntary bank- ruptcy.® At the time of filing the petition a deposit of fifty dollars must be made with the clerk, to secure the register’s fees ($ 5124); and the fees of the clerk and the marshal must also be secured before they can be com- pelled to perform any of the duties required of them." If, upon an examination of the petition and the deposi- tions, the court finds that sufficient grounds exist there- for, it directs the entry of an order® requiring the debtor to appear and show cause, at a court of bankruptcy, to be holden at a time specified in the order, not less than five days from the service thereof, why the prayer of the peti- tion should not be granted (§ 5024), but such order can not be made until the petition is filed.® In case of a vacancy in the office of the district judge in any district, or in case any district judge shall, from sickness, absence, ’ In re Leighton, 5 B. R. 95; contra, in re Johnson, 1 Cent. L. J. 223. ? In re Ala. & Chat. R. R. Co. 6 B. R. 107; 3. c. 9 Blatch. 891; 3.0. 5 L. T. B. 76. * Cameron v. Canieo, 9 B. R. 527; in re Horace Hall, 5 Law Rep. 269. ‘ In re Binninger et al. 8B. R. 487; 3.¢. 7 Blutch. 159; s.c. 1 L. T. B. 183. ® Act of 22 June, 1874, § 16. * Rule I. 7 Rule XXIX. * Form No. 57. ® Ala, & Chat. R. R. Co, v. Jones, 7 B. R, 145. 42 COMMENCEMENT OF PROCEEDINGS or other disability, be unable to act, the circuit judge of the cireuit in which such district is included may make, during such disability or vacancy, all necessary rules and orders preparatory to the final hearing of all causes in bankruptcy, and cause the same to be entered or issued, as the case may require, by the clerk of the district court (§ 4976). After the order to show cause is issued, a copy of the same and of the petition are delivered to the marshal to be served upon the debtor. This service may be made by the marshal or any of his deputies ($ 5013), and consists merely of delivering the copies to him, or leaving them at his last or usual place of abode. Service may be made ona corporation by delivering the copies to its principal officer.’ The service can not be made out of the district? If the debtor can not be found, or his place of residence ascer- tained, then service may be made by publication, in such manner as the judge shall direct ($ 5025). If the presi- dent of a corporation can not be found, a new order may be issued directing the service to be made on its cashier.° If a corporation has been dissolved, so that it has no longer a legal existence, the proper mode of serving the process is by publication.t No further proceedings can be had upon the petition,’ unless the debtor appear and consent thereto, until proof is given to the satisfaction of the court of such service or publication ($ 5025). If the process has been served, the only proof required is the return of the marshal, If the service has been by publica- tion, the publication must be in the newspapers designated by the rules of court, and the proof consists of the mar- shal’s return, accompanied by a copy of the publication 1 In re California Pacific R. R. Co. 11 B. R. 193; s. c. 3 Saw. 240. *JIn re Ala. & Chat. R. B. Co. 5 B. R.97; Stuart v. Aumueller, 8 B. R. aa contra, Stuart v. Hines, 6 B. R. 416; s. c. 83 Iowa, 60; 5.c.5L. T. * Platt v. Archer, 6 B. R. 465; ». o. 9 Blatch. 559. “In re Washington Marine Insurance Co. 2 B. R. 648; s. c. 2 Ben. 292. °In re Muller & Bretano, 3 B. R. 829; s. 0. 1 Deady, 513; 8. o. 2L.T. B. 33. IN INVOLUNTARY BANKRUPTCY. 43 cut from each newspaper, with a certificate as to the par- ' ticulars of publishing. If the required proof is not given on the ‘return day, the proceedings should be adjourned, and an order made that the copies be forthwith so served, or the publication so made (§ 5025). There are collateral proceedings, however, that may be instituted, although proper service has not been made on the petition.’ The court may restrain the debtor, and any other person, from making any transfer or disposition of any part of the debtor’s property not excepted by the statute from the operation thereof, and from any inter- ference therewith ($ 5024). The mode of applying for this injunction is usually by a separate petition, so that the proceedings upon the injunction need not be compli- cated with the proceedings in bankruptcy.’ It is imma- terial whether the order to show cause, issued in the bank- ruptcy proceedings, is in the proper form, for the jurisdic- tion of the court to issue an injunction is not dependent . upon the service of a proper order on the debtor. The petition should be positive in its averments, and may be accompanied by affidavits to support it.? It should also contain a description of the property. A mere allegation that it is personal estate is not sufficient.* It is always verified by the oath of the petitioner or his agent.’ It is usually filed as a part of the proceedings in bankruptey; . but a bill in equity in the district court’ may also be used. A bill in equity must be used when an injunction is sought against a person who claims the property adversely to the proceedings in bankruptcy, although his title may be void as against the assignee.’ 1In re Muller & Bretano, 3 B. R. 329; s.c.1 Deady, 513; s.c.2 L. T. ' B83. * Irving v. Hughes, 2 B. R. 62; Creditors v. Cozzens, 3 B. R. 281. *In re Bloss, 4 R. B. 147; s. 0. 2 L. T. B. 126. ‘ Blackburn v. Stannard, 5 Law Rep. 250. * Tn re Fendley, 10 B. R. 250. ‘In re Fendley, 10 B. R. 250. 7In re Charles J. Marter, 12 B. R. 185. 44 COMMENCEMENT OF PROCEEDINGS The injunction may be issued without notice to the adverse party; notice, however, may be required, and Se- curity for damages demanded, whenever the ends of justice requiré it. The injunction is merely temporary, and is intended to restrain the disposition of the goods and prop- erty of the debtor until an order of adjudication can be passed. The restraining power of the court upon a sum- mary petition is limited to the period of time between the entering of the order to show cause and -the hearing and adjudication upon the creditor’s petition,’ but no such lim- itation applies where the proceeding is by a bill in equity.’ It is questionable whether it extends to a case where the property has been sold under legal process, although the proceeds have not been paid over, because there is nothing left to the assignee but a mere right of action.* Any party having an interest in the property covered by the injunction may appear and move for a dissolution, and at the hearing affidavits and counter affidavits may be ‘read by either party.” But when the grounds set forth in the motion for a dissolution go to the merits of the case in bankruptcy, the court will not grant the dissolu- tion, and thus, on affidavits, dispose of what are really all the issues involved in the case.® The claimant can not urge, as grounds for dissolving the injunction, that the order to show cause is irregular, or that the petition does not show at what time the act of bankruptcy was com- mitted, or that there is no positive charge of an act of bankruptcy. These are all matters that may be corrected or amended. Nor will the court decide the question of * In re Muller & Bretano, 3 B. R. 829; 8. c. 1 Deady, 513; 8. c. 2 L. T. B. 33; in re John Harper Smith, 1 N. Y. Leg. Obs. 249. * In re Moses, 6 B. R. 181; in re Kintzing, 3 B. R. 217; in re Mary Irving et al. 14 B. R. 289. *In re Fendley, 10 B. R. 250. 4In re Fuller, 4 B. R. 115; 8. c. 1 Saw. 248. * In re Bloss, 4 B. R. 147; 8. c. 2 L. T. B. 126, “In re Metzler et al. 1 B. R. 38; s. ©. 1 Ben. 356. IN INVOLUNTARY BANKRUPTCY. 45 title to the property! In order to obtain a dissolution, the prima facie case made out by the petition must be rebutted.” When it appears at the hearing that the injunction can not be sustained upon the grounds set forth in the petition, but that there is another valid cause for which an injunction might issue, the petition may be amended so as to cover the new ground, and the injunc- tion will thereupon be continued.’ If it shall appear that there is probable cause for be- lieving that the debtor is about to leave the district, or to remove and conceal his goods and chattels, or his evi- dence of property, or make any fraudulent conveyance or disposition thereof, the court may issue a warrant to the marshal of the district commanding him to arrest the al- leged 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 hy the court, until the de- cision of the court upon the petition, or the further order of the court; and forthwith take possession provisionally of all the property and effects of the debtor, and safely keep the same until the further order of the court (§ 5024). This warrant is only a provisional warrant, and should properly be applied for by a petition duly verified and supported by affidavits, so as to show a probable cause to the court for granting it.* The exercise of this power is one of great delicacy, and should not be cailed into action, unless the court is satisfied that it is necessary. It rests in the discretion of the court, but this is a legal discre- tion.” A misrecital in the order allowing it of the date of the bankrupt law is immaterial. The order need not re- *In re Muller & Bretano, 3 B. R. 329; 8. c. 1 Deady, 513; 5. c. 2.L. T. 33. > Inre Dean & Garrett, 2 B, R. 89; in re Binns, 4 Ben. 152. *Tn re Bloss, 4 B. R. 147; 8. c. 2L. T. B. 126. *In re James A. McKibben, 12 B. R. 97; in re Joseph S. Hadley, 12 B. R. 366. * Bank v. Iron Co. 5 B. R. 491; s.c. 1 L. T. B. 272. 46 COMMENCEMENT OF PROCEEDINGS quire the arrest of the debtor. The warrant may issue against the person and goods, or either of them. When the warrant is for the seizure of both the person and the’ goods, it may be executed against both or either, as the petitioning creditor may direct.1 It can not authorize the marshal to seize any property except that of the debtor himself. If property has been purchased from the debtor, | it can not be taken.’ The arrest of the debtor is in no manner for the se- curity or satisfaction of the petitioning creditor’s debt. It is simply to secure the attendance of the debtor from-time to time as the court may order, until there is an adjudica- _ tion in the bankruptcy proceedings, or the court further di-: rects, and it is for this purpose and no other that bail is required of him.° It is the duty of the marshal, under the warrant, to take possession of all the property and effects of the debt- or, in whosesoever hands he may find them. He may hold possession of property claimed by other persons, and take "possession of property not in the possession of the bank- rupt whether indemnified or not. If indemnified, it is made his duty to retain possession in the one case, and to take possession in the other; and he would be liable if he did not. If not indemnified, he is merely released trom liability if he does not do it. His authority is derived from the warrant, and is as complete in the one case as in the other. With indemnity, he is bound to exercise his authority ; without it, he may exercise his authority or not.* Whether the property belongs to the debtor or not, is a question of fact that he must determine for himself; and if, by mistake or otherwise, he takes the goods of another, he is liable to the party injured, upon his official *{n re Muller & Bretano, 3 B. R. 329; s.c. 1 Deady, 513; s.¢. 2L. T. B. 33. * In re Harthill, 4 B. R. 392; 8. c. 4 Ben. 448; 5.0.2 L.T. B, 181; in re Geo. B. Holland, Jr. 12 B. R. 403, * In re Daniel Shechan, 8 B. R. 345. ‘Inre Briggs, 3 B. R. 638. IN INVOLUNTARY BANKRUPTOY. AT bond.’ If he has taken possession of property claimed by another, he may notify the petitioning creditor of such claim, and return the property to the claimant, unless in- demnified by a sufficient bond for the taking, detention, and liability, within five days after such notice ; and may refuse to take any property not in the possession of the debtor, unless indemnified in like manner.’ The injunction and the provisional warrant are merely intended to protect the debtor’s property until a trial can be had upon the petition in bankruptcy. If the petition fails, they are dissolved: if it is sustained, other means are provided for the custody of the property. No trial can be had unless there has been due service of the process, or the debtor appears and consents to the proceed. ings (§ 5026). This appearance may be by an attorney and not in person, even where he has not been duly served.’ If the process has not been properly served, and the debtor does not appear and consent, the creditor, if he desires to prosecute the case, should have the proceedings adjourned, and obtain an order for the due service of the process ($ 5025). The petitioning creditor to a certain extent has the control of the proceedings, and hence may, if he sees proper, discontinue them.* The statute, however, has pro- vided that if the petitioning creditor does not appear and proceed upon the return day or adjourned day, the court may, upon the petition of any other creditor to the re- quired amount, proceed to adjudicate upon such petition ($ 5026). It follows from this right of other creditors to appear and prosecute the case that no petition can be dis- maissed except upon a return day or an adjourned day. *In re Muller & Bretano, 3 B. R. 329; s.c. 1 Deady, 513; s. c.2L. T. B- ve Marsh v. Armstrong, 11 B. R. 125; s, oc. 20 Minn. 81; in re Marks, 2 R, 575, * Rule XIII. ° In re Weyhausen et al. 1 Ben. 897; in re Moses A. McNaughton, 8 B. R. 44. “In re Camden Rolling Mill Co. 3 B. R. 590; s.c.2 L. T. B. 112; Hast- ings v. Belknap, 1 Denio, 190. ° Tu re Lacey, Downs & Co. 10 B. R. 477; 8. c. 12 Blatch, 322. . 48 COMMENCEMENT OF PROCEEDINGS If the proceedings are formally adjourned on the return day, the proceedings can not be discontinued until the ad- journed day.' If there is no formal adjournment, the pro- ceedings are considered to be pending from day to day, and: each subsequent day is an adjourned day.’ Upon the return day or adjourned day the petitioning creditor may dismiss the petition without giving other creditors any notice of his intention to dismiss. It is their duty to ap- pear in court, watch the proceedings and protect their own rights? The proceedings can be discontinued only by an order of court on special application* If a creditor has already intervened, the proceedings can not be discontinued without notice to him.’ The petitioning creditor can not discontinue the proceedings after the debtor has been ad- judged bankrupt, for the adjudication vests the other creditors with rights of which he can not deprive them. Where several creditors have joined in a petition, it has been held that one creditor can not be allowed to with- draw without the consent of the others unless he has been induced to join through misrepresentations." Proceedings in bankruptcy inure to the benefit of all the creditors, and any of them may intervene and prose- cute the application if he thinks proper. They may in- tervene at any time when it becomes necessary for the purpose of preserving and protecting their interests.” The mere fact that the debtor has filed a denial that the peti- tioning creditors constitute the requisite portion in number ‘In re Lacey, Downs & Co, 10 B. R. 477; 8. c, 12 Blatch. 322. ? Tn re William Buchanan, 10 B. R. 97. , ?In re Camden Rolling Mill Co. 3 B. R. 590; s.c.2 L. T. B. 112; in re Freedley & Wood, Crabbe, 544, “Tn re William Buchanan, {0 B. R. 97. * In re William Buchanan, 10 B. R. 97. "In re Sherburne, 1 B. R. 558; in re Lacey, Downs & Co. 10 B. R. 477; s. c. 12 Blatch. 322, ‘In re P. H. Heffren, 10 B. R. 213; s.¢. 6 Biss. 156; in re Edward Sargent, 13 B. R. 144. *In re Freedley & Wood, Crabbe, 544; in re R. & L. Calendar, 1 N. Y. Leg. Obs. 200; 8. c. 5 Law Rep. 125. ® In re Mendenhall, 9 B. R. 380. ' IN INVOLUNTARY BANKRUPTCY. 49° and' value, does not prevent them from intervening, if no order has been passed for the purpose of ascertaining whether the denial is true or not.'. The statute provides that they may intervene on the return day or adjourned day if the petitioning creditor does not appear and pro- ceed. This confers upon them a right which the petition- ) ing creditor and the debtor can not by any arrangement _ cut off or defeat.2 It contemplates two possible exigen- . cies; one, that the petitioning creditor may not appear; the other, that the petitioning creditor may not proceed. with the petition. In either event other creditors may in- tervene.? If the proceedings are formally adjourned, they . may appear on the adjourned day.* The adjourned day on which other creditors may intervene is any day to which the proceedings under the order to show cause may be ) adjourned, whether the adjournment be for the purpose of | procuring a proper service of the order on the debtor, or for the purpose of inquiring into the allegations of the act of bankruptcy.’ A formal adjournment from day to day, where the debtor has been properly summoned, is not necessary to keep the proceedings alive. If neither the petitioning creditor nor the debtor asks for or obtains an adjournment, the matter simply lies along from day to day to be called up and disposed of at any time. The proceedings are considered as pending from day to day until disposed of, and each subsequent day is an ad- journed day. The mere right to discontinue does not operate as a discontinuance. The proceedings are pend- ing until there is an actaal discontinuance." Other credit- ‘Tn re Frank Frisbie, 15 B. R. 522. ? In re Lacey, Downs & Co. 10 B. R. 477; 3, c. 12 Blatch, 322. 5 In re Lacey, Downs & Co. 10 B. R. 477; 8. c. 12 Blatch. 322; inre William Buchanan, 10 B. R., 97. “In re Lacey, Downs & Co. 10 B.R. 477; 8. c. 12 Blatch. 322. 5 In re Lacey, Downs & Co. 10 B. R. 477; 8. c. 12 Blatch, 322. *In re William Buchanan, 10 B. R. 97. 7 In re Lacey, Downs & Co. 10 B. R. 477; 8. c..12 Blatch. 322. 4 +50 COMMENCEMENT OF PROCEEDINGS ors may, therefore, intervene even after a petition for leave to discontinue has been filed Even if the court erroneously refuses to grant such leave, this does not oper- ate asa discontinuance? If the order of discontinuance is not to take effect until the costs are paid, the proceed- ings are actually pending until the conditions of the order are complied with, whatever may be the hindrance that arises to prevent such compliance.* But when the pro- ceedings have been actually discontinued on a return day or an adjourned day, other creditors can not intervene, for the jurisdiction of the court over the cause is at an end. Creditors who desire to intervene, do so by a supple- mental petition. If they do intervene, the petitioning | creditor can not dismiss the proceedings, although his debt and all the costs have been paid.’ The intervening creditors have a right to prosecute the original petition in the same manner as the petitioning creditor could have done.’ If no proper service of the order to show cause has been made on the debtor, it should be ordered. If it has been made, then no new service or publication is re- quired (§ 5026). The intervening creditors have a right to insist on a trial on the return day, although the peti- tioning creditor consents to a continuance of the case. If proper service has been made, and the debtor fails to appear upon the return day, a default may be taken ($ 5028). It the proceedings are not dismissed, and he ap- pears, he must prepare his defense. The defense can gen- erally be made only by the debtor himself. The petition by an alleged creditor against his debtor to compel a sub- mission of his estate to the bankrupt court is not however ?In re William Buchanan, 10 B. R. 97. 7 In re Lacey, Downs & Co. 10 B. R. 477; s. c. 12 Blatch. 322. ‘Jn re Lacey, Downs & Co. 10 B. R. 477; 8. c. 12 Blatch. 322. ‘In re Olmsted, 4 B. R. 240; in re Freedley & Wood, C 44: in yr Camden Rolling Mill Co. 3B. R.'590; 8c. 9LT.B, 112 eee 5 In re Mendenhull, 9 B. R. 880; in re R. & L. Calendar, 1 N. 200; s. ©. 6 Law Rep, 125. CHa ‘In re Lacey, Downs & Co. 10 B. R. 477; 8. c, 12 Blatch. 322. ’ Knickerbocker Ins. Co. v. Comstock, 9 B. R. 484, IN INVOLUNTARY BANKRUPTCY. 51 a mere suit ¢nter partes. It rather partakes of the nature of a proceeding ¢m rem, in which every actual creditor has a direct interest. The proceeding is summary, and in a high degree informal, and it should be free from technical embarrassment. No one is entitled to be heard, however, who has no interest to protect. To justify an intervention, the object or purpose disclosed must, be one which, in a legal sense, is meritorious and not purely officious. The court must be able to see that the intervention may serve some useful purpose either in protecting the rights of the applicant or those of the creditors at large.t A petition- ing creditor who has filed a prior petition in another court, upon which there has been an adjudication,’ or a creditor who has received a payment or transfer which is liable to be assailed as a preference,’ or who has issued an attach- ment within the period of four months next preceding the filing of the petition,* may appear and oppose an adjudica- tion. When a creditor is allowed to intervene, he may take advantage of any defense available to the debtor, and may contest an adjudication on the merits,’ or on the ground that the court has no jurisdiction over the case, or that a due proportion of creditors has not joined in the petition.® If the debtor denies the allegation as to the number or amount of the petitioning creditors, by a statement in writing to that effect, the court may require him to file *In re Boston R. R. Co. 6 B. R. 209, 222; 8. c. 9 Blatch. 101, 409; s. c. 5 B. R. 232; in re James Bennett, 1 N. Y. Leg Obs. 310; in re Heusted, 5 Law Rep 510; vide in re Bush, 6 B. R. 179; Dutton v. Freeman, 5 Law Rep. 447. 2 In re Boston R. R. Co. 6 B. R. 209, 222; s. c. 9 Blatch. 101, 409; s. c. 5 B. R. 232; in re James Bennett, 1 N. Y. Leg. Obs. 310; in re Heusted, 5 Law Rep. 510; vide in re Bush, 6 B. R. 179; Dutton v. Freeman, 5 Law Rep. 447. * Clinton v. Mayo, 12 B. R. 39; in re Heusted, 5 Law Rep. 510; in re Walter 8S. Derby, 8 B. R. 106; 8. c.6 Ben. 232. ‘In re 8. Mendelsoho, 12 B. R. 533; 8. c. 8 Saw. 343; in re Hatje, 12 B. R. 548; 8. c. 6 Biss, 436 ; in re Francis M. Jack, 13 B, R, 246; 8. c. 1 Woods, 549; in re C. G. Scrafford, 14 B. R. 184; 8, c. 15 B. R. 104. °In re Elias G. Williams, 14 B. R. 182. "Inre C, G. Scratiord, 14 B. R. 184; 8. c. 15 B. R. 104. 52 COMMENCEMENT OF PROCEEDINGS forthwith a full list of his creditors, with their places of residence, and the sums due them respectively. This list should be verified by the oath of the debtor." The court must then ascertain, on reasonable notice to the creditors, whether one-fourth in number and one-third in amount have petitioned that the debtor be adjudged a bankrupt. The object of the notice is to enable the petitioning credit- ors and others of the named creditors to show that the list is incorrect. It should contain a copy of the list, with its names, places of residence, and amounts, and should be sent to all the creditors named in the list, at the addresses given in the list? If the petitioning creditor denies that the list filed by the debtor is correct, either as to the na- ture or the amount of the debts, the case may be referred to a register,’ or to the clerk,* to take evidence and report as to the correctness of the list. If it appears that such number and amount have not so petitioned, the court must grant a reasonable time, not exceeding ten days, within which other creditors may join in the petition. If, at the expiration of the time so limited, the requisite number and amount comply with the requirements of the statute, the matter of bankruptcy may proceed; but if at the expira- tion of such limited time such number and amount do not so comply, the petition must be dismissed with costs. Whether the allegation that the petitioning creditor con- stitutes the requisite proportion of the creditors is a juris- dictional averment, is a point upon which the authorities are conflicting. In one case it was held that the averment was not jurisdictional.’ In another it was treated as juris- dictional.’ One case was dismissed without allowing other ‘In re Louis E. Steinman, 10 B. R. 214; s. c. 6 Biss. 166; in re Hymes, 10 B. R. 483; 8. c. 7 Ben. 427; Barnert v. Hightower, 10 B. R. 157. * In re Hymes, 10 B. R. 433; 8. c. 7 Ben. 427. ig eect Frost, 11 B, R. 69; s, c. 6 Biss, 218; in re Edward Sargent, “Tn re Hymes, 10 B. R. 428; s. c. 7 Ben. 427. “In re Morris, 11 B. R. 443; in re James A. McKibben, 12 B. R. 97. “In re Reiman & Friedlander, 11 B. R. 21; s. c. 7 Ben, 455 : R. 128; 8. c. 12 Blatch, 562. , Puente ean . IN INVOLUNTARY BANKRUPTCY. 53 creditors to join in the petition, because the averment was wanting.’ In another case the petition was dismissed be- cause the petitioners had included the name of one creditor without authority, and alleged that all constituted more than the requisite proportion.? In another it was held. that the petition would be dismissed if it were shown that the creditor, at the time of filing it, knew that he did not constitute the requisite proportion,® for the court would not entertain a fishing petition. If the debtor, on the filing of the petition, admits in writing that the requisite number and amount of creditors have petitioned, the court if satisfied that the admission is made in good faith, may so adjudge, and the matter proceed without further steps on that subject. When the court is satisfied that the requisite amount and number have so petitioned, its judg- ment is final.’ The statute makes the question whether the requisite number and amount of creditors have joined in the petition a matter for the determination of the court. This provision is designed to guard against collu- sive proceedings. If the allegations are not sufficiently full, precise and distinct, the debtor may file an exception, declining to answer upon that ground, and ask that they be made more definite and certain, or be stricken out.’ If they are not sufficient in law to sustain the proceedings, he may move to have the petition dismissed,’ or file a demurrer.’ In taking these preliminary steps, however, he should con- sider whether or not he desires a jury trial. This can only ‘Tn re Thomas F. Burch, 10 B. R. 150. * In re Rosenfields, 11 B. R.-86. *In re Scammon, 11 B. R. 280; s.c. 6 Biss. 145, 195. * Act of 22 June, 1874, § 12. 5 Act of 22 June, 1874, § 13. * In re J. Young Scammon, 10 B. R. 66; 8. c. 6 Biss. 180; in re Isaac Scull, 10 B. R. 165; s. c. 7 Ben. 871; James R. Keeler, 10 B. R. 419. * In re Randall & Sunderland, 3 B. R. 18; s. c. 1 Deady, 557; 3.06.2 L. T. B. 69, 5 In re Melick, 4 B. R. 97. ° Orem & Son y. Harley, 3 B. R. 268; in re A. Benham, 8 B. R. 94. 54 COMMENCEMENT OF PROCEEDINGS be demanded upon the return day;’ but, by consent of parties, an adjourned day may be held to be the same in all respects as the return day.” If the debtor wishes to demur, he may file objections by the way of demurrer and an answer at the same time, and thus obtain a jury trial.* He might also, perhaps, file exceptions for want of defi- niteness in the allegations, and a general denial* Hither of these modes will, according to the condition of the case, enable him to take advantage of all defects in the petition, and at the same time preserve all his rights. If a demurrer or exceptions are filed, they must be set down for hearing and disposed of first. If they are sustained, or the petitioner without trial concludes that his allegations are defective, he may ask for leave to amend. Leave to amend may also be asked for when he desires to include other and new matter in his petition. Merely formal amendments, which can not take the debtor by surprise, may be asked for in open court, and allowed, when it appears to be due to justice, even at the final hearing, and after all the testimony in the cause has been taken. But when a petitioner seeks to introduce new matter, he must ask for leave to amend by a petition, duly verified, stating the amendments that are desired, and setting forth special reasons therefor. It should be shown that the petitioner and his attorney were not advised of the facts sought to be added by the amend- ment at the time the original petition was prepared, or that they were omitted from inadvertence, mistake or other reason which might excuse such omission, and that application for leave to amend was made within a reason- * In re Gebhart, 3 B. R. 268; Clinton v. Mayo, 12 B. R. 39; in re Sherry, 8 B. R. 142. , * In re G. & H. Pupke, 1 Ben. 342. * In re Nickodemus, 3 B. R. 230; s.c. 1 L. T. B. 140. * Form No. 61. , '*® In re Craft, 1B. R. 378; s.c. 2 Ben. 214; in re Waite & Crocker, 1 B. R. 873; s. c. Lowell, 207; in re Haughton, 1 B. R. 460; in re A. B. Gallin- ger, 4B. R. 729; s. c. 1 Saw. 224, IN INVOLUNTARY BANKRUPTCY. 5D able tine after the necessity for an amendment was dis- covered. A copy of this petition should be served upon the deb: or or his attorney. An amendment which introduces new facts, or changes essentially the grounds of the prosecution or the defense, will not be allowed, except for very special reasons, and where it is clearly required in furtherance of justice. When it would introduce into the petition entirely new acts of bankruptcy, founded upon facts not therein re- ferred to, and alleged to have been committed more than six months prior to the application for leave to amend, it will not be allowed.’ The allegation in regard to the joining of the requisite proportion of the creditors may be amended? The verification of the petition is no part of the petition, and if it is defective, it may be amended.? If it is made by an agent, and there is no evidence of his authority, supplemental affidavits may be filed tending to show his authority at the time he signed and verified the petition* An amendment to add a new party will not be allowed after all the evidence has been taken and the case is before the court on final hearing.? When leave to amend is granted, the petitioner may be required to pay costs.’ Merely formal amendments may be made upon the record,’ but amendments introducing new matters should be upon a separate paper signed and verified in the same manner as the original petition.® . So soon as the petition is adjudged to be correct, or is made so by an amendment, the debtor must, if he has not previously done so, put in his real defense. If an amend- ? Crowley & Hoblitzell, 1 B. R. 516; 3c. 1 L. T. B. 79, 2 Inre James A. McKibben, 12 B. R. 97; in re Morris, 11 B. R. 443; in re Joseph 8. Hadley, 12 B. R. 366. °Tn re Solomon Simmons, 10 B. R. 253; in re California Pacific R. R. Co. 11 B. R. 193; s.c. 3 Saw. 240; in re Edward Sargent, 13 B. R. 144; contra, Moore & Bro. v. Harley, 4 B. R. 242; s.c. 2L. T. B. 666. “In re Rosenfields, 11 B. R. 86. * In re Chas. §. Pitt, 14 B. R. 59. 6 In re Howland, 2 B. R. 357. 7 In re Haughton, 1 B. R. 460. * Crowley & Hoblitzell, 1B. R. 516; 8. c.1L. T. B. 79. 56 COMMENCEMENT OF PROCEEDINGS ment introduces new matter after he has made his full defense by an answer, he must of course reply to that,’ or, if he has not put in his general défense, he may demur or except, the same as before. The general ‘defense should be made by an answer. The pleadings and proceedings must be regarded as governed and controlled by the rules and regulations prescribed in a civil action at common law2 In re Lewis, 1 B. R. 239; s, c. 2 Ben. 96. ? Rule XVIII. CHAPTER IV. THE POWERS OF REGISTERS IN BANKRUPTCY, AND THE MODE OF REVISING PROCEEDINGS BEFORE THEM. Reeisters are officers of the district court appointed for the purpose of assisting the judge in the performance of his duties under the statute, by attending to matters of detail and routine, and matters that are purely adminis- trative in their character. They are appointed by the dis- trict judge upon the nomination of the Chief Justice of the Supreme Court (§ 4993), and are at all times subject to removal by the judge of the district court (§ 4997). All vacancies should be filled, unless the district judge deems the continuance of the particular office unnecessary ($ 4993). No person is eligible to such appointment unless he is a counsellor of the district court for the district for which he is appointed, or of some one of the courts of record of the State in which he resides. Before entering upon the duties of his office, he must give a bond! in a sum of not less than one thousand dollars, to be fixed by the district Judge, with sureties satisfactory to such judge, for the faithful discharge of his duties (§ 4995), and must also take an oath® of office. No register, or any partner or clerk of such register, or any person having any interest with him in any fees or emoluments in bankruptcy, or with whom such register has any interest in respect to any matter in bankruptcy, can be of counsel, solicitor, or attorney, either in or out of court, in any suit or matter pending in bankruptcy in either the circuit or district ' Form No. 9. . > Form No. 7. POWERS OF REGISTERS. 73 court of his district, or in an appeal therefrom. Nor can they, or either of them, be executor, administrator, guard- jan, commissioner, appraiser, divider, or assignee of, or upon, any estate within the jurisdiction of either of such courts of bankruptcy; nor be interested, directly or indi- rectly, in the fees or emoluments arising from either of such trusts.’ No register, during his continuance in office, can be either directly or indirectly interested in or bene- fited by the fees or emoluments arising from any suit or matter pending in bankruptcy in either the district or cir- cuit court in his district, except those fees which are allowed him by law ($ 4495). His fees must be paid by the parties for whom the services are rendered (§ 5008). The powers of registers are of a limited character. As soon as a voluntary petition is filed, or there is an ad- judication upon an involuntary petition, the case is re- ferred to a register, and the proceedings thereafter are mainly conducted before him.’ The time when and place where the registers shall act upon the matters arising under the several cases referred to them, must be fixed by special order of the district court, or by the register acting under the authority of a general order, in each case, made by the district court ; and at such times and places the registers may perform the acts which they are empowered to do by the statute.’ They must indorse the time of filing upon each paper filed with them.* In all cases pending before them, they have the power to make adjudications of bankruptcy ; to receive the sur- render of any bankrupt; to administer oaths in all pro- ceedings before them; to hold and preside at meetings of creditors; to take proof of debts; to make all computa- tions of dividends, and all orders of distribution, and to furnish the assignee with a certified copy of such orders, ' Act of 22 June, 1874, § 18. * Rule IV. ° Rule V. ‘Rule VIL. 74 POWERS OF REGISTERS 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 creditor do not op- pose ($ 4998); to give requisite direction for notices, ad- vertisements, and other ministerial proceedings; to order payment of rates and taxes, and salary or wages of persons in the employment of the assignee; to order amendments, or inspection, or copies, or extracts, of any proceedings; to take accounts of proceeds of securities held by any cred- itor; to take evidence concerning expenses and charges against the bankrupt’s estate; to conduct proceedings for the declaration and payment of dividends, to dispatch all administrative business of the court in matters of bank. ruptcy, and to make all requisite uncontested orders and directions therein which are not by the statute required to be made, done or performed by the district court itself; to exercise all powers, except the power of commitment, vested in the district court for the summoning-and exami- nation of persons or witnesses, and requiring the produc- tion of books, papers, and documents (§ 5002); and to sit in chambers, and dispatch there such part of the adminis- trative business of the court and such uncontested matters as are defined in the general rules and orders, or as the district judge may in any particular matter direct (§ 4998). They have no power to commit for contempt, or to make adjudication of bankruptcy when opposed, or to decide upon the allowance or suspension of an order of discharge (§ 4999). | They must also make short memoranda of their pro- ceedings in each case in which they act, in a docket to be kept by them for that purpose, and they must forthwith, as the proceedings are taken, forward to the clerk of the district court a certified copy. of such memoranda, which must be entered by the clerk in the proper minute book 5 Rule Vv. IN BANKRUPTCY. [5 to be kept in his office (§ 5000). These memoranda must be in suitable form to be entered upon the minute book of the court, and must be forwarded to the clerk of the court not later than by mail the next day after the act has been performed.’ All depositions of persons and witnesses taken before registers, and all acts done by them, must be reduced to writing, and be signed by them, and must be filed ($ 5004) in the clerk’s office as part of the pro- ceedings. Every register in performing the duties required of him must use all reasonable dispatch, and can not adjourn the business but for good cause shown. Six hours’ session constitutes a day’s sitting, if the business requires; and when there is time to complete the proceedings in progress within the day, the party obtaining any adjournment or postponement thereof’ may be charged, if the court or register think proper, with all the costs incurred in conse. quence of the delay.” He must also keep an accurate account of his traveling and incidental expenses, and those of any clerk or other officer attending him in the perform- ance of his duties, in any case or number of cases which may be referred to him; and must make return of the same under oath, with proper vouchers (when vouchers can be procured), on the first Tuesday in each month.’ Any register may act in the place of any other register appointed by and for the same district court (§ 5007). The proceedings before the registers are to be conducted with the exercise of a proper legal discretion, and, subject to that rule, are entirely within their eritroli : In all matters where an issue of fact or of law is raised and.contested by any party to the proceedings before them, ‘it is their duty to cause the question or issue to be stated by the opposing parties in writing, and they must adjourn the same into court for decision by the judge ($ 5009). The issue may be one of fact or one of law, but it must be *Rele XI. * Rule VI. ® Rule XII. “In re Hyman, 2 B. R. 338; 8. c. 36 How. Pr. 282; s.c. 3 Ben. 28. 76 POWERS OF REGISTERS one which has actually arisen out of proceedings which have taken place, and not one likely to arise, or which may be raised, at some future time.' The ground of the objection must also be stated, otherwise no point or ques- tion or issue is raised.2 The issue must also be contested, and the person contesting it must be a party to the pro- ceedings. As soon as it is raised, it is the duty of the register to adjourn it into court without any request to that effect by a contesting party. Such an adjournment, however, is a proceeding that may be waived, and when a party does waive it by submitting the issue to the de- cision of the register, he can not, after finding that the decision is against him, ask to have it then adjourned into court.” The proper mode of making up the question or issue for the judge is, to cause the opposing parties to state it in writing, and when so stated to transmit it into court, with a certificate of the facts which show that the issue is one that ought properly to be adjourned under the statute. An objection to a question or answer in the course of an examination, or to an application by a bank- rupt for leave to amend his schedule does not raise such an issue as can be adjourned;* but an objection to an application for an examination of a bankrupt,’ or to the allowance or rejection of a proof of debt,’ does raise an issue which must be adjourned. Any party, during the proceedings before a register, is at liberty to take the opinion of the district judge upon any point or matter arising in the course of such proceed- ings, or upon the result of such proceedings, which must be stated by the register in the shape of a short certificate to ‘In re Pulver, 1 B. R. 46; s. c. 1 Ben. 881. ? In re Levy et al. 1 B. R. 186; s. c. 1 Ben. 496. * In re Patterson, 1 B. R. 125; s. c. 1 Ben. 448. “Tn re Levy et al. 1 B. R. 136; s. c. 1 Ben. 498; in re Watts, 2 B. R. 447; s.c. 3 Ben. 166; s.c, 2 L. T. B. 74. ° Tn re Patterson, 1 B. R. 125; s. ¢. 1 Ben. 448. ° In re Clark & Binninger, 6 B. R. 202. IN BANKRUPTCY. 77 : the judge who will sign the same if he approves thereof; and such certificate, so signed, will 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 ($ 5010). | In any bankruptcy, or in any other proceedings within the jurisdiction of the court, under the statute, the parties 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 will 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 the 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 without costs (§ 5011). These certificates can only be taken or demanded by a person who is a party to the proceedings. No one but a creditor or a bankrupt can be a party. A mere witness can not be a party.’ The person, moreover, who asks for a certificate must have taken the proper steps to make himself a party to the proceedings. Unless this has been done, he is not in a proper position to participate in them. The questions that may be certified are clearly defined and strictly limited. They are: 1. Any point or matter aris- ing in the course of the proceedings, or upon the result of the proceedings; but it must be a point or matter which has arisen in the course of the proceedings which have taken place, or a point or matter which has arisen upon ‘In re Fredenberg, 1 B. R. 268; 8. c. 2 Ben. 1383; in re Comstock & Co. 13 B. R. 193; s. c. 3 Saw. 517, 78 POWERS OF REGISTERS e and after the result of the proceedings which have taken place, and not a point or matter likely to arise, or which , may be oe thereafter, or after a result shall have been arrived at. 2. Any question stated by’ consent of the parties eonoeriad in a special case; but it must be a ques- tion to which there are two parties, and one which has arisen out of the proceedings which have taken place. — Nothing should be certified except what is necessary to be decided to enable the case to progress ‘properly. Ques- tions which thus necessarily arise should be certified only and as and when they arise, and ought not to be antici- pated! The same principles apply to the statement of a question in a special case.? The usual mode of settling and determining disputed questions arising in proceedings before a register is by taking such certificates. It is short, simple and expedi- tious. It is always adopted when there is but one party — interested in the issue, and the point certified is commonly a question of law or of practice. Registers also adopt this mode whenever they desire to obtain the instructions of the court on matters in which they alone are interested.’ But when there are two adverse parties interested in the question, and the question is an issue of law or of fact, then the point must always be stated in writing by the opposing parties before it is certified. All points or mat- ters arising in the course of the proceedings may be cer- tified at the request of any party. All issues of law or of fact must be adjourned, but such issues must be stated in writing by the opposing parties, where there are such, before ey can be certified (§ 5009). In one case there is a privilege conferred ; in the other case there isa duty im- posed. An aijeotion to a question in the course of an ‘In re Pulver, 1 B. R. 46; s. c. 1 Ben. 381. ? In re Haskell, 4 B. R. 558. °In re Sherwood, 1 B. R. 844; s. c. 6 Phila. 461: ; inre Lod B, RB. 517; 8.0. 8 Ben. 211; 8. 0.1L, T. B. 159, SEER aS IN BANKRUPTCY. 19 examination, or a question as to the right of a bankrupt _ to amend his schedule, are points that may be certified.! ‘But questions concerning the right of a bankrupt to a discharge,’ or the effect of a discharge upon a particular debt,’ or the disposition that an assignee ought to make of cerfain property prior to his application for a settle. ment of his final account,’ or the title to property when the point does not arise in a proceeding concerning such property to which the assignee is a party,’ or the duty of a secured creditor who has proved his claim as unsecured,° when the point does not arise upon any motion or pro- ceeding, can not be certified. The certificate shouid be in the prescribed form,’ and properly entitled in the cause, and should state the name of the party at whose instance it is made. All the facts bearing upon the matter should be fully set forth, so that it will appear upon the face of the proceedings that the certificate is one that may be properly transmitted ; and. the point to be decided should be clearly and distinctly _ stated. The register also generally states his own opinion upon the point when the certificate is one that is made to obtain the opinion of the judge, and is not for the pur. pose of submitting a question by consent of parties for the opinion of the court. When completed, the certificate is signed by the register and transmitted to court. When the certificate is made for the purpose of obtaining the opinion of the judge, he must sign it if he approves there- of, and it is only the certificate so signed that is declared to be binding on all parties to the proceedings. The statute does not state what the judge shall do if he does not ap- prove of the certificate.* The practice is for him to give ?Tn re Levy et al. 1 B, R. 186; s. c. 1 Ben. 496; inre Watts, 2 B. R. 447; s. c. 3 Ben. 166; s.c. 2.L. T. B. 74. : * In re Mawson, 1 B. R. 265; 8. c. 2 Ben. 122. ‘ * Tn re Bray, 2 B. R. 189. ‘In re Sturgeon, 1 B. R. 498. "In re J. W. Wright, 1B. R. 393. *In re Peck, 3 B. R. 757. " Form No. 50. * In re Levy et al. 1 B. R. 136; s. c. 1 Ben. 496. 80 POWERS OF REGISTERS. his opinion upon the point, and this is accepted as decisive by the parties. If the question is certified improperly, no. opinion will be given.! The pendency of the issue unde. cided before a judge does not necessarily suspend or delay other proceedings before the register or court in the case. "In re Sturgeon, 1 B. R. 498; in re J. W. Wright, 1 B. R, 393. * Rule XI, CHAPTER V. PROOF OF DEBTS. Sryce proceedings in bankruptcy are the creatures of statutory law, no debt can be proved against the bank- rupt’s estate, unless it is included among those which the statute makes provable ($ 5072). Ifit is included among those, it may be proved, and always must be proved, if the creditor wishes to become a party to the proceedings in bankruptcy. No matter what may be its form, whether it consists of a note, contract, account, bond, or judgment ; no matter whether secured or unsecured ; it must be estab- lished by the oath of the creditor in the manner pointed ‘ out by the statute. The mere statement upon the schedule is not proof, nor sufficient to entitle a party to participate in the proceedings. It may be stated in fraud, or may not exist. There may be payments or counter-claims, or off- sets." Other creditors and the assignee have a right to demand that all the statements required by the statute shall be fully set forth as an evidence of the validity of the claim and the good faith of the claimant. The pur- pose of requiring proof is not merely to give the claimant a standing in court, but to protect the estate against fraud. A creditor need not wait until the first meeting of credit- ors to prove his debt, but may prove it at any time after the proceedings are commenced.’ It may be stated, generally, that all debts owed by the bankrupt at the time of the filing of the petition, whether payable then or at some future day, and all demands against him for any goods or chattels wrongfully taken, * Davis, Assig. of Bittel et al. 2 B. R. 392. *TIn re Patterson, 1B. R. 125; 8. c. 1 Ben. 448. 6 82 PROOF OF DEBTS. converted or withheld by him, are provable (§ 5067). The debt, however, must have existed at the time of the commencement of proceedings in bankruptcy, or it can not be proved. If it existed before that time, and bore inter- est, the principal and the interest thereon up to that time may be proved. If it did not bear interest, and was not payable until after that time, then there must be a rebate from its amount of the interest thereon for the interval be- tween such commencement of proceedings in bankruptcy and the time when it would be payable. Interest may also be allowed on a demand for any goods or chattels wrongfully taken, converted, or withheld by the bankrupt ($ 5067). Where the bankrupt is lable 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 filing of the petition ($ 5071). If a judgment was recovered before the commencement of the proceedings in bankruptcy, the costs constitute a part of the debt and may be proved.? When a debt, ex- isting before the commencement of the proceedings, has been merged in a judgment rendered since such time, it may be proved; but it is not settled whether the debt or the judgment must be proved? The costs that have been incurred since the filing of the petition can not be in- cluded in the proof Costs incurred in an attachment suit which was dissolved by the commencement of the pro- ceedings in bankruptcy can not be allowed.’ No cost in- >TIn re Orne, 1 B. R. 57; 8. c. 1 Ben. 361. 2 Ex par.e O'Neil, 1 B. R. 677; s. c. Lowell, 163; Graham v. Pierson, 6 Hill, 247. ‘Tn re 8S. Brown, 8 B. R. 584; 8. c. 5 Ben. 1; in re Vickery, 3 B. R. 696; in re Crawford, 3 B. R. 698: s.c. 1 L. T. B. 211: 8 o. 3 L. T. B. 169; in re Stevens, 4 B. R. 867; s.c. 4 Ben. 5138; s.c. 2 L. T. B. 121; in re Gallison et al.5 B. R. 353; s. c. 2 L. T. B. 195; Bradford v. Rice, 102 Mass. 472; Monroe v. Upton, 50 N. Y. 593; s. c. 6 Lans. 255; in re Louis H. Rosey, 8 B. R. 509; 8. c. 6 Ben. 507. ‘In re Crawford, 3 B R. 698; 8. c.1 L. T. B. 211; s3.c. 38 L. T. B. 169; Sanford y, Sanford, 12 B. R 565; s. c. 58 N. Y. 67. * In re Fortune, 2 B. R. 662; 8. c. Lowell, 306; in re C. H. Preston, 6 B. R. 545; Gardner v. Cook, 7 B. R. 346. PROOF OF DEBTS. 83 curred after the filing of the petition, or in seizing prop- erty which was not liable to attachment, can be proved.' If the bankrupt, at the time of his adjudication, was 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 distinct 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, com- posed of the same individuals, or that the sole contractor is also one of the joint contractors, does not prevent proof and receipt of dividend in respect to such distinct con- tracts against the estates respectively liable upon such contracts (§ 5074). Considered separately, the first part of this provision would afford strong support to the prop- osition that the term sole trader is used in a technical sense, but the whole clause must be construed together, and the last part provides that the circumstance that such firms are in whole or in part composed of the same in- dividuals, or that the sole contractor is also one of the joint contractors, shall not preveat such proof, and thus shows that the term sole trader is not used in a technical sense, and that its meaning was intended to be enlarged by the latter part of the clause.’ The proof should, if possible, be made by the claimant testifying of his own knowledge. If the claim has been assigned in good faith, and for a valuable consideration, the assignee may prove it, whether the assignment was made before or after the commencement of proceedings in bank- ruptcy, and the proof, when the assignment was made be- fore the commencement of the proceedings, need not be accompanied by an affidayst of the assignor.’ The indorsee ‘In re C. H. Preston, 5 B. R. 293. ? Emery v. Canal Nat’l Bank, 7 B. R. 217; s.c. 5 L. T. B. 419. _ *In re Murdock, 3 B. R. 146; s. c. Lowell, 362; s. c. 2 L. T. B. 97; in re Fortune, 3 B. Rt. 312: s c. Lowvll, 884: in re Frank, 5 B. R. 194; 3.6. 5 Ben. 164; 8. c. 2 L. T. B. 188; inre Strachan, 3 Biss. 181. 84 PROOF OF DEBTS. of a negotiable note may prove it, although the indorse- ment was made after the bankruptcy of the maker.’ The true mode of proving an assigned claim is for the holder himself to make the affidavit? Administrators, executors, receivers, and other persons who are assignees by mere operation of law, may prove in the same manner as the parties whom they represent could have done.’ If the assignment occurred after the commencement of proceed. | ings in bankruptcy, the usual forms should be changed to suit the circumstances of the case.* The claim in such case must also be supported by a deposition of the owner at the time of the commencement of proceedings, setting forth the true consideration of the debt, and that it is entirely unsecured, or if secured, stating the security, as is required in proving secured claims.® The proof for a cor- poration may be made by its president, cashier, or treas- urer ($ 5078). If its officers are not -known by these names, the deposition may be made by the officer whose duties most nearly correspond to those of cashier or treas- urer.6 The proof of a claim by a State should be made by the State treasurer, or by some officer holding a rela- _ tion to the State similar to the relation which a president, cashier, or treasurer bears to a corporation.‘ In cases where the claimant is absent from the United States, or is prevented by some other good cause from testifying, the proof may be made by his attorney or duly authorized agent, testifying to the best of his knowledge, informa- tion, and belief, and setting forth his means of knowledge ($ 5078). Proof can only be made by an agent in two cases; first, when the claimant is absent; second, when he is prevented by some good cause from testifying. In # 1 Humphries v. Blight, 4 Dall. 370; s. co. 1 Wash, 44. 2 In re Pease et al. 6 B. R. 173. * In re Republic Ins. Co. 8 B. R. 197; s. c. 8 Biss. 504. ‘Tn re Murdock, 3 B. R. 146; s. c. Lowell, 862; s.c. 2 L. T. B, 97. * Rule XXXIV. ° Rule XXXIV. Tn re Corn Exchange Bank, 15 B. R. 216; s.c. 90, L. N. 254, 481. PROOF OF DEBTS. 85 all other cases, the proof must be made by the claimant himself. This cause is to be proved to the satisfaction of the judge or register before whom the debt is offered for proof. The law requires the oath of some person having knowledge, and the creditor himself is presumed to have it; and unless he is absent or in some way prevented from testifying, no one can do so for him.’ The reason why the deposition is not made by the claimant in person must be stated.2 Sickness is a sufficient excuse,®? but not mere ab- sence from the State Where the claim is held by a firm, an agent can not make the proof, although one partner is sick and the other is out of the State.” If an agent has personal knowledge of all the facts necessary to make the proof, and the creditor has no knowledge of the matter at all, the former may prove the debt. One partner may make the proof on behalf of his firm," but it must appear in the deposition on oath that the deponent is a member of the firm. The court may in all cases, if it shall see fit, require or receive further pertinent evidence, either for or against the admission of a claim ($ 5078). When partners are adjudged bankrupt, the result is or may be that several distinct estates are to be administered in that proceeding. Thus there may be the estate and debts of the partnership and the separate estate and debts of each individual included in the partnership. Proof of a debt against either of these estates ought not to include or be joined with the proof of a debt against either of the others. Two distinct debts against different estates can not be included in one proof or deposition.’ The statute contains conflicting provisions in regard to . ‘In re H. FP. Barnes, Lowell, 560; McKinsey v. Harding, 4 B. R. 39; in re William Whyte, 9 B. R 267; in re W. A. Saunders, 13 B R. 164. * Rule XXXIV. *In re William Whyte, 9 B. R. 267. “In re George Jackson et al. 14 B. R. 449. *In re William Whyte, 9 B. R. 267. , ° In re Martin Watrous et al. 14 B. R 258. "In re Barrett, 2 B. R. 5383; 8.0. 1 L. T. B. 144. ® Rule XXXIV. *In re Walton et al. 1 Deady, 510. 86 PROOF OF DEBTS. the power of registers to take proofs. Among the general powers granted to them, is the power to take proof of debts (§ 4998). The statute then provides, that creditors. residing within the judicial district where the proceedings in bankruptcy are pending, shall prove their debts before one of the registers of the court, or before a commissioner of the circuit court within said district, and that cred- itors residing without the district, but within the United States, may prove their debts before a register in bank- ruptcy, or a commissioner of a circuit court in the jadicial district where such creditor or either one of joint creditors resides (§ 5076). It also further provides, that the oath to a proof -of debt may be taken in any district, before any register, or before any commissioner of the circuit court, authorized to administer oaths ($5079). As this provision is the last expression of the legislative intent, it will probably be deemed to be paramount, and to over- rule the others so far as it conflicts with them. A notary public may also take proof of debts,’ but a justice of the - peace can not.? Ifthe creditor is in a foreign country, the proof may be taken before any minister, consul or vice- consul of the United States (§ 5079). Proofs taken be- fore a notary, must be certified by him, and attested by his signature and official seal. The requisites of a notarial seal are determined by the law of the locality from which he derives his authority. In the absence of legislation an official seal need not contain the name of the official whose seal it purports to be. An impression on the paper directly, or on wax or wafer attached thereto, made by the official as and for his seal, is entitled to judicial sanc- tion as evidence of the official character of the individual who signs the jurat, and the presumption is that the seal is his official seal.t Proofs taken before a commissioner are subject to revision by the register of the court (§ 5076). * Act of 22 June, 1874, § 20. “In re Strauss, 2 B. R. 48. * Act of 22 June, 1874, § 20. “Inre Wm. W. Phillips, 14 B. R. 219; vide inre Henry Nebe, 11 B, R. 289. PROOF OF DEBTS. 87 In no case can the proof be taken by the creditor before an officer who acts as his attorney in the matter." To entitle a claimant against the estate of a bankrupt to have his demand allowed, it must be verified by a deposition in writing, on oath or solemn affirmation, before the proper register or commissioner or other officer, setting forth the demand; the consideration thereof; whether any and what securities are held therefor; and whether any and what payments have been made thereon; that the sum 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 in bankruptcy; and that no bargain 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 claim, or any part thereof, against such bankrupt, or take or receive, directly or indirectly, any money, property, or con- sideration whatever, whereby the vote of such creditor, or any other person in the proceedings, is or shall be in any way affected, influenced, or controlled. And no claim can be allowed unless all the statements set forth in such dep- osition appear to be true ($ 5077), The deposition must be in accordance with the pre- scribed form as adapted to the character of the claimant.® The proof is neither a deposition nor an affidavit, as known in the ordinary practice of the law. It is the re- sult of an.examination made by a duly authorized officer. In no other court of justice is such testimony required for the due proof of any debt; and it is evident that Congress intended that the court and its officers should, by a careful examination of the creditor, purge his conscience and as- ‘certain the real nature of his claim, and that no fraud or combination, either for or against the bankrupt, exists.* *In re Henry Nebe, 11 B. R. 289, 2 In re Strauss, 2 B. R. 48. * Forms Nos, 21, 22, 23, 24 and 25. ‘In re Strauss, 2B. R. 48. 88 PROOF OF DEBTS. The proof should be made+ without protest, qualification or reservation! It should set forth the name and residence of the affiant, and the place at which it is taken. It must also give at least one full Christian name of the creditor as well as his surname? At the time of making the proof the creditor should produce the proper evidence of his debt, or a copy thereof, whether the same consists of a note, agreement, bond, or account.’ If it is an account, an itemized bill should be produced. If a note is merged ‘in a judgment it need not be produced.* These evidences of debt are commonly marked as exhibits, identified by the signature of the officer taking the proof, and affixed to the deposition. The deposition to prove a debt exist- ing in open account must also state when the debt became or will become due, and if it consists of items maturing at different dates, the average due date must be stated, in default of which it is not 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.’ If the claim has been as- signed, the proof should set. forth the date and facts of the transfer, and the name of the original creditor... The defense of the statute of limitations need not be antici- pated, for the defense must be set up affirmatively by the party relying on it." The claimant can not determine the amount of interest for himself, but must furnish the data, so that the computation may be made by the register.® The consideration of the demand must be set forth ($ 5077), but what statement of the consideration is suf- ficient to meet the requirements of the law can hardly be * Dutton v. Freeman, 5 Law Rep, 447. *In re William H. Valentine, 12 B. R. 389; s. c. 4 Biss. 317. *Jn re Northern Iron Company, 14 B. R. 356. ‘In re Knoepfel, 1 B. R. 70; s. o. 1 Ben. 398. * Rule XXXIV. ° In re Fortune, 3 B. R. 312; s. c. Lowell, 388t;s.¢c.2L. T. B. 99. "In re Knoepfel, 1 B. R. 70; s. c. 1 Ben. 398, * Iu re Port Huron Dry Dock Co. 14 B. R. 233 PROOF OF DEBTS. 89 considered a settled question yet. There is a considera- tion in law, and a consideration in fact. Thus, a judg- ment duly rendered in a State court can not be impeached collaterally, nor can the consideration upon which it is founded be-inquired into in the absence of fraud.’ An instrument under seal always imports a consideration, and a promissory note is always prima facie evi- dence of a consideration. How far the statute intended to set aside and reject these general principles of law is a question of no little importance. It is true that it purges the conscience of the claimant, and requires full disclos- ures; but, in regard to the consideration, it simply says that it shall be set forth, without declaring what state- ment shall be deemed a compliance with the statute. The whole question turns upon the meaning and definition of the term consideration, as used in the statute. It has, however, been held that a proof of a note which did not state the consideration was defective,? and that a state- ment that the consideration was goods sold and delivered, without setting forth date, items, and kind of goods, was insufficient.? The proof of a claim for contribution by a partner must set forth the amount paid by him for the debt on account of which the claim is made.* The as- signee of a chose in action must state the consideration that passed between the original parties.’ But the holder of a promissory note who took it for value in good faith before the maturity thereof, need only state the consid- eration which he gave for it.° Tn all cases of mutual debts or mutual credits be- * McKinsey et al. v. Harding, 4 B. R. 39; ex parte O’Neil, 1 B. R. 677; s. c, Lowell, 168; Shaffer v. Fritchery & Thomas, 4 B. R. 548. * In re Loder, 3 B. R. 655; sc. 4 Ben. 125; in re Jaycox & Green, 7 5. R. 308; in re Lake Superior 8. C., R. R., & I. Co. 7B. R. 376. “In re Elder, 3 B. R. 670; 5. c. 1 Saw. 73; in re Port Huron Dry Dock Co. 14 B. R. 253; in re Northern Iron Co. 14 B. R. 356. “In re E. R. Stephens, 6 B. R. 533; 8. c. 3 Biss, 387. * In re Lake Superior 8. C., R. R., & I. Co. 10 B. R. 373. * In re Lake Superior 8. C., R. R., & I. Co. 10 B. R. 376. 90 PROOF OF DEBTS. tween the parties, the account between them must be stated, and one debt set off against the other, and the balance only can be allowed or paid; buat no set-off can be allowed in favor of any debtor to the bankrupt of a claim in its nature not provable against the estate; or of a claim purchased by or transferred to him after the filing of the petition ($ 5073); or in cases of compulsory bank. ruptey, after the act of bankruptcy upon or in respect of which the adjudication shall be made, and with a view of making such set-off The term mutual credits is more comprehensive than the term mutual debts in the statutes relating to set-off. The term credit is synonymous with trust, and the trust or credit need not be of money on both sides; but if one party intrusts another with goods or value, it will be a case of mutual credit. Therefore, a ereditor who at the time of the bankruptcy had in his hands goods or chattels with a power of sale, or choses in action with a power of collection, may sell the goods or collect the claims, and set them off against the debt the bankrupt owes him.’ An acceptor of a bill of exchange who has received goods from the drawer after the accept- ance, and converted them into money before his bank- ruptcy, is entitled to set off the amount so received against the bill of exchange, although it did not become due until after the bankruptcy. The term “ credits,” however, are only such as must, in their very nature, terminate in cross- debts; as, where a debt is due from one party, and credit given by him to the other, for a sum of money payable at a future day, and which will then become a debt; or when there is a debt on one side, and a delivery of prop- erty, with directions to turn it into money, on the other. But where there isa mere deposit of property, without authority to turn it into money, no debt can ever arise * Act of 22 June, 1874, § 6. * In re Dow et al. 14-B. R. 307; in re Farnsworth, Br &O 148; 8. o. 5 Biss, 224. va none PROOF OF DEBTS. 91 out of it, and, therefore, it.is not a credit within the mean- ing of the statute.’ The debt must be mutual and exist- ing in the same right. Thus a claim by a firm against the bankrupt can not be set off against a demand of the bank. rupt upon one of the partners.’ A joint obligation of all the partners can not be set off against a demand of the firm against the creditor? A debt which is not yet due may be set off against one which is already due* A mere claim for unliquidated damages can not be set off against the demand of a creditor until it has-been put into the shape of a debt.? A loss upon a policy of insurance may be set off against an indebtedness for money borrowed from the insurance company,° or for money deposited with the holder as a banker.’ A party has the right to have his credit for a deposit in a bankrupt bank set off against his indebtedness as indorser upon a note held by the bank and duly protested.* A stockholder in an insurance com. pany can not set off a claim upon a policy held by him against his liability for a subscription to its stock.? Nor can the treasurer cf the company set off a claim upon a policy held by him against his liability for the funds in his hands.” A provable debt, transferred before the filing of the petition in a voluntary case, or before notice of the act of bankruptcy in respect to which the adjudication ? Catlin v. Foster, 3 B. R 540; 3, c. 1 Saw. 37; s.c.1 L. T. B. 192; ex parte Caylus et al. Lowell, 550; Murray v. Riggs, 15 Johns, 571. * Hitchcock v. Rollo, 4 B. R. 690; s. c. 8 Biss. 276; Gray v. Rollo, 9 B. R. 387; 8. c. 18 Wall. 629. * Forsyth v. Woods, 5 B. R. 78; s.c. 11 Wall. 484. ‘In re City Bank,6 B. R. 71; Drake v. Rollo, 4 B. R. 689; s. c. 3 Biss. 278, '*In re Orne, 1 B. R. 57; s. c. 1 Ben. 361. ° Drake v. Rollo, 4 B. R. 689; s. c. 3 Biss. 273, 7 Scammon v. Kimball, 8 B. R. 337; s. c. 18 B. R. 445; s. c. 5 Biss. 431; s.c.6L. T. B. 424. * Winslow v. Bliss, 3 Lans. 220; Marks v. Barker, 1 Wash. 178. ° Sawyer v. Hoag, 9 B. R. 145; s. c. 3 Biss. 293; s.c. 17 Wall. 610; Scam- mon y. Kimball, 8 B. R. 887; 8. c. 13 B. R. 445; s.¢c.5 Biss. 431; 8. ¢. 6 L. T. B. 424; Jenkins v. Armour, 14 B. R. 276; s. c. 6 Biss. 312. *" Scammon v. Kimball, 8 B. R. 337; s. c. 13 B. R. 445; 8. c, 5 Biss. 431 ; 8.c.6L. T. B. 424, 92 PROOF OF DEBTS. was made in an involuntary case, may be set off, although the object and effect of the transfer is to defeat the opera- tion of the statute by enabling a creditor to obtain full satisfaction of his demand by selling his claim to a debtor of the bankrupt, to be used as a set-off" If the transfer is merely nominal, the holder is deemed to be a trustee for the owner, and can not set the claim off against a debt due by him? If the assignment of a chose in action, which is not negotiable, does not enable tbe holder to sue thereon in his own name, it is not a mutual debt or credit in his hands, so as to be a matter of set-off? If the bankrupt is Hable for unliquidated damages arising out of any contract or promise, or on account of any goods or chattels wrongfully taken, converted or with- held, the court may cause such damage to be assessed in such mode as it may deem best, and the sum so assessed may be proved against the estate (§ 5067). But the claim can not be proved until the damages are assessed, and it is incumbent upon the creditor to make a special application for such assessment.* If the bankrupt is bound as a 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 has not become absolute until after the adjudication of bankruptcy, the creditor may prove the same after such liability has become fixed, and before the final dividend has been declared (§ 5069). In all cases of contingent debts and contingent liabili- ties contracted by the bankrupt, and not otherwise pro- ‘In re City Bank, 6 B. R. 71; Hovey v. Home Ins. Co. 10 B. R. 224; 8. Hae A. L. Reg. 511; contra, Hitchcock v. Rollo, 4 B. R. 690; s.c.3 Biss. 7 In re Lane, Brett & Co. 13 B. R. 43. * Rollins v. Twitchell, 14 B. R. 201. “Tn re Clough, 2 B. R. 151; s. c. 2 Ben. 508: in re W. Flemi i bee A : inte leming Smith, 6 PROOF OF DEBTS. 93 vided for, the creditor may make claim therefor, and have his claim allowed, with the right to share in the dividends, if the contingency happens 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 as- certained and liquidated, which must then be done in such manner as the court shall order, and he will be allowed to prove for the amount so ascertained ($ 5068). Any per- son liable as bail, surety, guarantor, or otherwise, for the _ bankrupt, who has paid the debt or any part thereof in discharge of the whole, is entitled to prove such debt, or to stand in place of the creditor if he has proved the same, although such payments were made after the pro- ceedings in bankruptcy were.commenced. And any per- son so liable for the bankrupt, and who has not paid the whole of such debt, but is still liable for the same or any part thereof, may, if the creditor fails or omits to prove such debt, prove the same either in the name of the cred- itor or otherwise as may be provided by the rules, and subject to such regulations and limitations as may be es. tablished by such rules (§ 5070). The claims of persons contingently liable for the bankrupt may be proved in the name of the creditor when known by the party contin- gently liable. When the name of the creditor is unknown, such claims may be proved in the name of the party con- tingently liable, but no dividend can be paid upon such claim except upon satisfactory proof that it will diminish pro tanto the original debt." ‘When a claim is presented for proof before the election of an assignee, and the judge or register entertains doubts of its validity or of the right of the creditor to prove it, and is of 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 ($ 5083). The * Rule XXXTV. 94 PROOF OF DEBTS. register has full power to administer oaths in all proceed- ings before him (§ 4998), and should not allow any claim unless it is satisfactory. He may, therefore, take testi- mony in regard to any claim that is tendered for proof, and should investigate it if it is disputed. He ought not to allow it simply because the creditor swears to it.’ Any creditor may serve a notice upon him protesting against. the proof of any claims by certain persons, and requesting to be notified if such persons should tender their claims for proof? The bankrupt may also object to the proof of | a claim, and may offer to be sworn in regard to it In order to justify the postponement of the proof of a claim, it is not necessary that the register shall be satisfied, or have before him positive evidence that the claim is invalid or that the creditor has no right to prove it. It is suffi- cient if he has a reasonable substantial doubt upon the question, but this doubt must. result from a judicial con- sideration of it. He therefore can not postpone a claim upon a mere objection, but must give the creditor an opportunity to explain any suspicion that may be excited.’ A reasonable doubt arises within the meaning of the statute when the claim is not susceptible of a ready and simple explanation.’ Claims of a questionable character and in dispute; ° the claim of a creditor who has accepted a preference which he does not offer to surrender ;" a claim which is not stated in items and does not appear upon the bankrupt’s schedules ;* the claim of a stock- ‘Tn re Orne, 1B R.57; s.c. 1 Ben. 361; in re Lake Superior 8. C., R.R., & I. Vo. 7 B. R. 376; in re Herman et al. 8B. R. 618; s.c. 4 Ben. 126; in re Noble, 3 B. R. 96; s. c. 3 Ben. 832; in re Bartusch, 9 B. R. 478. 2Inre J. O. Smith, 1 B. R. 243; s. c. 2 Ben. 113. 5Jn re Orne, 1 B. R. 57; s. c. 1 Ben. 361. 4In re George Jackson, 14 B. R. 449; in re Northern Iron Company, 14 B. R. 356. 5 In re Northern Iron Company, 14 B. R. 356. 6 Tn re Jones, 2 B. R. 59. *In re Herman et al. 3 B. R. 618; 8. c. 4 Ben. 126; in re Stevens, 4 B. R. 867; s.c. 4 Ben. 513; 8.0. 2L. T. B. 121; in re Walton et al. 1 Deady, 442. ® In re Elijah Milwain, 12 B. R. 358. PROOF OF DEBTS. 95 holder when the corporation is bankrupt, if it is sus- picious ;* and of a creditor who has accepted a conveyance contrary to the bankrupt law, which he does not apandon,? should be postponed. But the claim of a creditor who has merely declared verbally that he was satisfied with a conveyance made for the benefit of himself and others, without any knowledge, at the time of such declaration, of any facts that made the conveyance a fraud upon the statute, may be allowed to be proved? When a creditor objects to the postponement of a claim, he should have the objection entered and the question certified before any further action transpires be- fore the register.® ; There are two clauses in regard to the proof of the claims of parties who have received a preference contrary to the provisions of the statute. The first is, that any person who has accepted any preference, having reasonable ‘cause to believe that the same was made or given by the debtor contrary to any provision of the statute, can not prove the debt or claim on account of which the preference was made or given, nor can he receive any dividend therefrom until he has first surrendered to the ‘In re Lake Superior 8. C, R. R., & I. Co. 7 B. R. 876; in re Northern Tron Co. 14 B. R. 356. ? In re Chamberlain et al. 3 B. R. 710. *In re Chamberlain et al. 3 B. R. 710. ‘In re Herman et al. 8 B. R. 649. * In re George Jackson, 14 B. R. 419; in re-Bogert et al. 2B. R. 485; 8. c. 38 How. Pr. 111; in re Clark & Binninger, 6 B. R. 202. *Tn re Gunnpe Jackson, 14 B. R. 449. 96 PROOF OF DEBTS. assignee all property, money, benefit, or advantage re- ceived by him under such preference ($ 5084). The second is, that when any person receiving a payment or conveyance has reasonable cause to believe that the debtor is insolvent, and knows that a fraud on the statute is intended, he shall not, if a creditor, 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 cases of voluntary as well as involun- tary bankruptcy.’ As this last act repeals all acts incon- sistent therewith, this second clause will prevail over the first, so far as there is any conflict between them. Both clauses relate to a penalty for a particular act, and the character of the penalty and the circumstances under which it may be imposed, must be determined by the last clause. . By that, the penalty is limited to cases of actual fraud, but as the law now requires that a creditor shall know that a payment or conveyance is intended as a fraud on the statute in order to render it void, every preference which is liable to be set aside will be a case of actual fraud. The act may therefore be construed to mean that a creditor who has received a payment or con- veyance, having reasonable cause to believe that the debtor was insolvent, and knowing that a fraud on the statute was intended, shall not be allowed to prove for more than a moiety of his debt unless he surrenders such payment or conveyance.” He can not prove for even a moiety of his debt so long as he retains his preference;*® but the intent of the statute seems to be that he may surrender and prove ) Act of 22 June, 1874, § 12. ? In re Princeton, 1 B. R. 618; s. c. 2 Biss. 116; s. c.1 L. T. B, 125; in re Colman, 2 B. R. 568; in re Walton et al. 4 B. R. 467; s. c. 1 Deady, 598; s.c.1L. T. B. 162: Richter’s Estate, 4 B. R. 221; s.c. 1 Dillon, 544; in re Scott & McCarty, 4 B. R. 414; in re Kipp, 4 B. R. 593; s. c. 1 L. T. B. 246; s.c. 4 L. T. B. 60; in re Hunt & Hornell, 5 B. R. 483; Hood v. Karper, 5 B. R. 858; s. c. 8 Phila. 160; s. c. 2 L. T. B. 201; in re Reece & Brother, 2 Bond, 359; in re E. R. Stephens, 6 B. R. 533; s. c. 3 Biss. 887; in re Walton es al, 1 Deady, 442; in re John T. Drummond, 4 Biss. 149. * Jn re Cramer, 13 B. R. 225. PROOF OF DEBTS. 97 for the whole of his debt,’ or await the result of litigation and prove for a moiety after a recovery against him. It also appears to be the intent of the statute that a pre- ferred creditor in al] other cases than those of actual fraud may prove his debt even after a recovery. It has, how- ever, been held that a mere preference is not an actual fraud.? The next question is, when is a preference contrary to the provisions of the statute? There must bea preference in fact, an advantage over other creditors. When there is a preference, the conditions requisite on the part of he creditor are, that he shall have reasonable cause to believe that the debtor is insolvent, and know that the payment or transfer is made in fraud of the provisions of the stat- ute. The requirement in regard to the insolvency of the debtor is not knowledge, but a reasonable cause. A reasonable cause is such a cause as would, under all the circumstances of the case, lead a man of ordinary intelli- gence to the required belief? Insolvency, in its general and popular sense, denotes the insufficiency of the entire property and assets of an individual to pay his debts, but as applied to traders and merchants it means an inability to pay debts, as they mature in the ordinary course of business, in that which is a legal tender according to law; and a fraud on the statute means a conveyance or payment contrary to its provisions.* Of course, every man must be presumed to intend the necessary consequences of his own acts, and when there has been a preference’ in fact given by a debtor, at a time when he was actually insolvent, and. did not honestly believe that he could continue in business, the law conclusively presumes that a preference , wasintended. Unless all of these requirements of the stat- ute concur, the preference is valid. If, however, they all 1Tn re John Riorden, 14 B. R. 832; s. c, 51 How. 271. ? In re Jobn Riorden, 14 B. R. 382; 8. c. 51 How, 271. * Scammon y. Cole, 5 B. R. 257. ‘Toof v. Martin, 6 B. R. 49; s. c. 138 Wall. 40. 7 98 PROOF OF DEBTS. concur, there is still another requirement; it must be made within the prescribed time. Independently of the statute, the payment of an honest debt is valid ; it.is invalid only when it comes within all the requirements of the statute. In many cases, it has simply been assumed, without comment or discussion, that four months was the limit in a case of voluntary bankruptcy, and six months was the limit in a case of involuntary bankruptcy, thus making a distinction between the two cases. The limitation of six months, however, contained in the twelfth section of the act of June 22, 1874, applies only to the period within which petitions may be filed to have the debtor declared bank. rupt, and is almost in express terms limited to that sub- ject alone! There is a provision that such property or money, so conveyed or transferred contrary to the act, may be recovered; but the mode and manner of recovery _ are provided for in the section 5128. In the latter section the whole subject of such recoveries is elaborately pro- vided for, and its terms are applicable equally to all cases in bankruptcy, whether voluntary or involuntary. It is not limited or restricted, either expressly or impliedly, to cases of voluntary bankruptcy. As these sections, in re- lation to the subject of such recoveries, are in part ma- teria, they should be construed together, and all the con- ditions, prohibitions, and limitations contained in one may be applied to the other, when not inconsistent with its provisions.” , Even though the limitation of six months, contained in the latter section, were less clearly limited to the period within which petitions might be filed against a debtor, yet the two sections taken together would show that it had no application to a recovery of the property or money. A mere preference, therefore, which has stood ‘In re Tonkin & Trewartha, 4 B, R. 52; s.c.1L. T. B. 232; s.c.3 LT. B, 221; Collins v. Gray, 4 B, R. 631; s. c. 8 Blatch. 483. : a tn re Tonkin & Trewartha, 4 B.R. 52; 8.0.11. T. B. 282; 5.0.3 LT. PROOF OF DEBTS. 99 for four months in cases of voluntary bankruptcy, or two months in cases of involuntary bankruptcy, will be valid as against all the world. If the preference has stood for four months or two months, as the case may be, the creditor may prove his debt without making a surrender of his preference in a ease either of voluntary or of involuntary bankruptcy. If it has not stood for the required time, and falls within the requirements of the statute, then he can not in case of actual fraud prove for more than a moiety of the claim without surrendering it. But the term surrender. implies. some voluntary act on the part of the creditor; and when the return of the money or property is compulsory, it is not a surrender. Consequently, there can be no surrender after a recovery in an action brought by the assignee. There may be a surrender at any time before judgment.’ If the case is tried before the court without the aid of a jury, the creditor may surrender after the announcement of the opinion of the court, and before the entry of the judgment, where there is nothing more than a constructive fraud? After judgment is rendered, there can be no sur- render. A compliance with the judgment is simply made™ by force of the recovery.* A creditor who is merely ap- pointed trustee by a voluntary assignment of the debtor's property, is not debarred from proving his claim.’ The creditor may make the surrender at the first meeting of creditors and prove his claim so as to participate in the ? Coggeshall v. Potter, 4 B. R. 78; s.c. 6 B. R. 10; 8. c. 1 Holmes, 75; in re Butler, 4 B. R. 303; 8. c. Lowell, 506; Hubbard vy. Allaire Works, 4B. R. 623; s,c. 7 Blatch. 284; Maurer v. Frantz, 4 B. R. 431; 8. c. 8 Phila. 505; Collins v. Gray, 4 B. R. 681; s. c. 8 Blatch. 483. * In re Kipp, 4 B. R. 593; s. c. 1 L. T. B. 246; 8. c. 4 L. T. B. 60; Heod vy. Karper, 5 B. R. 358; 8. c. 8 Phila. 160; s.c.2L.T. B. 201; in re E. R. Stephens, 6 B. R. 583; s. c. 3 Biss. 387; in re John Riorden, 14 B. R. 382; s, c. 51 How. 271. * Burr v. Hopkins, 12 B. R. 211; s. c. 6 Biss. 345. “In re Tonkin & Trewartha, 4 B. R. 52; 8.¢c.1L. T. B. 232; 8.¢.3 LT. B, 221; in re Cramer, 13 B. R. 225; in re John F. Lee, 14 B. R. 89. * In re Joseph Horton, 5 Ben. 562. 100 PROOF OF DEBTS. election of an assignee! The debt which can not be proved is only the debt on account of which the prefer. ence was received? If a creditor has separate and discon- nected debts, as to which he has received separate and dis- tinct preferences, he may surrender as to some, and prove and receive dividends as to them, without surrendering as to the others.2 But a creditor can not accept a preference generally, and then some time after it is taken, make an application of it to a portion only of his debt.t A con- tinuous running account is presumptively but one debt or _ claim.® A creditor who has a valid security holds a peculiar relation to the estate in bankruptcy. He is a creditor, and, moreover, has a valid claim upon property in which other creditors have, or may have, an interest. Hence it is not in all cases optional with him whether or not he will prove his claim.’ The assignee may sell the prop- erty subject to his lien. In that case he may prove his claim or not, as he chooses. The assignee, on the other hand, may deem it best to sell the property free from incumbrances. In that case the creditor must prove his debt before he can draw his share of the fund from court. He may also relinquish his security, and prove his whole claim. In such case, he must accompany his proof with a release or conveyance of the security to the assignee; and any attempt to prove without doing this should be disregarded." It has been said that a secured creditor can not prove his claim before an assignee is elected, un- less be abandons his security.® If by this it is meant 1TIn re W. A. Saunders, 13 B. R. 164. * In re Arnold, 2 B, R. 160; in re John F. Lee, 14 B. R. 89. *In re D. G. Holland, 8 B. R. 190. ‘In re Kingsbury et al. 3 B. R. 318. * In re Richter’s Estate, 4 B. R. 221; 8. c. 1 Dillon, 544. * Markson v. Heany, 4 B. R. 510; s.c. 1 Dillon, 497. "In re Brand, 3 B. R. 824; s.c. 2 L. T. B. 66. *In re High et al. 3 B. R, 192; 3, c. 1 L. T. B. 175. PROOF OF DEBTS. 101 that he can not make a deposition to his claim, it is not in accordance with the general practice, nor. with what appear to be the views of the justices of the Supreme Court; for the prescribed form’ requires a statement of the property held as security, and the estimated value thereof. Such, also, is the requirement of the statute (§ 5077). There is a distinction between making the proof and being admitted as a creditor. The proof of a claim by a secured creditor differs from that of an un- secured creditor in this: the latter. at once steps into the column of general creditors who are to be paid out of the assets of the bankrupt pro rata, according to the amount of their claims; while: the former or secured creditor, halts for atime to have the value of his security deter- mined in such a manner as the court may direct, and then becomes a general creditor, or shares in the bankrupt’s assets for the balance, after deducting the value of his securities.” The proving of his debt is a necessary pre- liminary step to his eventually being admitted as a cred- itor® Such proof is commonly regarded as an election to come into the court of bankruptcy, and submit the property and his rights to its adjudication. He can not, however, be, in strictness, called a creditor until an as- signee is appointed, the securities sold, and the balance ascertained. A proof, according to the prescribed form, may be made at any time after the proceedings are commenced, even though the value of the security is not determined, nor the property sold.” The creditor should be careful to set forth his securities, for it has been held that a proof without reference to them, and without apprising the * Form No. 21. * In re Bridgman, 1 B. R. 312; 8. ¢. 2B. R. 252. * Tn re Bloss, 4 B. R. 147; s.¢c. 2 L, T. B. 126. ‘Form No. 21. *In re Bridgman, 1 B. R. 312; 8. c. 2 B. R. 252; in re Bigelow et al. 1 B. R. 682; 8. c. 2 Ben. 480; s.c. 1 L. T. B. 95; inre Ruehle, 2 B. R, 577; 802L, 7. B. 59. 102 PROOF OF DEBTS. court of their existence, is a waiver and relinquishment of them to the assignee.’ It has, on the other hand, been held that such a proof, not accompanied by an express release or conveyance of the securities to the assignee, . ought not to be permitted, and should be disregarded ;? and such appears to be the requirement of the statute ($5075). Acclaim, however, of a lien upon the entire estate, when it only exists upon a portion of it, does not vitiate the lien? The proof should contain a description of the property, and its estimated value. This does not mean the exact value, but merely an estimation of such value There should also be a description of the lien, its character, the manner in which it was acquired, and all the circumstances that are necessary to make it a valid claim against the property. When there are written evidences of it, these, or duly certified copies, are generally attached as exhibits. It is always prudent to make an express reservation of all rights under the security, so that there may be no risk of incurring a forfeiture. A proof made in this manner will not invalidate the right of the cred- itor to the securities. He does not prove as against the estate, nor offer to prove the whole indebtedness exhibited in his deposition, when against that indebtedness are set out securities held therefor, the value of which, when as- certained, the court is asked to deduct from the indebted- ness, in order to arrive at the balance; for which balance alone he seeks to be admitted to share in the distribution of the assets.” 1 Stewart v. Isidor et al. 1 B. R. 485; s. co. 5 Abb. Pr. (N.S.) 68; in re Bloss, 4 B. R. 147; s.c. 2 L. T. B. 126; in re Stansell, 6 B. R. 183; in re Granger & Sabin, 8 B. R. 30; in re Jaycox & Green, 8 B. R. 241; Hoadley v. Cawood, 40 Ind. 239; Briggs v. Stephens, 7 Law Rep. 281. 2%In re Brand, 3 B. R. 824; s. co. 2L. 7. B. 66; Hatch v. Seely, 18 B. R. 380; s. c. 87 Iowa, 493. : 5 ® McKinsey et al. v. Harding, 4 B. R. 39. 4In re Bigelow et al. 1 B. R. 632; s. co. 2 Ben. 480; 5. c. 1 L. T. B. 95. ‘In re Bigelow et al. 1 B. R. 632; s.c. 2 Ben. 480; s. c. 1 L.T. B. 95; in re Snedaker, 3 B. R. 629; King v. Bowman, 24 La. An. 506. : te PROOF OF DEBTS. 103 The proof should be entitled properly in the court and in the cause in which it is to be used,’ and should show the district in which it is taken, and the name and official title of the officer taking it. When the creditor consists of a firm, it must state the names of all the partners. It must be signed by the affiant, and by the officer who takes it. The officer also usually appends to it a certificate that it is satisfactory to him, and the proof will not be allowed when it is taken before any other officer than the register who has charge of the case unless such certificate is attached.? It must also have in- dorsed on it a brief statement of its character.’ An in- dorsement of the title of the case and the court in which it is pending is also usually made. When the proof is not taken before the register who.has charge of the case, it should be transmitted to him (§ 5079); and he has the power to reject it if, on its face, it does not show a com- pliance with the law, and return it to the officer who took it for amendment.* In examining proofs for admission, he acts not only as a judicial officer, who is to decide all questions according to law, but as an administrative off- cer, who, in the interest of all the creditors, is to take care that a defective or insufficient proof is not allowed to pass either through partiality or inattention.’ He may decline to file it until the fee for filing is paid. "When the proof is sent by mail to the register, and is accompanied by the fee for filing and a fee for sending a notice to a creditor, the register must acknowledge the receipt of it, and state the amount at which he has eutered it, and if it shall be insufficient or unsatisfactory to him he must state the reason.’ In order to become recognized as a creditor, it is not * Rule XXXIV. In re Pius Walther, 14 B. R. 273. * In re Belden & Hooker, 4 B. R. 194. * Rule I. ‘In re Loder, 2 B. R. 515. ® In re Port Huron Dry Dock Co. 14 B. R. 253. ® Rule XXXIV, 104 PROOF OF DEBTS. sufficient to make the proof alone. The claimant must put it on file in the proceedings. If he retains the proof in his own hands, he cannot be considered a creditor who has proved his debt withia the technical meaning of the bankrupt law.!. After it has been placed upon file, it may be found to be defective, either through the omission of some merely formal statement, or of some material matter, by inadvertence or mistake. In all such cases, it should be amended. If the register discovers the defect, he may require an amendment, subject, however, to a revision by the court.2 When the creditor discovers the defect, he may apply for leave to amend, which ought generally to be granted This power to amend extends to all matters contained in the proof. The amount of the debt may be enlarged or diminished, as.the circumstances may require.‘ Formal defects may be supplied.> A proof may be changed in form from unsecured to secured.’ Amendments may be made as long’ as the right to prove continues.’ Par. ticipation in the election of an assignee will not precludea creditor from amending his proof from unsecured to secured, when there is no evidence that he gained any ad- vantage thereby, or that other creditors have been in any wise. prejudiced in consequence of it, or that he was in- fluenced by any fraudulent intent. When the amend- ments are merely formal, or relate simply to additional statements, they may be made in the original proof, but in such case the proof must be sworn to again after such *TIn re Sheppard, 1 B. R. 439; s.c. 1 L. T. B. 49. 2 In re Elder, 3 B. R. 670; s.c. 1 Saw. 73; s.c.1 L. T.B. 198; s.¢.3L. T. B. 140. * In re Loweree, 1 B. R. 74; s. c. 1 Ben. 406. ‘In re Montgomery, 3 B. R. 429. ® In re Loder, 3 B. R. 655; s. o. 4 Ben. 125. *In re Brand, 3 B. R. 824; s.c. 2 L. T. B. 66; in re Clark & Binninger, 5 B. R. 255; in re Hope Mining Co. 1 Saw. 710; in re Harwood, Crabbe, 496; in re Lapsley, 1 Penn. L. J. 245. "Tn re Myrick, 3 B. R. 154; in re Montgomery, 3 B. R. 429. ie In re William McConnell, 9 B. R. 887; King v. Bowman, 24 La. An. PROOF OF DEBTS. 105 alteration.' It has been held that when a new and differ. ent demand has been discovered, the proper mode is to make a separate and independent proof.’ It would seem to be the better practice, in all cases where the amount of the claim is to be augmented or diminished, to require a separate proof, and let such new proof refer to the old one, and be made as an amendment of it. The ordinary course is to prove all the debt in the first instance ; and a new claim excites suspicion. For this reason the two matters should be kept distinct. A party who has willfully and fraudulently made misstatements in his proof can not amend it, but must abide the consequences of his fraud.’ There are several decisions to the effect that a party can not take his proof from the file* But where the proof has been made under a mistake of fact or even of law, it may be withdrawn almost as a matter of course, if neither the bankrupt nor other creditors who have proved will be injured. Even where the rights of others will be affected, if the only effect is to restore all parties to the position they were in before the debt was proved, the proof may be withdrawn, if there has been a mistake, and no want of diligence. The allowance of a withdrawal is, however, a matter of discretion. A creditor can not demand it as a matter of right,° nor will it be allowed for the purpose of continuing an arrest which was made be- fore the commencement of the proceedings in bankruptev.® A creditor who has inadvertently used the wrong form may withdraw it.’ A proof may also be withdrawn for the purpose of proceeding against a dormant partner of ‘In re Pius Walther, 14 B. R. 273. 2 In re Montgomery, 8 B. R. 874; s.c. BL. T. B. 40. * In re Elder, 3 B. R. 670; s. c. 1 Saw. 78; s.c. 1 L. T. B. 198; 8. o. 3 L. T. B, 140. ‘Tn re Loweree, 1 B. R. 74; s.c. 1 Ben. 406; in re McIntosh, 2 B. R. 506; in re Emison, 2 B. R. 595. °In re Abraham Halle, 7 Ben. 182. *In re Wiener, 14 B. R. 218. "In re Brand, 3 B. R. 824; s. c. 2 L. T. B. 66; in re Clark & Binninger, 5 B. R. 255; Morse v. Lowell, 48 Mass. 152. 106 PROOF OF DEBTS. the bankrupt! An order allowing the withdrawal of a proof may be passed by the register, if after due notice no opposition is made, otherwise by the court.’ The formal proof of the debt merely makes out a prima facie case. It is always a question of fact whether the debt has been paid in whole or in part, or whether it is provable, and a question as to which pertinent evidence is always admissible? The court has, at all times, full control of all proofs, and the right to entertain objections to the validity of the debts, or the proofs thereof* It may, on the application of the assignee, or of any creditor, or of the bankrupt, or without any application, examine 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 con- cerning the debt sought to be proved, and must reject all claims not duly proved, or where the proof shows the claim to be founded in fraud, illegality or mistake (§ 5086). After a claim has been once formally allowed by the register, this is the only means by which its valid- ity can be contested. An assignee has no power to reject it, or entertain objections to its validity. The proper mode to set aside a proof is to make an application to the court or the register for that purpose. This application may be made not only by the assignee or the bankrupt, but also by any creditor who has proved, or tendered proof of, his debt.” The application should be by a petition, properly entitled in the cause, setting forth the grounds upon which the validity of the debt is contested. Such summary peti- tions are generally verified by the oath of the petitioner. ‘In re E. Hubbard, 1 B. R. 6795 s. oc. Lowell, 190. ? In re E, Hubbard, 1 B. R. 679; s. c. Lowell, 190. °In re Colman, 2 B. R. 563; in re Fortune, 3 B. R. 312; s. o. Lowell, 384. ‘In re Patterson, 1 B. R. 100; s. c. 1 Ben. 448; in re Jones, 2 B. R.59; in re 8. Paddock, 6 B. R. 132; 8. c. 2 L. T. B. 214. *In re Ray, 1 B. R. 203; 8.c. 2 Ben. 53. * In re Walton et al. 1 Deady, 442. PROOF OF DEBTS. 107 The application may be made to the register * to whom the cause is referred. The register thereupon passes an order fixing a time for hearing the petition, of which due notice must be given, by mail, addressed to the creditor. At the time appointed he must take the examination of the cred- itor, and of any witnesses that may be called by either party” If the creditor is unable to attend in pursuance of the notice, he should take steps to procure a postponement until-he can attend. But if he fails to appear and submit to an examination, the claim may be expunged or dimin- ished by default If the creditor appears, he need only offer himself for cross-examination and the assignee or other adverse party, if he wishes to contest the proof, must offer such opposing evidence as he may have.* If it appears from the examination that the claim ought to be expunged or diminished, the register, if no objection is made, may order accordingly. If objection is made, the register must require the parties then, or within a time to be fixed for that purpose, to form an issue to be certified into court for determination. He has no authority to require the parties to form an issue, if either of them objects, until it appears to him that the claim ought to be expunged or diminished and an objection is made to his making an order to that effect.’ Ifa party has obtained an order for forming an issue, he can not have it revoked if the other party did not object to the order but objects to the revo- eation.® Ifthe petitioner is in default in making up the issue, the petition must be dismissed. If the creditor whose claim is re-examined is in default in making up the issue, the claim may be diminished or expunged by the register. All orders thus made by the register may be ‘aie Rule XXXIV. Vide Comstock v. Wheeler, 2 B. R. 561; s,c. 3 Ben. 2 Rule XXXIV. ° In re Ira C. Lount, 11 B. R. 315. “In re William L. Robinson, 14 B. R. 130. *In re James 8, Aspinwall, 7 Ben. 154, ° In re James 8. Aspinwall, 7 Ben. 154. 108 PROOF OF DEBTS. reviewed by the court on special petition, and upon show: ing satisfactory cause for such review." The application may also be made to the court. When the petition is filed, the court usually passes an order to show cause, and directs that a copy of the order and of the petition be served upon the creditor. The creditor may also be required to attend personally for examination. The application may be made either for striking out the proof, or an examination, or both. It is . immaterial whether the creditor resides in the district or not. A creditor who has proved his debt becomes subject to the jurisdiction of the court, without regard to his place of residence, and is bound to obey all orders of the court touching his alleged debt. In case of his disobedience of its orders, the court can deprive him of all the benefits of the statute, and can reject and expunge his proof’ If the creditor has appeared by attorney, the order may be served upon the attorney; otherwise, it must be served upon him personally.? The response to the petition is usually made by an answer. The testimony may be taken before the court or a reg- ister véva voce, or in writing before a commissioner, or by affidavit or on commission (§ 5008). The creditor is not entitled-to witness’ fees for attendance.t In case it is made to appear that any creditor whose debt is contested can not personally attend to be examined in the district where the proceedings are pending, without hardship to him, owing to the distance of his residence, or other similar reasons, the court will provide, by order, for the taking of his examination before a register of the district in which he resides.’ The claim of the petitioning creditor is open to contention. The mere fact that he is a petitioner is not conclusive upon other creditors that he is to be allowed in * Rule XXXIV. * In re Kyler, 2 Ben. 414. * Rule III. “In re 8. Paddock, 6 B. R. 182; 8. 0. 2 L. T. B. 214. *In re Kyler, 2 Ben. 414; in re Ira C. Lount, 11 B, R. 315. PROOF OF DEBTS. 109 the distribution of the estate just what he claims in his petition." In a proper case, a claim may be allowed in part,’ or allowed or disallowed as a whole ;* but when a creditor, by a combination with the bankrupt, and in view of the commencement of proceedings in bankruptcy, has fraudu- lently enlarged his claims, both the real and fictitious claims will be disallowed. Fraud corrupts and destroys the whole debt.’ Claims which have been purchased with the funds of the bankrupt will be stricken out.2 A friend of the bankrupt, however, may honestly and in good faith undertake to buy up all tbe claims, with the intention of stopping the proceeding, and, if he fails in the attempt, may prove the debts which he has so pur- chased and had assigned to him.® A claim which has its origin in a transaction entered into by the claimant with the bankrupt for the purpose of delaying, hindering, or defrauding the creditors of the latter, is not provable.’ But a claim which is valid independently of a fraudulent transfer is not merged thereby. When the transfer is set aside, the claim is revived and may be proved.’ A secured creditor whose proof is stricken out on accouut of usury, will not be compelled to surrender his security.? The court will also make an examination of the creditor with- out any application therefor, and, when it sees, from the testimony before it, that certain claims are improperly proved, it will reject them.” If defects in the deposition * In re Cornwall, 6 B, R. 305; s. c. 9 Blatch. 114. * Form No. 66. * Form No. 67. ‘In re Elder, 3 B. R. 670; 8. c. 1 Saw. 73; s.c.1L. T. B. 198; 3. c. 3 L. T. B. 140; Marrett v. Atterbury, 11 B. R. 225; s. c. 3 Dillon, 444. ° In re Lathrop et al. 3 B. R. 413; s. c.5 B. R. 43; s. c. 3 Ben. 490. * In re Pease et al. 6 B. R. 173; in re Strachan, 3 Biss. 181. "In re E. R. Stephens, 6 B. R. 533; 8. c. 8 Biss. 387. “In re E. R. Stephens, 6 B. R. 583; 8. c. 3 Biss. 387; Kappner v. St. Louis & St. J. R. R. Co. 8 Dillon, 228, ® Dallas v. Flues & Co. 8 Phila. 150. In re Lathrop et al. 3 B. R. 418; s. c. 3 Ben. 490. 110 PROOF OF DEBTS. have justified the application, costs can be imposed upon the party in default.’ If the assignee or the creditor is dissatisfied with the decision of the district court, he should take the proper steps to have it revised. 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 for the same district (§ 4980); but no appeal can 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 pro- ceedings, and also to the assignee or creditor, as the case may be, within ten days after the entry of the decision appealed from. No appeal can be allowed unless the appellant, at the time of claiming the same, gives bond in the manner required by law in cases of such appeals . ($ 4981). The right of appeal can neither be enlarged — nor restricted by the district or the circuit court. The regulation of appeals is a regulation of jurisdiction. The circuit court has no jurisdiction of any* appeal, in any case under the bankrupt Jaw, from the district court, unless it is claimed, and bond is filed at the time it is claimed, and notice of it given within ten days after the entry of the decision appealed from. When an appeal is not properly taken, it may be dismissed upon motion.*. When an in- vestigation has been had, and a decision as to the validity of a claim has been made by the district court, an object: ing creditor can not take an appeal, but may file a peti- tion for review in the circuit court. ‘In re Elder, 3 B. R. 670; s. c. 1 Saw. 78: 8.0.1 L. T. B. 198; sc. 3 L. T. B. 140. ? Form No, 68. * In re Alexander, 3 B. R. 29; 8. c.2.L. T. B. 81; s. c. Chase, 295. “In re Kyler, 8 B. R. 46; 8. c, 6 Blatch. 514; in re Coleman, 2 B. R. 671; 8. 0. 7 Blatch. 192; in re Place et al. 4 B. R. 541; 8. c. 8 Blatch. 802; in re Place & Sparkman, 9 Blatch. 369. °In re Adolph Joseph, 2 Woods, 390; contra, in re Troy Woolen Co. 9 B. R. 829; 8. ¢. 9 Blatch. 191. PROOF OF DEBTS. 111 The appeal must be entered at the term of the circuit which shall be first held within and for the district next after the expiration of ten days from the time of claiming the same (§ 4982). When a supposed creditor takes an appeal to the circuit court from the decision of the district court, rejecting his claim in whole or in part, he must, 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 must plead or answer thereto in like manner, and like proceed- ings are had in the pleadings, trial, and determination of the cause, as in an action at law commenced and prose- cuted, in the usual manner, in the courts of the United States, except that no execution can be awarded against the assignee for the amount of a debt found due to the creditor. The final judgment of the court is conclusive, and the list of debts must, if necessary, be altered to con- form thereto. The party prevailing in the suit is entitled to costs against the adverse party, to be taxed and recov- ered as in suits at law; if recovered against the assignee, they must be allowed out of the estate (§ 4984). This ap- peal must be filed in the clerk’s office of the circuit court within ten days after it is taken, and the assignee must plead or answer by a defense, in writing, within ten days after the statement is filed. Every issue thereon must be made up in the court, and the cause placed upon the docket thereof, and must be heard and decided in the game manner as other actions at law.’ A creditor can not demand payment of his debt until he makes and presents to the assignee the proper proof thereof. This provision is analogous in purpose and pro- ceeding to the probate of debts against the estate of a decedent before being presented to or allowed by the ad- * Rule XXIV. 112 PROOF OF DEBTS. ministrator. When this is done, parties interested may object to the claim; and the court—the district judge, without a jury, in a summary manner—may reject the claim as not been duly proved, or as being founded in fraud, illegality, or mistake. Then, and not before, the supposed creditor may bring action in the circuit court against the assignee, and have his right to payment regu- larly tried. But this action can only be maintained by the creditor’s first taking an appeal from the order reject- ing his claim. This appeal must be taken within a limited time, in a particular manner, and to a particular court. The right to sue the assignee is postponed and limited to the happening and performance of these precedent circum- stances and conditions.! The right of appeal, however, is not limited to those cases where a proof is rejected, or where summary proceedings are instituted for the purpose of setting it aside. When the validity of a claim, or the right of a creditor to prove it,is doubted, the proof of the claim not only may, but should be postponed until an as- signee is chosen. Then the proper proceedings may be had in regard to it, and an appeal can then be taken in the prescribed manner; while, if it is summarily rejected before an assignee is chosen, there will be.no person to be a defendant in the proceedings in the circuit court. Ifthe appellant, in writing, waives his appeal before a decision, proceedings may be had in the district court the same as if no appeal had been taken (§ 4983). No creditor proving his debt or claim will be allowed to maintain any suit at law or in equity therefor against the bankrupt, but is deemed to have waived all right of action and suit against the bankrupt; and all proceedings already commenced, or unsatisfied judgments already ob- tained thereon, are discharged and surrendered thereby ($5105). But a creditor proving his debt or claim is not * Catlin v. Foster, 3 B. R. 540; s.c. 1 Saw. 87; s.c. 1 L. T. B. 192. PROOF OF DEBTS. 113 held to have waived his right of action or suit against the bankrupt where a discharge is refused or the proceed- ings are determined without a discharge." This provision, however, does not apply to any debt which is not dis- chargeable under the statute? The debts that are not discharged are debts created by the fraud or em- bezzlement of the bankrupt, or by his defalcation as a public officer, or while acting in a fiduciary capacity (§ 5117); and the term fiduciary capacity embraces any fiduciary relation,” and extends to a claim arising from the sale of goods consigned to the bankrupt to be sold on commission.* As no discharge can be granted to a corporation, the. proof. of a debt against it will not debar the creditor from instituting a suit against it;° or against a stockholder, to enforce his contingent hiability.® Although the general language of this provision, taken by itself, would call for an absolute surrender forever, yet the other provisions of the statute show that this general language is to be considered as used in reference to the subject-matter of this legislation only, and as only calling for such surrender as is requisite to carry out the objects and ends contemplated by the statute. The bare fact of a creditor’s proving his claim does not extinguish his right of action for the recovery and collection of his claim, but merely operates as a waiver of his right to institute any suit or proceedings at law or in equity which are in ’ Act of June 22, 1874, § 7. *In re W. E. Robinson, 2 B. R. 842; s.c. 6 Blatch. 253; s. «. 36 How. Pr. 176; 8.¢,2L. T. B. 18. * In re Seymour, 1 B. R. 29; s.c. 1 Ben. 348. “In re J. H. Kimball, 2 B R. 204, 354; s. c. 2 Ben. 554; 8. c. 6 Blatch. 292; Whitaker v. Chapman. 3 Lans. 155; 8. o1L. t. B. 219: s.c. 4 L. T. B. 92; Lemcke v. Booth, 5 B. R. 351; 5. "o. 47 Mo. 385. 8 en Brass ('o. v. New Lamp Chimney Co. 10 B. R. 355; s.c. 538 N. Y. 123; 8. c. 64 Barb, 485; s, c. 13 B. R. 885: s, o. 91 UL SL 656 : Allen y, Soldiers? Disp.tch Co. 4B. R. 537; 8.0.2 L. 'T. B. 158. * Shellington v. Howland, 53 N. Y..871; Allen v. Ward, 36 N. Y. Sup. . 296 8 114 PROOF OF DEBTS. any way inconsistent with his election to obtain satisfac- tion of his debt under the bankruptcy‘proceedings. This is the reasonable construction of the clause, and the only one by which the evident intent of Congress, as gathered from a view of the whole statute, can be carried out; since by it, while a proving creditor is prevented, whether a dis. charge is granted or refused, from subjecting the already acquired property of the bankrupt to the satisfaction of his debt, otherwise than through the bankruptcy proceed- ings, yet in the event of his successfully opposing the bankrupt’s discharge, he remains at liberty to enforce the collection of his claim out of after-acquired property by suit or action in equity or at law. Thus it becomes ma- terial to the bankrupt to obtain {his discharge, and a motive is furnished the proving creditor to oppose the discharge ; for if a valid discharge is granted, it will afford a complete protection to all after-acquired property. It is evident that there are some suits and proceedings by a previous creditor, which by the bare act of the prov- ing of a debt, irrespective of the determination of the question as to whether the bankrupt shall have his dis- charge, are surrendered and given up: as, for instance, those the whole object and purpose of which are to oper- ate on already ‘acquired property, and that alone ;. while there are other suits and proceedings which are not affected by any express provision of the statute other than that relating to the effect of a discharge when obtained, except that proceedings thereon may be temporarily stayed. Of this class of suits are ordinary actions at law for the re- covery of a contract debt, and judgments rendered in such actions. For although the right to enforce any lien ob- tained by reason of such judgments is surrendered and given up by the act of proving the debt, yet such suits and judgments, so far as they may affect and fasten on after-acquired property in case a discharge is not granted, are not surrendered. The right of action is not extin- PROOF OF DEBTS. 115: guished, but the creditor is only barred from instituting _, Suits or proceedings inconsistent with his election to obtain satisfaction of his debts under the bankruptcy proceedings; and it is not inconsistent with such election for him, in case a discharge is refused, to reach after-acquired property by actions or suits at law or in equity. The bare retention of a judgment recovered prior to the filing of the petition, and the pendency of an action commenced prior to that time, are not inconsistent with such election until a valid discharge has been obtained. They do not in any way interfere with the bankruptcy proceedings. A surrender of them, prior to such discharge, does not aid, or remove any obstacle to the conduct and effect of the bankruptcy proceedings under the provisions of the statute. A creditor may, therefore, in the event of a valid discharge not being granted, retain a judgment or an action already commenced, and thus save himself from the trouble and expense of in- stituting a new suit, and be enabled, in some cases, to avoid a plea of the statute of limitations.’ At the time of making proof of his claims, the creditor usually executes a letter of attorney, if he wishes to have a voice in the election of an assignee, and can not be per- sonally present at the creditors’ meeting. This should be according to the prescribed forms? The forms, however, are largely advisory. Any duly executed writing, which expresses the essential fact of the appointment of the at- torney, and the powers confided to him, must be respected by the judge or register? It should be properly entitled in the cause, and addressed to the person selected as agent. If addressed to more than one, care should be taken not to have it joint, for then both agents must unite in acting ' Hoyt v. Freel et al. 4 B. R. 181; s.c. 8 Abb. Pr. (N. S.) 220; s.c¢. 2 L. T.B 144; Smith y. Dispatch Co. 37 N. J. 60; Hamlin v. Hamlin, 3 Jones Eq. 191; "Haxtun v. Corse, 4 Edw. Ch. 585; s. c. 2 Barb. Ch. 506; contra, Bennett v. Goldthwaite, 109 Mass, 494 ; Pray y. Torr, 18 N. H. 188; Com> mercial Bank v. Buckner, 20 How. 108. * Forms Nos. 14, 26. ‘In re H. F, Barnes, Lowell, 560. 116 PROOF OF DEBTS. under it! If it is desirable to confer a power of substitu. tion, the power should be specially inserted, for without. | it an agent can not autho.ize another to act for him. The ordinary forms confer upon an agent no authority except that to vote, as a careful analysis of their provisions will show, and if other powers are to be exercised, they must. be specially conferred? The letter of attorney must -be signed by the party executing it. One partner may exe- cute it on behalf of his firm,* and as a firm is not an entity known to the law, he should sign the names of his copart- ners, but the signatures should show that they were signed by him. When an agent executes it, he must produce legal evidence thas he is duly sritborized to execute, it? He should sign the name of his principal, and not his own name; but the signature should be made in such a man- ner as to show that he signed it. It must be properly at- tested. It need not be acknowledged,’ but generally is, and a short certificate of acknowledgment attached. The execution may be proved or acknowledged before a regis- ter in bankruptcy, a United States circuit court commis. sioner,’ or a notary public.’ An acknowledgment taken before a clerk of a State court is not sufficient? When executed on behalf of a copartnership or corporation, the person executing the instrument must make oath that he is a member of the firm or duly authorized officer of the corporation on whose behalf he acts. When the party executing is not personally known to the officer taking the proof or acknowledyment, his identity must be established ‘In re Frank, 5 B. R. 194; s. c.5 Ben. 164; s.c.2L. T. B. 188. * In re Eidom, 3 B. R. 106. * Creditors v. Williams, 4 B. R. 580; s. c. 2 L. T. B. 166. “In re Barrett, 2 B. R. 533; 8.0.1 L. 1. B. 148. *In re Knoepfel, 1 B. R. 23; s.c. 1 Ben. 330. °In re Powell, 2°B. BR. 45; in re H. F. Barnes, Lowell, 560. 7 Rule XXXIV. 8 a i‘ tue ee ve 1876; in re Butterfield & Burr, 14 B. R. 105 ; in re Me- *Ta re William C. Christley, 10 B. R. 268; s.c. 6 Biss. 155 PROOF OF DEBTS. 117 by satisfactory proof.’ An agent should acknowledge the letter of attorney to be the act of his principal, and a part- ner should acknowledge it to be the act of his firm. The certificate of acknowledgment must be signed by the officer taking it. The execution of an assignment of a claim after proof’ may be proved or acknowledged in the same manner as a letter of attorney. Upon the filing of satisfactory proof of the assignment of a claim proved and entered on the regis- ter’s docket, the register must immediately give notice by mail to the original claimant of the filing of such proof of assignment. If no objection is entered within ten days, he must make an order subrogating the assignee to the orig- inal claimant. If objection is made within the time speci- fied, or within such further time as may be granted for that purpose, the register must certify the ebjerace into court for determination.’ Any creditor may file with the register 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 is made by such cred- itor, all notices must be so addressed ; and in other cases notices must be addressed as specified in the proof of debt.* A. bill of exchange, promissory note, or other instru- ment, used in evidence upon the proof of a claim, and left in court, or deposited in the clerk’s office, may be deliv- ered by the register or clerk having the custody thereof, to the person whe used it, upon his filing a copy thereof, attested by the clerk of the court, who must 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 (§ 5082). No paper can be taken from the files * Rule XXXIV. * Rule XXXIV. * Rule XXXIV. 118 PROOF OF DEBTS. _ for any purpose except by the order of the court.’ The instrument proven may be withdrawn.’ A party apply- ing for leave to withdraw exhibits filed with an examina- tion, must show what interest he has in them, and the purpose for which he desires to use them.’ - * Rule I. 7 In re Emison, 2 B. R. 595. *In re McNair, 2 B. R. 341. CHAPTER VI. FIRST MEETING OF CREDITORS. Upon the day appointed for the first meeting of cred- itors, the marshal makes return of the warrant. This return’ is usually indorsed upon"the warrant, and should set forth the newspapers in which the notices were pub- lished, the number of publications, the day of the first publication, and the day on which the notices were mailed to the creditors, and be accompanied by a statement, duly verified, of his expenses. The marshal must make his return, under oath, of his actual and necessary expenses in the service of every warrant addressed to him, and for custody of property, publication of notices, 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.” This oath may be taken before any register. With the warrant, he also returns certifi- cates of the publications, and one of the printed notices prepared to be served upon the creditors. If the notices -have been mailed to creditors other than those named in the printed list, a special return to that effect should be made. All the notices that have been returned, in pursu- ance of the direction indorsed thereon, should be left with the register, for they constitute a part of the papers in the case. If the marshal lives at a distance from the office of the register, the warrant and return are usually trans- mitted by mail. He may also make the return personally.® The return of the service of the order of adjudication in 1 Form No. 7. 2 Rule XIL. * In re Talbot, 2B. R. 280; sc. 2L. T. B. 15. 120 FIRST MEETING OF CREDITORS. involuntary cases may be made wholly on the warrant or separately on the warrant and order, but the latter course is preferable. The register should examine the return, and see whether all the proceedings under the warrant have been regular. The return is prima facie evidence of the matters set forth therein, but it is not conclusive. Although the return states the due giving of the notice, evidence may be offered to show that due notice has not been given. If, however, the return shows that due notice has been given, and there is no satisfactory evidence to the contrary, the return is prima facie evidence of the due giving of the notice, and is conclusive until rebutted.? If it appears, either from the return or any other evidence, that due notice has not been given, then the meeting must be adjourned, and a new notice given ($ 5033). The service of the order of adjudication, in cases of involuntary bankruptcy, is mainly ~ a right or privilege personal to the bankrupt, and any delay in such service should not retard the general course of the proceedings.’ A return by the marshal in an in- voluntary case, that he has sent written or printed notices to the creditors named on the schedules therewith re. turned, and that the schedules are made up on the best information that he can obtain, is sufficient, although it does not state the sources of the information, or that the bankrupt has furnished schedules, or refused to furnish them, or that proceedings have been taken ineffectually to compel him to furnish them.* Buta return that he sent the notices to the creditors whose names were on a sched- ule handed to him by the attorney for the petthoning creditor, is insufficient.° ‘In re Kennedy et al. 7 B. R. 337. ° In re W. D. Hill, 1 B. R. 16; s.c. 1 Ben. 821; in re Pulver, 1 B, R. 46; s, ©. 1 Ben. 381. 3 In re Kennedy et al. 7 B. R. 337. ‘In re James M. Adams, 5 Ben. 544. "In re Josiah Ferris, Jr. 6 Ben. 473. FIRST MEETING OF CREDITORS. 121 When a new notice is necessary, it need only be given to remedy the defects or irregularities in the first notice. If the defect occurs in the publication, the service on the creditors being regular, a new notice must be published, but no new notices need be served upon the creditors. If the defect occurs in the service of the notice on the credit- ors, the publication being regular, a new notice must be served upon the creditors, but no new notice need be pub- lished? If the defect occurs only in the notice served upon one creditor, he may, waive it by appearance.” All matters relating to the service of the warrant should be examined carefully; for, if the notices are defective, all proceedings founded thereon are irregular, and may be set aside even on the day appointed for hearing the applica- tion for a discharge. The new notices ought to state that the meeting to which the creditor is summoned is an ad- Journed meeting. If the meeting is not adjourned, a new warrant must be issued.‘ Sometimes an amendment is made adding new names of creditors, when it is too late to hand them to the mar- shal so as to have the notices served upon them. In such a case a new warrant should be issued, to be served on all the creditors of the bankrupt. This warrant should briefly recite the proceedings that gave rise to it, and embrace the names contained in the original warrant as well as those added by the amendment. If the newspaper notices have been properly given under the original warrant, they need not be repeated.> Upon the return day of the new warrant, the creditors may elect an assignee, and take pro- ceedings to have any assignee that may have been ap- pointed under the original warrant removed. When the 1 In re Develin et al. 1 B. R. 35; 8. c. 1 Ben. 385; s.c.1 L. T. B. 32; inre Pulver, 1 B. R. 46; 8. c. 1 Ben, 381. 2 Anon. 1 B. R. 1238. : °Tn re Hall, 2B. R. 192. “In re Schepeler et al. 3B. R. 170; 8. c. 3 Ben. 346. °In re Perry, 1 B. R. 220; 6. c.1L. T. B. 4; in re Ratcliffe, 1 B. R. 400; in re Morganthal, 1 B, R. 402. , 122 FIRST MEETING OF CREDITORS. new names, however, are few in number, it is not necessary that a new warrant shall be issued, but the creditors whose names are thus added should be fornially informed of the existence and condition of the proceedings, and noti- fied to prove their claims, if they so desire.’ If all the proceedings under the warrant have been regular, and no new names are added by an amendment, the first meeting of creditors may be held. The register should attend at the time and place specified in the war-. yant for holding it. Jt would be irregular to hold the meeting before that time. If no creditor attends or is represented, the meeting is held as fully and effectually as if creditors had appeared or been represented? If cred. jtors attend, the meeting should be organized at the hour designated in the notice, or as soon thereafter as practica- ble, and should be kept open until a choice of assignee is miade, or it is ascertained that no choice can be made. Where the creditors are so numerous that it is impossible to make the proofs of all the debts on the day designated in the warrant, or where the creditors are unable to agree upon some person as their choice for assignee, the meeting may be adjourned from day to day, so as to furnish a proper opportunity to all creditors to prove their debts, and to come to an agreement in regard to the selection of an assignee if possible. The several adjournments will constitute but one meeting, and will affect the proceedings in no other way than would a necessary postponement of business from one to another hour in the same day. It is still the first meeting within the contemplation of the stat- ute, whether held on the day designated in the warrant, or on a day to which the meeting assembled on that day has been adjourned? ‘In re Carson, 5 B. R. 290; s. c. 5 Ben. 277; 5. c. 2 L. T. B. 194. 2 In re Cogswell, 1B. R. 62; s.c 1 Ben. 388. *TIn re Phelps, Caldwell & Co. 1 B.R. 525; s.c.2L.T at H. Norton, 6 B. R. 297. Perece Nes FIRST MEETING OF CREDITORS. 123 With the choice of an assignee by the creditors, the register has nothing to do except to preside at the meet- ing at which the choice is made. He is a part of the court. His duties are of a judicial character, and his ac- tion should, under all circumstances, be free from re- proach and above all suspicion of interest or partisanship. It is especially incumbent upon him in no manner to in- terfere with or influence, either directly or indirectly, the choice of an assignee by creditors. His action should in all things be that of strict impartiality, not only in fact but in appearance, and he should not present the sem- blance of having any interest or bias in favor of or against any particular person as assignee, any more than of being prejudiced for or against the bankrupt, or for or against any creditor, in any proceeding. Any other course will lead, if not to abuses, at least to suspicions of them, and will impair his usefulness and derange the harmonious working of the system. The policy of the bankrupt law is to give to the creditors of a bankrupt, the free, deliber- ate, unbiased choice, in the first instance, of the person who is to take the assets and manage them.' No creditor can vote unless he has proved his claim.’ Agents and attorneys at law can not vote without pro- ducing a letter of attorney. They must be duly appointed attorneys in fact. The letter of attorney produced by an agent should be received and filed. A partner may cast the whole vote of his firm, but in estimating the number of votes, the firm vote will only count as one vote.* One of several joint creditors who are not partners, can not . vote without the consent of the others.2 A creditor who holds a security which consists of property of the bank- 4S Jn re J. O. Smith, 1B, R. 243; s. c. 2 Ben. 113. ?In re W. D. Hill, 1 B. R. 16; s.c. 1 Ben. 321; in re Altenheim, 1 B. R. 85; s. c. 1 Ben. 431, *In re Purvis, 1 B. R. 168; 5. c, 1 L. T. B. 19. ‘Tn re Purvis, 1 B, R. 163; 8. c.1 L. T. B. 19. *In re Purvis, 1 B. R. 163; s.c.1L.T.B.19. | 124 FIRST MCETING OF CREDITORS. rupt not liable to exemption, can not vote.’ The reason for this is very plain. The votes are counted by value as well as number, and the amount of his claim can not be determined until an assignee has been selected.. Mere proof alone does not admit him to the rank of a creditor. His lien must first be liquidated. He may, however, abandon his security, and in that case he can vote. If the debt consists of several parts, one only of which is secured, he may vote on the unsecured portion.” Where the secu- _ rity consists of the property of a third person,’ or of ex- empted property, he may prove the whole claim and vote. When a person who has been a partner in a firm is in bankruptcy alone, the partnership creditors can not vote.®> When a partnership is in bankruptcy, an individ. ual creditor of one partner can not vote.® An officer of a bankrupt corporation, if he is a creditor, has just as much right to vote as any other creditor.’ Ifa claim has been assigned after proof, the actual owner alone can vote, and if he holds several claims, he can only cast one vote.® No person who has received a preference contrary to the provisions of the statute can vote (§$ 5035). The only grounds upon which the vote of any other creditor can be objected to, after he has duly proved his claim, are those. that would justify a postponement of the proof till after the election of an assignee. These are simply claims of which there may be doubts as to their validity or the right of the creditor to prove them. The mere fact that the vote is influenced or controlled by the bankrupt, in ‘In re Davis & Son, 1 B. R. 120; in re Walton et al. 1 Deady, 442; in re 8. abe B. R. 502; s. c. 5 Ben. 5; contra, in re Bolton, 1 B. R. 370; 8. ¢. 2 Ben. 189. * In re 8. Hanna, 7 B. R. 502; s. c. 5 Ben. 5; inre J.P. & C. R. Parkes, 10 B. R. 82. *JIn re Cram, 1B. R. 504; s.c.1L. T. B. 65. “Tn re J. R, Stillwell, 7 B. R. 226; in re Tertelling, 2 Dillon, 342, note. ° In re Purvis, 1 B. R. 163; s.c.1L. T. B. 19. * In re Phelps, Caldwell & Co. 1 B. R. 525; s.c. 2 L. T. B. 25. 7 In re Northern Iron Co. 14 B. R. 356. “Tn re Frank, 5 B. R. t94; s.c. 5 Ben. 164; sc. 2L. T. B. 188. FIRST MEETING OF CREDITORS. 125 his own interest, is no ground for objecting to it. The only mode of raising such an objection is by opposing the approval of any assignee that may be elected by it." A vote may be taken while a contest is pending over the postponement of the proof of aclaim. The statute nowhere directs nor does it seem to contemplate the postponement of the vote for assignee, where some cred- itors have proved their debts, in order to enable others to do so. On the contrary, it seems to contemplate the ut- most practicable expedition in choosing the assignee, and for avery good reason, because, until there is an assignee there is no one to represent, or whose official duty it is to look after the estate. The creditors who have proved their claims and are entitled to vote may, if they see proper, consent to wait for others to prove before proceed- ing to choose the assignee. But even this power ought to be exercised sparingly, and the vote ought always to be taken at the earliest practicable moment. If a creditor whose proof of claim has been postponed by the register, is dissatisfied with the result of the vote for assignee, and considers the postponement of his claim erroneous, he may have the proceeding certified to the court, and if the postponement appears to have been erroneous, the court may set aside the result of the vote and refer the matter back for a new vote, unless it appears to a reasonable cer- tainty that the result would not be changed by another vote. The postponement of the proof of a claim affects no right of a creditor except the right to vote for assignee, and where it appears that the exercise of that right would be barren of results, it would be useless to delay the pro- ceedings in order to afford such creditor the opportunity to exercise such right.? The register, however, can not postpone a claim merely because it is objected to, or admit ‘Tn re Noble, 3 B. R. 96; s. c. 3 Ben. 332. * In re Lake Superior 8.C.,R. R., & I. Co.7 B. R. 876; in re Northern Iron Co. 14 B. R. 356; in re George Jackson, 14 B, R. 449. 126 FIRST MEETING OF CREDITORS. it to proof against objection, although he deems it clearly valid and admissible. In such an event the court must be applied to, if the objection is not withdrawn, for the register has no power to proceed to the election of an as- signee without the votes of all the creditors who wish to vote, unless he himself considers the claim doubtful.’ It has been decided that the manner of choosing or electing an assignee is not similar to that observed in electing civil officers at regular State elections, and that the creditors are not to go to the place designated, and, at or after the hour fixed in the warrant, separately deposit their ballots or votes in the presence of the register.’ This decision rests entirely upon the construction given to the terms “meeting” and “preside.” A meeting, how- ever, need not be an assembly. There may be a meeting, although no creditors assemble. At town meetings the voters are coming and going during the whole of the day. And “preside” does not merely mean to sit as president. It, in this instance, means to regulate, superintend, and control. The meeting is a judicial proceeding; and the register presides at it in exactly the same manner, and in the same sense, that a judge presides over his court. In practice, where the estate is large, and the creditors nu- merous, it may require a whole day, or several days, to take the proofs and complete the election. Although cred- itors may prove their claims at any time after the com- mencement of the proceedings in bankruptcy, they do not generally prove them until the first meeting. This throws a great deal of labor upon the register on that day, in- volving time and delay and inconvenience to creditors, if they are compelled to wait until the preliminary business of taking proofs is finished before they can cast their votes. Nothing, therefore, but a plain, imperative re- quirement of the law should impose such delays and in- ‘In re Bartusch, 9 B. R. 478. * In re Phelps, Caldwell & Co. 1 R. R. 525; s.c. 2. L. T. B. 25. FIRST MEETING OF CREDITORS. 127- conveniences upon them. The policy of the statute is to give the choice of the assignee to them, and that construc- tion should be adopted which will furnish the greatest facilities for carrying that purpose into effect. The man- ner of proceeding is not prescribed by the statute, and should, therefore, be left to be determined by the cred- itors themselves. They may either organize into a gen- eral meeting, or vote in the same manner as at any other election. That this is the proper manner of proceeding is shown by the mode of taking the votes. The statute expressly requires that all acts done by the register shall be reduced to writing, and signed by him, and shall be filed in the clerk’s office as a part of the proceedings ($ 5004). The act of receiving the votes of creditors is one of those acts. It is done by him in the prosecution of a proceeding in bankruptcy. That it was so considered by the justices of the Supreme Court is shown by the prescribed form of the report of the election.!. This not only contemplates that the name, residence, and amount of debt of each creditor shall be recorded ;? but it also contemplates that each creditor shall make the entry upon the appropriate blank for himself. In this respect it differs from all the other memoranda sent by the register to the clerk. In all ’ the others he himself merely forwards a brief memoran- dum of what is done; in this alone the whole proceeding is made a matter of record. The purpose of this require- ment is very clear. If any dispute should arise in regard. to the actual result of an election, there would be no sat- isfactory means for the court to settle the controversy, unless some such record were made for its personal inspec- tion ; and the register’s opinion would be almost conclusive upon the point. The creditors may ballot and canvass as "Form No. 15, ° In re Phelps, Caldwell & Co. 1 B. R. 525; s. c, 2 L. T. B, 25. 128 FIRST MEETING OF CREDITORS. often as they please; but when they come to cast the vote contemplated by the statute and the forms, they must make it a matter of record, clear, accessible, incontrovertible, and capable of preservation. This would seem to be the prac... tice prescribed by the justices of the Supreme Court. The votes may be taken according to either of the two modes. The creditors may, in the first instance, sign their names on the appropriate blanks in the prescribed manner. If the proper practice is for the creditur to sign his own name to the record, there is no reason why he should be detained after that is done. The vote cast is like one judgment ren- dered ; but the court still continues in session to attend to other business. Or, on the other hand, the creditors may organize themselves into a general meeting, and take pre- liminary ballots and votes, either viva voce or on written slips. Such votes will not be informal’ But when a final result is reached, it must be made a matter of record, and the creditors who have chosen the assignee must then sign the appropriate certificate.” It is not believed that an election conducted in either of these modes would be set. aside for irregularity. If, on the first vote, there is no choice made, a second, third, or any number of ballots may be had, until the required concurrence is obtained. If no such concurrence is had, and the meeting adjourns sine die, there is then no choice made by the creditors. The mode of counting the votes is peculiar, The choice can only be made by the greater part in number and in value of the creditors who have proved their debts ($5034). All the debts which have been properly proved and placed on file must be included in ascertaining the result. A majority in number and value of the votes cast merely will’ not be sufficient, unless a vote has been cast on every debt proved. It must also be a majority in ‘In re Pearson, 2 B, R. 477; in re Lake Superior 8. C., R. R., & I Co. 7 B. BR. 376. ‘In re Pfromm, 8 B. R. 357, FIRST MEETING OF CREDITORS. 129 number and value of all the debts proved. By this mode of counting, every debt on which a vote has not been cast in favor of a person must be counted against him. When there are two candidates, all the debts not voted must be counted against both. The count, moreover, is not simply acount of number; it is also a count of value. A per- son may receive the votes on a majority of the debts proved, yet, unless the majority in number also consti- tutes a majority in the amount of the claims proved, he will not be elected. A person may likewise receive the votes on a majority in amount of the debts proved, yet, unless that majority in amount also constitutes a majority in number, he will not be elected. The majority must be | a joint majority of both the number and the value. The object of this provision of the statute is clear. If the count was of value alone, one large creditor might have the sole choice of assignee, to the detriment of other cred- itors, and to the oppression of the bankrupt. ‘If, on the other hand, the count was of, numbers only, several cred- itors having insignificant claims might choose an assignee, to the gréat injury of the only creditor who had a real in. terest in the proceedings. If the creditors can not com- bine and work together harmoniously, the law wisely con- fers the power of appointment upon the register or the court. When only one creditor appears and proves his debt, and there are no other debts proven, the right to choose an assignee belongs to the sole creditor who has proved his claim.’ A creditor has the right to change his vote at any time during the progress of an election. He may, therefore, refuse to sign the certificate, although he has given a viva voce vote in favor of a party? But after a final adjournment no vote can be changed.* Proofs which 1In re Scheiffer & Garrett, 2 B. R. 591. -2 Jn re Haynes, 2 B. R. 227; s. co. 1 L. T. B. 121. * In re Pfromm, 8 B. R. 357. ‘In re Scheiffer & Garrett, 2 B. R. 591. 9 130 FIRST MEETING OF CREDITORS. are filed after a vote is taken can not be allowed to come in and change the result.’ If no choice is made by the creditors, the judge, or if there is no opposing interest, the register must appoint one or more assignees ($ 5034). No official assignee can be appointed by the court or judge, nor any general as- signee to act in any class of cases.’ It is only when the creditors fail to elect that the register or judge can appoint an assignee. The opposing interest which precludes the register from making an appointment is not merely an in- terest contending by vote, but an interest in opposition to the exercise of the power by him.? When there is a fail- ure on the part of creditors assembled to make a choice, it is the duty of the register to inform the creditors of their rights, and state distinctly that he can not make an ap- pointment if there is an opposing interest. He must ascertain affirmatively that there is no opposition, and can only do so by asking directly if there is any objection to his making the appointment. If he makes such announce. ment, there should be a distinct disclosure if there is an opposing interest.‘ If there is opposition, an appointment by him will be irregular.” If there is an opposing interest at any stage of the meeting, such opposition is to be con- sidered as continuing until the termination of the meet- ing, whether upon the day first appointed or any other day to which the meeting may be continued, unless it affirmatively appears that such opposition has been with- drawn.° When no creditors appear, or are represented, the register may appoint an assignee, and should do 80, though no debts have been proved.’ An assignee should * In re Lake Superior 8. C., R. R., & I. Co. 7 B. R. 876. * Rule IX; in re Wm. Major, 14 B. R. 71. *Tn re George Jackson, 14 B. R. 449. “In re George Jackson, 14 B, R. 449; vide in re Pearson, 2 B. R. 477. ° In re Pearson, 2 B. R. 477. ° In re C. H. Norton, 6 B. R. 297. "In re Cogswell, 1 B. R. 62; s. co. 1 Ben. 888. FIRST MEETING OF CREDITORS. 131 be appointed, even though there are no apparent assets, for he is designed by the statute to act as trustee on be- half of the creditors, and it is his duty to search for and discover the assets, if there are any.’ In making a report to court of the meeting, the regis. ter should always send a. certificate of the holding of the meeting,’ and a list of the creditors who have proved their debts,® and a certificate of the election,* or the failure to elect,’ as the case may be. In making up the forms, the justices of the Supreme Court evidently contemplated that claims would not be proved at any time before the first meeting; but, as the practice is different, the certifi- cate should be varied, so as to include all the debts which are on file at the time when the meeting is held, or vote taken, whether proved on that day or not. The object of the report is to make the whole proceedings a matter of record, so that any person interested can, by a mere in- spection of the papers, see whether the election has been regular. The register has no power to make an election of an assignee valid by his mere approval; but if no ob- jections exist, he should certify to his approval of the choice as a mere preliminary step to the final approval by the judge. As he is personally familiar with the whole proceeding, he ought not to let any election pass without his affirmative and express approval or disapproval.’ If he is satisfied that any reasons exist why an assignee, elected by the creditors, should not be approved, it is his _ duty to state such reasons freely in submitting his report of the proceedings." All elections or appointments of assignees are subject to the approval of the judge, and when, in his judgment, *In re Alexander Graves, 1 N. Y. Leg. Obs. 218; s.c. 5 Law Rep. 25. * Form No. 15. * Form No. 13. ‘Form No. 15. ° Form No. 11. ° Form No. 15. "In re Bliss, 1 B. R. 78; 8. c. 1 Ben. 407; in re Scheiffer & Garrett, 2 B. R. 591; in re Clairmont, 1 B. R. 276; s, c. Lowell, 230; s.c. 1 L. T. B. 6. 132 FIRST MEETING OF CREDITORS. it is for any cause needful or expedient, he may appoint additional assignees, or order a new election (§ 5034). This includes appointments made by registers, as ell as selections made by creditors, and no one should enter upon the duties of assignee until such approval is obtained. If the judge disapproves, the election or appointment fails’ The only persons who are positively disqualified for the position of assignee are those who have accepted a prefer- ence contrary to the provisions of the statute (§ 5035). All other persons may be assignees, if duly elected or appointed, but the judge, in the exercise of a sound dis- cretion, niay withhold his approval. This discretion is a legal discretion, and must be controlled not by caprice, prejudice, partiality, likes or dislikes, or any other reason than a due regard to: the fitness of the proposed assignee for the position. The creditors alone are interested in the distribution of the estate, and, as they have pecuniary in- terests at stake, it will be presumed that they have care. fully canvassed and inquired into the qualifications of the person to whom they recommend the estate to be intrusted. They are generally commercial men intimately acquainted with the affairs of the bankrupt, and the qualifications es- sential and proper to fit a man to act as assignee, and un- less good and strong reasons are presented, the opinion of the creditors, representing a majority in number and value, is entitled to great weight in determining who is the proper person to administer the estate in which they are interested. The judge, therefore, will always approve of. an election made by the creditors, unless something is placed before him to show that the choice is not a proper one.” An appointment made by a register is nothing more than the designation of a suitable person for the trust,’ ‘In re Scheiffer & Garrett, 2 B. R. 591. “In re J. O, Smith, 1 B. R. 248; s. c. 2 Ben, 113; in re Clairmont, 1 B.R. 276; s. c. Lowell, 230; s.c. 1 L. T. B. 6. * In re Scheiffer & Garrett, 2 B. R. 591. FIRST MEETING OF CREDITORS. 133 but is usually approved, unless objections are made. An assignee, duly elected by the creditors, is entitled to the position by virtue of the statute, unless there is an impu- tation upon his competency or character. An assignee should reside in the district in which the proceedings are pending;” but, if he has a place of busi- ness within the district, the judge may appoint ‘a person who resides in the district to act as assignee, in conjunc- tion with him, and will then approve the choice? An at- torney for a creditor,* or an attorney for the bankrupt,’ may be chosen; but an attorney for the bankrupt must cease to act as such, for the two positions are manifestly inconsistent and incompatible. A director of a corpora- tion which has received an unlawful preference can not be approved.® Rule XXXII. 2 Street v. Dawson, 4 B. R. 207. ° Haughey v. Albin, 2 B. R. 399; 8. c. 2 Bond, 244; s.c. 2 L. T. B. 47. *Babbit v. Walbrun & Co. 4 B. R. 121; 8. ¢. 1 Dillon, 19. * Pennington v. Sale & Phelan, 1 B. R. 572. ° March v. Heaton, 2 B. R. 180; s. c. Lowell, 278. * Davis, Assig. of Bittel et al. 2B. R. 392; Davis v. Anderson, 6 B, R. 145. * Bradshaw v. Klein, 1 B. R. 542; 8. c. 2 Biss. 20; s.c. 1 L. T. B. 72; Pratt v. Curtis, 6 B. R. 139. * Wilson v. Brinkman, 2 B. R. 468; Vogle v. Lathrop, 4 B. R. 439; 8. c. 4 Brews. 253; Zahm v. Fry, 9 B. R. 546; Trader’s Nat. Bank v. Campbell, 3 B. R. 498; s.c. 6 B. R. 353; s. c. 2 Biss, 423; 8. c. 14 Wall. 87. * Foster v. Ames, 2 B. R. 455; s. c. Lowell, 313. ” Beers v. Place, 4 B. R. 459; s. c. 86 Coun. 579; 5. c. 1 L. T. B. 262, 15 226 : COURTS OF above what its charter allowed;* to recover the money paid secretly to a creditor in fraud of a composition agree- ment;? to recover the value of property transferred by one partner in fraud of the partnership,’ and to set aside a mortgage on the property of the bankrupt, made by him with intent to prefer a creditor.* In proceedings in equity instituted for the purpose of carrying into effect the pro- visions of the statute, or for enforcing the rights and rem- edies given by it, the rules of equity practice established by the Supreme Court of the United States must be fol- lowed as nearly as may be.” The question whether any district court except that in which the proceedings are pending may exercise any of the powers conferred upon courts of bankruptcy, has been extensively agitated, but the weight of authority at pres. ent is in favor of such jurisdiction. The statute does not contain any words which justify the conclusion that the jurisdiction conferred by it is limited to the district court for the district in which the proceedings are pending. On ‘the contrary, its whole tenor shows that Congress intended to provide for the complete administration of the system in the Federal courts and through the Federal officers. The district courts are accordingly auxiliary to each other to perfect and accomplish the objects of the statute. An assignee elected in one district may therefore institute proceedings in the district court of another district to re- cover money paid by the bankrupt to a preferred creditor contrary to the provisions of the statute.® ’ Tiffany v. Boatman’s Savings Inst. 4 B. R. 601; s. c.9 B. R. 245; 0.1 Dillon, 14; s. c. 18 Wall. 376. , ° Bean v. Brookmire, 1 Dillon, 151. * Taylor v. Rasch, 5 B. R. 399. “Scammon v. Cole, 3 B. R. 393; s. co. 5 B. R. 257; s. c. 2 L. T. B. 108; McLean v. Lafayette Bank, 3 McLean, 415. ® Rule XXXII. ° Shearman v. Bingham, 5 B. R. 34; 8. c. 7 B. R. 490; Goodall v. Tuttle, 7B. R198; 8. c. 3 Biss. 219; in re James Martin, 5 Law Rep. 158; Moore v. Jones, 23 Vt. 789; Lathrop v. Drake, 18 B. R. 472; s c. 91 U. S. 516; contra, Jobbins v. Montague, 6 B. R. 509; in re H. Richardson, 2 B. R. 202; s. c. 2 Ben. 517; 8, ¢@. 2. T. B. 20; Markson v. Heaney, 4 B. R. 510; 8.0. 1 Dillon, 497. ORIGINAL JURISDICTION. 227 The circuit courts have concurrent jurisdiction with the district courts of any district of all suits at law or in equity which may be brought by the assignee in bank- ruptcy against any person claiming an adverse interest, or owing any debt to such bankrupt, or by such person. against such assignee, touching any property or rights of property of the bankrupt transferable to or vested in such assignee ($ 4979).' This concurrent jurisdiction is con- fined to cases in which there is a disputed title or claim to property—to suits to which some title or claim to the property or assets, adverse to that of the assignee, is set up, and to suits brought by the assignee to collect debts due to the bankrupt’s estate.° No suit at law or in equity is in any case maintainable by or against the assignee, or by or against any person claiming an adverse interest, touching the property and rights of property of the bankrupt, in any court whatso- ever, unless the same is brought within two years of the time the cause of action accrued, for or against such as- signee. No right of action barred at the time such as- signee is appointed, is revived by such appointment ($ 5057). No person is 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 amends,-should he see fit to do so ($ 5056). The power of the courts of bankruptcy to enjoin per- sons who are parties to suits pending in other courts has been much discussed, and sometimes denied ;* but is gen- * Act of June 22, 1874, § 8; Lathrop v. Drake, 13 B.R. 472; s.c. 91 U. 8. 516. * Morgan v. Thornhill, 5 B. R. 1; 8. c. 11 Wall. 65; Smith v. Mason, 6 B.R.1; s.c. 14 Wall. 419; 8 o. 5 L.T. B. 7. * Woods v. Forsyth, 2 W. J. 348; s.c. 16 Pitts. L. J. 284; in re John Alexander, 3 B. R. 29; 8, c. Chase, 295; 3.0. 2 L. T. B. 81; Bachman y. Packard, 7B. R. 358; 8. c. 2 Saw. 264; Pritchard v. Chandler, 2 Curt. 488 ; Mitchell v. Manuf. Co. 2 Story, 648; McLean v. Lafayette Bank, 8 McLean, 185. ‘In re Campbell, 1B. R. 165; s.c. 1 Abb. C. 0. 185; s.c, 6 Phila. 445; sc. 1L, T. B. 30. 228 COURTS OF erally exercised not only to preserve property surrendered to their custody from encroachments by other courts,’ and to prevent unlawful preferences,’ but also to prevent prop- erty from being sacrificed by a sale under an execution | -issued upon a valid judgment, or under a mortgage. There is a special provision for an injunction in cases of involuntary bankruptcy (§ 5024), but the power to issue it in all cases seems to be incident to the general juris. diction of those courts. When Congress delegated to them the equitable jurisdiction in bankruptcy over the prop- erty of the debtor, it by necessary implication also dele- gated at the same time the power to administer such remedies known to the law as are absolutely indispensable to the complete exercise of the jurisdiction expressly con- ferred. This jurisdiction extends to all the parties to the proceedings, all the assets, and all the liens thereon. One power directly given is the power to collect all the assets. Closely connected with this is the power to ascertain and liquidate the liens which may be claimed to exist upon those assets. The means by which these results are to be * Tn re Kerosene Oil Co. 2 B. R. 528; s.c. 2 L. T.B.79; s.c. 3 B.R. 125; s.c.6 Blatch. 521; s. c. 3 Ben. 35; Markson v. Heaney, 4 B. R. 510; 8. ¢. 1 Dillon, 497; Pennington v. Lowenstein, 1 B. R. 570; Pennington v. Sale & Phelan, 1 B. R. 572; Jones v. Leach, 1 B. R. 595; in re Bowie, 1 B. R. 628; s.c.1 L. T. B. 97; Hyde v. Bancroft, 8 B.R. 24: s.c.6 Ben. 392; in re Isaac Ulrich, 8B. R.15; s. c. 6 Ben. 483; in re Wallace, 2 B. R. 184; s.c,1 Deady, 433; in re William Christy, 8 How. 292. ? Irving v. Hughes, 2 B. R. 62; s. c. 6 Phila. 451; Samson v. Clarke, 6 B. R. 403; s. c. 9 Blatch. 872; inre E. Mallory, 6 B. R. 22; s.c.1 Saw. 88; s.c, 2 L. T. B, 247; in re Wm. H. Shuey, 9 B. R. 526; Traders’ Nat. Bank v. Campbell, 3 B. R. 498; 5. c.6 B. R. 853; s.c. 2 Biss. 423; s.c. 14 Wall. 87; Sutherland v. Lake Superior Canal Co. 9 B. R. 298; Zahm v. Fry, 9 B. R. 546; contra, in re Burns, 1 B. R, 174; s. c. 6 Phila. 448; Townsend v. Leon- ard, 3 Dillon, 370, *In re Price Fuller, 4 B, R. 115; s. c. 1 Saw. 243; in re Lady Bryan Min- ing Co. 6 B. R. 252; in re Schnepf, 1 B. R. 190; s.c. 2 Ben. 72; Goddard v. Weaver, 6 B. R. 440; 3. c. 1 Woods, 257; in re Donaldson, 1 B. R. 181; 5. ¢. 1L. T. B. 5; s.c. 6 Phila. 148; in re Wilbur, 3 B. R. 276; s. c.1 Ben. 527; sc.2L. T. B. 171; in re R. Atkinson, 7B. R. 143; s.c. 5 L. T. B. 820; in re E. Mallory, 6 B. R. 22; s.c. 1 Saw. 88; s. c. 2 L. T. B. 247; in re Lady Bryan Mining Co. 6 B. R. 252; in re Geo. W. Dillard, 9 B. R. 8; s.c.6L. T. BL. 490; in re Bernstein, 1 B. R. 199; 8. c. 2 Ben. 44; contra, in re Campbell, 1B. R. 165; s.c.1 Abb. C. C. 185; s.c.6 Phila. 445; s.c.1 L. T. B. 30. ‘Tn re Irwin Davis, 4 B. R. 716; s. c. 8 B. R. 167; s.c. 1 Saw. 260; God- dard v. Weaver, 6 B. R. 440; 8. c. 1 Woods, 257. ORIGINAL JURISDICTION. 229 reached are not enumerated, but power to accomplish these results is given, and the right to employ the proper legal process for effecting these results follows by neces- sary implication. The aim and policy of the statute can not be effectually carried out in any other way.’ Before the appointment of an assignee, proceedings for an injunction to protect the property of the bank- rupt may be instituted by the bankrupt, or the petition- ing creditor? But as soon as the assignee is appointed he should be made a party to the proceedings by a supple- mental bill.? After an assignee has been appointed, he is the only person who can institute such proceedings on behalf of the estate. The allegations of the bill should be positive, and affidavits may be filed to sustain them.* The officer of another court may be, and usually is, made a party to the proceedings whenever it is desirable to stay any action on his part.’ The court may, in its discretion, require notice to be given to the adverse party before grant- ing an injunction.’ It may, also, in its discretion, before granting an injunction against a judgment creditor who has a valid lien, require the general creditors to indemnify the judgment creditor." Whenever the proceedings sought to be enjoined are prosecuted for the purpose of enforcing a valid lien, and were instituted before the commencement of proceedings in bankruptcy, the courts, in granting or refusing an injunction, are governed by the same principles that reculate their action in the liquidation of liens, and will only interfere when such interference will benefit the ‘Tn re E, Mallory, 6 B. R. 22; s. c. 1 Saw. 88; 8.0.2 L. T. B. 247; Sam- son v, Clarke, 6 B. R. 403; 8. ¢. 9 Blatch. 372. * Irving v. Hughes, 2 B. R. 6%; 8. c, 6 Phila, 451; in re Bowie, 1 B. ie 628; s.c.1L. T. B. 97, : Irving v. Hughes, 2 B. R. 62; 8. c. 6 Phila. 451. ‘ In re Bloss, 4 B. R. 147; 8. c. 2 L. T. B. 126. *In re Bernstein, 1 B. R. 199; s. c. 2 Ben. 44; in re E, Mallory, 6 B. R. 22; 8. c. 1 Saw. 88; 8.0.2 L. T. B. 247. ° Irving v. Hughes, 2 B. BR. 62; 8. o. 6 Phila. 451; in re Wallact, 2 B. R. 184 ; s. o. 1 Deady, 483. : To re Donaldson, 1 B. R. 181; s. c. 6 Phila, 143; s,c.1L. T. B. 5. 230 + COURTS OF creditors generally! Neither proceedings to punish a party for contempt,” nor proceedings against the marshal for taking possession of property which did not belong to the debtor, under a warrant in involuntary bankruptcy, will be ‘enjoined. Where an injunction is obtained upon a summary peti- tion it may be dissolved on motion without resorting to the formality of a demurrer* Upon the hearing of the motion, affidavits and counter affidavits may be read, so that the court may be possessed of all the facts bearing upon the question, and thereby enabled to protect the in- terests of all parties concerned.” If it does not appear that the proceedings under an execution will affect the interests of any party entitled to the protection of the courts of bankruptcy under the bankrupt law, the injune- tion will be dissolved. When the bankrupt claims that the property held under an execution belongs to his wife, and the assignee does not assert any claim thereto, the in- junction will not be continued.® When the assignee, after his appointment, does not take possession of property lev- ied on by virtue of an execution issued upon a valid judg- ment, nor make application for leave to discharge the levy by paying the judgment, and there is no evidence that any advantage will be gained by continuing the injunc- tion, it will be dissolved.’ if the weight of evidence is rather with the defendant, and there is no suggestion that he is not abundantly re- sponsible pecuniarily, or that the assets are in peril, the injunction will be dissolved. An execution creditor, who ‘In re Bowie, 1B. R. 628; 8. c,1L. T. B. 97; in re Price Fuller, 4 B. R. 115; 3. c. 1 Saw, 248. * In re M. W. Hill, 2 B. R. 140. “In re Marks, 2 B. R. 575. ‘In re Wallace, 2 B. R. 184; s. c. 1 Deady, 433. ° In re Bloss, 4 B. R. 147; 5. c. 2 L. T. B. 126. ° In re Olcott, 2 Ben. 448. * In re Wilbur, 3 B. R. 276; s. c. 1 Ben. 627; 8.6.2 L. T. B. 171. * Collins v. Bell, 3 B. R. 587, ORIGINAL JURISDICTION. 231 has been delayed by an injunction, is entitled to a prompt adjudication of the validity of his judgment as soon as an assignee is appointed. This question, however, can not be determined on ew parte affidavits When the affidavits, at the hearing of the motion, disclose a valid ground for an injunction which is not covered by the petition, the in- Junction will be continued, with leave to amend the peti- tion so as to cover that ground; for nothing can be gained by dissolving the injunction and then reissuing it upon the same state of facts.” An injunction may also be ob- tained by a bill in equity, in either the district or cireuit court, in cases over which they have jurisdiction? The jurisdiction of the State. courts over suits brought by the assignee is at present exciting considerable atten- tion. It is necessary before deciding this question to de- termine how far the jurisdiction of the district courts is exclusive. They are constituted courts of bankruptcy (§ 563) and vested with original jurisdiction over such proceedings. That jurisdiction over the proceedings in bankruptcy strictly so called is exclusive both by statute (§ 711) and by the principles of judicial comity! In ad- dition to this jurisdiction,’ certain other powers are also conferred upon the district court ($ 4972), among which is the power to collect the assets, and there is nothing in the statute to show that this jurisdiction was designed to be exclusive.® It seems accordingly, to be generally con- ceded that the State courts have jurisdiction over actions which arise under the common law or by virtue of some State statute, without reference to the district where the ‘Inre Hafer & Bros.; in re Beck, 1B. R. 586; 8. c. 6 Phila. 474. *Tn re Bloss, 4 B. R. 147; s.c. 2 L. T. B. 126. * Irving v. Hughes, 2 B. R. 62; 8. c. 6 Phila. 451; Foster v. Ames, 2 B. R. 455; s. c. Lowell, 313. * Cook v. Whipple, 9 B. R. 155; s. c. 55 N. Y. 150; Goodall v. Tuttle, 7 B. R. 193; s. c. 3 Biss. 219. ‘ * Cook v. Whipple, 9 B. R. 155; s, 0. 55 N. Y. 150; in re L. Glaser, 1 B. R. 336; s.c. 2 Ben. 180; 8, c. 1 L. T. B. 57. ° Payson.v. Dietz, 8 B. R. 193; s. c. 2 Dillon, 504, 232, COURTS OF proceedings are pending.” Thus they may entertain suits to collect debts due to the bankrupt,’ or to set aside a fraud. ulent conveyance,’ or to recover property which belonged to the bankrupt at the time when the proceedings in bank- ruptey were commenced.* The only doubt is in regard to the right of the assignee to bring an action in a State court to recover property conveyed by the bankrupt with the intent to prefer a creditor, or to defeat or delay the operation of the bankrupt law. The State courts have jurisdiction of ques- tions arising between persons within their jurisdiction, whether they arise under the laws of any other State or any foreign nation. If they arise under the laws of the United States, they have the same jurisdiction unless deprived of it by some competent authority. The fact that the Federal courts may have jurisdiction of the same question, does not deprive the State courts of jurisdiction. The Federal and State courts may and do have concurrent jurisdiction of the same questions: When, however, the right of action ig created by an act of Congress, Congress may prescribe the manner and the tribunal in which alone that right may be enforced. Congress may confer exclusive jurisdiction in these cases upon the Federal courts, but when it does not prescribe the tribunal in which alone they are to be prosecuted, the Federal and State courts have concurrent jurisdiction over them. The mere fact that Congress confers jurisdiction upon the Federal courts is no evidence that Congress intended to clothe them with exclusive jurisdiction, because they have no jurisdiction * Stevens v. Savings Bank, 101 Mass. 109; Peiper v. Harmer, 5 B. R. 252; s. c, 8 Phila, 100; s.c.4L. T. B. (C. R.) 166; in re Central Bank, 6 B. R. 207; Boone vy. Hall, 7 Bush, 66; State v. Trustees, 5 B. R. 466; Cogdell v. Exum, 10 B. R. 827; s. c. 69 N. C. 464; Hoover v. Robinson, 3 Neb. 437; Ward v. Jenkins, 51 Mass, 583; Hastings v. Fowler, 2 Ind. 216; Russell v. Owen, 15 B. R 822; s. c. 61 Mo. 185; contra, Frost v. Hotchkiss, 14 B. R. 443; s.c 1 Abb, N. ©. 27. . * Shearman v. Bingham, 5 B. R. 84: s.c. 7B. R. 490. * Boone vy. Hall, 7 Bush, 66. “Stevens v. Mechanics’ Savings Bank, 101 Mass. 109, ORIGINAL JURISDICTION. 283 except such as is conferred by Congress! The only ground, therefore, upon which the jurisdiction can be de- nied, is that the statute prescribes a penalty, and the State courts never enforce a penalty prescribed by an act of Congress. The bankrupt law, however, is established upon the theory of the equal rights of all the creditors. Equality is equity. Preferences, even at common law, were merely permitted, not favored, and were always re- garded as in violation of the dictates of abstract. justice. The property of an insolvent debtor has necessarily been purchased with the funds of his creditors. At law he is the owner, but equitably it belongs to his creditors. As their funds contributed to its purchase, they are entitled to share in it proportionately. .A law which merely enforces the principles of abstract justice can hardly be considered as Imposing a penalty.? It ought rather to be considered as highly remedial, and should be liberally construed. Moreover in this aspect of the case the question is not simply whether the assignee may institute a suit in the State courts, but whether the State courts will recognize the provisions of the bankrupt law as paramount. The assignee may be defendant as well as plaintiff, and a penalty can not be enforced in favor of a defendant any more than in favor of a plaintiff. If the doctrine is true, the Federal courts will have to interfere with the State courts far more frequently than heretofore. These prin- ciples appear to have been recognized by Congress as cor- rect, for the statute now provides that the court having charge of the estate of any bankrupt may direct that any 'Cook v. Whipple, 9 B. R. 155; s.c. 55 N. Y. 150; Gilbert v. Priest, 8 B. R. 159; s. c, 63 Barb. 369; 8. c. 63 Barb. 444; s.c. 14 Abb. Pr. (N. 8.) 165; Gilbert v. Crawford, 46 How. Pr. 222; Jordan v. Downey, 12 B. R. 427; 8. c. 40 Md. 401; Lewis v. Sloan, 68 N. C. 557; Dambmann v. White, 48 Cal. 439; s.c.12 B. R. 488; Rison v. Powell, 28 Ark. 427; Otis v. Hadley, 112 Mass. 100; Eyster v. Gaff, 13 B. R. 546; s.c.91 U.S. 521; s. c. 2 Col. 28; Kemmerer vy. Tool, 12 B. R. 834; 8. c. 78 Penn. 147; contra, Voorhees v. Frisbie, 8 B. R. 152; sc. 25 Mich. 476; s. c. 6 L.T. B. 85; Brigham v. Claflin, 7 B. R. 412; s. c. 831 Wis. 607; Fenlon v. Lonergan, 29 Penn. 471. * Cook v. Whipple, 9B, R. 155; 8.0, 55 N. Y. 150. 254 COURTS OF of the legal assets or debts of the bankrupt, as contradi tinguished from equitable demands, shall, when such dek does not exceed five hundred dollars, be collected in th courts of the State where such bankrupt resides, havin jurisdiction of claims of such nature and amount.’ I construing this statute, however, it must be borne in min: that Congress has no right to require that the State court shall entertain suits for the purpose of carrying out th provisions of the bankrupt law. The States in providin, their own judicial tribunals have a right to limit, contre and restrict their judicial functions and jurisdictions ac cording to their own mere pleasure.’ An assignee who is a citizen of one State may mair tain an action in the circuit court of another State agains a party who is a citizen of that State to enforce any righ which may be enforced at common law or in equity.’ 1 Act of June 22, 1874, § 2. * Mitchell v. Manuf, Co. 2 Story, 648; Buckingham v. McLean, 3 McLeat 185; s. c. 18 How. 51. * Payson v. Dietz, 8 B. R. 198; s. c. 2 Dillon, 504; Spaulding v. Mc Govern, 10 B. R. 188; Post v. Rouse, 1 W. N. 39; Burbank v. Bigelow, 1 B. R. 445; s. c. 92 U. 8. 179, CHAPTER NIII. DISTRIBUTION OF THE ESTATE. Ar the expiration of three months from the date of the adjudication of bankruptey, the assignee must file with the register a report which must exhibit just and true ac- counts of all receipts and payments, verified by his oath; and he must also file at the same time 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, and also what debts or claims are yet undetermined.t If there are assets on hand sufficient to justify the ex- pense, then, 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 re- quest of the assignee, must call a peneral meeting of the creditors, of which due notice must be given (g 5092). The provisions of the statute are imperative, and if the assignee requests it, the second general meeting must be called? No meetings for distribution ought to be called unless the assignee has in his hands some money out of which a dividend can be made* When no assets have come to hand at the times when such meetings ought to be called, the assignee should make a return ‘ to that effect, and have the meetings dispensed with by a special order of court.’ It is not essential that these meetings shall be held at any ‘Act of 22 June, 1874, § 4. ° In re Louis H. Rosey, 6 Ben, 137. L eh 1B. R. 310; s. c. 2 Ben. 158; in re Dean, 1 B. R. 249; s. co. 1 “Form No. 35, °In re Alex, Alexander, 3 B. R. (quarto), 20. 236 DISTRIBUTION OF THE ESTATE. particular time, but only that they shall be held~at the expiration of certain months. The requirement of the statute is, that the court shall call the meetings at the expiration of those months,-but they are to be held sub- sequently. There is no day on which it can be said that it is too late to hold these meetings, unless, possibly, it may be said, that the second meeting should be held be- fore the end of six months from the time of the filing of the petition. Although it is the duty of the assignee to call the meetings at the expiration of the time mentioned, and he may be required to do so, and may be liable for his neglect if any injury results from it, yet nothing touching the regularity of the proceedings depends upon their being called or held on the days when those months respectively expire. If they are not held, any creditor, or the bank- rupt, or the assignee, may call upon the court to require them to be held, though it may have been the fault of the assignee that they were not sooner called; otherwise, it would be in the power of the assignee ta take advantage © of his own neglect, and to defer indefinitely the accounting which the law requires of him at those meetings.’ The application for the meeting should be in the pre- scribed form,’ and the order thereon must bear the seal of the court. The notice of the meeting must be published for two successive days in the newspapers designated in the order, and the notices to creditors are generally re- quired to be sent at least ten days before the meeting, These notices must be given by the assignee (§ 5094), and must be sent to all known creditors, whether they have proved their debts or not. The bankrupt should be notified to be present. The meeting is held before the register. ‘In re Littleficla, 3 B. R. 57; sc. Lowell, 831; s.c. 1L. T. B. 164. * In re Littlefield, 8B. R. 57; s. c. Lowell, 331 ; 8 oO 1L. T.B. 164 * Form No. 28. ‘In re William Mills, 11 B, R. 117; 8. c. 7 Ben, 452. DISTRIBUTION OF THE ESTATE. 237 Upon the day appointed for the meeting, the assignee must make return, under oath, of the publication and the sending of the required uotices in the prescribed form,! and produce the proper certificates of publication. The assignee must 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 must also produce and file vouchers for all payments for which vouchers are required by any rule of the court. He must 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, specifying the cause of its being outstanding; also what debts or claims are yet undetermined, and stat- ing what sums remain in his hands. At such meeting the majority in value of the creditors present must 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 attend such meeting, either in person or by at- torney, it is the duty of the assignee so to determine (§ 5092). On any settlement of the accounts of any as- signee, he must account for all interest, benefit, or advan- tage received, or in any manner agreed to be received, directly or indirectly, from the use, disposal, or proceeds of the bankrupt’s estate. And he, upon such settlement, must make and file in court an affidavit declaring, accord- ing 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 re- ceive, directly or indirectly, any interest, benefit, or ad- ' Form No, 29. 2? Forms Nos. 87, 38. 238 DISTRIBUTION OF THE ESTATE. vantage from the use or deposit of such funds; and such assignee may be examined orally upon the same sub- ject.’ The court for all purposes of the auditing, settlement, and adjustment of the assignee’s account and distributing the estate is held before the register? The intention of the statute is that the disbursements of the assignee in administering the estate, whether only incurred and not yet paid, or whether incurred and paid, shall be submit- ted to the creditors at a general meeting, and audited by the register as a part of the business a auditing the ac. counts of the assignee. Consequently, all bills for clerical, professional, or other services rendered to him should be presented at the meeting.” The creditors must be pre- pared to object, if they desire, to the account of the as- signee, and all outstanding claims against him which are not disputed or objected to, must be deducted in order to ascertain the net sum to be divided* The register may, however, if no objection is made, postpone the auditing of the assignee’s account until the third meeting.’ The whole fund in the hands of the assignee, less such sum as may be retained for expenses and contingencies, should be distributed, unless good cause to the contrary is shown, and no fund need be left to pay a similar per- centage upon the claims which have not been proved. A sum must, however, be left in his hands sufficient to pro- vide for undetermined claims which are in controversy, and for claims which have not been proved on account of the distance of the creditors, or for any other good cause. The register in a proper case may deduct and retain this sum without a vote of the creditors, for it is the duty of 1 Act of 22 June, 1874, § 4. 7 In re Bushey, 3 B. R. 685. *In re Hubbell & Chappel, 9 B. R. 523. ‘In re Clark & Binninger, 6 B. R. 197; s. c. 5 Ben. 389. - ae re Clark & Binninger,6 B. R. 204; in re Abraham B. Clark, 9 B. DISTRIBUTION OF THE ESTATE. 239 a the court, and not of the creditors, to protect the rights of the absent.’ Full opportunity for exception at the public meeting, or an adjourned session of such meeting, should be af: forded to all parties interested. The exception must be certified to court with the register’s report. Exceptions will not be received afterward, unless upon special cause shown. If no exceptions are taken, the acts of the register are in themselves acts of the court, without any formal judgment or confirmation.’ The report of this meeting must be in the prescribed form, and signed by the creditors or the assignee, as the case may be.* In case a dividend is ordered, the register must within ten days after such meeting prepare a list‘ of creditors entitled to dividend, and calculate and set opposite to the name of each 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 forward by mail to every creditor a statement® of the dividend to which he is entitled, and such creditor will be paid by the as- signee in such manner as the court may direct (§ 5102). The manner of payment has been fixed by the rules. The funds are deposited in bank, and can only be drawn out by a check or warrant signed by the assignee and counter- signed by the judge or one of the registers designated for that purpose. This check is called a dividend warrant, and is delivered to the creditor or the person authorized to receive it for him.” Similar proceedings must be had at the expiration of the next three months, or earlier, if practicable, and a third meeting of creditors must then be called by the 1In re William Mills, 11 B. R. 117; s. c. 7 Ben. 452. ? In re Bushey, 3 B. R. 685. ° Form No. 30. * Forms Nos. 82, 38. ° Form No, 31. ® Rule XXVIII. "Form No, 81. : 240 DISTRIBUTION OF THE ESTATE. 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 afterward come to the hands of the assignee, in which case the assignee must, as soon as may be, convert such estate or effects into money, and within two months after the same are so converted, the same must be divided in the same manner (§ 5093.) Preparatory to the final dividend, the assignee must submit his account to the court, and file the same, and give notice to the creditors of such filing, and must 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 must audit and pass the accounts of the as sionee; and such assignee must, if required by the court, be examined as to the truth of such account, and, if found correct, he must be discharged? from all lability as assignee to any creditor of the bankrupt. The court must thereupon order a dividend of the estate and effects, or of such parts thereof as it sees fit, among such of the creditors as have proved their claims, in proportion to the amount of their respective debts (§ 5096). If, by accident, mistake, or other cause, without fault of the assignee, either or both of the second and third meetings are not held within the times limited, the court may, upon motion of an interested party, order such meet- ings with like effect as to the validity of the proceedings ‘as if the meetings had been duly held (§ 5098). Further dividends may be made in like manner as often as occasion requires. And after the third meeting of creditors no further meeting can be called, unless or- dered by the court ($ 5093). No dividend already de- clared will be disturbed by reason of debts being subse-, quently proved, but the creditors proving such debts are entitled to a dividend equal to those already received by 1 Form No. 36. ? Form No. 39. DISTRIBUTION OF THE ESTATE. 241 the other creditors before any further payment is made to the latter (§ 5097). No dividend duly declared can be opened except for some error apparent on the face of the papers, either for the purpose of allowing a payment on a claim which was not duly proved, or for the purpose of prowling for the payment of an expense incurred by the assignee." All creditors whose debts are duly proved and al- lowed, are entitled to share in the bankrupt’s property and estate pro rata, without any priority or preference whatever (§ 5091). The estate must be divided accord- ing to the provisions of the statute, and not according to the State laws relating to the distribution of the assets of decedents.? There is no authority in the statute for pay- ing dividends to creditors who have not proved tbeir claims’ The passing of the order of dividend is the period that fixes the rights,of creditors in respect to that particular dividend. Creditors who prove their claims after that time can not participate in the dividend, al- though the proofs are made previous to the payment of the money out of the hands of the assignee. This is the only construction that can give consistency to the proceed- ings, for if additional debts may be brought into the com- putation, no pro rata can ever be fixed, as it would be sub- ject to incessant fluctuations.* No debt proved by a person liable as bail, surety, guarantor, or otherwise, for the bankrupt, can be paid to the person so proving the same until satisfactory evidence is produced of the payment of such debt by such person so liable, and the share to which such debt would be en- titled may be paid into court, or otherwise held for the benefit of the party entitled thereto, as the court may direct (§ 5091). If the debt consists of a judgment from ‘In re B. K. Smith, 15 B. R. 97. *In re Erwin et al. 3 B. R.-580, °In re A. W. Hoyt, 3 B, R. 55. “In re Edmund H. Miller, 1 N. Y. Leg. Obs, 180. 16 249, DISTRIBUTION OF THE ESTATE. which a writ of error has been taken, and a bond given to stay execution, no dividend can be paid until the writ of error is determined.’ In the order for a dividend, the following claims are entitled to priority or preference, and to be first paid in full, in the following order: 1st. The fees, costs, and ex- penses of suits, and the several proceedings in bankruptcy under the statute, and for the custody of property. 2d. All debts due to the United States, and all taxes and as- sessments under the laws thereof. 3d. All debts due to the State in which the proceedings in bankruptcy are pending, and all taxes and assessments made under the laws of such State. 4th. Wages due to any operative, clerk, or house-servant, to an amount not exceeding fifty dollars, for labor performed within six months next pre- ceding the first publication of the notice of proceedings in bankruptcy. 5th. All debts due to any persons, who, by the laws of the United States, are or may be entitled toa priority or preference, in like manner as if the bankrupt law had not been passed ($ 5101). The right to priority is not waived by proving the debt.2 The United States ig entitled to priority, although it does not prove its debt, no matter what the form of indebtedness may be. It need not exhaust collaterals held by it, and may claim payment out of the separate estate of a resident partner, although its claim is against a firm of which an alien is a member.’ If a party purchases an article duty free, and is compelled to pay the duty, in order to get possession of the property, he is entitled to be subrogated to the right of the United States to priority, although he proved his debt as unsecured.’ This priority is only allowed out of *In re Daniel Sheehan, 8 B. R. 345. ° Harrison v. Sterry, 5 Cranch, 289; s.c. Bee, 244. * Lewis v. U. 8.13 B. R. 33; s.c. 14 B. R. 64; 8. c, 92 U.S. 618. ‘In re Kirkland, Chase & Co. 14 B. R. 189. * In re Kirkland, Chase & Co, 14 B. R. 157. DISTRIBUTION OF THE ESTATR. 243 the estate of the bankrupt; therefore, where a fund is de- rived from the sale of property which is subject to specific liens, the lien creditors must be first paid in its distribu- tion.’ The claim of a laborer employed by a brickmaker is entitled to priority;* but that of a surveyor of wood is not.’ The claim of an apprentice for work done beyond the time fixed by the master as reasonable, under an agree- ment for a specific compensation, is entitled to priority, as the claim of an operative* If the claim arises under an entire contract for labor, and for the services of a team, it can not be apportioned, and is not entitled to priority2 A party who has taken an assignment of the claims of sev- eral operatives is entitled to priority on each claim.® A father is entitled to priority for the services rendered by his minor son as an operative." There has been considerable discussion in regard to the right of partnership creditors to share in the separate “estate of a member of the firm who is a bankrupt individu- ally and separately ; but the weight of authority at pres- ent seems to be in favor of such right where there is no solvent partner and no joint estate. Their debts are prov. able, and the estate must, by the express terms of the statute, be distributed among all creditors whose debts are duly proved.’ Where the bankrupt has taken all the property and agreed to pay all the debts of the firm, the firm creditors may avail themselves of the contract, and prove their claims against his estate.® The rule in regard ‘In re William McConnell, 9 B. R. 387. *In re §. Brown, 3 B. R. 720; s. c. 4 Ben. 142. * In re Blackman Bros. 6 C. L. N. 18. ‘In re Steiner, 1 Penn. L. J. 368. * In re Blackman Bros. 6 C. L. N. 18. “In re S. Brown, 3 B. R. 720; s. c. 4 Ben. 142. "In re Harthorn, 4 B. R. 103. *In re Downing, 3 B. R. 748; 5. c. 1 Dillon, 33; 8. «. 1 L. T. B. 207; in re Jewett, 1 B. R. 491; in re Goedde & Co. 6 B. R. 295; in re George Rice, 9B. R.. 378; in re Knight, 8 B. R. 486; 8. c. 2 Biss. 518; in re William Mills, 11 B. R. 74; Tucker v. Oxley, 5 Cranch, 34; s. c. 1 Cranch ©. C. 419; in re R. 8. Pease, 13 B.R. 168; in re Collier, Taylor & Co. 12 B. R. 266; contra, in re Byrne, 1 B. R. 464. *In re Wm. Downing, 3B. R. 748; 8.0. 1 Dillon, 33;5. c. 1 L. B. T. 244 DISTRIBUTION OF THE ESTATE. to the distribution of the joint and separate property only applies where the joint estates as well as the separate estate is before the court for distribution. But if there is both a joint and a separate estate, the partnership creditors | are entitled solely to be paid out of the partnership estate, and the separate creditors are solely entitled to be paid out of the separate estate.’ When the partnership is in bankruptcy, after deduct- ing the whole of the expenses and disbursements out of the whole amount received by the assignee, the net pro- ceeds of the joint stock must be appropriated to pay the creditors of the copartnership, and the net proceeds of the separate estate of each partner must be appropriated to pay his separate creditors; and if there is any balance of the separate estate of any partner, after the payment of his separate debts, such balance must be added to the joint stock for the payment of the joint creditors ; and if there is any balance of the joint stock after payment of the joint debts, such balance must be divided and appro- priated 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 been dissolved without any bankruptcy; and the sum so appropriated to the separate estate of each partner must be applied to the payment of his separate debts (§ 5121). It is of no consequence whether there are several proceed- ings by or against the partners or only one, for in either case the rights of creditors are precisely the same.’ A ereditor holding a partnership bond, by express terms, joint and several, for a partnership debt, may re- 207; in re George Rice, 9 B. R. 373; in re Walter P. Long & Co. 9 B, R. 227; s. c. 7 Ben. 141. 1 Lewis v. U.S. 18 B. R. 83; s.c. 14 B. R. 64; s. o. 92 U.S. 618; inreR. S. Pease, 13 B. R. 168. 2 In re William Ingalls, 5 Law Rep. 401; in re Henry B. Williams, 5 Law Rep. 402. *In re Edward P, Morse, 13 B. R. 876. DISTRIBUTION OF THE ESTATE. 245 ceive dividends from the separate estates! A creditor who has split up a partnership debt, and taken a partner. ship note for one part, and individual notes for the other part, is entitled to receive dividends from the estates of the respective makers according to the terms of the respective notes.” A creditor holding a partnership note, indorsed by the several partners, is entitled to receive dividends from both the joint and separate estates, and will not be required to make an election.® The rele of a party hold- ing two valid obligations to the benefit of both is founded both in law and in justice, and he may ordinarily pros- ecute all his remedies until he obtains complete satisfac. tion, When a part of the obligation, however, is paid by the indorser or the principal, as the case may be, the claim against the estate of the other is only for the balance that remains unpaid, and not for the whole debt. If the ob- ligation is given by the partners individually and not by the firm name, it is only provable against their individual estate, although the consideration passed to the firm.’ But where a firm uses funds belonging to an estate of which one partner is execiitor, with full knowledge of its character, it is liable therefor, and the beneficiaries may prove their claim either against the firm, or against the individual estate of the partner who was executor.’ When the intention of the contracting parties is that the firm shall be bound, and the obligation is within the scope *In re Bigelow et al. 2 B. R. 871; s. c. 8 Ben. 146; s.c.2L. T. B. 41. * Mead v. National Bank of Fayetteville, 2 B. R. 173; 8. c. 6 Blatch. 180; s.c.1L. T. B. 108; Stevenson v. Jackson, 9 B. R. 255. * Mead v. National Bank of Fayetteville, 2 B. R. 173; s. c.6 Blatch, 180 ; 8.c.1L.T. B. 108; in re Howard, Cole & Co. 4B. R. B71; 3.c.2 LTB. 161; Emery v. Canal Nat. Bank, 7 BR. 217; 20 5 L. T. B, 419; in re Bradley, 2 Biss. 515; in re Peter Far num, 6 Law Rep. 21. ‘Tn re Howard, Cole & Co. 4B. R. 571; 8. 0.2 L. T. B. 161; in re Peter .. Farnum, 6 Law Rep. 21. R i re Bucyrus Machine Co. 5 B. R. 308; in re Hugh T. Herrick, 13 B. 12, *In re Wm. A. Webb & Co. 2 B.R. 614; 8.¢c.2L. T. B. 87; in re Ed- mund H, Miller, 1 N. Y. Leg. Obs. 38. 246 DISTRIBUTION OF THE ESTATE. of the partnership business, the obligation will bind the firm in whatever form it may be made, whether signed by the partners jointly, or with the firm name, or by one alone. The presumption which arises from the form of the obligation, that the creditor elected to look to the partners individually, may be overcome by proof that no such election was made. It may be shown that the note of an individual partner was taken with the intention of looking to the firm for the payment of the debt. Where the partners sign a note with their individual names, or one draws a bill and the other accepts it, for a partnership object, the obligation may be treated for all purposes as a partnership debt.' If a party takes the note of ove part: ner without knowing that the money is for the benefit of the firm, he cannot prove a claim against the firm after he has obtained judgment on the note” A joint individ. ual bond of all the partners is not a claim against the partnership estate. A judgment against the partners in- dividually and others constitutes a several debt as to the partners and cannot be proved against the firm‘ If the separate estate of one partner is more than enough to pay his separate debts at the amounts proved, as they stood at the time of the adjudication of bankruptcy, the surplus is to be added to the partnership estate, and applied to the payment of the partnership debts before paying the inter- est that has accrued on the separate debts since that time. If there are no joint assets, the partnership cred- itors may share part passw with the individual creditors. If the firm assets are merely sufficient to pay the costs, the rule is the same as if there were no joint assets,’ but the ‘In re Henry Warren, 2 Ware, 322. *In re Hugh T. Herrick, 18 B. R. 312. *In re E. P. & E. M. Tesson, 9 B. R. 878. ‘In re Hugh T. Herrick, 13 B. R. 312. ° In re Berrian et al. 44 How. Pr. 216; s. c. 6 Ben. 297. * In re Collier, Taylor & Co. 12 B. R. 266. "In re McEwen & Sons, 12 B. R. 11; 8. c. 6 Biss. 294. DISTRIBUTION OF THE ESTATE. 247 , costs will be apportioned to each estate.' If there are any joint funds, no matter how small the joint fund may be, the firm creditors can not share in the individual estates. Where only one creditor has proved his claim, he is entitled to be paid in full, if there are funds enough for that purpose; if there are not enough he takes the whole? If a surplus remains after satisfying all the debts at the amount as proved, it should be applied to the payment-of interest to be computed on the claims from the date of the adjudication.*| What disposition shall be made of the balance that remains after the payment of all the creditors who have proved their debts, in a case where there are names of creditors placed upon the schedule who have not proved their debts, can scarcely be considered as a settled question yet. Such cases are rare, and the authorities are conflicting; some holding that it should be held for the unproved claims,’ and others that it should be paid to the bankrupt.° It is the evident intent of the statute that there shall be further dividends only when additional assets come to hand (§ 5098), and that the estate must be wound up and settled at some definite pericd. The only persons who can be recognized as creditors are those who have proved their debts. The mere statement of a liability upon the schedule does not make any person a technical creditor, or entitle him to a dividend. It would seem, therefore, that when all the claims proved are paid in full, the estate stands in exactly the same condition as if all creditors had been paid in full, and that the balance which may remain belongs to the bankrupt. The presumption *Tn re Elijah E. Smith, 13 B. R. 500. . *Inre Albert Marwick, 2 Ware, 233; in re Elijah E. Smith, 13 B. R. 00. : *In re Haynes, 2 B. R. 227; 8. c. 1 L. T.B. 121; in re James, 2B.R. 227; 8.0.1 L. T. B. 121. ; ‘In re ReM. & 8. R. Town, 8B. R. 40; in re Edward Hagan, 10 B. R. 83. « °In re Haynes, 2B, R. 227; sc. 1 L. T. B. 121; in re James, 2 B. R. 227; sc. 1L.T. B. 121. *Inre A. W. Hoyt, 3 B. R. 55; Steevens v. Earles, 25 Mich. 40. 248 DISTRIBUTION OF THE ESTATE. is that the unproved claims have been paid in full previ-. ously, although the bankrupt may have forgotten the fact. In order to obtain the balance, the bankrupt must file a petition, duly verified, setting forth his reasons for believ- ing that other creditors do not wish to prove their claims, and asking that it be paid to him. Before such payment is made, it must be shown that the creditors have had due notice of the proceedings in bankruptcy, and an opportu- nity to prove their claims.’ *In re A. W. Hoyt, 3B, R. 55. CHAPTER XIV. COSTS. Tae funds deposited with the register, marshal, and . clerk are considered in all cases where they come out of the bankrupt’s estate as a part of the estate, and the as- signee is charged therewith, and is not allowed for any disbursement therefrom, except upon the production of proper vouchers from those officers respectively, given after the due allowance of their respective bills.’ Ten days before the day fixed for the consideration of the assignee’s final account, or at any other time fixed by the court on its own motion, or on the application of any per- son interested, the clerk, marshal, and register must file with the élevk a statement of fees, including prospective fees for final distribution, which must exhibit, by items, each service and the fee charged for it, and the amount received. The clerk must tax each fos pill: allowing none but sach as are provided for by the Rules, which taxation is conclusive, reserving to the party interested exceptions to the report, which must be decided by the court. Any money received by either of the officers ‘mentioned in excess of lawful fees or compensation, must be ordered by the judge to be paid into court, and such order may be enforced, if necessary, by attachment as for contempt.’ No allowance can be made against the estate of the bankrupt for fees of attorneys, solicitors, or counsel, except when necessarily employed by the assignee, when the same may be allowed as a disbursement.* This provision ap- plies to both voluntary and involuntary cases.‘ *Rule XXIX; Anon. 1B. R. 123; in re Sherwood, 1 B. R. 344; 8. c. 6 Phila, 461; in re ‘Appold, 1 B.R. 621; s. c. 6 Phila. 469 ; sc. 1L. T. B, 88, 2 Rule XXX, * Rule XXX. 4In re R. Eredevele Gies, 12 B. R.179. 250 COSTS. | An attorney for a voluntary bankrupt is not entitled to any priority on account of services rendered in the prep- aration of the petition and schedules, for he is neither a clerk nor an operative; and the costs, fees, and expenses provided for in the act are those incurred by and due to the register, clerk, assignee, and marshal, and not those due to the bankrupt’s attorney for services in connection with the proceedings’ No matter how meritorious or necessary the services may have been, the claim stands on the same footing as the claim of any other creditor? He may, however, demand and receive a reasonable compen- sation before rendering his services, and the payment will be valid? It has been said that he may even include compensation for services already rendered,‘ but this is exceedingly questionable. It has been decided that he can not take a mortgage to secure the payment of his fees,’ but it is difficult to see upon what grounds this de- cision can be sustained. The conveyance is not a prefer- ence, for it does not secure a preexisting debt. Being founded upon a present consideration, it would ordinarily be valid. There is only one objection that can be taken to it. The only ground upon which it can possibly be set aside is, that it is made for the purpose of preventing the property from coming to the assignee. But this objection will not lie if the fee is proper and reasonable.’ If it is so excessive and extravagant as to manifest a recklessness and indifference in regard to the estate, the law will un- *In re Heirschberg, 1 B. R. 642; s. o. 2 Ben. 466; inre New Lamp Chim- ney Co. 8 A. L. J. 343; in re Hale & Wigeivs, 5 Law Rep. 403; in re R. Frederick Gies, 12 B. R. 179; contra, in re Kennedy et al. 20 Pitts. L. J. 193. * In re Thos, C. Evans, 3 B. R. 261; in re Jaycox & Green, 7 B. R. 140. *In re Rosenfield, 2B, R. 117; s.c.1L. T. B. 100; in re James Thompson, 13B R. 300. : sy In re Rosenfield, 2B. R. 117; s.c.1L.T.B. 100; in re Sidle, 2B. R. ° In re Thos. C. Evans, 3 B. R. 261. °In re Mallory, 4 B. R. 153; s, c. 2 L. T. B. 180. "In re Keefer, 4 B. R. 889; Flournoy v. Newton, 8 Geo. 306: L v. Marshall, 11 Barb. 241. ° : PEP ee COSTS. 251 doubtedly set it aside as being the result of a fraudulent combination between the bankrupt and his attorney.) The appearance fee of twenty dollars is not allowable in cases of voluntary bankruptcy.? The decisions in regard to an allowance for disburse- ments in cases of voluntary bankruptcy are difficult to understand or reconcile. In one case disbursements to the amount of $100 were disallowed, though it is evident that they were paid to the officers of the court as fees.* In another case the register was held to have authority to pass an order to allow disbursements for such fees.‘ In the last case it was decided that the application for the allowance must be made to thé court. It is not clear for what fees the disbursements were made, though all seem to have been the usual advances required to be made in cases of voluntary bankruptcy. It is the duty of the bankrupt to see that his property is preserved until the appointment of an assignee, and if it is necessary that he should employ other persons to assist him, it is just that they should receive a compensa- tion out of the estate. In order to justify the allowance of such a claim, it must be clearly shown that the alleged services were properly and necessarily rendered for the purpose of benefiting or preserving the estate in the in- terest of the general creditors, and not in the interest of any creditor or class of creditors; and the extent, value, and necessity of such services must be clearly established.° If there is no satisfactory proof upon which the court can fix and allow any specific sum for such services, the peti- ‘ Triplet v. Hanley, 1 Dillon, 217; Goodrich v. Wilson, 14 B. R. 555; 8. c. 119 Mass, 429, * Gordon, McMillan & Co. v. Scott & Allen, 2B. R. 86; s.c.1L. T. B. 99. * In re Heirschberg, 1 B. R. 642; 8. c. 2 Ben. 466; in re R, Frederick Gies, 12 B. R. 179. “Tn re Lane, 2 B. R. 309; s. c. 3 Ben. 98. *In re Rosenberg, 3 B, R. 236; s. c. 8 Ben. 14; inre New Lamp Chimney Co. 2A. L, J. 843, *In re Jaycox & Green, 7B. R. 140. 252 COSTS. tion may be dismissed, without prejudice to any subse quent application. The assignee is entitled to be allowed all the ex penses necessarily incurred, and all the necessary disburse ments made by him in the execution of his trust (§ 5099) Rent for the use of premises, to store goods of the bank rupt, from the commencement of the proceedings ir bankruptcy until the time when he surrenders them,” anc expenses incurred in putting the property into a salabl condition, or in publishing the notice of his appointment or in recording the assignment, or in advertising sales of the assets, or for stationery and postage,* or in the custody} of the property,® are all allowed. Compensation for th services of an auctioneer will depend entirely upon thi custom of the locality, and the circumstances of each case. He is also entitled to an allowance for his services 01 all moneys received and paid out by him; for any sun not exceeding one thousand dollars, five per centun thereon ; for any larger sum, not exceeding five thousanc dollars, two and a half per centum on the excess ove one thousand dollars; and for any larger sum, one pe centum on the excess over five thousand dollars (§ 5100) This commission can be calculated but once upon th amount of moneys received and paid, and not upon bot! the receipt and payment thereof? The compensation fo receiving and paying out money is limited to this commis sion, graduated according to the amount.§ The commissio on moneys paid out can only be allowed on the amount ¢ debt canceled, and not on the amount of debt proved.’ ‘Tn re Jaycox & Green, 7 B. R. 140. ? Tn re Laurie et al. 4 B. R. 82; s. c. Lowell, 404. * Foster v. Ames, 2 B. R. 455; 8. c. Lowell, 313. ‘In re Davenport, 3 B. R. 77; s. 0. 2 L. T. B. 136. *In re David B, Williams, 2 B. R. 229; 8.c. 1 L. T. B. 118. Pm ° In re Pegues, 3 B. R. 80; 8. c. 2 L. T. B. 186; in re Sweet et al. 9 B. 7 Rule XXX. *In re John W. Dean, 1 B. R. 249; 3.¢.1 LT. B. ° In re Davenport, 3 B. R.77; 5. c. 21. T. B. 186. COSTS. 253 In addition to his commissions, the assignee is alow ed the following fees, to wit: For serving or sending notices to creditors, or publish- ing the same, when required to be done by the assignee, . fifteen cents, which includes postage and stationery. For each hour necessarily employed in making inven- tory or supplemental inventory of bankrupt’s property, or verifying marshal’s inventory, one dollar. For each folio of inventory or supplemental inventory made, by assignee, twenty cents. For all services in designating the exempt property of a bankrupt, and filing report thereon, five dollars. For attending a general meeting of creditors, three dollars. For every deed for real estate sold, two dollars. For drawing and filing each monthly report, one dol- lar. For drawing and filing each quarterly report, not ex- ceeding four, unless specially allowed, five dollars. For each general account, submitttd to a creditors’ meeting, not exceeding two, unless specially allowed, ten dollars. For all services in paying a general dividend, or exe- euting an order of final distribution, and making report thereon, including all disbursements, five dollars ;*in addi- tion, for each creditor to whom a dividend is paid, twenty- five cents. No allowance can be made to the assignee for custody of the bankrupt’s property, except necessary disburse- ments in relation thereto. The necessity and reasonable- ness of disbursements must in all cases be passed upon by the court. In special cases where great care and exertion have been required on the part of the assignee, for which the fees are not a sufficient compensation, the district judge, * Rule XXX. 254 COSTS. with the concurrence of the circuit justice or judge, may make such additional allowance as in his judgment isa fair compensation for the services, having regard to the amount of assets, the amount a labor required, and the special circumstances of the case.’ If any assignee fails or neglects to well and faithfully — discharge his duties in the sale or disposition of property he forfeits all fees and emoluments to which he might be entitled in connection with such sale. If he in any man- ner in violation of his duty unfairly or wrongfully sells or disposes of, or in any manner fraudulently or corruptly . combines, conspires, or agrees with any person or persons with intent to unfairly or wrongfully sell or dispose of the property committed to his charge, upon proof thereof, he forfeits all fees or other compensation for any and all services in connection with the estate.’ If, at any time, there is not in his hands a sufficient amount of money to defray the necessary expenses re- quired for the further execution of his trust, he is not obliged to proceed therein until the necessary funds are advanced, or satisfactorily secured to him ($ 5100). The funds must be advanced by the party for bor the serv- ices are to be performed.’ The assignee may apply to the court in the first. in- stance for authority to employ professional or clerical assistance, but the court could do but little more than grant such authority in general terms, leaving the instances in which such assistance may be employed largely to the discretion of the assignee, as emergencies might arise making such assistance necessary. Such authority the as signee possesses without such an order, under his general powers, subject, however, to the control of the court. Such power must be used by him cautiously, and in the exercise of a sound discretion, and with the understanding ’Rule XXX. ? Act of June 22, 1874, § 4, ‘In re Hughes, 1 B. R. 226; s. o. 2 Ben. 85; s.c.1 L. T. B. 45. COSTS. 255 that any abuse of it will be corrected by the court, when applied to for authority to charge the estate for such as. sistance. No general rule can be given, defining the cir- cumstances under which and the extent to which the as- signee is at liberty to charge the assets in his hands for professional and clerical services in the execution of his trust. This must be left to be decided in each individual ease according to its peculiar exigencies! Fees for the assistance of an attorney are not allowed without the most satisfactory evidence to show the necessity for legal aid on the part of the assignee and the actual rendition of the services? As a general rule, no charge can be allowed for professional services which were rendered prior to his appointment ; but, under special circumstances, services may be included which were rendered as far back as the time of the filing of the petition.’ The intention of the statute is that the disbursements of the assignee in administering the estate shall be sub- mitted to the creditors at a general meeting. An applica- tion for an allowance for expenses and for disbursements for clerical, or professional, or other services, should ac- company his report submitted at such a meeting, and will not in general be allowed in any other way.’ It should contain a brief statement of the circumstances out of which the necessity for the disbursement or the employment of assistance arose, and from which the reasonableness of the amount claimed therefor may appear, and should be verified.’ All accounts of assignees are to be referred, as of course, to the register for audit, unless otherwise specially ordered by the court.© The register has the power to ‘In re B. B. Noyes, 6 B. R. 277. a In re Davenport, 3 B. R 7%; 8. c. 2 L. T. B. 186; Rule XXX; in re Priscilla G. Drake, 14 B. R. 150; in re Merchants’ Ins. Co, 6 Biss. 252. *In re N. Y. Mail Steamship Co. 2 B. R. 554. “In re Hubbell & Chappel, 9 B. R. 523; in re B. B. Noyes, 6 B. R. 277. *In re B. B. Noyes, 6 B. R. 277. * Rule XIX; in re Cobwell, 15 B. R. 92. 256 COSTS. audit and pass accounts of assignees (§ 4998), to take e dence concerning expenses and charges against the bar rupt’s estate, and to order the payment of the salary wages of persons in the employment of the assigne Consequently he may hear and determine such an a plication for disbursements, when it is uncontested, T duty enjoined upon the register is to audit, not simp to adjudicate—to hear and examine, not on one si only, but on both sides. The duty is not only judici but ministerial, administrative. The word “ audit” never applied to the action of a court. It impli executive as well as judicial action. If the act of aud ing implied only judicial action, no more would be 1 quired of a register than that he take such evidence the parties see fit to submit, and pass upon the sam basing his decision upon such evidence alone. But : auditing officer proceeds to examine an account for tl purpose of ascertaining in any way he may be able, wit out regard to established forms or technical rules, wh sum ought in fairness to be allowed. The word, as us in the statute, is used in this accepted sense. In auditir an account, the register may therefore cross-examine ¢ witnesses and summon such other witnesses as he ms deem proper.’ There are some disbursements made after the filing the petition and before the appointment of the assigne which may be charged against the estate, and are entitle to be paid in full out of the assets. The title of the a signee relates back to the commencement of the procee ings, and he is the debtor by relation for all, such expense: Rent for the use of’premises to store goods belonging © 1 Rule V. 2 In re B. B. Noyes, 6 B. R. 277; in re Henry H. Stafford, 18 B. R. 378. {In re John J. Staff, 43 How. Pr. 110; s. c. 5 Ben, 574. ‘In re Fortune, 2 B. R. 662; s. ¢. Lowell, 306. COSTS. 257 the estate,’ and the charges for keeping cattle? are in- stances of such disbursements. Advances and expendi- tures made to discharge liens and preserve and benefit the estate, by a party whose relation to the property justified such advances and expenditures, are an equitable claim and lien upon the estate.? It has even been held that the bankrupt court, in the exercise of its equitable jurisdic- tion, may require the assignee to pay such charges as ap- pear to have benefited the estate in his hands, though incurred before the petition was filed, upon the ground that he received the benefit and should sustain the bur- den.* The marshal ‘serves the court of bankruptcy as a mes- senger. The statute and the rules designate the fees ap- pertaining to the office, and he can not claim fees other than those thus designated for services rendered under the statute. The marshal is entitled to the same fees as are allowed for similar service by section eight hundred and twenty-nine of the Revised Statutes, as modified by section five thousand one hundred and twenty-six, including addi- tional fees allowed by the latter section for distinct serv- ices. These fees are: 1st, for service of warrant, two dollars (§ 5126). The warrant provided for in this clause is the warrant issued in a voluntary or an involuntary case, and perhaps also the provisional warrant. The marshal may also charge his actual expenses incurred in traveling and these must be equitably apportioned among all the cases attended to at the same time.’ 2d, for all necessary travel, at the rate of five cents a mile, each way (§ 5126). Mileage 1 In re Laurie et al. 4 B. R. 32; 3. oc. Lowell, 404; in re Merrifield, 3 B. R. 98; Walker v. Barton, 3 B. R. 265; in re Walton et al. 1 B. R. 557. *In re J. C. Mitchell, 8 B. R. 47. *In re Thos. B. Grace: 3B. RB. 529; s.c.1L. T. B. 298. ‘In re Fortune, 2 B. R. 662; 8. c. Lowell, 306; in re Nounnan & Co. 6 B. R. 579; 30 4 L, T. B. 228; s. c. 1 Utah Ter. 44, : Rule XXX, ® In re Donahue et al. 8 B. R. 453. 1? 258 , COSTS. may be charged for serving the order to show cause, the in, junction and the adjudication. The travel must be necessary travel. The language of the statute precludes all construct. ive mileage whatsoever. The distance by the nearest trav- eled route from the place of service to the place of return is the necessary travel meant by the statute. The place of service should be stated in the return, in order that the cor- rectness of the mileage charged may appear on its face. If the marshal has two or more processes in his hands at the same time, and in the same matter or proceeding, which may be served at the same time and place, he can - charge mileage but once. If the services of any one of such processes makes additional travel necessary, he may charge for such additional travel, but no more." He may charge for mileage although the process is sent by mail to a deputy at the place of service and returned in the same manner.’ No charge for constructive mileage can be made when the notices for creditors are served by mail.’ 3d, for each written note to a creditor named in the schedule, ten cents ($ 5126). A charge of ten cents per folio for each notice can not be made on the ground that it is a copy. the notices are not copies; each is an original* The amount paid for printing them may be allowed as neces- sary expenses.” 4th, for custody of property, publication of notices, and other services, his actual and necessary ex- penses, 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 is not conclusive as to the necessity of such ex- penses (§ 5126). This provision relates exclusively to ' ‘In re Donahue et al. 8 B. R. 453; contra, in re Talbot, 2 B. R. 280; 8. ¢. 2L.T. B. 15; in re F. L. Hellmer, 13 Pac. L. R. 35. °? In re Donahue et al. 8 B. R. 453; in re Anon. 4 C. L. N. 210. *In re A. Alexander, 3 B R. (quarto), 20. ‘In re John W. Dean, 1B. R. 249; 5.1L. TB. 9. °TIn re Talbot, 2 B. R. 280; s.c. 2 L. T. B. 15. COSTS. 259 disbursements of money by the marshal in the manner and for the purposes named;. in all other respects, his official return is prima facte sufficient. Mileage may therefore be allowed without an affidavit that it was necessary and actually performed!’ The word expenses implies an expenditure or payment, and nothing can be allowed as expenses which is not shown affirmatively to have beén necessary, and just and reasonable in amount, and to have been actually paid. The sum actually paid a keeper or keepers to watch property in custody, not ex- ceeding $2.50 a day, may be taxed and allowed by the court upon satisfactory proof that a prudent precaution in regard to all concerned in the property justified the marshal in placing a keeper over it, that the keeper actu- ally continued in charge of it for the time specified, and that the sum charged therefor is reasonable for the serv- ices, and has been actually paid by the marshal,’ but ‘the entire amount can not exceeed $2.50 a day. At the rate of $2.50 a day, the marshal can only be allowed for one keeper.’ A keeper may be appointed, although the goods might be safely stored.* Postage, envelopes, and costs of advertising the notices are always allowed.> The expense | of procuring copies of the advertisements and making affidavit to the return are taxable. There is no fee for attendance.’ The marshal is also entitled to one dollar for each hour necessarily employed in making an inventory of the bankrupt’s property, and twenty cents for each folio of the inventory. He is not entitled to one dollar per hour for the time of persons whom he employs to take an inventory.’ But if a keeper is employed in taking an in- * In re Donahue et al. 8 B. R. 453. * In re Lowenstein et al. 3 B. R. 269; s. c. 8 Ben. 422; in re Eugene Com- stock, 9 B. R. 88. *In re Johnston & Hall, 12 B. R. 345. ‘Tn re Hare, 48 How. Pr. 86. *In re John W. Dean, 1 B. R. 249; 9c. 1 L. T. B. 9. *In re Talbot, 2 B. R. 280; s.c.2 L. T. B. 15. "In re Johnston & Hall, 12 B. R. 345. 260 COSTS. ventory, and is entitled to be paid therefor, his allowance as keeper must be diminished proportionately. The mar. shal is not entitled to any allowance for the time spent with the assignee in verifying the inventory, but may charge at the rate of ten cents per folio for a copy of the inventory furnished to the assignee? He is also allowed one dollar for each hour actually and necessarily employed in personal attention in taking care of the bankrupt’s property,’ but this allowance can only be made when he in person actually and necessarily gives his personal atten- tion to the property, and does not cover personal attention by a deputy. No other allowance can be made for the custody of property except for actual disbursements.’ The marshal can not charge a commission on the value of property for its custody. The marshal is entitled to an allowance of two per cent. on all money disbursed by him” The requirement that the return shall be accompa- nied by vouchers whenever practicable is in addition to the requirements of the statutes.’ Whenever vouchers are omitted, the marshal must in his return state the rea- sons for such omission, or produce testimony for that pur- pose, so that the court may judge of the practicability’ of his obtaining vouchers. The clerk may charge the fees allowed by section eight hundred and twenty-eight, for services required by the bankrupt law, and not otherwise provided for.” His fees are regulated by that statute and by the rules (§ 512+). He is entitled to charge ten cents for filing each paper and ‘In re F. L. Hellmer, 18 Pac. L. ; i ae ; ac. L. R. 35; contra, in re Johnston & Hall, 12 * In re Johnston & Hall, 12 B.R. 845. : Rule XXX, *In re Johnston & Hall, 12 B. R. 845. Rule XXX. * In re Johnston & Hall, 12 B. R. 345. "In re Johnston & Hall, 12 B. R. 345. . *In re Donahue et al. 8 B. R. 453. * In re Engene Comstock, 9 B. R. 88. “In re Talbot, 2 B. R, 280: s.¢c.2 L, T a Bien on ; 280 ; . T. B. 15; in re A, Alexander, 3 B. COSTS. 261 making an entry thereof in the docket, and fifteen cents for making an entry upon the paper itself, of the day and hour of the filing. This entry must be made for every paper filed with him, which has not been previously filed with the register, and so indorsed by him Every writ ing which relates to one particular subject is such a paper, no matter of how many sheets it is composed. Thus, the petition is one paper; Form No. 4, another; Form No. 5, another, and so on.” For all processes issued by him, he may charge one dollar. This includes the warrant. It - has been decided that Form No. 45 is embraced by it;* but this form is a subpcena rather than a writ, and the proper fee appears to be twenty-five cents instead of one dollar. He is entitled to this fee, although he delivers the blanks, with his signature and the seal of the court at- tached, to the register, who fills them up and sends them out. For recording the assignment in those districts where it is recorded, his fee is fifteen cents per folio. For each notice required to be sent by mail, when signed by him, he can charge fifteen cents.? For every copy of any paper im proceedings in bankruptcy, his fee is ten cents per folio. The charge for the order of reference,’ certificate of dis- charge, and copy of the assignment, should be regulated by these rates.’ For entering memoranda or minutes of the register, his fee is ten cents for each folio. For sending notices by mail to creditors, his fee is fifteen cents for each notice. For inserting notice in newspaper, his fee is fifty cents, but the necessary cost of advertising must be paid as an expense of the estate. For taxing costs in each case, his * Rule I. 2 In re John W. Dean, 1 B. R. 249; 8.c. 1 L.T. B. 9. *In re A. Alexander, 3 B. R. (quarto), 20. ‘In re John W. Dean, 1 B. R. 249; 8.0.1 L. T. B. 9. ° Rule XXX. 6 Form No. 4. In re John W. Dean, 1 B, R. 249; s.c. 1 L. T. B.9; in re A. Alexander, 3B. R. (quarto), 20. 262 COSTS. fee is one dollar, and in addition to that, ten cents for each folio of the taxed bill.’ The register is entitled to five dollars for filing and entry of the general order of reference, and for office rent, stationery, and other incidental expenses of proceedings, conducted in the usual office of the register, to be allowed once only in any cause.” : When the proceedings are not conducted im the usual office of the register, but in some other city or town, he is allowed for each day employed in going, attending, and returning, five dollars, and traveling and incidental ex. penses of himself and of any clerk or other officer attend- ing him. ‘These expenses and fees must be apportioned among the cases by the judge.’ . Every register must keep an accurate account of his traveling and incidental expenses, and those of any clerk or other officer attending him in the performance of his duties in any case or number of cases which may be re- ferred to him; and make return of the same under oath, with proper vouchers, when vouchers can be procured, on the first Tuesday in each month.* For each day’s service while actually employed under a special order of the court, he is entitled to a sum to be allowed by the court, not exceeding five dollars. But only one per diem allowance can be made for a single day, and no duplication of such allowances can be made for different cases on the same day. No other allow. ance can be made for clerk hire except as above stated.’ The construction of this provision depends entirely upon the meaning of the term special order. The proper meaning seems to be, an order directing him to perform services not in the course of his general duties. The order of reference ® merely directs him to perform the duties Rule XXX. ? Rule XXX. ? Rule XXX, * Rule XIL. *Rule XXX. ° Form No. 4. COSTS. 263 which the statute imposes upon him, and is not such a special order.’ He is entitled to this allowance while act- ing under a special order to examine the papers and report upon their regularity,’ or to take charge of the bankrupt’s property and superintend sales thereof? or to perform any other service specially required of him by the court. For every affidavit to any petition, schedule or other proceeding in bankruptcy, except proof of debt by a cred- itor or his agent, he is allowed twenty-five cents for each oath and certifying the same. His fee for taking depositions, including proofs of debts, and examination of bankrupt or his wife, twenty cents a each folio, and twenty-five cents for certifying proof of debt as satisfactory.® He is also allowed ten cents for every summons or sub- pena requiring the attendance of a bankrupt, a bank- rupt’s wife, or a witness for - examination, for each person summoned.® His fee for examining petition and schedules, and cer- tifying to their correctness, is three dollars. He is enti- tled to two dollars for every warrant in bankruptcy, or other process, issued and directed to the marshal, not in- cluding warrants for payment of money or anything other than process." He can not make any extra charge for the list of creditors inserted in it, for this is a part of the war- rant itself® He is also entitled to the same fee for a sup- plemental warrant.’ For each day in which a general meeting of creditors is held, and attending same, he it allowed three dollars.” *In re Bellamy, 1 B. R. 113; s.c. 1 Ben. 474; in re John W. Dean, 1 B. R. 249; s.c,1L. TB. 9. : In re J. H. Robinson, 1 B. R. 285; 8. c. 2 Ben. 145; 5. c. 1 L. T. B. 25. * In te Loder Brothers, 2B. R. 517; s. c. 8 Ben. 211; 3.¢. 1 L. T. B. 159, “Rule XXX. ® Rule XXX. * Rule XXX. ™Rule XXX. “Tn re J. H. Robinson, 1 B. R. 285; 5. c. 2 Ben. 145; 3.0.1 L. T. B. 25. °In re J. H. Robinson, 1 B. R. 285; s. c. 2 Ben. 145; s.c. 1 L. T. B. 25. ” Rule XXX. 264 COSTS. The meeting is one to which all the creditors are sum- moned. An attendance for the purpose of conducting an examination is not a meeting; neither is the appearance of creditors to show cause against the granting of a dis charge. It has, however, been held, that three dollars may be charged for the day on which the bankrupt first attends before the register.2 The allowance is for the day, and not for the meeting. It has accordingly been held that where two meetings are held in the same case on one day, the charge can only be three dollars.* This fee can not be increased by means of an order designed to be special.’ His fee for notification to assignee of his appointment is fifty cents.° The fee allowed for an assignment of bank- rupt’s effects is one dollar.’ He is entitled to one dollar for every bond with sureties’ The approval of the as- signee’s bond entitles him to this allowance? For every application for a general meeting of creditors, he is entitled to one dollar.” This fee is limited to the application, and when two meetings are called upon one application, only fifty cents can be charged." The register is entitled to this allowance whenever he orders the creditors to meet.” It has been decided that there is no application for the first meeting, and that this fee can not be allowed for calling it.* He is not entitled to the fee for making an order for an examination,“ or an order to show cause against the grant- 1J%n re Macintire, 1 B. R. 11; s.c. 1 Ben. 277. ? In re John W. Dean, 1 B. R. 249; 3 c 1 L. T.B. 9. 3 In re Sherwood, 1 B. R. 344; 8. c. 6 Phila. 461. ‘In re J. H. Robinson, 1 B. R. 285; +s. c. 2 Ben. 145; s.c. 1 L.T. B. 25; in re John W. Dean, 1 B. R. 249;8.c.1L. T. B. 9. ®In re A. Alexander, 3 B. R. (quarto), 20. ° Rule XXX. "Rule XXX. ® Rule XXX. ° In re John W. Dean, 1 B. R. 249: 3.0.1 L. T. B. 9. Rule XXX. “In re J. H. Robinson, 1 B. R. 285; s.c. 2 Ben. 145; s.c. 1 L. T. B. 25. In re John W. Dean, 1 B. R. 249; s.c. 1 L. T. B. 9. “Tn re J. H. Robinson, 1 B. R. 285; s. o. 2 Ben. 145; s. o. 1 L. T. B. 25. “Tn re Macintire, 1B. R 11; s. c. 8 Bem. 277. COSTS. 265 ing of a discharge’ For copies of depositions and other papers, he is allowed ten’ cents each folio. His fee for each notice which the register may be required to send to or serve on any creditor, which includes for postage and stationery, is fifteen cents.® He is entitled to the same mileage in making personal service, when necessary, as is allowed by law to the marshal.* For inserting notice in newspaper when required, he is allowed fifty cents, and the costs of advertising are allowed as part of the expenses of the estate. His fee for each order for a general divi- dend is three dollars.’ The order for a dividend is that which is made by the creditors or the assignee at a regu- lar meeting. He is allowed three dollars for computation of dividends, and ten cents in addition thereto for each creditor." For every judicial order made by a register, necessary or proper to be made by him, and not herein otherwise specially provided for, and not including mat- ters merely ministerial, he is entitled to one dollar? His fee for every discharge, where there is no opposition, is two dollars.” He is allowed one dollar for auditing the accounts of assignees, and one dollar for each additional hour necessarily employed therein after the first hour.’ His fee is one dollar for every certificate of question to the district court or judge, under sections five thousand and nine, and five thousand and ten of the Revised Stat- utes, and twenty cents for each folio in such certificate.” His fee for each folio of memorandum sent to the clerk is ten cents” He is also allowed ten cents for countersign- ing check of assignee.” For filing every paper not previ- ously filed by the clerk, and marking and identifying every exhibit, he is entitled to ten cents." ‘In re J. H. Robinson, 1 B. R. 285; s. c. 2 Ben. 145; 8.c.1 L. T. B. 25. * Rule XXX. ® Rule XXX, 4 Rule XXX. ° Rule XXX. ® Rule XXX. 7 Rule XXX. ® Rule XXX. * Rule XXX, ” Rule XXX. " Rule XXX, “@ Rule XXX. 18 Rule XXX. “4 Rule XXX. : 266 COSTS. The fees of the officers are entitled to priority in all cases where there are funds (§ 5101). The fees of the register, marshal and clerk must be paid or secured in all cases before they can be compelled to perform the services required of them.! It is further provided that the fees of the register shall have priority of payment over all other claims out of the estate, and before a warrant issues the petitioner must deposit with the clerk of the court fifty dollars as security for the payment thereof. The petition may be filed even though the deposit is not made. The deposit is merely an act preliminary to the issuing of the warrant. This deposit must be delivered by the clerk to the register to whom the case is referred.’ If there are not sufficient assets for the payment of the fees, the per- son upon whose petition the warrant is issued must pay the same, and the court may issue an execution against him to compel payment to the register ($ 5124). The enumeration of the fees in the statute does not prevent the justices of the Supreme Court from preserib- ing a tariff of fees for all other services of the officers of courts of bankruptcy, or from reducing the fees prescribed in sections 5124, 5125, and 5126, in classes of cases to be named in their rules and orders ($ 5127). They have the power to regulate the fees payable, and the charges and costs to be allowed, with respect to all proceedings in bankruptcy, not exceeding the rate of fees now allowed by law for similar services in other proceedings (§ 4990). But they must not in any case exceed the rate now allowed for similar services.* 1 Rule XXX. *In re C. H. Preston, 6 B. R. 545, “Rule XXX. “In re John W. Dean, 1B, R. 249; s.c. 1 L. T. B. 9. CHAPTER XV. DISCHARGE. Ir no debts have been proved, or if no assets have come to the hands of the assignee, the bankrupt may apply for a discharge at any time after the expiration of sixty days from the adjudication of bankruptcy, and be- fore the final disposition of the cause’ The time is to be computed from the date of the adjudication, and not from the time of the commencement of proceedings in bank- ruptey. The construction given to the phrase, no assets, is that no money has been received or paid out by the assignee, on account of the estate? Neither an outstanding claim,‘ nor an uncollected note,’ nor certificates of stock,’ upon which nothing has been realized up to the time of the application, constitute assets withing the meaning of this provision of the statute, although the assignee may have reason to believe that he awill, at some future time, be able to realize something out of them. Where both debts have been proved, and assets have come to the hands of the assignee, the application can not be made until after the expiration of six months from the date of the adjudication." The computation of the time must, in all cases, be so made as to exclude the day of the adjudication of bank- 1 Act of July 26, 1876. * In re Bodenheim et al. 2 B. R. 419; s.c. 2 L. T. B. 64. * In re Dodge, 1 B. R. 435; 8. c. 2 Ben. 347, “In re Hughes, 1 B. R. 226; s.c. 2 Ben. 85; 8.0.1 L. T. B. 45. * In re Dodge, 1 B. R. 483; s. c. 2 Ben. 347. * In re Solis, 8 B. R. 761; 8. c. 4 Ben. 143. "In re Bodenheim et al. 2B. R. 419; s.c.2L. T. B. 64. 268 DISCHARGE. ruptcy, and include the day when the application can or should be made, according to the phraseology of the stat- ute, unless this last day falls on a Sunday, Christmas Day, or on any day appointed by the President of the United States as a day of public fast or thanksgiving, or on the Fourth of July, in which case the time must be reckoned exclusive of that day also ($ 5018). An involuntary, as well as a voluntary, bankrupt may apply for a discharge.t The application must be by a pe- tition in the prescribed form,? addressed to the judge, and properly entitled in the cause. It should state the day on which the petitioner was adjudged bankrupt, and the date on which it is filed. If it is made within six months from the date of the adjudication of bankruptcy, it must allege either that no debts have been proved, or that no assets have come to the hands of the assignee. A mem- ber of a firm need not pray for a discharge from his part- nership debts in precise words, for if he asks for a discharge from all his provable debts, he virtually prays for a discharge from his partnership debts.* The petition must be signed by the petitioner, but need not be sworn to. When it is sworn to, the affidavit is usually according to the form appended to the petition in involuntary bank- ruptcy. The general practice is to file the petition in court.* In some districts it is referred to the register, but generally it is retained in court. At the time of filing the petition the bankrupt must deposit money enough to secure the costs of serving the notices upon the creditors A list of all creditors who have proved their debts must also be obtained from the assignee or register, and filec with the petition. If the assignee refuses to furnish suck list, the register, upon the application of the bankrupt ‘In re S. D. Clark, 3B. R. 16; s. c, 2 Biss. 73; in re Bunster, 5 B. R. 82 s. c. 41 How. Pr. 406; s. c. 5 Ben. 242. 2 Form No. 61. ° Inre Wm. H. Pierson, 10 B. R. 107. ‘In re Bellamy, 1 B. R. 113; s. c. 1 Ben. 474, : DISCHARGE. 269 has the power to pass an order directing him to make it out and deliver it to the bankrupt.! The court, as soon as it finds that the application is properly filed, orders notice to be given by mail to all creditors who have proved their debts, and by publica- tion, at least once a week, in such newspapers as may be designated, due regard being had to the general circula- tion of the same in the district, or in that portion of the district in which the bankrupt and his creditors reside, to appear upon a certain day, appointed for that purpose, and show cause why a discharge shall not be granted to the bankrupt (§ 5109). The order to show cause must be in the prescribed form.” It must have the seal of the court and the signa- ture of the clerk even when it is issued by the register, and may be made returnable at his office. The newspapers in which the notices are to be published must be desig- nated, and be selected from among those named in the rules of court.’ The rules provide that the second and third meetings may be called at the same time that the notices are sent to the creditors,* but these meetings are now everywhere dispensed with in cases where there are no assets. The notices must be sent by the clerk,’ and should be in the prescribed form.’ These notices are only sent to ‘those creditors who have proved their debts.’ If no cred- itors have proved their debts, the publication is the only notice required. A return is always made to the register. The clerk’s certificate is sufficient evidence that the notices were duly mailed.? Copies of the advertisements in the ‘In re Blaisdell et al. 6 B. R. 78; s. c. 42 How. Pr. 274; 8. c. 5 Ben. 420. * Form No. 51. ‘Jn re Bellamy, 1 B. R. 98, 113; s.c. 1 Ben. 426, 474. “Rule XXV. § In re Bellamy, 1 B. R. 98, 113; 8. c. 1 Ben. 426, 474. ° Form No. 52. "In re McIntyre, 1 B. R. 151; s.c. 1 Ben. 543; Morse v. Presby, 25 N. H. 299. ® Anon. 1 B. R. 123. ° In re Townsend, 1 B. R. 216; s. c. 2 Ben. 62; 8.c.1L. T. B. 2. 270 DISCHARGE. newspapers are always filed with the return, and in some. districts are verified by the oath of the printer.’ If the application has been made within six months from the date of the adjudication, the bankrupt must, upon the return day or before the granting of the discharge, procure and file a return of the assignee, certifying that, at the date of the filing of the petition for a discharge, there were either no assets in his hands or no debts proved, as the case may be He must also appear before the reg. ister, and subscribe an oath to the effect that he has not done, suffered, or been privy to any act, matter, or thing specified in the statute as a ground for withholding such discharge, or as invalidating such discharge if granted ($ 5118). This oath is merely an item of indispensable evidence, without which the discharge can not be granted, and should be taken and subscribed before the certificate: of conformity can be granted.’ It may, however, be pro- duced and filed at the hearing.* It should be administered whether specifications have been filed or not.? No dis- charge can be granted if the bankrupt dies before he takes this oath. But if he dies after he has taken the final _ oath, the discharge may be granted as of a date when he was alive.” When specifications are withdrawn after the oath is taken, it must be again taken and subscribed after the withdrawal. After the oath has been taken, it is the duty of the ' register to examine all the papers in the case, including the clerk’s return of the service of the order to show cause, and certify whether all the proceedings have been regular, *In re Bellamy, 1 B. R..98; s.c. 1 Ben. 426. *In re Bellamy, 1 B. R. 64; 8. c. 1 Ben. 390; s.c.1 L. T. B. 22. * Tn re Bellamy, 1 B. R. 98; 8. c. 1 Ben. 426. “In re Robert A. Sutherland, 1 Deady, 573. ° In re Eugene Pulver, 2 B. R. 313; s. c. 3 Ben. 65. * In re O'Farrell et al. 2 B. R. 484; 8. c. 8 Ben. 191; 5. 0.1 L. T. B. 159. * Young v. Ridenbaugh, 11 B, R. 563; s.c. 8 Dillon, 239, ° In re Machad, 2 B. R. 852. DISCHARGE. 271. and whether the bankrupt has complied with all the re- quirements of the statute. This is called the certificate of conformity, and can only be made under a special order of the court.!’ This certificate is made essential by the requirement that no discharge shall be granted unless it appears that the bankrupt has in all things conformed to his duty under the statute, and is entitled under its provisions to be discharged ($ 5114). The court must take notice of its own record, not only of irregularities in’ the proceedings, but of all other matters, which prevent the granting of a discharge, and is legally bound to make a thorough examination for the purpose of ascertaining. that no valid ground exists for withholding it. Any ad- mission, in the course of an examination, of loss of money by gambling, since the passage of the statute, prevents a discharge.” These were matters that appeared upon the face of the record, and were made the grounds for re- fusing a discharge, although no creditor interposed an ob- jection. Irregularities in the course of the proceedings affect the jurisdiction of the court, and must be judicially no- ticed. Thus, defects in the service of the warrant, whether in the publication or in the mailing of the required no- tices,’ or the reference of the case to the wrong register,* or an application either premature or too late, make the proceedings void. In all such cases, all proceedings subse- quent to the irregularity must be set aside, and the same proceedings must, if possible, be had again with due regu- larity. It certainly seems to be the better opinion that the failure of the assignee to publish the notice of his ap- pointment properly, or to call the second and third meet- ings of creditors at the required times, does not affect the regularity of the proceedings. In re Bellamy, 1 B. R. 98, 113; 8. c. 1 Ben. 426, 474. ? In re Wilkinson, 3 B. R. 286. ° In re Erie L, Hall, 2 B. R. 192. ‘In re Littlefield, 3B. R. 57; s. c. Lowell, 831; 8. c.1 L. T. B. 164, *In re Littlefield, 3 B. R. 57; 8. c. Lowell, 831; s.c.1L. T. B. 164; con- tra, in re Bellamy, 1 B. R. 64; 8. c. 1 Ben. 390; s.c. 1 L. T. B. 22. 272 DISCHARGE. What the statute means by declaring that the bank. rupt must conform to his duty under the statute has been frequently considered, but never carefully defined. The duty is the duty of the party as a bankrupt, and not his duty simply as a debtor before he becomes a bankrupt. For violations of his duty as a debtor, other penalties are imposed; for violations of his duty as a bankrupt, the penalty imposed is the withholding of bis discharge. The question to be determined, then, is what is the duty of a bankrupt under the statute? It must be confessed that this is difficult to define or determine, and the decisions do not render much assistance. He is made at all times sub- ject to the orders of the court (§ 5104), and it would seem that this penalty might have been intended as a pun- ishment for disobedience ; yet it has been gravely ques- tioned whether there is any other punishment in such case except commitment for contempt.’ It certainly appears to be a greater violation of his duty to disobey an order than to be negligent in making the officers perform their duties; yet he has been made responsible, in some cases, for a failure of the assignee to perform his duties, such as to publish the proper notice of his appointment,’ or to file his account,’ or to properly notify creditors to attend meet- ings for distribution. Those duties which the statute specially imposes upon other persons can scarcely be said to be duties of the bankrupt. He is only made responsi- ble for an omission to perform his own duties, and not for omissions of others to perform their duties, except so far as a failure may affect the regularity of the proceedings and the jurisdiction of the court to grant a discharge. The statute has imposed duties upon various officers and other persons, but it has not, either expressly or impliedly, made him a general supervisor to overlook and superin- ‘In re Littlefield, 3 B. R. 57; s. c. Lowell, 331; s.c.1L. T. B. 164. *In re Bellamy, 1 B. R. 98; 8. o. 1 Ben. 390. * In re Pierce & Holbrook, 8 B. R. 258. *In re Bushey, 3 B. R. 685. DISCHARGE. 273 tend their labors. It is his duty to file correct schedules,! and a discharge should be withheld until he has complied with this requirement. A discharge would probably also be withheld for a failure to surrender his property to the assignee, or to execute any necessary papers, or for fraudulently withdrawing himself from the jurisdiction of the court. He is made responsible for the failure of his wife to attend for examination, unless he can prove that he was unable to procure her attendance.? No discharge ean be refused or delayed by reason of the non-payment of any fees except the fee for his certificate of discharge.® When the order to show cause is made returnable before the register, he must make a certificate of the pro- ceedings, stating whether or not there is any opposition. When specifications have been filed, the certificate of con- formity should except the particulars covered by the speci- fications* In those districts where a final examination is made, it is generally held at this stage of the proceed- ings; but generally there is no final examination, nor any examination at all, unless specially ordered.® If there are no assets, or the assets have all been distributed, the register must file all the papers in the case in the office of the clerk of the district court, and these, together with those on file in the clerk’s office, constitute the record in each case. It is the duty of the clerk to cause them to be bound together." The register must see that they are filed.. He ought not deliver them to the bankrupt, or a creditor, or any person representing them. Any creditor may file specifications against the grant- ing of a discharge ($ 5111). There has been considerable discussion as to whether a creditor.must prove his debt ‘In re Connell, 3 B. R. 443; in re Redfield, 2 Ben, 72. ° *In re Van Tuyl, 2 B. R. 579; 8. c. 3 Ben. 287. * Rule XXX. ‘In re E. Pulver, 2 B. R. 313; s.c. 8 Ben. 65, *° In re Brandt, 2B. R. 215. °U. 8. v. Clark, 4B. R. 59; 0.1L. T. B. 237; s.c. 38 L. T. B. 223, "Rule VIL. 18 274 DISCHARGE. before he can oppose the discharge, but the weight of authority, as well as of argument, is against imposing this requirement. The statute clearly gives to any person who has a suit pending in a State court, at the time of the commencement of proceedings in bankruptcy, the right to keep aloof from the court of bankruptcy and prosecute his action already instituted.’ Since he has this right, he must necessarily have the power to protect his interests against the injurious effects of a discharge, which might materially affect him. Yet, if he proves his debt he surrenders his right (§ 5195). The justices of the Supreme Court foresaw this, and provided that all per- sons in interest might file specifications.” In general a person who has not proved his debt, is not deemed a creditor, and has no interest in the mode of settling the es- tate, or in the dividend, or in the acts or omissions of any of the parties to the proceedings. But he has an interest in the discharge, because if it is granted, -he will be barred. He may hold security which is inadequate for its full pay- ment, and yet is not in a condition to be advantageously liquidated, or he may have many other good reasons for not proving his debt or concerning himself. with.the pro- ceedings, and yet it may be of the greatest importance to him that the bankrupt should not receive his discharge. Upon principle, therefore, he ought to -be heard on that issue. The statute evidently contemplates it, because it gives every creditor whose debt is provable, whether proved or not, the right to set aside the discharge, at any time within two years, on proving fraud, and that he had no knowledge of the fraud until after the discharge was granted. It is very difficult to maintain that the statute -debars a creditor from opposing the discharge before it is granted, when it allows him to do so, afterward upot ’ Samson vy. Burton, 4 B. R. 1; 8. c. 5 Ben. 825. °* In re Boutelle, 2 B. R, 129. DISCHARGE. 275 showing good cause why he did not do it before! If he does not prove his debt, he must show, by affidavit or otherwise, what interest he has in the matter. The inter- est must be pecuniary, and must be satisfactorily shown.” A creditor of an estate of which the bankrupt was administrator, may oppose the discharge if the probate court has directed a dividend to be made among the cred- itors of the estate.® If a creditor who has assigned his claim as a collateral will have any surplus coming to him after the payment of the debt, he may oppose the dis- charge.* The appointment of a receiver and an assignment of the claim to him does not so divest the creditor of his interest in the claim, but that he can oppose the discharge.* Any creditor who desires to oppose the discharge must enter his appearance on the day when the creditors are required to show cause. This provision is considered as enabling and not prohibitory. If the appearance is not entered by the time specified, the right to appear will be lost, but it may be entered before that time’ A. re- quest to have an appearance entered, however, can not be made until after the petition for a discharge is filed.® This seems to be the orderly course of proceedings. The creditors are not called upon to state their objections until that time. Before that time it is not known whether the bankrupt will apply for a discharge. The application, as it were, institutes a new suit in which there are separate pleadings and distinct issues. There certainly can not be a defense until it is called for, and it is not called for until the petition is filed. In some districts, however, it may *Tn re Murdock, 3 B. R. 146; s. c. Lowell, 362; s.c. 2. L. T. B. 97; in re Smith & Bickford, 8 Blatch. 461; in re Samuel Book, 3 McLean, 317. *In re Sheppard, 1 B. R. 439; sc. 1L. T. B. 49. *In re John C. Tebbetts, 5 Taw. Rep. 259. ‘In re Traphagen, 1 N. Y. Leg. Obs, 98; s. c. 5 Law. Rep. 323.. * In re Traphagen, 1 N. Y. Leg. Obs. 98; s. o. 5 Law. Rep. 323. * Rule XXIV. 7™In re Baum, 1B. R. 5; 8. c. 1 Ben. 274. *In re McVey, 2 B. R. 257; in,re Paget, 1 Penn. i. J. 367; in re George Livermore, 5 Law. Rep. 370. 276 DISCHARGE. be made at any time after the commencement of the pro. ceedings. The appearance may be in person or by coun. sel. The direction to enter the opposition may be either verbal or in writing, but an entry of the opposition must be made upon the docket.? The proceedings may be adjourned * without requiring creditors to enter their appearance. The rights of credit. ors upon the adjourned day are the same in all respects as upon the return day.* An adjournment sine die terminates the proceedings. The petition for a discharge.» will remain good, but a new order to show cause must be issued.” The proceedings are sometimes adjourned to enable creditors to make a more complete examination of the bankrupt or of witnesses.’ The application for an adjournment may be made by a creditor, although a pro- test has been made against the allowance of his claim.’ _ No adjournment should be made except for good cause shown,° and any abuse of this power by the register will be corrected by the court.’ An appearance not duly au- thorized,” or not entered within the prescribed time,” will be disregarded. But the court has a discretion in this matter, and may allow an appearance to be entered even after the time for filing specifications has expired. There- ‘In re Baum, 1 B. R. 5; s. c. 1 Ben. 274. *In re McVey, 2 B. R. 257. * In re Mawson, 1 B. R. 271. “In re Thompson, 1 B. R. 823; s. c. 2 Ben. 166; in re Tallman, 1 B. R. 540; s. c. 2 Ben. 404; in re James M. Seabury, 10 B. R. 90; in re 8.8. Houghton, 10 B. R. 337, ° In re Seckendorf, 1 B. R. 626; s. c. 2 Ben. 462. * In re Seckendorf, 1 B. R. 626; s. c. 2 Ben. 462; in re Belden & Hooker, 4 Ben. 225. "In re Belden & Hooker, 4 Ben. 225, *In re Mawson, 1 B. R. 271. *In re W. E. Robinson, 2 B, R. 842; s. c, 6 Blatch. 253; s. c. 86 How. Pr. 176; 3.c.2L. T. B. 18. In re Eidom, 8 B. R. 106. "Tn re McVey, 2 B. R. 257; mre Smith & Bickford, 5 B. R. 20; in re Robert A. Sutherland, 1 Deady, 573; Creditors v. Williams, 4 B. R. 580; 8. c. 2 L. T. B, 166; in re James M. Seabury, 10 B. R. 90; in re Joseph Bux- baum, 13 B. R. 477. DISCHARGE. 277 fore, if a creditor files specifications and then declines to prosecute them, other creditors may be permitted to enter their appearance in support of the specifications, although the time for entering an appearance is passed.’ If no ap- pearance is entered, the proceedings may be continued from time to time, to suit the convenience of the bank- rupt. A day is appointed for the creditors to show cause, but such appointment does not fix the day for hearing the application for the discharge.” The proper entry of an appearance suspends further proceedings until the time for filing specifications. The specifications must be in writing and set forth the grounds of the opposition ($ 5111). They must state the name of the opposing creditor® They must be filed within ten days after the last day on which an appearance can be entered, unless the time is enlarged by the district court. They can only be filed by those who have entered their appearance properly. If they are not filed within the prescribed time, they can not be entertained” If a ereditor who has regularly entered his appearance fails, through inadvertence, to file them within the prescribed time, he may, on showing proper cause, be allowed to file them nunc pro tunc.’ Although the register can not hear any question concerning the allowance of a discharge (§ 4999), the specifications may, nevertheless, be filed with him." The practice varies according to the place where the order to show cause is returnable. If it is made re- turnable in court, they are filed there; if it is made re- turnable before the register, they are filed with him. He proceeds with the case, notwithstanding the specifications, ‘In re §. 8. Houghton, 10 B. R. 337; in re Lewis Levin, 14 B. R. 385; contra, Creditors v. Williams, 4 B. R. 580; 8. c. 2 L. T. B, 166. 7 In re Robert A. Sutherland, 1 Deady, 573. "Jn re 8. S. Houghton, 10 B. R. 337. ‘Rule XXIV. *In re McVey, 2 B. R. 257. ° In re Grefe, 2 B. R. 829. "In re Bellamy, 1 B. R. 98; s. c. 1 Ben. 426. 278 DISCHARGE. until his duties are performed,! and then the case, by vir- tue of the specifications, is removed into court.” If the specifications are not filed within the prescribed time, and the time for filing is not extended, the cause progresses as though there were no opposition’ If there is no opposi- tion, the grounds for withholding a discharge are regarded as not existing, unless they appear upon the face of the proceedings. . The specifications must be in the prescribed form,” and set forth some act which is a valid ground for withholding the discharge. This must be some one of the acts specific. - ally designated by the statute ($ 5110), or some defect or irregularity that defeats the jurisdiction of the court over the debtor,’ or deprives it of the power to grant the dis- ‘charge in the present condition of the proceedings.’ Ob- jections which go to the power of the court to grant the discharge, may also be made by motion.’ Proceedings in bankruptcy are strictly statutory proceedings, and if the formal and jurisdictional requirements of the statute have been met and complied with, the discharge can only be refused for some ground specially set forth in the statute. Hence the existence of fiduciary debts,’ or fraud in the creation of the debt,” is not a sufficient ground. By the express terms of the statute, however, no discharge can be ranted if the bankrupt has willfully sworn falsely in his affidavit annexed 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 1In re Puffer, 2 B. R. 438. 2 In re Mawson, 1 B. R. 265; s. c. 2 Ben. 122. * In re McVey, 2 B. R. 257. ‘In re Schuyler, 2 B. R. 549; s. c. 8 Ben. 200; s. c. 2 L. T. B. 85. ® Form No. 53. * In re Little, 2 B. R. 294; s.c. 3 Ben, 25. 7 In re Anson Martin, 2 B. R. 548. *In re Woolums, 1B. R. 496. ° In re Elliott, 2 B. R. 110. © In re Rathbone, 1 B. R. 324; s. c. 2 Ben. 188. DISCHARGE. 279 books or writings relating thereto; orif he has been guilty of any frauds or negligence in the care, custody, or delivery to the assignee of the property belonging to him at the time of the presentation of the petition and inventory, ex- cepting such property as he is-permitted to retain under the provisions of the statute; or if he has caused, permitted, or suffered any loss, waste, or destruction thereof; or if, within four months before the commencement of such pro- ceedings, he has procured his lands, goods, money, or chat- tels to be attached, sequestered, ox seized on execution; or if, since March 2, 1867, he has destroyed, mutilated, altered, or falsified any of his books, documents, papers, 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 district, with intent to de- fraud his creditors; or if he has given any fraudulent preference contrary to the provisions of the statute; 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 admitted a false or fictitious debt against his estate; or if, having knowledge that any person has proved such false or fictitious debt, he has not disclosed the same to his assignee within one month after such knowledge; or if, being a merchant or tradesman, he has not, at all times, since March 2, 1867, kept proper books of account; or if he, or any person 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 consideration or obligation; or if he has, in contemplation of becoming bankrupt, made any pledge, payment, transfer, assignment, or conveyance of any part of his property, directly or in- directly, absolutely or conditionally, for the purpose of preferring any creditor or person having a claim against 280 DISCHARGE. 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 the statute in satisfaction of his debts; or if he has been convicted of any misdemeanor under the statute ($ 5110). It is not sufficient for the specifications to follow and adopt the language of the statute, nor will they be allowed to be vague and general. They must be precise and defi- nite, and allege facts so distinctly and specifically as so advise the bankrupt of what he must be prepared to meet and resist. They must particularize the facts descriptive of the offense alleged as the ground for withholding the discharge, setting forth as clearly as may be, the time, place, person, preperty, both as to kind and quality, and the manner in which the act was committed. The facts, and not the evidence to prove them, should be stated. The allegations should also be positive, and so framed that an issue can be raised upon them.’ When the specifications deny the right of the bank- rupt to apply in the district, they must aver that he re- sided or carried on business, as the case may be, in some other district for a longer period during the six months next immediately preceding the filing of the petition than he did in the district where the proceedings are pending. An averment that he did not reside or carry on business in the district for six months is too broad. It may be true, and yet he may be entitled to his discharge.” An averment that he swore falsely in the aftidavit to his peti- tion, schedule, or inventory, or upon any examination, must charge that such false oath was willful. If the alleged false oath was taken in the course of an examination, it must set forth the facts in regard to which it was taken, ‘In re Rathbone, 1 B. R. 294; s. c, 2 Ben. 138; in re Eidom, 3 B. R. 106; in re Smith & Bickford, 5 B. R. 20. 2 Tn re Burk, 3 B. R. 296; s. co. 1 Deady, 425; s.c. 2 L. T. B. 45. DISCHARGE. 281 and charge that they were material.’ If the specifications charge a concealment of property, they must state, with some particularity, both as to kind’ and quantity, what property was concealed.* When the specifications charge that the bankrupt destroyed, mutulated, or falsified his documents, papers or writings, they must aver that the act was done with intent to defraud his creditors? Speci- fications which charge that he has not kept proper books of account must aver that he was a merchant or tradesman. Where the objection is that a cash account is wholly wanting, the allegations may be general.t Thus, an alle- gation that the books do not show what moneys were received, or what disposition was made of the same, is sufficiently specific to admit evidence that no such account whatever was kept for a period of time’ If the objec- tion, however, is that certain entries are wanting, or that there are irregularities in the mode of keeping the books, these must be specially pointed out. If the specifications charge that the bankrupt has procured the assent of a creditor to his discharge, or influenced the action of any creditor at any stage of the proceedings, they must aver that he did so by means of a pecuniary consideration or obligation." As soon as the specifications are filed, the bankrupt must determine what course’ he will pursue in regard to them. If they are vague and general, he may move to have them stricken out,’ or rely upon this defense at the trial, for the court will always disregard them.’ If they ‘In re Rathbone, 1 B. R. 824; s. c. 2 Ben. 138; in re Eidom, 3 B. R. 106. * In re Mawson, 1 B. R. 487; 8. c. 2 Ben. 382. *Tn re William H. Marston, 5 Ben. 318. “Tn re Littlefield, 3 B. R. 57; s. c. Lowell, 831; 8.c. 11. T. B, 164, *In re Belis et al. 8 B. R. 496; s. c. 4 Ben. 53. *In re Littlefield, 3 B. R. 57; 8.c. Lowell, 331; 8. 0. 1 L. T. B. 164. "In re Mawson, 1 B. R. 437, 548; s. c. 2 Ben. 332, 412, *In re Waggoner, 1 Ben. 582. ° In re Rathbone, 1 B. R. 294; s. c. 2 Ben. 188. 282 DISCHARGE. are insufficient in law, he may demur to them, or file ex- ceptions analogous to those allowed in equity.” If the creditor finds his specifications are defective, he may, upon application, be allowed to amend them.? Whenever the bankrupt sees proper to make the general defense, he com- monly does so by means of an answer. As soon as the issues are made up, the court must make an order as to the entry of the case for trial on the docket, and the time within which the same will be heard and decided.* If the bankrupt is dilatory, the creditor may move the court to set the case down for a hearing.’ The judge may, in his discretion, order any question of fact to be tried at a stated session of the court (§ 5111). A trial by a jury may be directed, and parties may ask for it on the day assigned for a hearing, without having made any previous demand. The burden of proof rests upon the opposing creditor.’ Evidence in support of the speci- fications is the only evidence that can be introduced. The creditor is bound by them, and can not go beyond them or produce evidence outside of them.® If he has given his assent to any act, he will be estopped from urging it as a ground from withholding the discharge. Where it appears to be due to justice, an amendment of the specifications may be allowed at the trial.” If the bankrupt is successful upon the trial of the specifications, or if there is no opposition to his discharge, there is still, in cases of voluntary bankruptcy, another re- quirement of the statute that must be complied with before he can obtain his discharge. No discharge can be *TIn re McVey, 2 B. R. 257. * In re Rosenfield, 2 B. R. 117; s.c.1L. T. B. 100. *Inre W. D. Hill, 1B. R. 275; s. c. 2 Ben. 186. * Rule XXIV. ° In re Robert A. Sutherland, 1 Deady, 578. ° In re Lawson, 2 B. R. 113. "Tn re Okell, 2 B. R. 105; in re George & Proctor, Lowell, 409. . * In re Rosenfield, 2 B. R. 117; s. c. 1 L. T. B. 100. * In re Schuyler, 2 B. R. 549; s. c. 3 Ben. 200; 5. c. 2. L. T. B. 85. “Tn re Belis et al. 3 B. R. 496; 5, c. 4 Ben, 53. ‘ DISCHARGE. 283 granted to a voluntary bankrupt whose assets are not equal to thirty per centum of the claims proved against his estate upon which he is liable as the principal debtor, without the assent of at least one-fourth in number and one-third in value of his creditors! A debtor who is put into bankruptcy on the petition of his copartner is re- garded as a voluntary bankrupt within the meaning of this provision.’ The value of the assets is to be deter- mined, not by an appraisement made at the time of the filing of the petition,’ but by such proceeds of the assets as may be in the hands of the assignee at the time of the hearing* In ascertaining the amount, the sum necessary to pay off and discharge all liens must be deducted.» The term “assets” is not used to express the net balance to be distributed among the creditors, but means the en- tire estate of the bankrupt, without any deductions for the costs or expenses of the proceedings.’ The statute does not permit a fictitious or exaggerated valuation of his assets by the bankrupt, while, on the other hand, if the assets are, at a fair and just estimate, equal to thirty per cent. of the debts proved upon which he is liable as prin- cipal debtor, the discharge is not to be denied by reason of any sacrifice made by the assignee or the creditors in converting the assets into cash.’ The time of the hearing of the discharge is the return day of the order to show cause, whether that is the original day or an adjourned day, and no claim proved after that time * Act of June 22, 1874, § 9; in re James Derby, 12 B. R. 241. "In re W. F. Wilson, 13 B. R. 253. ” *JIn re Frederick, 8 B. R. 465; s.c.1L. T. B. 181; in re Van Riper, 6 B. » 573. “In re Webb & Taylor, 3 B. R. 720; in re Borden & Geary, 5 B. R. 128; 8. c. 5 Ben. 228; in re Van Riper, 6 B. R. 573; vide in re Lincoln & Cherry, 7B. R. 884; 6. c. 21. T. B. 241. ¢ *In re W. H. Graham, 5 B. R. 155; in re Van Riper, 6 B. R. 573. * In re Kahley et al. 6 B. R. 189; s. c. 3 Biss, 169; contra, in re Vinton, 7B. R. 188; in re Thompson, 2 Biss. 481. "In re Thompson, 2 Biss, 481; in re Lincoln & Cherry, 7 B. R. 384; 8. ¢. 21. T. B, 241. 284 DISCHARGE. ‘ can be counted among the claims that are to be taken into account in computing the number requisite to a discharge. A party who purchases claims against the bankrupt at a discount, holds them to their full amount.* Creditors who have given a release in pursuance of an assignment made before the commencement of the proceedings in bank- ruptcy, can not be recognized as creditors, for the debts must be existing and unpaid at the time of the hearing? A liability as indorser is not a liability as principal debtor, for such liability is secondary to that of the maker whois the principal debtor* =| A certificate of conformity can not be granted, unless the bankrupt, before or at the time of hearing the applica- tion for a discharge, tenders or files the assent in writing of the requisite number of such creditors, or shows by the return of the assignee, that his assets equal the required proportion of such debt.? A creditor who has given his assent in writing, by which others have been presump- tively influenced in giving theirs, has no absolute right to withdraw it even on the day fixed for the hearing.’ It is also provided that no person who has been dis- charged under the statute, and afterward becomes bank- rupt on bis own application, shall be again eutitled to a discharge, whose estate is insufficient 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 discharge. But a bankrupt who proves to the satisfaction of the court that he has paid all the debts owing by him at the time of any previous bank- *In re John B. Borst, 11 B. R. 96. * In re Chas. B. Houghton, 5 Law Rep. 321. *Tn re Aspinwall, 3 Penn. L. J. 212. ‘In re Lewis B. Loder, 4 Ben. 328. * In re Bunster, 5 B. R. 82; s. c. 41 How. Pr. 406; s.c. 5 Ben, 242 ; Inre Cretiew, 5 B. R. 423; 8. c. 2L. T. B. 187. * In re Brent, 8 B. R. 444; s. 0. 2 Dillon, 129. A fe NT DISCHARGE. 285 ruptey, or who hag been voluntarily released therefrom -by his creditors, is entitled to a discharge in the same manner and with the same effect as if he had not pre- viously been bankrupt (§ 5116). Whenever it appears that the bankrupt has in all things conformed to his duty under the statute, and is en- titled to a discharge, the court must grant him a certifi- eate under its seal in the prescribed form (§ 5114). The original order of discharge is retained in court, and a copy is given to the bankrupt." When a partnership is brought into bankruptcy, the certificate of discharge is granted or refused to each partner in the same manner as it would be if the proceedings had been against him alone® (§ 5121). The bankruptcy court has the same inherent power as all other courts to recall its own decrees, or to vary or - annul them, as justice may require. A decree allowing a discharge, however, will only be opened upon good cause shown, and for a trial upon the merits, and not upon any mere technical matter.* Any creditor or creditors of the bankrupt, whose debts were proved or provable against the estate in bankruptcy, who see fit to contest the validity of the discharge on the ground that it was fraudulently obtained, 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. This application must be in writing, and specify which, in par- ticular, of the several acts mentioned in section twenty- ‘ nine, it is intended to give evidence of against the bank- rupt, setting forth the grounds of avoidance; and no evidence will be admitted as to any other act, but the application is subject to amendment at the discretion of ‘In re J. W. Dean, 1 B. R. 249; s.c.1L. T. B. 9; Pennell v. Percival, 13 Penn. 197. In re Schofield et al. 8B. R. 551. * In re Dupee, 6 B. R. 89; Thomas v. Hunter, 3 McLean, 297. 286 DISCHARGE. the court. The court must cause reasonable notice of the application to be given to the bankrupt, and order him to- appear and answer the same within such time as to the court may seem fit and proper. If, upon the hearing, the court finds that the fraudulent acts, or any of them, set forth by the creditor or creditors against the bankrupt, are proved, and that the creditor or creditors had no knowledge of the same until after the granting of the dis- charge, judgment must be given in favor of the creditor or creditors, and the discharge must be set aside and annulled. But if the court finds that the fraudulent acts, and all of them, are not proved, or that they were known to the creditor or creditors before the granting of the dis- charge, then judgment must be rendered in favor of the bankrupt, and the validity of his discharge will not be affected by such proceedings ($ 5120). It appears to be the better opinion that the power conferred upon the court of bankruptcy to annul the dis charge is exclusive, and that the discharge, like any other judgment, can not be impeached, when brought in question in a collateral action by any party who has been properly notified of the pendency of the proceedings in bankruptcy. The statute, it is true, declares that the discharge, if granted, shall not be valid, if the bankrupt has committed — any of the acts which would constitute valid grounds for withholding it ($5110); but this evidently contemplates the means subsequently provided for annulling it. If this were not so, it would be idle to summon creditors into a special court to set up objections which could be alleged - and tried equally as well in any court. There must, more- over, be an end of litigation, a time beyond which certain facts can not be contested. This is the design in appoint- ing one special forum to hear and adjudicate upon such facts, and if they are not raised in the prescribed mode, it is certainly due to justice, and cousonant with the intent and spirit of the statute, to hold that they can not be raised DISCHARGE. 287 elsewhere. The neeessity of meeting and contesting them in every court in which the discharge may be pleaded is a hardship that Congress never intended to impose upon the bankrupt, and is, moreover, so flagrantly unjust and con- trary to all the ordinary principles of jurisprudence, that nothing but the plainest and most imperative terms of the statute could justify or warrant such a construction.! Gorey v. Ripley. 4 B. R. 503; s.c. 57 Me. 69; Oates v. Parish, 47 Ala. 157; Batchelder v. Low, 8 B. R.571; 8. c. 43 Vt. 662; Ocean Nat’l Bank v. Olcott, 46 N. Y.12; Parker v. Atwood, 51 N.H. 181; Way v. Howe, 4 B. R. 677; s. c. 108 Mass, 502; Alston v. Robinett, 9 B. R. 74; s. c. 87 Tex. 56; Hudson v. Bingham, 8 B. R. 494; s.c. 6 L. T, B. 326; Dusenbury v. Hoyt, 10 B. R. 818; s.c. 14 Abb. Pr. (N. 8.) 182; s.c. 53 N. Y. 591; sc. 30.N. Y. Sup. 94; Reed v. Bullington, 11 B. R. 408; s. c, 49 Miss. 223; Stephens v. Brown, 11 B. R. 568; s. c. 49 Miss. 597; contra, Perkins v. Gay, 3 B. R. 772; s. c. 1 L.T. B. 221; Beardsley v. Hall, 36 Conn. 270. CHAPTER XVI. MODE OF REVISING THE PROCEEDINGS OF THE COURTS IN MATTERS OF BANKRUPTCY. Apprats may be taken from the district to the circuit courts in all cases in equity, and writs of error may be allowed from the circuit courts to the district courts in cases at law, under the jurisdiction created by the statute, when the debt or damages claimed amount to more than five hundred dollars ($ 4980). When the matter decided is of an equitable character, and is, therefore, one which is usually reviewed in the Federal courts by appeal, it may be carried to the circuit court by that mode of transferring cases. When it is a question which, by the system of Federal jurisprudence, is treated as a question of law, as distinguished from equity or admiralty proceedings, it may be carried to the circuit court by a writ of error; but in either case, the debt or damages claimed must amount to more than five hundred dollars Any supposed creditor, whose claim is wholly or in part rejected, or an assignee who is dissatisfied with the allowance of a claim, may also appeal from the decision of the district court to the circuit court for the same district ($ 4980). The proceedings in such appeals have been fully treated of heretofore, and need not now be explained again. These are the only provisions relating to appeals, and from them it is apparent that appellate jurisdiction of de- cisions of a court of bankruptcy is conferred upon the circuit court in only four classes of cases: 1st. By appeal in cases in equity decided in the district court under the jurisdiction created by the statute; 2d. By writs of error ? Ruddick v, Billings, 8 B. R. 61; sc. 1 Wool. 330. eed MODE OF REVISING THE PROCEEDINGS. 289 in cases at law, decided in the exercise of that jurisdiction ; 3d. By appeal from decisions rejecting wholly or in part the claims of supposed creditors; and 4th. By appeal from decisions allowing such claims. In the first two classes of cases, the appeal or writ of error is given to the unsuccessful party to the suit, whether in equity dr at law; in the third class, it is given to the dissatisfied cred- itor; in the fourth, to the dissatisfied assignee. The suits belonging to the first two classes of cases are those of which concurrent jurisdiction is given to the circuit courts and courts of bankruptcy, and other similar suits! The eases at law in which a writ of error may be taken are not merely suits, which the common law recognized among its settled proceedings, but all suits of a similar kind in which legal rights are to be determined, without reference to the particular form of procedure which may be adopted.? No appeal lies, when the issue is tried by the court without a Jury, from a decision upon a petition in involuntary bank- ruptey, or upon a petition for a discharge, or from an order annulling an adjudication of bankruptcy,® or from the ratification of a sale by the bankruptcy court,* or from a decision in a summary proceeding.’ inquire, and proceeds to receive the transfer or conveyance, he does so at his peril, as he is chargeable with a knowledge of all the facts which, by a proper inquiry, he might have ascertained. (Scammon v. Cole, 5 B. R. 257; s.c. 3 B. R. 393; s.c. 2 L. T. B. 108; Buchanan v. Smith, 4 B. R. 397; s. c. 7 B. R. 518; s. c. 8 Blatch. 153; s. c. 16 Wall. 277.) Knowledge of a trader’s inability to pay his debts in the ordinary course of business, derived from his failure to pay the debt due to the preferred creditor himself, is at least sufficient to put a party upon the inquiry as to the debtor’s solvency. (Jn re Forsyth & Murtha, 7 B. R. 174.) Willing ignorance, as where a party wilfully shuts his eyes to the means of information which he knows are at hand, is regarded as equivalent to actual knowledge. (Scammon y. Cole, 5 B. R. 257; Wager v. Hall, 5 B. R. 181; s.c. 3 Biss. 28; s. c.16 Wall. 584; Peckham v. Burrows, 3 Story, 544.) If other creditors institute inquiries, shortly after the making of the transfer, and find no difficulty in learning that the debtor owes more than the value of his property, this shows that the means of ascertaining his condition were at hand. (Wager v. Hull, 5 B. R.181; s c. 8 Biss. 28; s. c. 16 Wall. 584.) The proposition of ‘reasonable cause to believe” is one of fact, to be estab- lished by proof, and found by the jury. The intent to prefer may be inferred from the fact of preference, and it is competent for the jury that this intent is so plainly inferable, from the acts of the debtor known to the creditor, as to amount to reasonable cause to believe. (Jurbes v. Howe, 102 Mass. 427.) ‘The actual belief of the creditor as to the solvency of the debtor is wholly immaterial. THe only inquiry which, under the statute, is relevant to the issue is, whether the creditor had reasonable cause to believe the debtor insolvent ; that is, whether, in view of all the facts and circumstances which were known to the creditor, concerning the business and pecuniary condition of the debtor, in connection with the time and mode of the transfer of the property taken, he, as § 5128.] REASONABLE CAUSE. 831 a reasonable man, acting with ordinary prudence, sagacity and discretion, had good ground to believe that the debtor was insolvent. This is the only legiti- mate subject of inquiry. It was not intended by the statute to make the actual belief of the party concerning the solvency of the debtor one of the standards by which to test the validity of the transfer of property to him. Such a belief might, or might not, be well founded. Jt would be an uncertain and fluctu- ating standard. That which would satisfy one man, would be wholly insufli- cient to convince another; and those facts which would fall far short of pro- ducing belief in a person who was disinterested and impartial might have a dif- ferent effect upon the same person when acting under a strong influence of self- interest. In the place of a test so uncertain and unsatisfactory as the belief of a party, formed under a great bias, the statute has established one much more safe and definite, applicable to all persons alike, and easily understood and readily applied—the belief of a reasonable man taking a transfer of property under like circumstances. (Scammon v. Cole et al. 8 B. R. 898; s.c. 2 L. T. B. 108.) Instructions which confine the plaintiff to proof of reasonable cause of belief as to the debtor’s actual financial condition, instead of permitting him to prove reasonable cause of belief on the defendant’s part as to the debtor’s pur- poses and ultimate intentions are erroneous. It is undoubtedly true, that the distinction here pointed out is usually of not much practical importance. The question usually submitted to the jury, as tbe turning point in the trial, is, as to the preferred creditor’s reasonable cause to believe the debtor to be insolvent, in fact at the time of making the payment, or giving the security complained of, as constituting an unlawful preference. But when the evidence has a tendency to show that there were apparent indications that insolvency was a probable and approaching event, it is material to instruct the jury that the plaintiff is entitled to recover, if his proof as to the defendant’s reasonable cause of belief goes no further than cause to believe that the debtor, at the time, was acting in contem- plation of insolvency. (Beals v. Quinn, 101 Mass. 262.) Evidence tending to prove that the creditor had reasonable cause to believe the debtor to be insolvent is not competent unless it is brought home to his per- sonal knowledge before or at the time of his purchase. (Crump vy. Chapman, 15. B. R. 571.) Where the defendant admits that a statement made by the bankrupt on ex- amination in his presence is true, the statement may be proved by any one who heard it. (Goodrich v. Wilson, 14 B. R. 555; s.c. 119 Mass. 429.) Evidence of the debtor’s financial condition and reputation a year previous to the giving of the security is competent upon the question of his solvency or insolvency a year later, and as tending to show what means the creditor had to. know, or cause to believe, that the debtor was insolvent. (Forbes y. Howe, 102: Mass. 427.) Evidence that it was a general custom and within the ordinary course of business for persons engaged in the same business to make sales like the one in controversy, and that this custom was well known to the trade, is competent. (Otis v. Hadley, 112 Mass. 100.) Evidence that such a sale would not be a suspicious circumstance that would affect the bankrupt’s reputation for solvency is inadmissible. (Otis v. Hudley, 112 Mass. 100.) The defendant can not prove that he bas made similar purchases from others in the same trade. (Otis v. Hadley, 112 Mass. 100.) Evidence as to the creditor’s actual belief is inadmissible, for, if he had rea- sonable cause to believe, itis immaterial whether he did in fact believe or not. (Forbes v. Howe, 102 Mass. 427.) | The declarations or acts of the debtor subsequent to the transfer are not ad- missible as against the creditor. (Phenix vy. Ingraham, 5 Johns. 412.) The creditor is not of necessity affected by a misrepresentation or deceit of 832 THE BANKRUPT LAW. [$. 5128, the bankrupt in regard to the transaction. (Brooke v. Scoggins, 11 B. R. 258; s.c. 9 Pac. L. R. 12.) Any serjous and intentional misstatement, or attempt to mislead or deceive other creditors in regard to the transaetion, when made by the creditor, casts suspicion on the transaction. (Brooke v. Scoggins, 11 B. R. 258; s.¢. 9 Pac. L. R. 12.) The validity of a preference does not depend on the moral good faith with which it was accepted by the creditor. (Alderdice v. State Bank, 11 B. R. 398.) : The creditor's belief that he is entitled to the preference is not material. The intent to receive a preference should not be confounded with corrupt motive. (Bingham v. Richmond, 6 B. R. 127.) The bankrupt act disarms the vigilance of creditors generally, by declaring that no vigilance can be rewarded by a preference, if obtained contrary to its provisions within four months prior to the filing of the petition in bankruptcy. It undertakes to disable creditors from procuring preferences within that period by attachment, mortgage, or confession of judgment. Itmust be so adminis- tered as to suppress illegal preferences, or it necessarily operates as a fraud upon the rights of the mass of creditors who in good faith refrain from seeking advan- tages contrary to its provisions and policy. (dMarkson v. Hobson, 2 Dillon, 327.) All experience shows that positive proof of fraudulent acts between debtor and creditor is not generally to be expected, and it is for this reason, among others, that the law allows in such controversies a resort to circumstances as the means of ascertaining the truth, and the rule of evidence is well settled that cir- ‘cumstances altogether inconclusive, if separately considered, may by their num- ber and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof. (Wager v. Hall, 5 B.R. 181; s. c. 3 Biss. 28; s. c. 16 Wall. 584.) If a merchant debtor in a mercantile community is so straitened that, with- out pretense of any defense, he is under the pressure of suits to compel payment of debts maturing in his current business, this is very high evidence of his ina- bility to pay. (Mayer v. Hermann, 10 Blatch. 256.) The existence of a financial crisis constitutes of itself a reasonable cause for believing doubtful men to be insolvent. (Jn re Clark & Daughtrey, 10 B. R. 21.) A creditor may be affected by rumors which he has heard about the debtor’s embarrassment. (Post v. Corbin, 5 B.R.11; Golson v. Niehoff, 5 B. R. 56; s.c. 2 Biss. 434; Hyde v. Corrigan, 9 B. R. 466; 8. c. 7 Pac. L. R. 121.) A payment received in the ordinary course of business, without any reason- able cause to believe the debtor to be insolvent, is valid. (Ooze v. Hale, 8B. R. 562; s. c. 10 Blatch. 56; “Clark v. Iselin, 9 B.R.19; s. c. 11 B. R. 887; s. c. 21 Wall. 360; s. c. 10 Blatch. 204.) A. conveyance out of the ordinary course of business is sufficient evidence, if uncontrolled, to establish a knowledge of the debtor’s insolvency. The pur- chaser is put upon the inquiry, and should take steps to ascertain the condition of the debtor, or at least his general:reputation asto solvency. (Twttlev. Truaz, 1B. R. 601; in re Palmer, 3 B. R. 283; s.c, 1 L. T. B. 139; in re E. Meyer, 2 B. R. 422; 8. c.1 0. LN. 210; in ve Colman, 2 B. R. 563; Dean & Garrett, 2 B.R. 89; in reHafer & Bro. [in re Beck,] 1 B. R. 586; s. c. 6 Phila. 474; Scammon v. Cole, 5 B. R. 257; North v. House, 6 B. R. 865.) Independent of the express provisions of the bankrupt act, the general rule of law is, that the transfer or delivery of property will be considered fraudulent when it is not delivered in the usual course of trade, or of the accustomed deal- ings between the parties. (Rison v. Knapp, 4 B. R. 849; sc. 1 Dillon, 186.) A creditor who has before him what the bankrupt act declares shall be prima ‘§ 5128.] REASONABLE CAUSE. 833 facie evidence of fraud must, in law, be deemed to have reasonable cause to be- lieve in the existence of such traud, unless this legal presumption is overborne by opposing evidence. (Jn re Kingsbury et al. 8B. R. 818; Wilson v. Stoddard, 4B. R. 254; s. c. 2 0. L. N. 161.) This prima facie evidence is present to every creditor who accepts a security in any case to which the provision is applicable; and unless the creditor has evidence sufficient to repel this legal presumption, he has reasonable cause to believe that the security is fraudulent and void under the bankrupt act. This will necessarily prevent any security voluntarily given by an insolvent to a favored creditor from being held valid, simply because it proceeded from the voluntary act of the debtor, and was prepared without any previous communi- cation with the creditor, either in regard to the giving of the security, or tue financial condition of the debtor. A creditor can not, by shutting his eyes when this statutory prima facie evidence of fraud is placed before him, escape the consequences of this provision. When he accepts a security, he is conclusively presumed to know what appears upon its face, and to have reasonable cause to believe it was intended to accomplish what must be its ordinary and necessary effect; and no masterly inactivity, no self-imposed ignorance of what the cir- cumstances call upon him to ascertain, however intense, and however closely guarded that ignorance may be, can make fraudulent preferences valid and binding as against the assignee. (Graham v. Stark, 3 B. R. 857; s. c. 8 Ben. 520.) Transfers made in the usual and ordinary course of a trader’s business, or payments made at the time a debt matures, and in the usual mode of paying debts, are prima facie valid. On the other.hand, whenever a creditor is in possession of such facts and circumstances in reference to his debtor’s standing, as arouse suspicion with regard to his solvency or ability to meet his indebted- ness, the creditor is so far put upon inquiry that he will not be allowed to shut his eyes to those facts and circumstances, and obtain payment of a debt other- wise than as it matures, or take security ora transfer of property from the debtor to the prejudice of other creditors. Not paying debts in the usual and ordinary course of a trader’s business, from a lack of present means, and want of ability to raise means, must be regarded as prima facie evidence of insolvency, and the creditor who has knowledge of such facts must act in view of them. (Driggs v. Moore, Foot & Co. 8 B. R. 602; s.c. 1 Abb. C. C. 440.) Tt is a sound rule that, when a person suspects the solvency of a debtor, and, in consequence of that suspicion, obtains property or money, and thereby a pref- erence, and it turns out in fact that his debtor is insolvent, he may be said to be in the predicament contemplated by the bankrupt law; he has reasonable ground to believe that his debtor is insolvent, and so can not avail himself of the payment made, or security obtained. Courts ought not to prevent or interfere witb the ordinary business operations between man and man, and do not attempt to do so unless there is something in the transaction indicating that the man who makes it has reason to believe that he is getting what ought to belong to creditors generally, and if so, the bankrupt law declares he can not avail himself of money or property thus obtained. But, when a man acts without knowledge of the condition of tae party, or of anything to create suspicion of his solvency, and in good faith obtains a payment or security, then the bankrupt law will not interfere with it. (Zraders’ National Bank v. Campbell, 3 B. R. 498; 8. ¢. 6 B. R. 353; s. c. 2 Biss. 423; s. c. 14 Wall. 87.) Although the consideration for an assignment of a claim to a third person is paid out of the funds of the debtor by such third person, yet the assignee is not entitled to recover unless it appears that the creditor at the time clearly under- Stood that he was dealing directly with the debtor’s agent for a conveyance, security, transfer or payment from or out of the funds of the debtor. ‘The cred- itor is entitled to retain the money if he was misled by such third person into the belief that the transaction was a mere assignment of the debt to himself for his own benefit, and to be paid for out of his own funds. (Windsor v. Kendall, 3 Story, 507.) 53 834 THE BANKRUPT LAW. [§ 5128. Mere knowledge that a claim of less than one hundred dollars remains ‘unset-- tled does not constitute reasonable cause to believe that a fraud on the act is being committed by accepting a payment. (Castle v. Lec, 11 B. R. 80.) The small amount of means used to carry on the business can not affect the validity of the transfer, for the statute can not be graded by any system of min- imums in its application to the various trades, professions and callings of indi; viduals. (McAllister v. Richards, 6 Penn. 183.) No creditor, after exacting a deed of trust so stringent as to destroy the credit of an insolvent debtor, has a right to claim that he did not have reason- able cause to believe the debtor to be insolvent. (Jn re Clark & Daughtrey, 10 B. R. 21.) The taking of a debtor’s property on legal process is not in the ordinary course of his business. When a creditor makes repeated demand for payment,. and is compelled to resort to legal process to obtain satisfaction, he has reason- able cause to believe the debtor to be insolvent. (Haskell v. Ingalls, 5 B. R.. 205.) The confession of a judgment can not be considered as an act done in the ordinary course of the debtor’s business. It is therefore prima facie contrary to the provisions of the act, both as to the debtor and the creditor receiving it. The burden of proof is upon the creditor to overcome this presumption. (Jn re Walton ¢ al. 1 Deady, 442.) When an execution must necessarily stop the debtor’s business, the execu- tion creditor, in general, has reasonable cause to believe the debtor to be insolvent. (Hood v. Karper, 5 B. R. 358; s. c.8 Phila. 160; s.c. 2 L. T. B. 291; Zahm v. Fry, 9 B. R. 546; s. c. 21 Pitts. L. J. 155; s.c. 81 Leg. Int. 197.) , Creditors issuing executions on judgments obtained on demands long over- due, against a bankrupt who has been pressed in repeated instances to pay or secure the demands, and has failed to do so because of his inability, must be held to have had reasonable cause to believe that the debtor was insolvent. (Bu- chanan v. Smith, 4 B, R. 897; 8. c. 7 B. R. 513; s.c.8 Blatch. 158; s. c. 16. Wall. 277.) Payments by a banker, whose doors are closed, in checks upon another bank in the same place, is not in the ordinary course of his business. (darkson v. Hobson, 2 Dillon, 327.) If the bank is not the general banker of a bankrupt, the case is not one for the application of the cautionary rule which requires transactions between them. to be scrutinized with care. (Rankin v. Third Nat'l Bank, 14 B. R. 4.) The debtor’s remonstrances, that the giving of the security will injure his credit, is sufficient to put the creditor upon inquiry. (Wager v. Hall, 5 B. R. 181; s. c. 3 Biss. 28; s. c, 16 Wall. 584; Hyde v. Corrigan, 9 B. R. 466; s.c.. 7 Pac. L. R. 121.) If a transfer was not in the usual and ordinary course of business of the bankrupt, that fact is prima facie evidence that a fraud was committed upon the bankrupt act by the transfer, and the burden of proof will be upon the creditor- receiving it to show the validity of the transaction as respects a fraud on the act. But if the transfer was made in the usual and ordinary course of business of the bankrupt, then the burden of proof will rest upon the assignee. (Collins et al. lo et al. 8B. R. 587; Scammon v. Cole et al. 8 B. R. 393; 8.0.2 L.T.B. A transfer of the whole of the debtor’s property is not in the usual and ordinary course of business. A conveyance of part may be public, fair and honest, but a conveyance of all'must either be fraudulently kept secret or pro- duce an immediate absolute bankruptcy. Nothing remains for the creditors in any shape. The debtor is therefore insolvent, of course, the moment he exe- cutes the deed, for there is nothing at all left for his creditors. (@row v. Ballard, § 5128. ] REASONABLE OAUSE. + 885 9B. R. 254; s.c.1L.T.B.111; Brock v. Terrell, 2 B. R. 648; Davis & Green vy. Armstrong, 3 B. R. 84; s. c. 2 L. T. B. 188; Foster v. Huckley & Sons, 2 B. R. 406; s.c.2 L. T. B. 8; 8.c.1C. L. N. 137; in re Batchelder, 3 B. R. 150; s. c. Lowell, 373; Graham v. Stark, 3 B. R. 857; s. c. 8 Ben. 520; Rison v. Knapp, 4 B. R. 349; s. c. 1 Dillon, 186; Cookingham v. Morgan, 5 B. R. 16; s.c. 7 Blatch. 480; Walbrun v. Babbitt, 6 B/R. 589;,s.c. 9 B. R.1; 8. ¢.16 Wall. 677; Peckham vy. Burrows, 3 Story, 644.) A conveyance of all the debtor’s property to a creditor who has no knowledge that there are any other creditors is valid. (Wadsworth v. Tyler, 2 B. R. 816; s.c.2L. T. B. 28.) The transfer will stand if nothing was brought to the attention of the creditor which would reasonably have induced him to believe the debtor to be insolvent. (Rankin v. Third Nat)! Bank, 14 B. R. 4.) The transfer of all the goods of a debtor and the lease of the storehouse in which they are kept, and putting others in possession with authority to sell all his stock and apply the proceeds to the payment of debts in execution, is not in the usual course of business; does break up his business; and is not only some, but very strong evidence of an intent to prefer his creditors, he being at the time insolvent. What is the usual course of a retail merchant’s business? It is to sell his goods at his usual place of business to customers as they come, to keep up an ordinary stock, and continue in business in the usual way that such merchants do. Certainly it is not in the usual course of a retail merchant’s business when in a state of actual insolvency, to confess judgment to certain - creditors, suffer executions to be levied by them, and then to assign over to them all his stock, and his place of business, put them in possession, and provide that the surplus over the payment of their claims shall be returned to himself. Such a state of facts undoubtedly justifies the court in saying thdt it is required to be rebutted by some evidence that the transaction was not intended as an undue preference contrary to the provisions of the bankrupt law. (Pierce v. Hcans, 61 Penn. 415; Mayer v. Hermann, 10 Blatch. 256.) When a party is aware that all demands for which he could be held liable, as well for the individual members as for the firm itself, and whether the same had matured or not, were to be paid, whilst other demands known to him are left unsecured, and that by the arrangement debts not due are anticipated, and thereby the discount which bas been paid is lost, he has reasonable cause to be- lieve that a preference is intended. Knowledge of overdue debts, and the fact that a large amount of firm property is applied to the discharge of the personal liabil- ities of the partners, and not to the firm debts, are circumstances that call for plenary proof that the transfer was not designed asa preference. (Scammon v. Cole et al. 3 B. R. 898; s. c. 5 B. R. 257; 8. c. 2 L. VT. B. 108.) A transfer of all the debtor’s property subject to execution, leaving other creditors to obtain payment out of the debts due to him, constitutes a reasonable cause to believe him to beinsolvent. (Smith v. McLean, 10 B. R. 260.) The rule that inselvency consists in present inability to pay debts might apply if the debtor is present and the negotiations are with him. . But when he is absent, and that absence is alleged as the sole reason for the non-payment of the debt, and the reasons given for such absence are not such as would excite any suspicion of insolvency or present inability to pay, it has no application. ' Clerks and agents are not supposed to have entire control of the resources of their principal to suck an extent as to make their failure to meet an obligation of their principal an act of bankruptcy against him. Security given by an agent after demand and non-payment of a debt under such circumstances will be valid. (Jenkins v. Meyer, 3 B. R. 776; s. c. 2 Biss. 303.) When a merchant fails to pay his notes or rather mercantile obligations as they become payable, the immediate presumption of inability to pay arises. There may be reasons in a particular case why payment at maturity is not made. There may be a defence to the apparent debt; the non-payment may be 836 ‘ THE BANKRUPT LAW. [$ 5128. caused by accident or carelessness or inattention, or it may be the result of some other special temporary cause entirely consistent with amplest solvency. Never- theless, where no such cause exists, non-payment prima facie imports inabiliity to pay in due course of business. (Mayer v. Hermann, 10 Blatch. 256; Dun- ning v. Perkins, 2 Biss. 421; Bartholow v. Bean, 10 B. R. 241; s. c. 18 Wall. 635; Shaffer v. Fritchery, 4 B. R. 548; Golson v. Nichoff, 5 B. R. 56; sc. 2 Biss, 484; Wilson v. City Bank, 5 B. R. 270; s.c.9 B, R. 97; s. c.1 Dillon, 476: s.c. 17 Wall. 473; Warren v. Del. L. & West. R. Co. 7 B. R. 451; 8.0. 10 Blatch. 493; Warren v, Tenth Nat'l Bank, 7 B. R. 481; 8. c. 10 Blatch, 493; Harrison v. McLuren, 10 B. R. 244.) Notice of the non-payment of a judgment note is not notice of the insolvent condition of the maker. (Love v. Love, 21 Pitts. L. J. 101; Piper v. Brady, 10 B, R. 617; s. c. 31 Leg. Int. 316.) The non-payment of an account for goods sold when there is no circutn- stance warranting any other inference than that the debtor can not pay for the want of means, indicates insolvency, and affords a reasonable cause to believe him te be insolvent. (Mayer v. Hermann, 10 Blatch. 256.) The existence of the required reasonable cause for belief may be inferred from all the circumstances of the transaction. (Jn re Gregg, 4 B. R. 456; Stranahan v. Gregory & Co. 4 B. R. 427; Anon. 1 Pac. L. R. 178; Buchanan v. Smith, 4 B. R. 897; 3. c. 7 B. R. 513; s. c. 8 Blatch. 153; s.c. 16 Wall. 277; Alderdice v. State Bank, 11 B.R. 898; Brooke v. Scoggins, 11 B. R. 258; s.c. 9 Pac. L. R. 12.) The making of subsequent advances does not negative the existence of a reasonable cause to believe the debtor to be insolvent, when it was for the in- terest of the creditor to make such advances. (Hurrison v. McLaren, 10 B. R. 244.) To confess knowledge of the facts which constitute insolvency, and at the same time deny knowledge of the bankrupt’s insolvency, is simply a denial of law rather than of fact. (Rison v. Knapp, 4 B. R. 849; s. c. 1 Dillon, 186; Toof v. Martin, 4 B. R. 488; s.c. 6 B. R. 49; s. c. 18 Wall. 40; s.c. 1 et 203; Warren v. Del, L. & West. R. Co.7 B. R. 451; 8. c. 10 Blatch. 493. Equity pays do regard to the forms resorted to by parties in fraud of the law. (Toofv. Martin, 4 B. R. 488; s. c. 6 B. R. 49; s.c. 13 Wall. 40;s. 0.1 Dillon, 203.) The principal is chargeable with all the knowledge which his agent had at the time of the transaction. (Jn re E. Meyer, 2 B. R. 422; s.c. 1 ©. L. N. 210; Ungewitter v. Von Sachs, 3 B. R. 728; s. c. 4 Ben. 167; s. c. 1 L. T. B. 224; s.c. 3 L. T.B. 195; Graham v. Stark, 8 B. R. 857; s. c. 8 Ben. 520; Vogle v. Lathrop, 4 B, R. 489; s. c. 4 Brews. 258; Markson v. Hobson, 2 Dillon, 327; Mayer v. Hermann, 10 Blatch. 256; contra, in re J. B. Wright, 2 B. R. 490.) Where a creditor places his claim in the hands of a collection agent to forward for collection, the creditor is not chargeable with the knowledge of a sub-agent employed by the latter if he does not receive the proceeds of a judgment by con- fession obtained by him, although the proceeds were remitted to the collection agent. (Hoover v. Wise, 14 B. R. 264; s, c. 61 N. Y. 805; 5. ¢. 91 U.S. 308.) Where the attorney of a creditor is prosecuting a debtor to enforce payment of a debt, and by reason thereof the debtor discloses to him that he is insolvent and asks his advice, and he assumes to give it, he can not by accepting such retainer evade the operation of the rule that the knowledge of the agent acquired in the conduct of his employer's business is knowledge of his principal. In every step of the prosecution of the claim to collection, he is the agent of the creditor, the performance of his duty to that creditor involves the gaining of knowledge of the debtor’s insolvency, and no proffered confidence put in him by the adverse party can make that information less his client’s property, or less § 5128.] KNOWLEDGE. 837 information acquired in his agency, and imputable to such client. (dayer y. Hermann, 10 Blatch. 256.) F A general authority, with subsequent tacit acquiescence, is sufficient proof that an agent had authority to accept a preference. (Jn re Colman, 2 B. R. 563.) A corporation is chargeable with the knowledge of its officers. (Loudon v. First Natl Bank, 15 B. BR. 476.) The mere fact that the creditor was not present when the transfer was made and knew nothing of the transaction, does not affect its character. If, when in- formed of it, he does not repudiate it, but accepts benefits under it, he is as much bound by the acts of his agent in accepting the transfer as if he had ac- cepted himself. (North v: House, 6 B, R. 365.) Where there is collusion between the creditor and the debtor, or delay in issuing the execution, or a use of the judgment for the purpose of preventing and obstructing other cred:tors in the collection of their claims, the judgment will be declared void. (McGie [ex parte Sanger], 2 B. R. 531; s. c. 2 Biss. 168; ¢. c.2 L. T. B. 80; in re Kerr, 2 B. R. 888; s.c. 2 L. T. B. 389; im ve Schnepf, 1 B. R.190; s. c. 2 Ben. 72.) Knowledge on the part of the creditor of the commission of an act of bank- tuptcy by the debtor constitutes a reasonable cause to believe him to be insolv- ent, and the creditor must be held to the just and reasonable inferences from such act. ¢(Werren v. Tenth Nat'l Bank, 7 B. R. 481; 3. c.5 B. R. 479; 8. c. 42 How. Pr. 169; s. c. 5 Ben. 395; s, c. 10 Blatch. 493.) Money received upon notes of third parties accepted by a creditor as condi- tional payment of his debt is, in contemplation of law, received at the time of the delivery of the notes, without regard to the time when the money was actu- ally paid. In other words, the actual receipt of the contents of the note relates back to the conditional payment, and converts it into an absolute one, The question of preference in the receipt and collection of the note would have to be determined by the facts as they existed when the conditional payment was made. If the creditor was justifiable in receiving the notes when he did, in payment of his debt, then he became the owner of them, and his right to collect and receive the money on them at any subsequent time can not be affected by the fact that the debtor has since become insolvent, or that he has since learned, or has good reason to believe, that the debtor was insolvent at the time of the transfer, (Jn re Ouimette, 38 B. R. 566; s. c. 1 Saw. 47.) When there is sufficient evidence to raise a legal presumption that a trans- fer was made, with a legal or actual ‘intent to give, or to obtain a preference, in fraud of the policy and piovisions of the bankrupt law, the transfer can only be sustained upon very clear and satisfactory proofs to repel such presumption. (Warren v. Del. L. & West. R. Co. 7 B. R. 451; s. ¢. 10 Blatch. 493.) The mere fact that the preferred creditor may have paid a valuable consider- tion, or 4dvanced money on the deed, will not validate it, if he had reasonable cause to believe the debtor insolvent at the time of its execution. (North v. House, 6 B. R. 865.) Knowledge. There is a difference between , kpowine.” and “having reasonable cause to believe.” (Singer v. Sloan, 11 B. R. 433; s.c.12 B, R. 408; s. c.3 Dillon, 110; contra, Hamlin v. Pettibone, 10 B. R. 172; 8. ¢. 6 Biss. 167; Brooke v. McCracken, 10 B. R. 461; s. c. 8 Pac. L. R. 102; s.c. 70. L. N.10; Wedd v. Sachs, 15 B. R. 168; s. c. 18 Pac. L.R. 28; 8s. ¢. 9 C0. L. N. 156.) The amendment to this section does not apply to transactions that occurred prior to December 1st, 1873. (Oxford tron Co. v. Slafter, 14 B. R. 350; s. c. 18 Blatch, 455; Tinker v. Van Dyke, 14 B. R.112; s. c. & C, LN. 385; Barne- 838 THE BANKRUPT LAW. [$ 5128. - wall v. Jones, 14 B. R. 278; in re Jobn F. Lee, 14 B. R. 89; Slafter v. Sugar Refining Co. 13 B. R. 320; Hamlin v. Pettibone, 10 B. R. 172; s.c. 6 Biss. 167; Brooke v. McCracken, 10 B. KR. 461; s.c. 7 C.L.N. 10; 8, a 8 Pac, L. R. 102; Warren v. Garber, 15 B. BR. 409; contra, Booth v. Neely, 12 B. R. 398; Singer v. Sloan, 11 B.R. 488; s. c. 12 B. R. 208; s. c. 3 Dillon, 110.) The creditor’s knowledge of the fraud may be established by circumstantial evidence. (Gattman v. Honea, 12 B. R. 493; 8. c. 7 C. L. N. 395; 5. ¢. 10 Pac. L. R. 4; Loudon v. First Nat'l Bank, 15 B. R. 476.) The circumstances attending a transaction may be such that the creditor will not be justified in relying on the debtor’s false statement as to his condition. (Bucknam v. Goss, 13 B. R. 337.) The burden of proving knowledge rests on the assignee. (Crump v. Chap- man, 15 B, R. 571.) Definition of Fraud upon the Act. The act was designed to secure an equal distribution of the property among the creditors, and any transfer made with a view to secure the property or any part of it to one, and thus prevent such equal distribution, is a transfer in fraud of the act. (oof v. Martin, 4 B. R. 488; s. c. 6 B. R. 49; s. c. 1 Dillon, 203, s. c. 13 Wall. 40; Wager v. Hall, 5 B. R. 181; s. c. 8 Biss. 28; s. c. 16 Wall. 584; Shawhan v. Wherritt, 7 How. 627; in re Rufus Hoyt, 1 N. Y. Leg. Obs. 182; Locke v. Winning, 83 Mass. 825; Wakeman v. Hoyt, 5 Law Rep. 309; Fos- ter v. Hackley & Sons,2 B. R. 406; s.c.2 L. T. B. 8; s.c.1 C0. LN. 137; Haughey v. Albin, 2 B. R. 899; s. c. 2 Bond, 244; s.c.2L. T. B. 47; in re Black & Secor, 1 B. R. 858; s. c. 2 Ben. 196; s.c. 1L. T. B.39; in re Kings- bury, et al. 38 B. R. 318.) It is immaterial whether the parties have the provisions of the bankrupt act in contemplation or not. (Foster v. Hackley & Sons, 2 B. R. 406; s. c. 2 L. 'T. B. 8; s.c. 10. L. N. 187.) Ignorance of the provisions of the statute constitutes no excuse. (Lewis v. Sloan, 68 N. C. 557.) An act which directly and manifestly tends to defeat the purpose and policy of the bankrupt act, and which is done in contravention of and with the intent to defeat such purpose and policy, is fraudulent and void. A fraudulent con- trivance, with a view to defeat the bankrupt law, is void. When a person has shown his inability to meet his engagements, one creditor can not, by collusion ' with him, obtain a preference to the injury of others. Such conduct is con- sidered a fraud on the act, whose aim is to divide the assets equally and there- fore equitably. (Beattie v. Gardiner, 4 B. R. 823; 8. c. 2 Ben. 479; in re Gregg, 4 B. R. 456; Buchanan v. Smith, 4 B. R. 897; s. c. 7B. R. 518; 8. ¢. 8 Blatch. 158; s. c, 16 Wall. 277.) Recovery where there is a Surety. Although the term “‘indorser” is not specifically used in this section, it is the clear intention of the law to make any payment or preference ta.gn indorser or other surety, fraudulent and void, where the other elements in ihe transaction exist to give it that character. The payment of an indorsed note before ma- turity, by an insolvent debtor, is a preference to the indorser, and the money may be recovered from him. It is true that the legal liability as indorser can not be legally enforced until the maturity of the note, and demand of the maker, and notice of non-payment; yet, in the statutory sense of the term, there is a lia- bility of the indorser from the date of the indorsement. When the indorser is solvent, the payment does not give a preference to the holder. ‘he holder is not benefited, as he would bave been paid at once by the indorser when the note became due, (Al et al. v. Thorner, 8 B. R. 118; s. c. 2 Bond, 287; 8. ¢. 1L. T. B, 129.) § 5128. ] TRANSFER MERELY VOIDABLE. 839 When the surety or indorser is innocent of all participation in any scheme ‘by the principal debtor to contravene the law, and the debt is paid at or before maturity without any action on his part, he is not liable. (Bean v. Lajlin, 5 B. R. 333.) A mortgage given to secure money loaned to the debtor for the purpose of ‘taking up certain notes upon which the mortgagee was liable as indorser can not be sustained as a mortgage given for a present consideration. If it could be, all an indorser or surety need do to obtain valid security for his liability would be to lend his principal the amount with which to pay the debt, and receive back a mortgage as security for the loan. Such a proceeding, within the pur- view of the bankrupt act, is nothing more than an exchange or substitution of securities—a mere attempt and contrivance to relieve or protect an indorser or surety; and, whatever means may be adopted to accomplish this purpose, it will prove invalid under the bankrupt law when it is designed and used to ob- tain a preference for the party who is under a liability for the bankrupt. Under such circumstances, the security would, in all respects, have been equally valid if it had been so drawn as, in terms, to indemnify the indorsers or sureties on the notes for which they were liable. (Scammon v. Cole, 3 B. R. 393; 8. c. 5 B. R. 257; s.c.2L. T. B. 1038; Cookingham v. Morgan, 5 B. R.16; 8. 6.7 Blatch. 480.) Property which has been mortgaged to a creditor who is fully secured by an indorsement, may be recovered from the creditor, and the mortgage may be de- clared void. (Graham v. Stark, 3 B. R. 357; 8. c. 3 Ben. 520.) The payment of an overdue note to the holder may be avoided as a prefer- ence, although the indorser was solvent. ‘Che statute intended, in pursuit of its policy of equal distribution, to exclude both the holder of the note and the surety, or indorser, from the right to receive payment from an insolvent debtor. It is forbidden. It is made by the statute equally the duty of the holder of the note and of the indorser to refuse to receive such payment. (Sartholow v. Bean, 10 B. R. 241; s. c. 18 Wall. 635.) If an accommodation indorser merely induces the bankrupt to give a check on the bank which holds the note in order to pay it, he is not liable to the assignee. (Blair y. Allen, 3 Dillon, 101.) If a feme covert indorses a note for the accommodation of the bankrupt, with- -out expressly making the debt a charge upon her separate estate, she is not lia- ble for money paid as a preference to the holder. (Hlanders v. Abbey, 6 Biss. 16.) If the money received by the holder of a note signed by the bankrupt, and a surety from the bankrupt is recovered by the assignee as a preference, the holder may recover the full amount from the surety. (Watson v. Poague, 15 B. R. 4738; s. c. 42 Iowa, 582.) Transfer merely Voidable. Until the debtor becomes amenable to the bankrupt court by the commence- ment of proceedings in bankruptcy, the question whether a conveyance is in violation of the provisions of the bankrupt law can not be raised. (Adkins v. Spear, 49 Mass. 490.) A judgment or attaching creditor is entitled to take under his levy or at- tachment all that then rightfully belongs to his debtor, and no more, inasmuch as he stands merely in the place of the debtor. If the property is then covered by a conveyance which is valid under the State laws, but void only under the bankrupt law, the title of the assignee, as soon as he is appointed, goes back by relation to the time when the conveyance was executed, so that his title will overreach that derived from any levy or attachment subsequent to that time. (Hoerett v. Stone, 3 Story, 446.) . 840 THE BANKRUPT LAW. [§ d128.. When the property upon which a mortgage was given by the debtor has- been sold by the assignee, the preferred creditor can not foreclose the mortgage,. even though he was not made a party to the proceedings for a sale, for he can not show a right superior to that of the purchaser. (Whipps v. Hillis, 7 Bush, 268.) A party who has received a transfer of goods from the debtor may maintain an action against the sheriff for a levy thereon, although the transfer is void un-- der the bankrupt law. (Hathaway vy. Brown, 18 Minn. 414.) The maker of a promissory note can not set up as a defense that the payee assigned it to the holder in fraud of the bankrupt law, with the intent to prefer his creditor. (renzel v. Miller, 87 Ind. 1.) A mortgage given for a consideration passed at the time of its execution, and also to secure a pre-existing debt, being void in parts as to the pre-eaisting debt, is void as tothe whole. (Zutilev. Truaz, 1B. R. 601.) If the mortgagee gave a full present consideration at the time of the execu- tion of the mortgage, but consented to include therein a claim due to another,. the mortgage will be valid as to his claim. (Jn re Stowe, 6 B. R. 429.) If the mortgage is made in part to prefer the mortgagee as to his claim, and in part to secure a present loan made for the purpose of enabling the debtor to prefer another creditor, it isentirely void. (Bucknam v. Goss, 13 B. R. 837.) If a creditor advances the money to pay off a prior execution, and then takes a judgment for the advance and his own debt, his execution will be good to the extent of the advance. (Lathrop v. Drake, 138 B. R. 472; s. c. 91 U. S. 516.) If the assignee elects to avoid a transfer, he takes the property subject to any prior liens held by the creditor and not abandoned in accepting the transfer.. (Avery v. Hackley, 11 B. R. 241; s. c. 20 Wall. 407.) A bailee who receives the possession of property from a preferred creditor can not, in an action of replevin by the bailor, set up a title subsequently ac- quired by him from the debtor’s assignee. (Nudd v. Montanze, 83 Wis. 511.) ij If a preference given upon the surrender of a valid security is set aside, the surrender may in equity be deemed to be annulled, and the security revived.. (Burnhisel v. Firman, 11 B. R. 505; s.c, 22 Wall. 170.) If a purchase by a mortgagee of the mortgaged property is set aside asa preference, he has the right to assert his lien by virtue of his mortgage so far as that is valid. His purchase does not impair his rights under the mortgage, but on the failure of the title which he supposed that he got by the purchase, he will be restored to his rights as mortgagee as they existed before he attempted to purchase. He will lose his title under the purchase, and nothing more. (Jn re Kahley, 4 B, R. 378; s. c. 2 Biss. 383.) Bona fide Purchaser, A bona jide purchaser for value at a sale under an execution, without notice of the invalidity of the judgment, has a good title as against the assignee. Where the judgment is apparently a valid lien under the State law, construc- tive notice of the pendency of proceedings in bankruptcy will not affect his i (Zahm v. Fry, 9 B. R. 46; s. c. 21 Pitts. L. J. 155; s. c. 31 Leg. Int. A person who purchases from a preferred creditor will not be protected unless he is a bona side purchaser without notice and for value. He is not a bona- Jide purchaser without notice, if he knows facts sufficient to put a man of ordi- nary care and prudence upon inquiry. He must, however, not only have no notice, but he must have paid a consideration at the time of the transfer, either in money or other property, or by a surrender of existing debts or securities. Executing notes for the whole amount which are overdue and still remain in the: § 5128.] WHAT MAY BE RECOVERED. 841 hands of the payee, is not sufficient. (Rison v. Knapp, 4 B. R. 849; s. c. 1 Dil- lon, 186.) Where the security for a note is void under the bankrupt law, an indorsee for value obtains no better right than the payee if the security is not of a negotiable character. The security passes with the note only as an incident, and is subject to the same defense in the hands of the indorsee as it would have been in the hands of the payee. (Jn re Kansas City Manuf. Co. 9 B. R. 76.) A purchaser who takes only the “right, titie and interest ” of the grantee, without any covenants as to title, takes the property subject to all the infirmities of the original title, and can claim as against the assignee no more than the grantee himself could. (Morse v. Godfrey, 3 Story, 864.) A party who pays no new consideration upon the faith of the transfer, but merely takes it as an auxiliary security for an antecedent debt or liability, is nota purchaser for a valuable consideration. (dforse v. Godfrey, 3 Story, 364.) The pendency of the proceedings in bankruptcy is constructive notice thereof to all purchasers from the grantee, and they are affected thereby. (Morse v. Godfrey, 3 Story, 364.) What may be Recovered. The language of the statute, authorizing the assignee ‘‘ to recover the prop- erty, or the value of it, from the person so receiving it, or so to be benefited,” does not create a qualification or limitation of power. The words are those of caution merely, and give the assignee no power that he would not possess if they had been omitted from the statute. (Foz v. Gardner, 12 B. R. 137; 8. c. 21 Wall. 475.) Although the act declares that the assignee may recover the property or its value, yet it is to be construed as giving a right to recover the latter only as a substitute for the former, in cases where the property has been destroyed, or has passed beyond the control of the creditor, or been constructively converted to his own use by a refusal to deliver the same upon the demand of the assignee. (Schuman v. Fleckstein, 15 B. R. 224; s.c. 9 C. L. N.174) When property is levied upon and sold under execution, before the proceed- ings in bankruptcy begin, the State court has a rightful jurisdiction at the time to seize and sell the same, and the assignee can not follow the property, but must resort to the State court to lay in his claim as the rightful owner of the fund against the preferred creditors. (Rohrer’s Appeal, 62 Penn. 498.) The amount which the assignee is entitled to recover from a creditor who has received a preference by means of a judgment is the gross amount obtained on execution, without any deduction for the costs and expenses of the creditor. The sum appropriated as costs and fees for attorney must be considered as having been paid by the creditor, after it was received under the judgment, (Street v, Dawson, 4 B. R. 207; Bill v. Beckwith, 2 B. R. 241; Traders’ Natl Bank v. Campbell, 3 B. R. 498; s.c. 6 B. R. 8538; s. c. 2 Biss. 428; s, c. 14 Wall. 87; Sedgwick v. Millward, 5 B. R. 847.) The measure of the damages is the value of the property and not the amount re- alized by a sale under an execution. (Clarion Bank v. Jones, 11 B. R. 381; s, c. 21 Wall. 825; s.c.2 A. L. T. [N. §,] 185.) If the creditor, upon being released from the effect of an injunction, chooses to sell the property under an execution, he does so at his own risk, and may be held liable for the value, if that excceds the proceeds of the sale. (Anderson v.. Strasburger, 6 Ben. 372.) ; If the evidence does not show what the value of the property was, the as- signee, where the property has been sold by the sheriff, can only recover the amount indorsed upon the execution. (Christman v. Haynes, 8 B. R, 528;. Anderson v. Strasburger, 6 Ben. 372.) 842 THE BANKRUPT LAW. [$ 5128. When the proceedings are in the nature of equity proceedings, the court may in its discretion, make a decree for the net, instead of the gross, amount received, (Wilson v. Brinkman et al. 2 B. R. 468; 8. c. 1 C. L. N.133; Brock v. Terrell, 2 B. R. 643.) ; The court can not allow, by way of reduction, the amount paid to other un- preferred creditors out of the proceeds of property conveyed in fraud of the bankrupt act, nor so much thereof as they would have been entitled to receive on an equal distribution of the estate. The direction of the law is, that the as- signee may recover the property or its value. The debtor can not be allowed to make the distribution of his estate. (White v. Raftery, 3 B. R. 221; s. o.1 C. L. N. 361; s. c. 16 Pitts. L. J. 110; Bill v. Beckwith, 2 B. R.241; North v. House, 6 B. R. 365.) Morey paid by a check drawn on the creditor himself, and money held by an attachment laid by the creditor in his own hands, may be recovered. If the creditor had stood on his right of set-off, it might possibly have been available; but when he treats it as the bankrupt’s property, and endeavors to secure an illegal preference, by getting the bankrupt to make a payment in the one case and seizing it by attachment in the other, both appropriations will be void. (Traders’ Nat'l. Bank v. Campbell, 3 B. R. 498; s. c. 6 B. R. 353; s.c. 2 Biss. 423; s.c. 14 Wall. 87.) The creditor is also liable for the interest from the time of the receipt of the money. (Zraders’ Nat'l Bank v. Campbell, 3 B. R. 498; s.c. 6 B. R. 353; 8. c. 2 Biss, 423; s. c. 14 Wall. 87.) The creditor is only liable to the assignee for what came into his hands from or through the bankrupt, and was not returned to him or his representative, the assignee. He may employ the debtor at a reasonable compensation to take -charge of the property transferred, and deduct the amount actually paid from the sum that comes into his hands. In case of a void assignment, he may also deduct compensation for his own services. (Catlin v. Foster, 3 B. R. 540; s.c. 1 Saw. 87; s.c.1L. T. B. 192.) The assignee holds the title to the property conveyed by way of preference, and the bankrupt law entitles him to recover it, or the value of it. If a convey- ance has been made, or incumbrance imposed on the property by the person claiming it as purchaser under the bankrupt, the law permits the assignee to sue for and recover the-value. It thus enables the assignee to ratify and con- firm the sale, prevents litigation, and at the same time fully secures the rights of creditors. He may release or quitclaim to the purchaser his interest as as- signee, so as effectually to cure any defect theré might be in the title by reason of the proceedings in bankruptcy and the assignment to him. (Winslow v.Glark, 2 Lans. 877; s. c.47 N. Y, 261.) If a transfer is set aside on technical or other grounds entirely consistent with good faith in the transferee, and he appears to have acted under an honest mistake, it may be proper to allow him the amount of the liens which he has paid in order to obtain the benefit of the transfer, but no such allowance will be made where he obtains the property by means which are a clear fraud upon the ‘bankrupt act, and under circumstances which make it a fraud upon other cred- itors, and affurd a presumption of an unlawful intent on his part. (Cookingham v. Morgan, 5 B. R. 16; s. c. 7 Blatch. 480.) When the circumstances of the case and a doubt of the bona jides of the transaction make it reasonable that the assignee should file the bill, it may be dismissed without costs to either party. (Collins v.’ Gray, 4 B. R. 681; 8. ¢. 8 - Blatch. 483.) Where a commission merchant continues to deal with the debtor after he has reasonable cause to believe him to be insolvent, he may be compelled to account for the excess of the consignments over the advances subsequent to that time. {Harrison v. McLaren, 10 B. R. 244.) § 5129. | TRANSFERS OF PROPERTY. 843 Where usury has been exacted of the bankrupt, the excess above the legal rate of interest may be recovered, although the debt has been merged in a judg- ment in a State court. (Shaffer v. Fritehery, 4 B. R. 648; Tiffany v. Boat- men’s Saving Institution, 4 B. R. 601; s.c 9 B. R. 245; s. c.1 Dillon, 14; s.c. 18 Wall. 376.) When the transfer includes articles exempt from levy and sale on execution, the assignee can not recover them or their value. They do not pass to the assignee, nor can their proceeds be distributed as assets, nor can any creditor have any claim to or interest in them. (Grow v. Ballard et al. 2 B. R. 254; s. c. 1L.T.B.1; Brock v. Terrell, 2 B. R. 643.) The assignee is entitled to recover the full amount, although the creditor previous to the payment had drawn a check for a part thereof, which had not been presented or accepted or paid, for the simple drawing of a check does not transfer the fund. (Strain v. Gourdin, 11 B. R. 156; s. c. 2 Woods, 380.) Sec. 5129.—If any person, being insolvent, or in contempla- tion 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 disposition of any part of his property to any person who then has reasonable cause to believe him to be insolvent, or to be acting in contemplation of insolvency, and* knowing 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 distributed under this Title,t or to defeat the object of, or in any way impair, hinder, impede, or delay the operation and effect of, or to evade any of the provisions of this Title, the sale, assignment, transfer, or conveyance sball be void, and the assignee may recover the property, or the value thereof, as assets of the bankrupt. Statute Revised—March 2, 1867, ch. 176, § 35, 14 Stat. 5386. Prior Statute —Aug. 19, 1841, ch. 9, § 2, 5 Stat, 442. This and the preceding sections differ mainly in their application to two different classes of recipients of the bankrupt’s property or means. The preceding section is limited to a creditor or person having a claim against the bankrupt, or who is under any liability for him, and who receives the money or property by way of preference; and this section applies to the pur- chase of property of the bankrupt by any person who has no claim against him, and is under no liability for him. ‘hat the preceding section is con- fined to persons of that character named can not well be doubted, since the acts therein mentioned are acts done with persons of that character, and must be done with a view to giving such a person a preference over others of the same class. hat this section has reference to another class of persons, and is governed by other rules, seems to be strongly sustained by these considerations: 1st. The sale, or other transfer of property mentioned in it, need not be in preference of a creditor or person liable for the bankrupt to renderit void. 2d. It need not be made to a person of that character. 3d. In the preceding section the trans- fer may still be valid, although within all other conditions of the clause, if made more than four months before the filing of a petition in bankruptcy, while the transfer described in this section requires that it shall have been made more than * So amended by act of 22 June, 1874, ch. 390, § 11, 18 Stat. 180. t So amended by act of 18 February, 1875, ch. 80, 18 Stat. 320. 844 THE BANKRUPT LAW. [§ 5129. six months before the filing of the petition to have the same effect. Congress seems to have thought that in case of a creditor who had parted with his money or property to the insolvent party, and whose reasons for further dealing with him were more pressing, in order that he might be saved from an impending loss, the time which should secure the transaction from the effect of the bankrupt act should be less by two months than in the case of one who has no such incentive to action, because he isa voluntary purchaser of an insolvent’s property, with knowledge of his insolvency. (Bean vy. Brookmyer et al. 4 B. R.196; s. c. 1 Dillon, 24.) The preceding section was intended to refer to the past, and this section to the present. The language employed in the preceding section imports clearly that the consideration must be one growing out of a former transaction, and that the recipient must stand in the relation thus created to the other party. It is equally clear that this section must be limited to cases where the transaction in question was original and complete in itself at the time it occurred, and had no reference for its consideration to anything between the parties which had gone before it. It is only by this construction that the two sections can be made to harmonize, and full and distinct effect be given to each. A mortgage for a present consideration is within this section. (Gibson v. Warden, 14 Wall. 244.) This and the preceding sections must be construed together, and a scope of operation given to each of them if possible. Some effect must be given to the four month’s limitation. This section, with its six month’s limitation, is to be held to cover every case, as well that of a preference to a creditor, as all other cases, the preceding section is useless, and might as well have been omitted. But the partial clause precedes the general clause. The preceding section provides for the case of a transaction done with a veiw to give a prefer- ence to a creditor or person having a claim against the debtor, or who is under any liability for him. In such case, if the transaction takes place within four months before the filing of the petition in bankruptcy, and the other circum- stances specified exist, the transaction is made void. ‘This section must be held to be intended to provide for any disposition of property that is not provided for by the preceding section—that is, for any disposition that does not give such a preference as the preceding section provides for. But whenever a‘case falls within the preceding section, it must, although it may be also in terms witbin this section, be tested as to its validity, and as to the limitation of time prescribed exclusively by the provisions of the preceding section. (Hubbard v. Allaire Works, 4 B. R. 623; 8. c. 7 Blatch. 284; Coggeshall v. Potter, 4 B. R. 78; 8. c. 6B. R. 10; s. c. 1 Holmes, 75; Babbitt v. Walbrun & Co. 4B. R.121; s. ¢. 6 B. R. 359; s. c. 1 Dillon, 19.) This limitation does not, per se, determine what property shall vest in the assignee. ‘There are transfers that may be impeached, even though they were made more than six months before the filing of the petition. (Smith v. Lily, 10 B. R. 553.) , A sale made by a debtor will be fraudulent if the following facts concur : Ist. If the debtor is insolvent, or contemplates insolvency or bankruptcy. 2d. Tf the purchaser, when he buys the goods, has reasonable cause to be- lieve the debtor to be insolvent, or to be acting in contemplation of insolvency. 3d. And knows that the sale was made by the debtor with a view to pre- vent, etc., or to defeat, etc., or to evade, etc., the provisions of the bankrupt act. Sales so made are void, and in fraud of creditors and their richts under the bankrupt law. And, as against the immediate vendee, and all “actual partici- pators, such sales, if made out of the usual and ordinary course of business— as when an insolvent merchant sells out all his stock and property—are prima Jacie evidence of fraud; that is, of the foregoing elements constituting a fraud- ulent sale. But it is only prima facie, and the presumption may be rebutted by evidence aliunde to be produced by the vendee. An instruction to the jury which omits some of the essential elements of frauds, or declares a sale out of § 5129.] TRANSFERS OF PROPERTY. 845 the ordinary course of the debtor’s business necessarily, instead of presumptively, fraudulent, is erroneous. (Babbitt v. Walburn & Co. 4 B. R. 121; 8. ¢. 6 B. R. 359; s.c. 1 Dillon, 19; Andrews v. Graves, 5 B. R.279; 8. c. 1 Dillon, 108 ) The presumption of fraud arising from the usual nature of the sale can only be overcome by proof on the part of the buyer that he took the proper steps to ‘find out the pecuniary condition of the seller. All reasonable means pursued in good faith must be used for this purpose. Merely inquiring the object of the -dcbtor in selling is not sufficient. (Walburn v. Babbitt, 6 B. R. 359; s. c. 9 B. R.1; s. c. 16 Wall. 577.) The degree of inquiry which devolves as a duty upon a person who proposes to make a purchase out of the usual course of business of the seller depends ‘upon the circumstances of the particular transaction. Such a person must in all cases make a reasonable inquiry as to the right of the seller to make the pro- posed sale. (Schulenberg v. Kabureck, 2 Dillon, 132.) Where the circumstances are very suspicious, the purchaser may be held to make diligent inquiry. (Schulenberg v. Kabureck, 2 Dillon, 132.) The mere fact of sales at low prices does not make them sales out of the usual -and ordinary course of business of the vendor, and so prima facie evidence of fraud. The business of a purchaser is to buy as cheaply as he can. Many men relieve themselves from temporary embarrassments when money is dear, by sac- rificing property at low prices to meet their obligations. Such acts are often praiseworthy and successful, and much to be preferred for their own interests and those of their creditors to the incurring of new obligations at exorbitant rates of interest. (Sedgwick v. Lynch, 8 B. R. 289; s. c. 5 Ben. 489.) A debtor whose failure is ultimately caused by his inability to collect debts due to him, can not be said to have been insolvent or in contemplation of in- solvency merely because he was selling his goods at a sacrifice, if he at the time had reasonable cause to believe that he would be able to avoid a failure. (Sedg- wick v. Lynch, 8 B. R. 289; s. c. 5 Ben. 489.) The fact that the debtor put his paper on the street through brokers, is not conclusive evidence that he is insolvent, for a man may sell his paper on the street at a great sacrifice to effect a purpose deemed beneficial by him, and still not be insolvent. (Tiffany v. Lucas, 5 B. R. 487; 8. c. 8 B. R. 49; 8. ¢, 1 Dil- lon, 164; s.c.15 Wall. 410.) The presumption is that street brokers act for others and not themselves. ‘Where a note is offered for discount by a street broker, with the indorsement of ‘a party who is known to have no occasion to go on the street to get paper dis- counted, the purchaser, in the absence of other evidence, will be presumed to know that it is accommodation paper. (Tiffuny v. Boatman’s Sav. Inst. 4 B. R. 601; s.c.9 B. R. 245; s.c. 1 Dillon, 14; s. c. 18 Wall. 376.) The admission in a deed of trust of the inability of the grantor to meet his debts, is sufficient notice of the fact to the grantee. (Slobaugh v. Mills, 8 B. R. 361; s.c.5 0. L. N. 526.) , A person advancing his own money to a trader or other person in business, and taking security from him out of the ordinary course of business, is liable to reconvey the security, although the only fraud intended by the debtor is the payment of a creditor by way of preference. As the assignee can recover from ‘the creditor, who is the party benefited, the court, upon application of the mortgagee, may, on proper terms, direct the assignee to bring an action against ‘the creditor. (Jn re Butler, 4 B. R. 803; s. c. Lowell, 506.) If security is taken for a loan made for the purpose of extinguishing liens upon the debtor’s property, and the money is actually so applied, it is valid. AGaffney v. Signaigo, 1 Dillon, 158.) If the debtor’s father-in-law, when the debtor is known by him to be insolv- -ent, purchases his property, and applies the purchase money to pay off a mort- 46 THE BANKRUPT LAW. [$ 5129. ie upon the property of the debtor's wife, the transaction is a transfer of the -btor’s property to his wife in fraud of his creditors, through the agency of his ther-in-law, for tne benefit of his wife and the mortgagee. (Andrews v. Graves, B. R. 279; s. c. 1 Dillon, 108.) The bankrupt law, conceived and enacted in the belief that it provided the ‘st mode of administering the estate of an insolvent, will tolerate no attempt r individuals to devise and carry into effect some other plan inconsistent there- ‘th, nor permit such an attempt to be justified by the excuse that they thought ch other plan wiser or better. (Cookingham v. Morgan, 5 B. R. 16; 8.0.7 atch. 480.) An assignment is not absolutely void. It is merely voidable, and can not be ipeached unless proceedings in bankruptcy are commenced within six months ser its execution. (Malthie v. Hotchkiss, 5 B. R. 485; s. c. 38 Conn. 80; inre sledge, 1 B. R. 644; Beck v. Parker, 65 Penn. 262; Hobson v. Markson, 1 lon, 421; Reed v. Taylor, 4 B. R. 710; 8. c. 82 Iuwa, 209; in re Pierce & olbrook, 8 B. R. 258; s. c. 16 Pitts. L. J. 204; in re J. S. Cohn, 6 B. R. 879; dgwick v. Place, 1B. R. 673; s. o, 8 B.R. 139; s.c. 8 Ben. 360; s.c 1 L. B. 97; in ve Hawkins e al. 2 B. R. 878; s. c. 84 Conn. 548; in re Broome, 3 R. 348; s. c. 3 Ben. 488; Cragin v. Thompson, 12 B. R. 81; s.c. 2 Dillon, 3; Thrasher v. Bentley, 2 N. Y. Supr. 809; s. c. 59 N. Y. 649; s.c. 1 Abb. C. 89; MeLean v. Meline,3 McLean, 199; McLean v. Johnson, 3 McLean, 2; Cornwell’s Appeal, 7 W. & 8. 805; in re Charles W. Holmes, 1 N.Y. Leg. »s. 211; Weiner v. Farnum, 2 Penn. 146; s. c. 8 Penn. L. J. 440;-in re Anon, Penn, L. J. 823; Sparhawk v. Drewel, 12 B. R. 450; McLean v. Ihmsen, t est. L. J. 189.) An assignment made for the benefit of all creditors equally in good faith, and thout any actual fraud or intent to defeat the operation of the statute, is lid. (Haas vy. O’Brien, 52 How. Pr. 27.) An assignment for the benefit of creditors made more than six months before e commencement of the proceedings in bankruptcy is valid as against the as- nee, (Mayer v. Hellman, 13 B. R. 440; s. c. 91 U.S. 496.) An assignment by one partner of his individual estate for the equal benefit his individual creditors first, and the excvss, if any, to be paid to his partner- ip creditors, may be set aside under this section. (Barnewall v. Jones, 14 B. 278.) An assignment for the benefit of creditors by an insolvent debtor, is conclu- 'e evidence of an intent to defeat the operation of the bankrupt law, and may set aside at the instance of the assignee. (Jackson v. McCulloch, 13 B. R. 3; s. c. 1 Woods, 433.) The trustee and all persons claiming under an assignment are chargeable th knowledge of the terms thereof, and consequently with knowledge of the solvency of the debtor, and his purpose to evade the operation of the bankrupt vw. (Jackson v. McCulloch, 18 B. R. 288; 8. c, 1 Woods, 433.) As the intent of an assignment is to be legally inferred from its necessary idency, the words, ‘‘ with intent to delay or defeat the operation of this act,” slude such a conveyance. They are words of like import with “ puts his es- © into a course of distribution different from that prescribed by the act,’ \ich has been the substance of the language of Lords Mansfield, Eldon, and ensleydale. In the absence of actual fraud, an assignment, though construct- ly fraudulent under the bankrupt law, is not void, but voidable; and is void- le only at the suit of the assignee in bankruptcy. In the United States, the isons for considering an assignment an act of bankruptcy are stronger than »se which prevailed in England. During more than three-quarters of a cen- ‘y, Since the constitution enabled Congress to establish uniform laws on the aject of bankruptcies throughout the United States, there has not been such aw in force, except in two short intervals; and the usages and legislation, as § 5129.] TRANSFERS OF PROPERTY. 847 to voluntary assignments for the benefit of creditors, have, in the mean time, become various in the several States. The abrogation of such local differences at the election of any non-assenting creditor is an essential part of ‘an act to establish a uniform system of bankruptcy throughout the United States.” (Barnes v. Rettew, 8 Phila. 133.) A trustee claiming under an assignment made within two months before the commencement of proceedings in bankruptcy against the debtor, can not main-- tain an action against a judgment creditor who levied on the property after the execution thereof and the commencement of such proceedings. (Dolson v. Kerr, 52 How. Pr. 481.) Tf a receiver has possession of property which has been assigned for the benefit of creditors, the State court will not pass an order allowing the assignee to sue him. (He parte John H, Platt, 41 N. Y. Sup. 518; s. c. 52 How. Pr. 468.) Acts dotie under it previously in good faith may be sustained. An injunction under such a bill may be refused when it would prevent the working out of an equity beneficial to the creditors or the completion of a beneficial sale. (Jn re Pierce & Holbrook, 3 B. R. 258; s. c. 16 Pitts. L. J. 204; Barnes v. Rettew, 8 Phila. 138.) If the trustee has filed a bill in chancery to enforce a right claimed under the assignment, the assignee may elect to come in and prosecute the suit in his name. (Freeman v. Deming, 3 Sandf. Ch. 327.) When an assignment is set aside, it is usual and proper for the decree to contain a direction for a reconveyance by the trustee to the assignee in bank- ruptcy. Although the decree annuls the assignment, and orders a surrender of the estate, yet the conveyance, by a deed cf surrender, may effectuate or facilitate the purposes of the decree. (Burkholder y. Stump, 4 B. R. 597; s. c. 8 Phila. 172.) The assignee may apply to the State court for an order upon the trustee to surrender the estate to him. (Cragin v. Thompson, 12 B. R. 81; s. c. 2 Dillon, 513.) If the trustee surrenders the property to the assignee, he should be protected: in so doing by the State court. (Cragin v. Thompson, 12 B.R. $1; 8.06.2 Dillon, 513.) A surrender of a part of the property to the debtor prior to the commence- ment of proceedings in bankruptcy will not relieve an assignee from the legal effect of the deed of trust, and he must account therefor. (Stobaugh v. Mills, 8 B. R. 3861; s.c.5 C. L. N. 526.) Where the assets have been changed by the trustee, the assignee may receive the money or other proceeds in lieu thereof. (McLean v. Johnson, 3 McLean, 202.) 2 Money paid by the trustee to discharge valid liens on the property, in pur- suance of the terms of the trust, can not be recovered from the secured creditor. (Livingston v. Bruce, 1 Blatch. 318.) The trustee is entitled to be credited with the payments to lawful creditors made by him in accordance with the terms of the assignment, before the institu- tion of a suit by the assignee, and is not liable to the assignee therefor. (Jones v. Kinney, 4 B. R. 649; s. c. 5 Ben. 259; Cragin v. Thompson 12 B. R. 81; s. c. 2 Dillon, 518.) The trustee is liable for the balance that remains in his hands undistributed. (Jones v. Kinney, 4 B. R. 649; s.c. 5 Ben. 259; Everett v. Stone, 8 Story, 446.) A creditor who has received a payment under an assignment is liable to the assignee therefor. (Jones v. Kinney, 4 B. R. 649; s. c. 5 Ben, 259; Cragin vy. Thompson, 12 B. R. 81; 8. c. 2 Dillon, 513 ) 348 THE BANKRUPT LAW. [$ 5129. The expenses of converting the property into money may be allowed to a trustee under anassignment, (Jn re J.S. Cohn, 6 B. R. 379; Stobaugh v. Mills, 8 BR. 361; s.c. 5 C. L. N. 526; Macdonald v. Moore, 15 B. R. 26; s. c. 1 Abb. N. ©. 58; contra, in re Stubbs, 4B. R. 376.) Every person receiving an assignment, ought to know that it is liable to be set aside, if a bankruptcy follows, and the allowance to him of his charges and expenses ought to be refused where it can not be so guarded as to prevent any injuridus duplication of charges. In some of the judicial districts the allowance is refused wholly. No allowance can be made for the expense of a future settle- ment of the trustee’s account in the court of a State under its laws relating to as- signments. (Burkholder v. Stump, 4 B. R. 597; 8. c. 8 Phila. 172.) The trustee can not be allowed for any disbursements or expenses which he made or incurred by virtue of the assignment, or to maintain his title or posses- ‘sion thereunder. (Clark v. Marz, 6 Ben. 275.) An assignment for the benefit of creditors, which gives priority to certain cred- itors, is not void except as against the assignee in bankruptcy. (Shryock v. Bashore, 13 B. R. 481; s. c. 15 B. R. 283; s. c. 82, Penn. 159.) As assignments is valid as against a judgment creditor who lays an attachment in the hands of the trustee. (Cook v. Rogers, 13 B. R. 97; s.c. 31 Mich. 391; s. ©. 14 A. L, Reg. 633.) Acreditor can not levy upon the property transferred by an assignment, although it is void under the bankrupt law, for it is void only as to persons claiming in virtue of proceedings under the statute. (Dodge v. Sheldon, 6 Hill, 9.) An assignment is void only as against the assignee. The trustee who has re- ceived the property in trust, to apply it to the payment of creditors, can not allege that the assignment was void under the bankrupt law, without showing that the property has been recovered from him by the assignee. (Seaman v. Stoughton, 3 Barb. Ch. 344.) If an action by the assignee against the trustee to vacate the assignment is pending, and there is no collusion, the trustee can not be compelled to account by acreditor until a definite result is reached. (Jn re Bowery Nat'l Bank, 1 Abb. N. C. 404.) If the debtor, after making an assignment, takes the benefit of a State in- ‘solvent law, which merely protects the person from imprisonment, and does not affect contracts, the property will pass to the insolvent trustee, and can not be recovered by an assignee appointed in bankruptcy proceedings subsequently commenced. (Sullivan y. Hieskill, Crabbe, 525; s. c. 4 Penn. L. J. 171.) A levy under an execution issued upon a judgment obtained in the regular course of judicial proceedings is valid, although it is made after an assignment which is void under the bankrupt law. (McLean v. Meline, 8 McLean, 199.) The money paid by a trustee to an attorney can not be allowed. (Jn re J. S. Cohn, 6 B. R. 379.) Where a judgment is obtained after the execution of an assignment, but be- fore the commencement of proceedings in bankruptcy, the creditor should be permitted to sell the real estate, and try his right in an action of ejectment. (Reeser v. Johnson, 10 B. R. 467; s. c. 76 Penn. 313.) When a transfer is made void as to the assignee, his title relates back to the time of the transfer, and no judgment or execution obtained or levied after the transfer and before the commencement of the proceedings in bankruptcy is a lien on the property. (Jn re Solomon Biesenthal, 15 B. R. 228; contra, Mac- donald vy. Moore, 15 B. R. 26; s. c. 1 Abb. N.C. 53 ) A mortgage made to a person who indorses a note for the debtor is valid if § 5129. ] TRANSFERS OF PROPERTY, 849 the debtor never becomes bankrupt, although it was made to the indorser to evade the provisions of the bankrupt law. (Boyd v. Parker, 48 Md. 182) A married woman can not claim a homestead out of the property of her husband, at the same time that he seeks relief and a discharge from his debts in a court of bankruptcy. He, being fully cognizant of the action his wife is tak- ing, and offering no objection thereto, thereby showing consent on his part, is in the same condition as if he had made a transfer of the property to his wife, and she, being fully cognizant of his application for the benefit of the bankrupt act, and accepting such transfer by the action she took, is in the same condition as if she had accepted a deed of the property from him; and such a transfer is void. (In re Askew, 3 B. R. 575; in re Boothroyd & Gibbs, 14 B. R. 223.) There is nothing in the bankrupt law which interdicts the loaning of money to an insolvent, if the purpose is honest, and the object not fraudulent; and it makes no difference that the lender had good reason to believe the borrower to be insolvent, if the loan was made in good faith, without any intention to defeat the provisions of the bankrupt act. It is not difficult to see that in a season of pressure, the power to raise ready money, may be of immense value to a man in embarrassed circumstances, With it he might be saved from bankruptcy, and without it financial ruin would be inevitable. If the struggle to continue his business be an honest one, and not for the fraudulent purpose of diminishing his assets, it is not only not forbidden, but it is commendable, for every one is inter- ested that his business should be preserved. In the nature of things he can not borrow money without giving security for its payments, and this security is usually in the shape of collaterals. Neither the terms or policy of the bankrupt act are violated, if these collaterals be taken at the time the debt is incurred, His estate is not impaired or diminished, as he gets a present equivalent for the securities he pledges for the repayment of the money borrowed. (Tiffany v. Boatman’s Sav. Inst. 4 B. R. 601; s.c. 9 BL R. 245; 8. c. 1 Dillon, 14; s. c. 18 Wall. 376; Bentley v. Wells, 61 lll. 59; in reMcKay & Aldus, 7 B. R. 230; s. c. Lowell, 561.) Clearly all sales are not forbidden. It would be absurd to suppose that Con- gress intended to set the seal of condemnation on every transaction of the bank- rupt which occurred within six months of bankruptcy, without any regard to its character. A policy leading to such a result would be an excellent contrivance for paralyzing business, and can not be imputed to Congress without an express declaration to that effect. The interdiction applies to sales for a fraudulent object, and not to those with an honest purpose. The law does not recognize that every sale of property by an embarrassed person is necessarily in fraud of the bankrupt act. If it were so, no one would know with whom he could safely deal, and a person in this condition would have no encouragement to make proper efforts to extricate himself from difficulties. It is for the interest of the com- munity that every one should continue his business, and avoid, if possible, going into bankruptcy. (Tiffany v. Lucas, 5 B. R. 437; s. c. 8 B. R. 49; s. c. 1 Dil- lon, 164; s. c. 15 Wall. 410; Wadsworth v. Tyler, 2 B. R. 316; s.c. 2 L. T. B. 28; in re Pusey, 7 B. R. 45; Gillenwaters v. Miller, 49 Miss. 150.) If it shall turn out on examination that the transfer was made by the bank- rupt in good faith, for the honest purpose of discharging his indebtedness, and in the confident expectation that by so doing he could continue his business, it will beupheld. (Tiffany v. Lucas, 5 B. R. 437; s. c. 8 B. R..493; s. c. 1 Dillon, 164; s. c. 15 Wall. 410.) A fair exchange of value may be made at any time, even if one of the parties to the transaction is insolvent. There is nothing in the bankrupt act, either in its language or object, which prevents an insolvent from dealing with his prop- erty, selling or exchanging it for other property, at any time before proceedings in bankruptcy are taken by or against him, provided such dealing is conducted without any purpose to defraud or delay his creditors, or give a preference to any one, and does not impair the value of his esate. His creditors can only 54 850 ; THE BANKRUPT LAW. [$ 5129. complain if he wastes his estate, or gives a preference in its disposition to one over another. His dealing will stand if it leaves his estate in as good plight and condition as previously. (Oooh v. Tullis, 9 B. R. 483; 8. c. 18 Wall. 332; Clark y. Iselin, 9 B.R.19; s. c. 11 B. R. 837; sc. 21 Wall. 360; s.c. 10 Blatch. 204.) If a party who owes money to an insolvent debtor pays him in good faith, without having reasonable cause to believe that the latter intends to make fraud- ulent preferences or payments therewith, the assignee can not recover the sum so paid. (Borland v. Philips, 2 Dillon, 383.) A party who accepts a draft with the intent thereby to enable the drawer to give a preference to the holder, can not be compelled to pay the same. (fox v. Gardner, 12 B. R. 187; s. c. 21 Wall. 475.) If a party who owes money to the bankrupt, pays it to one of the banke rupt’s creditors, with the intent thereby to enable him to obtain a preference, he will be deemed to still hold the money, and is liable to the assignee therefor. (Fox v. Gardner, 12 B. R. 187; s. c. 21 Wall. 475.) There is no arbitrary rule by which the good faith of a transaction .can be tested. (Tiffany v. Lucas, 5 B. R. 487; 8. c, 8 B. R. 49; 8, c. 1 Dillon, 164; s, c. 15 Wall. 410.) The existence on the part of the vendee of a reasonable cause to believe each of the two elementary facts, to wit, the insolvency of the debtor, and the debtor’s intention to contravene the bankrupt act, must be satisfactorily proved to render a deed void. (Tiffany v. Lucas, 5 B. R. 487; s.c.8 B. R. 49; 3c. 1 Dillon, 164; s. c. 15 Wall. 410; Judson v. Kelty, 6 B. R. 165; s. c. 5 Ben. 348; s.c. 2 L.T. B. 218; Bentley v. Wells, 61 Ill. 59.) If a corporation, whose charter prohibits it from taking interest beyond a certain per cent. makes a Joan, upon interest above the rate thus prescribed, to a party who is subsequently declared to be bankrupt, and takes securities therefor, the assignee can only recover the excess, and the securities will be valid for the principal debt, with legal interest. The line which separates that which is authorized from that which is prohibited, is plainly drawn, and the division easily made, The power of the corporation to make loans is expressly conferred, and therefore exists; the limitation is only as to the rate. Up to the limitation, all is good; beyond ‘that, bad. The parties are not in pari delicto, and as to the excess above the principal and lawful interest, the corporation is under a liability to the assignee. (Tiffany v. Boatman’s Sav. Inst. 4 B. R. 601; 3.0.9 B.R. 245; s.¢.1 Dillon, 14; sc. 18 Wall. 376.) Every case must be decided on its own facts, and it will never be possible to lay down any general formula applicable to all cases. The intent to prefer a creditor necessarily involves the idea of an expectation of paying some others less than their whole debt, and this expectation is not always proved by the proof even of a known insolvency. There must be a fear or anticipation of stopping payment, which, indeed, may often be inferred from insolvency or from acts which have a tendency to produce it, but which is to be decided as a fact in each case. A sweeping rule should not be adopted, prohibiting insolv- ent persons from borrowing money on a mortgage, even of their stock in trade, or requiring mortgagees to see to the application of the money they lend. (Hz parte Packard, Lowell, 528.) A sale by an insolvent person, though known to be insolvent, is not therefore necessarily void, otherwise an insolvent person could not lawfully dispose of any of his property. (Babbitt v. Walbrun & Co. 6 B. R. 359.) A morigage made by a debtor to secure the compensation for services to be rendered by an attorney in the preparation of his petition and schedules in bankruptcy is void. A bankrupt can no more execute a conveyance in order to secure a fee to his lawyer than to secure the claims of any other creditor. The claim of a lawyer for professional services, no matter how meritorious or neces- § 5129.) TRANSFERS OF PROPERTY. 851 sary such services may have been, is not a preferred one. (Jn 7¢ Thos. C. Evans, 8 B. R. 261; tm re Mallory, 4 B. R. 153; s.c.-2 L. T. B. 180; contra, in re Sidle, 2 B. R. 220; in ve Rosenfield, 2 B. R. 117; 3.0 1L.T. B.100; 308 A. L, Reg. 44; Triplett v. Hanly, 1 Dillon, 217.) If an insolvent debtor pays a fee to an attorney for the purpose of hindering, delaying, or impeding the provisions of the act, and the attorney knows that the debtor is insolvent, and that such is his purpose, the fee may be recovered by the assignee. ((oodrich v. Wilson, 14 B. R. 555; s. c. 119 Mass, 429.) A declaration which avers that the debtor did on wu certain day transfer, assign and convey certain property to the defendant, covers any transfer, assign- ment, or conveyance during the six months prior to the filing of the petition. (Andrews v. Graves, 5 B. R. 279; s. c. 1 Dillon, 108.) When the record of the proceedings in bankruptcy is produced and recog- nized as in evidence, and no objection is made that they are not formally read or off-red in evidence, they are evidence. (Andrews v. Graves, 5 B. R. 279; s. ¢.1 Dillon, 108.) The record of the proceedings in bankruptcy is admissible to show the fact of adjudication, and the appointment of the assignee. (Babbitt v. Walbrun & Co. 6 B. R. 859.) The record of a suit for an injunction, to which the person making the pay- ment was a party, is competent evidence to establish mala fides in a payment made after the service of an order for an injunction. (Babbitt vy. Burgess, 7 B. R. 56); s, c. 2 Dillon, 169.) Although a register has no authority to take a deposition to be used in a controversy at law between the assignee anda purchaser, yet he has full authority to administer oaths, and when, by the assent of parties, he takes a deposition to be used as evidence in a cause, the same becomes a sworn statement made in the case to be used as evidence therein, to which the party causing the same to be taken can not object. The officer ought to cause the same to be transmitted to the court for the benefit of all concerned, and the party at whose instance it was taken can not except thereto nor cause it to be suppressed on the ground of ay irregularity or informality. (Andrews v. Graves, 5 B. R. 279; s. ce. 1 Dil- lon, 108.) y When the records are before the court, the judge may state to the jury the date of the filing of the petition in bankruptcy. (Andrews v. Graves, 5 B. R. 279; s. c. 1 Dillon, 108.) When it is proposed to affect a second vendee, such vendee must be shown to have participated in the original fraudulent sale, or it must be shown that he knew, or at least had reasonable cause to know, the facts which make the first sale fraudulent, The mere fact, without more, that the second vendee knew that the first sale embraced all the stock of the insolvent vendor, is not enough to make his purchase fraudulent in law. The title of the second vendee can only be impeached when it is shown that he participated in the fraudulent sale, or, if this is not shewn, then by showing that his purchase was actually mala fide ; that is, made with knowledge that the sale to the first vendee was fraudulent; and the mere fact that the second vendee knew that the sale to the first vendee was made out of the ordinary course of business, will not alone defeat the title of the second vendee. It is only a circumstance proper as evidence to go to the jury on the question of the bona fides of the purchase by the second vendee. The distinction is to be observed between fraud and the evidence which goes to establish fraud. (Babbitt v. Walbrun & Co. 4 B. R. 121; s.c. 1 Dillon, 19; Ra- hilly v. Wilson, 8 Dillon, 420; s. c. 5 C. L. N. 217) If a mortgage is sustained, an accounting for the transactions connected with it can not take place in a suit brought to set it aside, but must take place in some other suit based upon its validity. (Sedgwick v. Wormser, 7 B. R. 186.) 852 THE BANKRUPT LAW. [§$ 5130. Where the purchase is joint, the judgment should be joint, and not a sepa- rate judgment against each proportioned to the sum which they separately paid for the property. (Schulenberg v. Kabureck, 2 Dillon, 182 ) Src. 5130.—The fact that such a payment, pledge, sale, assign- ment, transfer, conveyance, or other disposition of a debtor’s prop- erty as is described in the two preceding sections is not made in the usual and ordinary course of business of the debtor, shall be prima facie evidence of fraud. Statute Revised—March 2, 1867, ch. 176, § 85, 14 Stat. 536. The words, “sale, assignment, transfer, or conveyance,” employed in this clause, are of comprehensive import, and embrace almost every disposition of the property, whether absolute or conditional. Both the antecedent paragraphs refer to and are designed to protect the property of the insolvent, and the clause as to fraud is designed to the same end. All these provisions relate to the same subject-matter, viz., the property, and all three aim to protect property of insolv- ents from fraudulent disposals. (Scammon v. Cole, 3 B. R. 393; s. c. 5 B. R. 257; s.c.2 L. 1. B. 1038; Driggs v. Moore, Foot & Co. 3 B. R. 602; 8. c.1 Abb, C. C. 440; Babbitt v. Walbrun & Co. 4B. R. 121; s. c. 1 Dillon, 19.) Tf a sale is made, not out of the usual course of general trade, but out of the usual course of trade of the debtor; that is, if it is unusual in the time, or place, or character, or quantity of the goods sold, or in other respects, having reference to the then business of the vendor; such facts, as against the vendee, sball be prima facie evidence of fraudin him. In other words, in the absence of counter testimony, it will be presumed that he, at the time of purchase, knew that the vendor was insolvent, and that the vendor was making the sale to prevent all or some portion of his property as the case may be, from passing to his assignee, and so evading and defeating the provisions of the law. But upon an issue of title between the assignee and vendee, it is first incumbent upon the former to show the unusual character of the sale before the presumption of fraud will arise against the vendee. Cases may occur involving all the elements of fraud, so far as the vendor is concerned, and yet be made valid by the palpable presence of good faith in the vendee. (Jn re Josiah D. Hunt, 2 B. R. 5389; s.c. 1 CO. LN, 169.) The question is not whether such transactions are usual, in the general con- duct 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, And if it is a departure from his usual and ordinary course of business, the statute intends that the party taking the conveyance jrom him shall be put upon inquiry. (Rison v. Knapp, 4 B. R. 349; 8. c. 1 Dillon, 186 ) To bring this clause into operation, it is necessary to show that the trans- fer was made out of the usual and ordinary course of business of the debtor. It is not enough to show that the general business of the debtor was to sell goods, and that a sale of land is not a sale of goods. Without reference to the general business of the debtor, the transfer must be out of his usual and ordinary course of business in respect to an article of the description of that transferred. (Judson v. Kelty, 6 B. R.165;s. c. 5 Ben. 848; s.c.2L. T. B. 218; Tiffany vy. Lucas, 5 B. R. 487; s. c. 8 B. R. 49; s. c. 1 Dillon, 164; s. c. 15 Wall. 410.) A sa’e of a store for the purpose of curtailing business can not be regarded as a thing out of the usual course of business, so as to be prima facie evidence of fruud. (Sedgwick vy. Wormser, 7 B. R. 186.) A sale in bulk or by wholesale is not in the usual course of the business of a retail merchant, and throws upon the vendee the burden of proof to show its fairness and validity. (Smith v. McLean, 10 B. R. 260.) §§ 5130a4-31.] FRAUDULENT AGREEMENTS. 853 Seo. 5180a (22 June, 1874, ch. 390, § 10, 18 Stat. 180,.)— That in cases of involuntary or compulsory bankruptcy, the period of four months mentioned in section five thousand dne hundred and twenty-eight [thirty-five] of the act to which this is an amend- ment, is hereby changed to two months, but this provision shall not take effect until two months after the passage of this act, and in the cases aforesaid, the period of six months mentioned in said section five thousand one hundred and twenty-nine [thirty-five] is hereby changed to three months, but this provision shall not take effect until three months after the passage of this act. Sec. 5131.—Any contract, covenant, or security made or given by a bankrupt or other person with, or in trust for, any creditor, for securing thé payment of any money as a consideration for or with intent to induce the creditor to forbear opposing the applica- tion for discharge of the bankrupt, shall be void; and any creditor who obtains any sum of money or other goods, chattels, or security, from any person as an inducement for forbearing to oppose, or consenting to such application for discharge, 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 muney, goods, chattels, or security so obtained, to be recovered by the assignee for the benefit of the estate. Statute Revised—March 2, 1867, ch. 176, § 85, 14 Stat. 536. A note of which a part of the consideration is an agreement to dismiss pro- ceedings in bankruptcy against the maker, is neither founded upon an illegal consideration, nor void as against the policy of the bankrupt act. (Repplier v. Bloodgood, 1 Sweeny, 34.) : A promise by the bankrupt to pay a note in consideration that the holder would withdraw his opposition to the maker’s discharge asa bankrupt, is illezal and void. Even without the statute it would be void. FSuch a promise is a fraud upon the other creditors, and is contrary to public policy. (Austin v. Markham, 10 B. R. 548; s. 0. 44 Geo. 161; Rice v. Muawell, 21 Miss. 289; vide Bell v. Leggett, 2 Sandf. 450.) A note made by the wife of the bankrupt after his discharge, and passed to a creditor in pursuance of an agreement that he should be paid for assenting to the discharge, is void. (Blasdel v. Fowler, 120 Mass. 447.) , The payments which the law makes void are those which reduces the means of the debtor to pay his debts ratably. _A change in the form of his own obli- gation from an account toa note, could not have the effect; neither could the accommodation indorsement with which a friend might favor him. These cir- cumstances work no wrong to the other creditors. | A note so indorsed is valid and may be enforced. (O'Connerv. Parker, 4 B. R. 713; 8. c, 23 Mich. 22; Noble v. Scofield, 44 Vt. 281; Dalrymple v. Hillenbrand, 62 N. Y.5; sc 5 N. Y. Supr. 57; Boyd v. Parker, 48 Md. 182.) If a party signs a note as surety, and takes property from the principal to indemnify him for his liability, the fact that the property is subsequently taken from him by the assignee of the principal, on the ground that the transfer was void under the bankrupt law, does not constitute a valid defense to the note. (Noble v. Scofieli, 44 Vt. 281.) 854 THE BANKRUPT LAW. [§ 5189. If a note is given upon the consideration or with the intent specified in this section, it is void even in the bands of a lena fide holder, for no exception is made in favor,of innocent holders of negotiable securities made in violation of the law. (Dalrymple v. Hillenbrand, 62 N. Y. 5; s.c. 5 N, Y. Supr. 57.) A note given by a third person, withont the knowledge or intervention of the bankrupt, to induce a creditor to withdraw his objections to the bankrupt’s discharge, is founded on an illegal consideration, and is void. (Bell v. Leggett, 7 N.Y. 176) A note given in consideration of a promise by the payee to dismiss pro- ceedings in bankruptcy instituted by him, and to procure the assent of other creditors to a composition for a Jess sum than he receives, can not be enforced against the indorser if the promise is not performed. (Claflin v. Torlina, 11 B. R. 521; s.c. 55 Mo. 569.) An agreement between creditors who have received preferences to contribute proportionately such sum as may be necessary to induce other creditors to for- bear to put the debtor into bankruptcy, is valid. (Perryman v. Allen, 15 B. R. 118; s. c. 50 Ala. 573.) An agreement by a debtor to consent to an adjudication of bankruptcy, and to procure the consent of his copartners to an adjudication against the firm, is not in fraud of the bankrupt law, and the debtor may recover the consideration therefor. (Sanford v. Huxford, 32 Mich. 313.) Src. 51382.—Every person respecting whom proceedings in ‘ bankruptcy are commenced, either upon his own petition or upon that of a creditor: First. Who secretes or conceals (a) any property belonging to luis estate ; or, Second. Who parts with, conceals, destroys, alters, mutilates, or falsifies, or causes to be concealed, destroyed, altered, muti- lated, or falsified, any book, deed, document, or writing relating thereto; or, Third. Who removes, or causes to be removed, any such property or book, deed, document, or writing out of the district, or otherwise disposes 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 him in recovering or receiving the same; or, Fourth. Who makes any payment, gift, sale, assignment, transfer, or conveyance, (5) of any property belonging to his estate with the like intent; or, Fifth. Who spends any property belonging to his estate in aming; or, Sixth. Who, with intent to defraud, willfully and fraudulently conceals from his assignee, or omits (c) from his inventory, any property or effects required by this Title to be described therein; or, Seventh. Who, having reason to suspect that any other person has proved a false or fictitious debt against his estate, fails to dis- close the same to his assignee within one month after coming to the knowledge or belief thereof ; or, § 5182.] PENALTIES. 855 Eighth. Who attempts to account for any of his property by fictitious losses or expenses; or, Ninth. Who, within three months before the commencement of proceedings in bankruptcy, under the false color and pre- tense (¢) of carrying on business and dealing in the ordinary course of trade, obtains on credit from any person any goods or chattels with intent to defraud; or, Tenth. Who, within three months next before the commence- ment of proceedings in bankruptcy, with intent to defraud his creditors, pawns, pledges, or disposes of, (e) otherwise than by transactions made in good faith in the ordinary way of his trade, any of his goods or chattels which have been obtained on credit and remain unpaid for, Shall be punishable by imprisonment, with or without hard labor, for not more than three years. Statute Revised—March 2, 1867, ch. 176, § 44, 14 Stat. 539. Prior Statute —April 4, 1800, ch. 19, § 23, 2 Stat. 23. (a) A person is not criminally liable for the payment of fair current ex- penses for the support of his family between the commencement of proceedings in bankruptcy against him and the final adjudication. (Jn re Brooks, 5 Pac. L. R. 191.) If the bankrupt bas been examined before the register in regard to the prop- erty which is charged to have been concealed, no demand before the indictment is necessary. (U.S. v. Smith, 13 B. R. 61.) (6) The gist of the offense created by this clause is a conveyance with intent to keep property from an assignee in bankruptcy, and the offense can not be committed unless proceedings in bankruptcy have been commenced in a court of competent jurisdiction, in which an assignee can be appointed. An indict- ment for a misdemeanor must state an offense, and must convey to the accused the information necessary to enable him to make his defense. A mere averment of the commencement of proceedings in bankruptcy, pursuant to the act, with- out in any way describing the proceedings, except by the names of the creditors, and the words “pursuant to the act,” is insufficient, for it does not state a time nor a place, nor a tribunal before which the alleged proceedings in bankruptcy were taken, subsequent to which and with reference to which the accused made the alleged conveyance of property, nor allege any adjudication or proceedings in bankruptcy before a court of competent jurisdiction, nor set forth any facts from which it can be seen that any court had jurisdiction of the proceedings al- lauded to. (U. S. v. Latorre, § Blatch. 184.) (c) This clause is not qualified by the original limitation of time. It isa new division of the subject, and one which requires no such limitation, because the prohibited act can not be committed before bankruptcy. The offense is complete if a bankrupt fraudulently omits from his schedule any property or effects with the designated intent. It is complete without a final examination. In practice, there is no last examination in bankruptcy, nor any examination at all, unless specially ordered. When the indictment does not on its face show that the defendant was a citizen of the United States, it need not aver that he took the oath of allegiance. If the defendant was a citizen, and neglected to take the oath, he must show it in defense. (U.S. v. Clarke, 4 B. R. 59; 8.¢. 1 L. T. B. 237; s.c. 3 L. T. B. 223.) The proceeding may be by information and not indictment. (U. 9. v. Block, 9 C. L. N. 284.) 856 THE BANKRUPT LAW. [§ 51382. (d) Neither as to the proccedings nor jurisdiction of the court in bankruptcy is it sufficient in an indictment, under the act, to rely merely upon a generat averment. All matters necessary to constitute the offense must be pleaded.’ It” is not sufficient to aver that proceedings in bankruptcy were duly commenced. Jt must be pleaded and proven, in order to convict, that a petition in bankruptcy was presented to the district court by a certain creditor, naming him, and also the amount of the debt of such petitioning creditor, and the alleged case of bankruptcy, and the adjudication of bankruptcy. It must appear affirmatively that the petitioning creditor had a right, under the law, to commence and prose- cute proceedings in bankruptcy. The amount of his debt must appear, otherwise the court would have no jurisdiction. It mustappear that the bankrupt obtained’ goods within three months of the bankruptcy by means of a representation, which he knew to be false, that he was carrying on business and dealing in the ordinary course of trade, and such representation must actually be made by him. The description of the goods obtained by the defendant should state a certain number of packages, instead of a large quantity. ‘This can be ascertained from the bills of sale. The description of the goods in an indictment should be as definite as in a declaration in trover. The word feloniously should be omitted. The offenses made indictable are. misdemeanors. And in drawing indictments, . figures for dates should not be used. (U. 9. v. Prescott et al. 4 B. R. 112; 8. e 2 Abb. C. C. 169; s. c. 2 Biss. 325;.8.c. 2 L. T. B. 184.) 1 To constitute the offense the accused must— 1. Obtain goods and chattels from some person or persons on credit, under the false pretense of carrying on business and dealing in the ordinary course of trade. 2. Such credit must he obtained within three months before the commence- ment of proceedings in bankruptcy. 8. Such goods and chattels must be obtained on credit as aforesaid with in- tent to defraud. The obvious purpose of the statute is to prevent persons from obtaining goods on credit, with the expectation on the part of those who give the credit that they will be disposed of in the ordinary course of business, when in fact, the purchaser intends to dispose of such goods in some extraordinary or un- usual manner, or knows that he is insolvent, and that the goods will go into the hands of his assignee in bankruptcy, and be disposed of for the benefit of his: creditors generally, and not in the usual course of trade. It was to prevent men from abusing their credit, and imposing by means of it upon others, that the act was passed to compel, so far as law will do it, the observance of good faith in commercial transactions between business men. A man’s intentions can only be ascertained from his acts. Criminal intentions are not, as a rule, divulged, but are to be inferred from the conduct of the parties. From the cir- cumstances surrounding the whole transaction, the jury are to infer what was the probable purpose and intent of'the defendant at the time he obtained the goods. The short time that elapsed between the purchase and the unusual transfert of the goods, the false and conflicting statements made by him in re- gard to his financial condition, and the subterfuges and acts resorted to by him to keep his creditors quiet, are circumstances to be considered as tending to show a fraudulent intent. The criminal intent is not to be presumed without evidence. The law presumes every one innocent until proven guilty, and the defendant is entitled to the benefit of every reasonable doubt. The doubt must be a reasonable doubt—a doubt engendered by the insufficiency of the evidence for the prosecution to establish a belief of guilt. In other: words, it must be unreasonuble to believe him guilty under all the proofs in the casa, (U. Sv Frank, 8 B. R. quarto, 175; 8, c. 2 Biss. 268; U. &. v. Geary, 4B R 534; U. 8. vy. Thomas, 7 B. R. 188; U. 8. v. Penn, 18 B. R. 464.) a S i ; ee ec ean obtaining goods under all false colors and pre- enses, but against the single one—that of carrying on busi a ing i the ordinary course of trade. (U.S. v. Penn, 13 Be R. 464.) eer § 5132.] PENALTIES. 857 The pretense may be by conduct as well asby words. (U.S. v. Penn, 18 B. R. 464.) This section does not reach an offense which consists in a conspiracy to ob- tain goods under false pretenses. The adjudication of bankruptcy against one of the parties engaged in such a conspiracy does not divest the State courts of jurisdiction to try the other conspirators. (Comm. v. Walker, 4B. R. 672; s. c. 108 Mass. 309.) (e) The scope of the act is to punish frauds on the creditors generally and not on the particular creditor who sold the goods, and an indictment which charges a fraud on one creditor only can not be sustained. If the goods were obtained upon credit with the intent of disposing of them to raise money, the fraud on the seller would be the most obvious one; but the object of the statute seems to be to punish fraud on the creditors generally, and it does not refer the intent to the time of the disposing of the goods out of the usual course of the trade, and at that time the fraud would not be of one creditor more than of the rest. (U. 8. v. Clark, 4 B. R. 59; s.c. 1 L. T. B. 287; 8. ¢c. 3L. T. B. 223; U. 8. v. Penn, 18 B. R. 464.) When there isa several finding on each count, the verdict can not be set aside if either of the counts is good. (U.S. v. Clark, 4B.R.59; s.c.11L. T. B. 287; s.c. 8 L. T. B. 223.) The making ofa fraudulent chatte! mortgage renders a party liable under this provision. (U. S. v. Bayer, 18 B. R. 88.) It is not necessary that the goods which have been fraudulently disposed of shall have been obtained within three months before the commencement of the proceedings in bankruptcy. (U. S. v. Smith, 13 B. R. 61.) The intent to defraud may be established by facts and circumstances. (U. 8. v. Penn, 13 B. R. 464.) The intent to defraud may be inferred from all the circumstances of the case. (U. 8. v. Smith, 13 B. R. 61; 7. 8. v. Bayer, 18 B, R. 88.) It must be shown that the intent existed in the mind of the defendant at the time the sale was made. (U7. S. v. Penn, 18 B. R. 464.) Every man is presumed to intend the usual and ordinary consequences of an act. (U.S. v. Smith, 13 B. R. 61.) When the Government introduces evidence tending to prove that the defend- ant left the State with the intention of remaining absent therefrom, the defend- ant may prove that while on the journey he stated his intention to return. (U. 8. v. Penn, 13 B. R. 464.) , The defendant may put in evidence his former good character in relation to the particular crime with which he stands charged. (U. 8. v. Penn, 13 B. R. 464.) An examination of a witness taken before a commissioner upon an issue con- tained in one of the counts is admissible if he hassince died. (U. S.v. Penn, 18 B. R. 464.) . Quere. Can Congress legislate for frauds committed by a debtor on a single creditor within the same State, unless the act relates to bankruptcy or to some other matter within the Federal jurisdiction? (U. 9. v. Clark, 4 B. R. 59; 8.1L, T. B. 287; s.c.3 L. T. B. 228.) Anjiong the powers of Congress enumerated in the Constitution are the pow- ers “to establish uniform laws on the subject of bankruptcies throughout the United States,” and ‘to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of. the United States, or in any department or officer thereof.” If this clause is a law ‘‘necessary and proper” for carrying 858 THE BANKRUPT LAW. [$ 5182. the bankrupt law into effect, it comes within the latter power named, and is con- stitutional. The subject of bankruptcy, in a general sense, concerns the relation . of debtor and creditor, and, in a particular and no doubt stricter sense, concerns such relation in cases where the debtor is unable or unwilling to pay his debts. Laws upon that subject have for their object the appropriation, either voluntarily or by compulsion, of the debtor’s property to the payment of his debts pro tanto or in full, as the case may be, and the relief of honest debtors. To accomplish this object, these laws are made to operate upon, affect, and control the relations of the parties so as to limit and circumscribe the rights of the debtor in, and his control over, his property, and the rights of others dealing with him in regard thereto, in many particulars, before any proceedings in bankruptcy shall have ‘been commenced by or against such debtor. The meaning of the words ‘“ neces- sary and proper” has been judicially determined by the suepreme court to be “needful,” “requisite,” ‘ essential,” ‘‘ conducive to.” The end sought by a bankrupt law is the appropriation of the debtor’s property to the payment of his debts. This clause is for the prevention of frauds by debtors on their creditors, by which that end may be defeated or impaired, and is clearly conducive and plainly adapted to the end sought, The proceedings in bankruptcy merely con- ‘stitute the machinery by which the appropriation of the debtor’s property to the payment of his debts is attained. The prevention of the fraud denounced by the clause being conducive to that end, it makes no difference whether it relates toa fraud committed-before or after the machinery provided for the accomplishment of the end is set in motion. A debtor may or may not be a bankrupt. From the fact that both words “debtor” and “ bankrupt,” are used, and in the dis- junctive, it must be held that the former is used in the clause as descriptive of a person who is a debtor, but who has not at the time of committing the offense, become a bankrupt. The “subject of bankruptcies,” however, as used in the Constitution, concerns the relation of debtor and creditor. The provision in re- gard to the time is merely a limitation. The act which the clause purports to punish is an offense the moment it is committed. (U. S. v. Pusey, 6 B. R. 284; s.c. 6 L. T. B. 184.) The duty of a commissioner is narrowed to the single inquiry, not whether there is sufficient legal evidence to convict and imprison the accused, but whether there is a prima facie case. If probable cause is shown to justify the belief that the accused has committed the crime charged, he should be committed for trial. (U. 8. v. Thomas, 7 B. R. 188.) If the bankrupt and other persons conspire to commit the acts made criminal by this section and either does any act in pursuance of such conspiracy to effect its object, they are liable to indictment under section 5440, (U. 8. v. Bayer, 13 B. R. 400.) NOTES TO RULES. RULE T. Tux entry required by this rule should be made on every paper filed with the clerk, whether filed with him in the first instance, or with the register first and then with him. Such entry is a certificate for which he is entitled to charge fifteen cents. (Jn re John W. Dean, 1 B. R. 249; s.c. 1 L, T. B. 9.) RULE IV. The proceedings which are required to be had before a register are proceed- ings which are to take place@after an adjudication in involuntary bankruptcy, or after the filing of a voluntary petition whereon an adjudication can be immedi- ately had. (Jn re Holmes & Lissberger, 12 B. R. 86; s. c. 49 How. Pr. 142.) When the petitioner fails to appear on the day appointed in the order of reference, he may appear at any subsequent day, but should file a written affi- davit explaining the delay. (Jn re Hatcher, 1 B. R. 399.) RULE V. Registers nay take cognizance of uncontested petitions filed by an attorney against the assignee to compel the payment of his fees and disbursements. (Jn re Henry H. Stafford, 13 B. R. 378.) RULE VII. The register’s certificate of correctness is not conclusive. (Jn re W. D. Hill, 1B.R. 16; s. c. 1 Ben. 321.) RULE XII. All the effect that can be given to this rule, so far as it relates to the mar- shal’s fees, is that he must accompany his return with vouchers whenever prac- ticable. (Jn re Donahue, 8 B. R. 458; contra, inre Talbot, 2 B. R. 280; s. c. 2L. T. B.15.) Whenever vouchers are omitted, the marshal must state in his return the reason for such omission, or produce other testimony for that purpose, in order that the court may judge of the practicability of his obtaining vouchers. (Jn re Eugene Comstock, 9 B. R. 88.) The court may exercise a discretion in the matter, and act upon the account without insisting upon the production of the vouchers, where it is made to ap- pear that they were omitted by oversight, and it is impracticable to obtain them. (dn re Eugene Comstock, 9 B. R. 88.) RULE XIII. This rule, as far as it relates to the seizure of property by the marshal, ap- plies only to involuntary cases. (Jn re Hasbrouck, 1 B. R. 75; s.c. 1 Ben. 860 THE BANKRUPT LAW. This rule provides a particular course of procedure in all cases of controverted possession, both when the property has already come to the hands of the mar- shal as when it is in the hands of the adverse claimant, and the assignee or pe- titioning creditor seeks its possession. The amendment was undoubtedly made on account of the too general terms of the original rule to meet vexed questions of possession, pendente lite. (In re Josiah D. Hunt, 2 B. R. 589; s.c.1C0. L. N. 169; in re Briggs, 3 B. R. 638; s. c. 2 C. L. N. 218.) RULE XIV. This rule prohibits the use of dots to indicate anything necessary to be stated. (Cn re Orne, 1 B. R. 79; s. c. 1 Ben. 420.) An illegible petition can not be filed. (Anon. 1 B. R. 215; in re Robert Malcolm, 4 Law Rep. 488.) Megible schedules should be amended. (Jn re Erie L. Hall, 2 B. R. 192; s c. 16 Pitts. L. J. 52.) RULE XVI. If no express rule were prescribed no doubt would exist as to the proper practice where the jurisdiction of two different courts, to adjudge the debtor bankrupt and administer his estate, should be inveked. The familiar practice of courts of equity acting under the same general jurisdiction would require them, when their jurisdiction should be invoked for the distribution of the same fund by different complainants, to admit the court first obtaining jurisdiction of the fund by the institution of a suit, to proceed therewith to its full and com- plete disposal. The district courts are Federal tribunals acting under Federal laws, constituting a single system operating alike in both jurisdictions, and nec- essarily governed by the same rules, and proceeding to the same identical result. There is but one bankrupt law. The authority and jurisdiction of the courts are derived from one source, aud the reasons for confining the administration of the estate to a single tribunal are of great force. If the character of the case is anomalous, not precisely answering the description of the Rule or the act, the Rule, from its obvious fitness and propriety, should be the guide, to avoid com - plication, embarrassment and expense, if not inevitable conflict. It may not follow that the court in which the latest petition is filed must or ought to dis- miss the proceeding lawfully and regularly instituted, but it should, at least, on proper application, stay the proceedings until some adjudication touching the bankruptcy be had in the tribunal in which the petition was first filed, or, if the debtor has already been adjudged bankrupt there, abstain from an apparent interference with the title of the assignee to the estate. (Jn re Boston R. R. Co. 6 B. R. 209, 222; s. c. 9 Blatch. 101, 409.) RULE XIX. Where there is litigation concerning the property to be exempted, the twenty ane to be computed from the termination of the suit. (In ve Shields, 1 B. . 844.) ‘ The auxiliary “may” in this rule is not to be taken in an imperative sense. The supreme court intended to leave a discretion to the district and circuit courts, to permit them to repair accidents, correct mistakes, and prevent frauds. (In re Perdue, 2 B. R. 183; s. c. 2 W. J. 279.) Where the exceptions go to the title of the exempted property, they need not be filed within the required time. (Jn re Perdue, 2 B. R. 183; s. c. 2 W. J. 279; in re Jackson & Pearce, 2 B. R. 508.) ; . Where the exceptions relate to articles included in the terms ‘ household and kitchen furniture or other articles,” they must be filed within the pre- scribed time. (Jn re Gainey, 2 B. R, 525.) NOTES TO RULES. 861 RULE XXIV. This rule is enabling, not prohibitory. A creditor who does not file his ‘specifications within the prescribed time will lose the opportunity of doing so. But he has the right to file them at any stage of the proceedings. (Jn re Baum, 1 B.R. 5; s. c. 1 Ben. 274; in re McVey, 2 B. R. 257.) Where a creditor regularly enters his appearance, but fails through inad- vertence to file his specifications within the prescribed time, the court, on cause shown, will allow him to file them nunc pro tunc. (In re Grefe, 2 B. R. 829.) RULE XXVII. This rule only applies to the court in which the proceedings in bankruptcy are pending. (Jn re Seymour, 1 B. R. 29; s.c. 1 Ben. 348.) RULE XXVIII. When an assignee fails to make a report to the court, of funds received by him, it must be assumed that no funds have been received by him, and that no deposits have been made by him. In order to warrant proceedings against an assignee for not complying with Rule XXVIII, it must be shown at least by prima facie evidence that he has received funds or made deposits in respect to which he ought to have made a report under Rule XXVIII. (In re Goodwin, 3 B. R. 417.) RULE XXX, The fees must be taxed according to the rule, although the services were tendered before its adoption. (Jn re Ludwig Carstens, 15 R. R, 250. The following fees may be charged by the register in composition cases: For office and incidental expenses.............eceeeeeees $5 00 For general meeting of creditors............ceeceeeeenee 3 00 For service under order of court, per day.........-.seee: 5 00 For filing papers not before filed with clerk, each......... 10 For examination of bankrupt, each folio.............4-- 20 For affidavits, each. ... 2... cc cece eee cece enter eneeee 25 For ordering adjourned meeting...........0ee+eseees ‘sae 2 00 For holding adjourned meeting..........-.4-+seeeeeeees 3 00 For each folio in the report. ........ecceseee eee ereeteees 10 (Cn re Benjamin F. Spillman, 13 B. R. 214.) An allowance for the attention of the marshal in taking care of property can only be made when the marshal himself in person actually and necessarily gives his personal attention in taking care of the bankrupt’s property, and does not cover personal attention by a deputy. (Jn re Johnston & Hall, 12 B. R. 345; In re F. L, Hellmer, 13 Pac. L. R. 85.) For the custody of property the marshal is entitled to be allowed what is necessarily and actually disbursed and paid by him to a keeper or keepers, but the entire amount can not exceed two dollars and fifty centsaday. (Jn re Johnston & Hall, 12 B. R. 345.) A party who is in the employ of the marshal, and in receipt of his usual sal- ary, can not be allowed compensation for services rendered in making out the bankrupt’s schedules. (Jz re Barnes Brother & Herron, 1 W. N. 21.) If the keeper is employed during any part of the time in taking an inventory, -and is entitled to be paid therefor, that ought to diminish his allowance as keeper. (Jn re Johnston & Hall, 12 B. R, 346.) 862 THE BANKRUPT LAW. At the rate of $2 50 per day the marshal can only be allowed for the serv- ices of one keeper. (Jn re Jobnston & Hall, 12 B. R. 845.) When the marshal claims compensation for personal attention in the custody of property, he must show by his oath that such services were actually ren- dered and the necessity for them. (Jn re F. L. Hellmer, 13 Pac. L. R. 35.) The marshal is not entitled to a compensation of one dollar per hour for the: services of persons employed to assist him in making an inventory. (Jn re F. L. Hellmer, 18 Pac. L. R. 85; contra, in re Johnston & Hall, 12 B. R. 845.) When the marshal claims compensation for services in making an inventory, the charge must be supported by his oath as to the fact of the service and the necessity for it. (Jn re F. L. Hellmer, 18 Pac. L. R. 35.) No allowance can be made for the time spent by the marshal in verifying the inventory with the assignee. (Jn re Johnston & Hall, 12 B. R. 345.) The marshal may charge for a copy of the inventory furnished to the assignee at the rate of ten cents a folio. (Jn re Johnston & Hall, 12 B. R. 345.) The copy of the involuntary petition and the order to show cause constitute. but one process, and the marshal is not entitled to a distinct fee for the service of each. (In re F. L. Hellmer, 13 Pac. L. R. 35; contra, in re Burnell Bros. 14 B. R. 498; s. c. 8 Cent. L. J. 450; 5.c.9 OC. L. N. 84.) The marshal is not entitled to mileage on two writs served at the same time: unless he had more than two writs to serve. (Jn re F. L. Hellmer, 33 Pac. L, R. 35.) ° The marshal may be allowed a commission on money collected by him under the warrant. (Jn re Frederick Pfaff, 7 Ben. 61.) The marshal is entitled to two per centum on the disbursements made by him.. Cn re Johnston & Hall, 12 B. R. 345; in re Burnell Bros. 14 B. R. 498; s. c. 3 Cent. L. J. 450; s.c.9 OC. L. N. 84.) The marshal is not entitled to an allowance by way of commission on the value of property for its custody. (dn re Johnston & Hall, 12 B. R. 845; in re Burnell Bros. 14 B, R. 498; s. c, 3 Cent. L. J. 450; s.c. 9 C. L. N. 84.) Where the case is settled, the marshal is entitled to a commission of one per centum on the first five hundred dollars, and one-half of one per centum on the excess over five hundred dollars, for the custody of property and money. (In re Johnston & Hall, 12 B. R. 845.) If the fees enumerated do not provide a compensation for services rendered by the assignee, the court may allow a reasonable compensation. (Jn re Col- well, 15 B. R. 92.) When the marshal has concluded his services, he may have his bill taxed, if there is an assignee, without waiting for the presentation of the final account. Cn re Philip Rein, 18 B. R. 551.) Notice of the taxation may be given to the assignee, and it is not necessary to give notice to the creditors. (Jn re Philip Rein, 13 B, R, 551.) The assignee should examine the bill, and if he is satisfied that it is lawfully taxable at a certain amount, he may consent to its being taxed at that amount. (dn re Philip Rein, 13 B, R. 551.) The consent of the assignee is a sufficient warrant for the clerk to tax a bill for the amount so consented to. (Jn re Philip Rein, 18 B.R. 551.) When the taxation is made, it is conclusive on the marshal and the assignee for the time being, and the marshal is entitled to receive the amount of his bill ‘80 taxed, unless it is shown that there is some fraud or bad faith on the part of the marshal or the assignee. (Jn re Philip Rein, 18 B. R. 551.) NOTES TO RULES. 863 RULE XXXII. The petitioner need only use such of the forms ag are appropriate to and descriptive of the debts and property he is required to list. He should state, however, the reason why the other forms are omitted. (Anon. B. R. Sup. 27.) The petitioner is not restricted to the letters printed on the schedules. He- may exhaust the alphabet, and use other marks, if he can thereby set forth his property more lucidly. (Jn re Sallee, 2 B. R. 228.) RULE XXXIV. If the creditor fails to appear and submit to examination, the register may expunge or diminish the claim by default. The citation throws upon the cred- itor the burden of supporting his claim by further proof than that already filed. If the creditor is unable to attend in pursuance of the notice, he should take steps to procure a postponement until he can attend, or the taking of the exam- ination elsewhere before another register or commissioner if need be. (In re Ira A. & Chas. W. Lount, 11 B. R. 815; s. c. 7 C. L. N. 155.) When an assignee files a petition for the re-examination of a proof, the cred- itor need only offer himself for cross-examination, and the assignee, if he wishes to contest the proof, must offer such opposing evidence as he may have. (In re Wm. L. Robinson, 14 B. R. 130.) The exhibits annexed to the answer can not be used as evidence, unless they are proved in the usual manner. (Canby v. McLear, 13 B. R. 22.) The answer toa motion to expunge a proof, can not be used as evidence. (Canby v. McLear, 13 B. R. 22.) Where a motion is made to expunge a proof, the burden of proof rests on the party making the motion, and he is entitled to the opening and reply. (Canby v. McLear, 13 B. R. 22.) Upon a motion to expunge a proof, the testimony of the bankrupt is not competent unless he is produced asa witness. (Canby v. McLear, 13 B. R. 22.) The bankrupt court may expunge or dismiss a claim on account of matters occurring after the proof wasmade. (Jn re J. C. Loring, 1 Holmes, 483.) A party who has obtained an order for forming an issue can not have it re- voked if the other party did not object to the order but does object to the revo- cation. (Jn re James S. Aspinwall, 7 Ben. 154.) The register has no authority to require the parties to form an issue, if either of them objects, until it appears to the register that the claim ought to be expunged or diminished, and until objection is then made to his making an order to that effect. (In re James S. Aspinwall, 7 Ben. 154.) The justices of the supreme court did not intend to make this mode of prov- ing or acknowledging letters of attorney exclusive. (Jn re Butterfield & Burr, 14 B. R. 195.) A power of attorney which is not acknowledged before a register in bank- ruptcy, or a commissioner of a circuit court, is not sufficient to authorize the agent to act. (Jn re Wm. C. Christley, 10 B. R. 268; s.c. 6 Biss. 155.) RULE XXXVI. This Rule is entirely prospective in its operation, and purports to refer only to proceedings for composition initiated after its adoption. (Jn re Holmes & Liss- berger, 12 B. R. 86; s. c. 49 How, Pr. 142.) NOTES TO FORMS. FORM No. 4. Tats form is not a special order. The authority conferred by it, “to take such other proceedings as are required by the act,” means such other proceed-~ ings as the act requires the register to take. (Jn re Bellamy, 1 B. R. 113; s. c. 1 Ben. 474.) FORM No. 6. * The marshal has no discretion, but must serve all notices by mail, unless otherwise specially directed. It is competent for the register to strike out the words “or personally.” (Anon. 1 B. R. 216.) FORM No. 15. The register has no power to approve or confirm the choice of an assignee elected by the creditors. (Jn re J. O. Smith, 1 B. R. 248; s. c. 2 Ben. 113; in re Scheiffer & Garrett, 2B. R. 591; s.c. 1. L. N. 261.) FORM No. 18. The word “is” in the form before the word ‘ possessed” is probably a mis- print. The form is evidently copied almost verbatim from the form of assign- ment used under the Massachusetts insolventlaw. (Jn 7e Patterson, 1 B. R. 125; s. c. 1 Ben. 508.) FORM No. 26. There are no general words in the power. Throughout the whole instru- ment there are only three things authorized to be done by the attorney: 1st. To attend meetings or sittings; 2d. To vote at the same; and, 3d. To accept for the signer of the letter of attorney, the appointment of assignee. No other power is granted; no other act is specified to do which authority is given, and there are no general words whatever, which will include any other act. (Creditors v. Williams, 4B. R. 580; s. c. 2 L. T. B. 166.) FORM No. 34. The note to this form contemplates that a petition for the sale of preperty subject to a mortgage may be presented to the court by the assignee, but the as- signee may sell the property subject to the mortgage without such an order. (In re McClellan, 1 B. R. 389.) FORM No. 51. The words ‘ other persons in interest,” in the order of this form, authorizes a party having a pecuniary interest, though not a creditor who has proved his 55 366 THE BANKRUPT LAW. debt, to appear and oppose the discharge. (Jn re Boutelle, 2 B. R. 129; s. c. 15 Pitts. L. J. 616; in re Murdock, 3 B. R. 146; s. c. Lowell, 362; s.c.2 L, T. B. 97.) : . FORM No. 52. This notice is to be sent by the clerk when served by mail. (Jn re Bellamy, 1B. R. 113; 5. ¢. 1 Ben. 474.) FORM No. 53. * The recital in this form that the creditor “has proved his debt,” shows that no creditors except those who have proved their debts can oppose the discharge. (in re Burk, 3 B. R. 296; s. c. 1 Deady, 425; s. c. 2 L. T. B. 45.) ADDENDA. Article 1, Section 8. If the debtor has not committed an act of bankruptcy, and declines to go into voluntary bankruptcy, a creditor may proceed against him under the State insolvent law, where such proceedings are in harmony with the purpose. of the bankrupt law, for the State insolvent law remains in full force in re- spect to all persons and matters over which the bankrupt law declines to take jurisdiction. (Geery’s Appeal, 43 Conn. 289.) The State insolvent laws were not suspended until the 1st day of June, 1867. (Augsbury v. Crossman, 17 N. Y. Supr. 387.) Section 711. If the assignee receives property which the marshal has taken from the possession of the sheriff and sells it, the judgment creditor can not maintain an action in a State court for the amount of his judgment, for a State court has no jurisdiction to liquidate alien. (Ansonia B. & C. Oo. v. Pratt, 17 N. Y. Supr, 443.) Section 4972. An assignee can not maintain an action in a State court to recover the value of property exceeding five hundred dollars transferred to the defendant in violation of the bankrupt law. (Olcott v. Maclean, 16 B. R. 79; 8. c. 17 N. Y. Supr. 277.) : If the assignee and another claim a fund, the holder may file a bill of in- terpleader in a State court, for the proceeding is not an action to collect the assets. (B. & M. Ins. Co. v. Davenport, 17 N. Y. Supr. 264.) Section 4979. __, Ajudgment creditor has not such title in property taken under an execu- tion as will enable him to maintain an action for conversion against the assignee to whom it has been delivered by the marshal after taking it from the sheriff. (Ansonia B. & CO. Co. v. Pratt, 17 N. Y. Supr. 443.) \ Section 4986. If the district court decides that a creditor is entitled to a lien, the assignee may file a petition for review. (Bartlett v. Russell, 34 Pitts. L. J. 206; 8.c. 9 C. L. N. 877.) Section 5024. A trustee claiming under an assignment for the benefit of creditors, may ‘ be enjoined from disposing of the property. (Jn re Jacob Skoll, 24 Pitts, L. J. 207; 8. 6. 9C, L. N. 877.) 868 ADDENDA. Section 5044. If proceedings in bankruptcy are commenced within four months after the garnishment, the garnishee who pays the money under an execution upon a judgment subsequently rendered is liable to the assignee therefor, although he was ignorant of such proceedings. (Duffield v. Horton, 16 B. R. 59; 8. ¢. 17. N. Y. Supr. 140.) The assignee is entitled to the money although a judgment was entered and an execution issued in the attachment suit after the commencement of the proceedings in bankruptcy, for the statute discharges the property then held by the attachment, and not merely such as may be so held at the time of the execution of the assignment. (B. & M, Ins, Co. v. Davenport, 17 N. Y. Supr. 264.) If the debt of the attaching creditor exceeds the value of the property at- tached, the dissolution of the attachment will not entitle a judgment creditor to priority who levied an execution on the property after the attachment and before the commencement of the proceedings in bankruptcy. (Jn re Roscoe R. Steel, 16 B. R. 105.) If an attaching creditor obtains judgment and levies an execution on the property, the lien of the execution relates back to the attachment and they are entitled to a lien as against the assignee although another creditor laid an attachment after his, and before the execution and the last attachment was dissolved by bankruptcy. (in re Roscoe R. Steele, 16 B. R. 105.) Section 5046. A creditor who has instituted an action to set aside a fraudulent convey- ‘ance, may prosecute it after the commencement of proceedings in bankruptcy. (Phelps v. Curts, 16 B. R. 83.) If an insolvent husband purchases property in the name of his wife, the assignee can not abandon the pursuit of the property, and seek a judgment against her in personam. (Phipps v. Sedgwick, 16 B. R. 64.) Section 5047. An objection, that the assignee did not obtain permission from the bank- rupt court to bring the suit, is of no avail unless it is pleaded. (Avery v. Ryerson, 34 Mich. 362.) If the assignee of a mortgagee who held u second mortgage, dies after the entry of a decree pro confesso, for want of an appearance, and before a final decree in a proceeding to foreclose a prior mortgage, the sale will not affect the second mortgage. (Avery v. Ryerson, 34 Mich. 362.) If the assignee is finally discharged after more than two years from the time of his appointment, he is not a necessary party to an action by a cred- itor, instituted before the commencement of the proceedings in bankruptcy, to set aside a fraudulent conveyance. (Phelps v. Curts, 16 B. RB. 85.) : Section 5067. A trustee may prove his claim for services rendered under an assignment. Cn re George Lains, 24 Pitts. L. J. 207.) Section 5073. When a plaintiff becomes bankrupt, the defendant may, even in the State courts, plead any set-off which the bankrupt law allows. (Hunt v. Holmes, 16 B. R. 101.) ADDENDA. 869 A consignee who has received goods for sale in excess of the advances made thereon, may hold such goods as a set-off against notes of the bank- rupt, purchased by him in good faith, without suspicion of the consignor’s insolvency. (Goodrich vy. Dobson, 43 Conn. 576.) A court of equity will not interfere by injunction to enforce a set-off, where the debt has been bought after insolvency on a speculation as to the probable dividend. (Hunt v. Holmes, 16 B. R. 101.) A creditor who receives his composition under a resolution, thereby waives his right to set off the original debt against a judgment subsequently recov- ered upon a cause of action which existed prior to the commencement of the proceedings in bankruptcy. (Holmes v. Hunt, 16 B. R. 101.) If a party fails to plead the set-off, he can not obtain relief in equity after judgment is rendered against him. (Holmes v. Hunt, 16 B. R. 101.) If the mortgagor sets up a counter-claim in an action brought by an as- signee to foreclose a mortgage, the assignee can not raise the objection that it is barred by the statute of limitations, if it was not so barred at the time of the commencement of the proceedings in bankruptcy. (Von Sachs v. Kretz, 17. N. Y. Supr. 95.) If a partner sells his interest in real estate held by the firm to another, and takes a mortgage thereon to secure the payment of the purchase money, he will be entitled to priority over the creditors of a new firm, composed of his copartner and the purchaser, whose capital consists in part of such real estate, although the debts of the old firm are paid in a large part with moneys due from the new firm. Nor are his rights affected by a subsequent release of the mortgage and the taking of a new one, in order to give priority to another mortgage then made to another by the firm, for the new mortgage is a mere continuation of the first one. (Beecher v. Stevens, 43 Conn. 587.) Under the laws of Colorado a creditor obtains a lien upon the property of the debtor by a delivery of the i. fu. to the sheriff. (Burtlett v. Russell, 24 Pitts. L. J. 206; s.c. 9 C.L.N. 377.) The right of a creditor to a lien is a strict legal right, and must stand or fall ‘by the statute which gives it. In a controversy with the assignee there are no equities in favor of the creditor. (In re Hamilton Boyd, 16 B. R. 137; 8. ¢.9C. L. N. 385.) If a judgment against two persons provides that it may be enforced against the property of one and the joint property of both, the judgment can not become a lien on the property of the other. (Jn re Hamilton Boyd, 16 B. R. 187; 8. 0. 9 C. L. N. 385.) To create a lien the docket of a judgment must be complete in itself, and can not be aided by reference to the judgment or other proceedings in the ac- tion. (In re Hamilton Boyd, 16 B. R. 137; 8. c. 9 C. L. N. 385,) A docket entry which consists of mere abstract numbers, without any mark to indicate dollars, is not sufficient to create a lien. (Jn re Hamilton Boyd, 16 B. R. 137; s. c. 9 C, L. N. 385.) If the judgment is for gold coin, it must be so docketed. (Jn re Hamilton Boyd, 16 B. R. 187; s.c. 9 C. L. N. 385.) If a creditor who holds the guaranty of the firm for the debt of another, obtains judgment and makes the money out of the firm assets, one partner is not entitled to a lien on the individual estate of his copartner by right of subrogation to the creditor. (In re G. W. Smith, 16 B. R. 113.) Section 5106. The running of the statute of limitations is suspended during the time that proceedings against the debtor may be stayed. (Von Sachs v. Kretz, 17 N. Y. Supr. 95.) 870 ADDENDA. Section 5107. If the debt was created by fraud, the bankrupt will not be released from arrest, (Jn re Martin Alsberg, 16 B. R. 116.) The right of the debtor to a release from arrest depends on the evidence produced in the district court to prove that the debt is one from which a discharge will not release him, and not upon the reasons which may have been filed in the State court for the arrest. (Jn re Martin Alsberg, 16 B, R. 116.) Section 5110. If the bankrupt honestly regards a judgment as worthless, he may omit it from his schedule without being chargeable with false swearing and fraud. (In re Zenas G. Winsor, 9 C. L. N. 402.) If the bankrupt, prior to becoming a trader, kept books of account which exhibited the state of his affairs, it is not necessary that he-shall carry any part of their contents into the books opened and kept by him while he was a trader. (Jn re Zenas G. Winsor, 9 C. L. N. 402.) To keep proper books of account is to keep an intelligent record of his business affairs with that reasonable degree of accuracy and care which is to be expected from an intelligent man in that business. (Jn re Zenas G. Win- sor, 9 C. L. N. 402.) If the bankrupt kept an intelligent record of his affairs, and evinced reasonable‘care and an honest purpose to fully enter or keep proper accounts. an omission to make an entry by mistake is no ground for withholding a dis- charge. (dn re Zenas G. Winsor, 9 C. L. N. 402.) An omission to enter a chattel mortgage given to indemnify the mortgagee against future liability is no ground for withholding a discharge. (Jn re Zenas G. Winsor, 9 C. L. N. 402.) Section 5112. Tn the absence of consent, by creditors, in voluntary cases, no matter when commenced or when the debts were contracted, the assets must be equal to thirty per cent., or no discharge can be granted. (Jn re Haviland Gifford, 16 B. R. 185; s.c.9 CG. L. N. 389.) Section 5117. If the bankrupt obtained the possession of goods under a contract to pay cash on delivery, and at once shipped them beyond the control of the vendor, and then refused payment, such conduct may warrant the conclusion that the debt was created by fraud. (Classen v. Schoeneman, 16 B. R. 98.) If the false representation as to means did not induce the creditor to sell ue er a the debt is not created by fraud. (Ju re Martin Alsberg, 16 If the creditor was induced to sell the goods by false representation as to ie then the debt was created by fraud, (Zn re Martin Alsberg, 16 B. R. If the bankrupt, at the time of purchasing the goods, did not intend to pay for them in whole or in part, then the debt was created by fraud. (dn re Martin Alsberg, 16 B. R. 116.) : \ A discharge releases the bankrupt from liability as suret dian’s. bond. (Reitz vy. People, 16 B. R. 96.) a Bee rere ADDENDA. 871 Section 5119. A plea of a discharge cav not defeat an action to set aside a fraudulent conveyance instituted before the commencement of the proceedings in bank- ruptcy. (Phelps v. Curts, 16 B. R. 85.) If the bankrupt pleads his discharge in an action to set aside a fraudulent conveyance instituted before the commencement of the proceedings in bank- ruptcy, no personal judgment can be rendered against him. (Phelps v. Qurts, 16 B. R. 85.) A discharge will not preclude a recovery if the bankrupt promised to pay the debt after the granting thereof. (Classen v. Schoeneman, 16 B. R. 98.) Section 5128. In order to render a transfer void, it is not enough to merely show that the grantee knew that the grantor was insolvent. (Campbell v. Waite, 16 B. R. 93.) The day on which the petition was filed must be excluded in making the computation of the time that a preference must stand in order to be valid. (Dutcher v. Wright, 16 A. L. J. 100.) Section 5129. The claim of an attorney for services in drawing up and attending to the business connected with the assignment can only be allowed on proof as any other claim. (Jn re George Lains, 24 Pitts. L. J. 207.) A trustee is not entitled to priority on a claim for personal services ren- dered in the.execution of the trust. (Jn re George Lains, 24 Pitts. L. J. 207.) The trustee is entitled to an allowance for disbursements legitimately made in the execution of his trust before the debtor was adjudged bankrupt, (In re George Lains, 24 Pitts. L. J. 207.) GENERAL ORDERS WITH THE FORMS IN BANKRUPTCY, AS PROMULGATED BY THE SUPREME COURT OF THE UNITED STATES. GENERAL ORDERS IN BANKRUPTCY. Ocrozer Term, 1874. It is hereby ordered by the Chief Justice and Associate Justices of the Supreme Court of the United States, in pursuance of the powers conferred upon them by the several acts of Congress in that behalf, that the general orders in bankruptcy heretofore established by the court be, and they are hereby, amended so as to read as follows: I, DUTIES OF CLERKS OF DISTRICT COURTS. The clerks of the several district courts shall enter upon each petition in bankruptcy the day, and the hour of the day, upon which the same shall be filed; and shall also make a similar note upon every subsequent paper filed with them, except such papers as have been filed before the register, and so indorsed by him; and the papers in each case shall be kept in a file by themselves. No paper shall be taken from the files for any purpose except by order of the court. Every paper shall have in- dorsed upon it a brief statement of its character. The clerks shall keep a docket, in which the cases shall be entered and numbered in the order in which they are commenced; and the number of each case shall be in- dorsed on every paper. The docket shall be so arranged that a brief memorandum of every proceeding in each case shall be entered therein, in a manner convenient for reference, and shall at all times be open for public inspection. The clerks shall also keep separate minute-books for the record of proceedings in bankruptcy, in which shall be entered a min- ute of all the proceedings in each case, either of the court or of a register of the court, under their respective dates. If. PROCESS. All process, summons, and subpcenas shall issue out of the court under the seal thereof, and be tested by the clerk; and blanks, with the signature of the clerk and seal of the court, may, upon application, be furnished to the registers. IIE. APPEARANCE. 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. Either party may appear and conduct the proceedings by 876 GENERAL ORDERS IN BANKRUPTCY. attorney, who shall be an attorney or counselor authorized to practice in the circuit or district court. The name of the attorney or counselor, with his place of residence and business, shall be entered upon the docket, with the date of the 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 mo- tion. Notices and orders which are not, by the act or by these rules, re- quired to be served on the party personally, may be served upon his attorney. IV. COMMENCEMENT OF PROCEEDINGS. Upon the filing of’ a petition in case of voluntary bankruptcy, or as soon as any adjudication of bankruptcy is made upon a petition filed in case of involuntary bankruptcy, the petition shall be referred to one of the registers in such manner as the district court shall direct, and the pe- titioner shall furnish the register with a copy of the papers in the case, and thereafter all the proceedings required by the act shall be had before him, except such as are required by the act to be had in the district court, or by special order of the district judge, unless some other regis- ter is directed to act in the case, The order designating the register to act upon any petition shall name a day upon which the bankrupt shall attend before the register, from which date he shall be subject to the orders of the court in all mat- ters relating to his bankruptcy, and may receive from the register a pro- tection against arrest, to continue until the final adjudication on his appli- cation 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 register, or be delivered to him personally, by the clerk or other officer of the court. V. e REGISTERS. The time when and the place where the registers shall act upon the matters arising under the several cases. referred to them, shall be fixed by special order of the district court, or by the register acting under the authority of a general order, in each case, made by the district court ; and at such times and places the registers may perform the acts which they are empowered to do by the act, and conduct proceedings in rela- tion to the following matters, when uncontested, viz.: making adjudica- tion of bankruptcy on petition of the debtor; administering oaths ; receiving the surrender of a bankrupt; granting protection thereon; giving requisite direction for notices, advertisements, and other ministerial proceedings ; taking proofs of claims; ordering payment of rates and taxes, and salary or wages of persons in the employment of the assignee ; ordering amendments, or inspections, or copies, or extracts of any pro- ceedings ; taking accounts of proceeds of securities held by any creditor ; taking evidence concerning expenses and charges against the bankrupt’s estate ; auditing and passing accounts ot assignees ; proceedings for the declaration and payment of dividends, and generally dispatching all GENERAL ORDERS IN BANKRUPTCY. 877 administrative business of the court in matters of bankruptcy, and making all requisite uncontested orders and directions therein, which are not, by the acts of Congress concerning bankruptey, specifically required to be made, done, or performed by the district court itself; all of which shall be subject to the control and review of the said court: Provided, however, That by the surrender of a bankrupt men- tioned and referred to in this order and in the act in that behalf is intended and understood a personal submission of the bankrupt him- self for full examination and disclosure in reference to his property ,and affairs, and not a surrender or delivery of the possession of his property. VI. DISPATCH OF BUSINESS. Every register, in performing the duties required of him under the act, and by these orders, or by orders of the district court, shall use all reasonable dispatch, and shall not adjourn the business but for good cause shown. Six hours’ session shall constitute a day’s sitting if the business requires; and when there is time to complete the proceedings in progress within the day, the party obtaining any adjournment or post- ponement thereof may be charged, if the court or register think proper, with all the costs incurred in consequence of the delay. Vil. EXAMINATION AND FILING OF PAPERS, It shall be the duty of the register to examine the bankrupt’s petition and schedules filed therewith, and to certify whether the same are correct in form ; or, if deficient, in what respect they are so; and the court may allow amendments to be made in the petition and schedules upon the application of the petitioner, upon proper cause shown, at any time prior - to the discharge of the bankrupt. The register shall indorse upon each paper filed with him the time of filing, and at the close of the last exam- ination of the bankrupt, the register having charge of the case shall file all the papers relating thereto in the office of the clerk of the district court, and these papers, together with those on file in the clerk’s office, and the entries in the minute-book, shall constitute the record in each ’ case ; and the clerk shall cause the papers in each case to be bound together. Vil. ORDERS BY THE REGISTER, Whenever an order is made by a register in any proceeding in which notice is required to be given to either party before the order can be made, the fact that the notice was given, and the substance of the evi- dence of the manner in which it was given, shall be recited in the pream- ble to the order, and the fact also stated that no adverse interest was rep- resented at the time and place appointed for the hearing of the matter upon such notice ; and whenever an order is made where adverse inter- ests are represented before the register, the fact shall be stated that the 378 GENERAL ORDERS IN BANKRUPTCY. dpposing parties consented thereto, or that the adverse interest repre- sented made no opposition to the granting of such order: Provided, hiow- ever, if any party interested adversely to such order shall not, before the hearing of the application therefor, give reasonable notice in writing to the register that he intends to contest the same, and objects to its being heard by the register, the same shall be heard by the register as by consent. But all such orders may be reviewed by the district court at the request of any party aggrieved, upon his paying the cost of certi- fying the matter to said court within ten days from the making of the order; which request and payment shall be entered by the register on his docket; and he shall thereupon forthwith certify the said matter to the court, and said court, upon making its decision, may make such order with regard to the costs as justice shall require. IX. NOTIFICATION TO ASSIGNEE OF HIS APPOINTMENT. It shall be the duty of the register, immediately upon the appoint- ment of an assignee, as prescribed in sections twelve and thirteen* of the act (should he not be present at such meeting), to notify him, by per- sonal or mail service, of his appointment; and in such notification the assignee so appointed shall be required to give notice forthwith to the register of his acceptance or rejection of the trust. No official assignee shall be appointed by the court or judge; nor any general assignee to act in any class of cases. No additional assignee shall be appointed by the court or judge un- der section thirteen} of the act, except upon petition of one-fourth in number and value of the creditors who have proved their debts, and upon good and sufficient cause shown. X. TESTIMONY, HOW TAKEN. The examination of witnesses before a register in bankruptcy may be conducted by the party in person or by his counsel or attorney, and the wit- nesses shall be subject to examination and cross-examination, which shall be had in conformity with the mode now adopted in courts of law. The de- positions upon such examination shall be taken down in writing by or under the direction of the register in the form of narrative, unless he determines that the examination shall be by question and answer in special instances, and when completed shall be read over to the witness and signed by him in the presence of the register. Any question or questions which may be objected to shall be noted by the register upon the deposition, but he shall not have power to decide on the competency, materiality, or rele- vancy of the question; 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. In case of refusal of a witness to attend, or to testify before a register, the same proceedings may be had as are now authorized with respect to witnesses to be produced on examination be- * $8 5033, 5084, R. 9. + $5034, B.S, GENERAL ORDERS ‘IN BANKRUPTCY. 879 fore an examiner of any of the courts of the United States on written interrogatories. f XI. MINUTES BEFORE REGISTER, FILING, ETC. A memorandum made of each act performed by a register shall be jn suitable form to be entered upon the minute-book of the court, and shall be forwarded to the clerk of the court not later than by mail the next day after the act has been performed. Whenever an issue is raised before the register in any proceedings, either of fact or law, he shall cause the same to be stated in writing in the manner required by the fourth and sizth* sections of the act, and certify the same forthwith to the district judge for his decision. The pendency of the issue undecided before a judge shall not necessarily suspend or delay other proceedings before the register or court in the case. XI. ACCOUNTS FOR SERVICES OF REGISTER AND MARSHAL. Every register shall keep an accurate account of his traveling and incidental expenses, and those of any clerk or other officer attending him in the performance of his duties in any case or number of cases which may be referred to him; and shall make return of the same under oath, with proper vouchers (when vouchers can be procured), on the first Tuesday in each month; and the marshal shall make his return, under oath, of his actual and necessary expenses in the service of every war- rant addressed to him, and for custody of property, publication of notices 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. XI. MARSHAL AS MESSENGER.—SURRENDER OF PROPERTY. In cases of voluntary bankruptcy, the bankrupt, after being decreed such, and after the appointment of an assignee or trustee, and assign- ment duly made, shall, unless the court otherwise direct, deliver posses- sion of all his property and assets (including evidences of debt and books of account) to said assignee or trustee, unless at or after such decree and before said assignment the court, on application of any creditor or cred- itors, and upon good cause shown by affidavit, shall deem it necessary for the interest of the creditors that possession of such property and assets should be sooner delivered up; in which case, as in cases of in- voluntary bankruptcy, the court may order said property and assets to be taken possession of by the marshal as messenger, directions for which may be inserted, in pursuance of such order, in the original warrant in bankruptcy, or in a special warrant to be issued for that purpose. It shall be the duty of the marshal as messenger to take possession ® $8 5009, 5010, R, 8. 880 GENERAL ORDERS 1N BANKRUPTCY. -of' the property of the bankrupt when required thereto by warrant or order of the court, and to deliver the same to the assignee or trustee when appointed and assignment made as aforesaid. The marshal, when taking possession as aforesaid, shall make an inventory of the property and assets by him received, and deliver the same, with the said property and assets, to said assignee or trustee, who shall verify the same, and if found correct and full, no further inventory shall be required : Provided, however, That if any good’ or effects so taken into possession as the property of the bankrupt shall be claimed by or in behalf of any other person, the marshal shall forthwith notify the petitioning creditor, or as- signee, if one be appointed, of such claim, and may, within five days after so giving notice of such claim, deliver them to the claimant or his agent, unless the petitioning creditor or party at whose instance posses- sion is taken shall by bond, with sufficient sureties, to be approved by the marshal, indemnify the marshal for the taking and detention of such goods and effects, and the expenses of defending against all claims there- to; and, in case of such indemnity, the marshal shall retain possession of such goods and effects, and proceed in relation thereto as if no such claim had been made: nd provided further, That in case the petition- ing creditor claims that any property not in the possession of the bank- rupt belongs to him, and should Belden by the marshal, the marshal shall not be bound to take possession of the same, unless indemnified in like manner. He shall also, in case the bankrupt is absent or can not be found, prepare a schedule of the names and residences of his creditors, and the amount due to each, from the books or other papers of the bankrupt that may be seized by him‘ under his warrant, and from any other sources of information; but all‘ statements upon which his return shall be made shall be in writing, and sworn to by the parties making them, before one of the registers in lankruptcy of the court, or a com- missioner of the courts of the United States. In cases of voluntary bankruptcy, the marshal may appoint special deputies to act, as he may designate, in one or more cases, as messengers, for the purpose of caus- ing the notices to be published and served as required in the eleventh * section of the act, and for no other puipose. In giving the notices re- quired by the third subdivision of the eleventh } section of the act, it shall be sufficient to give the names, residences, and the amount of the debts (in figures) due the several creditors, so far as known, and no more. XIV. PETITIONS AND AMENDMENTS, All petitions, and the schedules filed therewith, shall be printed or written out plainly, and without abbreviation or interlineation, except where such abbreviation and interlineation may be for the purpose of reference; and whenever any amendments are allowed, they shall be written and signed by the petitioner on a separate paper, in the same manner as the original schedules were signed and verified ; and if the amendments are made to different schedules, the amendments to each schedule shall be made separately, with proper reference to the schedule * §§ 6019, 5052, R. S, + § 5082, R. S.; $5, act 1874, GENERAL ORDERS IN BANKRUPTCY. 881 proposed to be amended, and each amendment shall be verified by the oath of the petitioner in the same manner as the original schedules. XV. PRIORITY OF ACTIONS (INVOLUNTARY BANKRUPTCY). Whenever two or more petitions shall be fed by creditors against a common debtor, alleging separate acts of ban fuptey committed by said debtor on different days within six 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 pétitions, that petition shall be first heard and tried which alleges the commission of the earliest 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 cf bankruptcy, it shall not be necessary to proceed to a hear- ing upon the remaining petitions, unless proceedings be taken by the debtor for the purpose of causing such adjudication to be annulled or vacated, a , XVI. : FILING PETITIONS IN DIFFERENT DISTRICTS. In.case two or more petitions shall be filed against the same indi- vidual in different districts, the first jiearing shall be had in the district in which the debtor has his domicile, and such petition may be amended by inserting an allegation of an act of: bankruptcy committed at an earlier date than that first alleged, if such farlier act is charged in either of the other petitions; and in case of two’or more petitions against the same firm in different courts, each having jurisdiction over the case, the peti- tion 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 case, the proceedings upon the other petitions may be stayed until an ad- judication is made upon the petition first heard; and the court which makes the first adjudication of batikruptcy shall retain jurisdiction over all proceedings therein until the same shall be closed. In case two or more petitions for adjudication of bankruptcy shall be filed in different districts by different members of the same copartnership, for an adjudi- cation of the bankruptcy of said copartnership, 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 petition shall be filed in the same district, action shall be first had upon the one first filed. * : ' XVI. * CONCERNING REDEMPTIONS OF PROPERTY AND COMPOUNDING CLAIMS. Whenever it may be deemed for the benefit of the estate of a bank- rupt to redeem and discharge any mortgage or other pledge, or deposit 56 882 GENERAL ORDERS IN BANKRUPTCY. or lien upon any property, Teal or personal, or to relieve said property from any conditional contract, and to tender performance of the condi- tions thereof, or to compound any debts or other claims or securities due or belonging to the estute of the bankrupt, the assignee, or the bankrupt, or any creditor who has proyed his debt, may file his petition therefor in the office of the clerk of the district court; and thereupon the court shall appoint a suitable time and place fur the hearing thereof, notice of which shall be given in some newspaper, to be designated by the court, at least ten days before the hearing, so that all creditors and other persons inter- ested may appear and show cause, if any they have, why an order should not be passed by the court upon the petition authorizing such act on the part of the assignee. XVIII. PROCEEDINGS IN CASE OF COPARTNERSHIPS. In- case one or more members of a copartnership refuse to join in a petition to have the firm declared bankrupt, the parties refusing 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 pro- vided 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 copart- nership is not insolvent, or has not committed an act of bankruptcy ; and to take all other defenses which any debtor préceeded against is en- titled to take by the provisions of the act; and in case an adjuditation of bankruptcy is made upon the petition, such copartner shall be required to furnish to the marshal, as messenger, 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 shall be made. XIX, DUTIES OF ASSIGNEES. The assignee shall, immediately on entering upon his duties, prepare a complete inventory of all the property of the bankrupt that comes into his possession, except where an inventory is furnished to him by the marshal; in which case, having verified the same, he shall add thereto a certificate that the same is correct, or that the same is correct as modified by a supplemental inventory, to be annexed thereto; in which supplemental inventory he shall ‘state any deficiency of assets named in the marshal’s inventory, and shall add an y property or assets not contained therein. The assignee shall make report to the court, within twenty days after receiving the deed of assignment; of the articles set off to the bankrupt by him, according to the provisions of the fourteenth section * of the act, with the estimated value of each article, and an y creditor may take excep- tions to the determination of the assignee within twenty days after the filing, * $5045, B.S. GENERAL ORDERS IN BANKRUPTCY. 883 the report. The register may require the exceptions to be argued before n,and shall certify them to the court for final determination at the request either party. The substance of each monthly return of the assignee shall sent by the register to any creditor who shall request it and pay the fee ovided for notices to creditors. In case the assignee shall neglect to ‘any report or statement which it is made his duty to file or make by > bankrupt act, or any general order in bankruptcy, within five days er the same shall be due, it shall be the duty of the register to make order requiring the assignee to show cause before the court, at a time aified in the order, why he should not be removed from office. The sister shall cause a copy of the order to be served upon the assignee at ist seven days before the time fixed for the hearing, and proof of the cvice thereof to be delivered to the clerk. All accounts of assignees 2 to be referred as of course to the register for audit, unless otherwise ecially ordered by the court. XX. COMPOSITION WITH CREDITORS (ARBITRATION). Whenever an assignee shall make application to the court for author- ‘to submit a controversy arising in the settlement of demands against 2 bankrupt’s estate, or of debts due to it, to the determination of arbi- itors, or for authority to compound and settle such controversy by reement with the other party, the subject-matter of the controversy d the reasons why the assignee thinks it proper and most for the interest the creditors that it shold be settled by arbitration or otherwise, shall set forth clearly and distinctly inthe application; and the court, upon amination of the same, may immediately proceed to take testimony d make an order thereon; or may direct the assignee to give notice of 2 application, either by publication or by mail, or both, to the creditors 10 have proved their claims, to appear and show cause, on a day to be med in the order and notice, why the application should not be grant- , and may make such order thereon as may be just and proper. XXII. DISPOSAL OF PROPERTY BY ASSIGNEE. Upon application to the court, and for good cause shown, the assig- e may be authorized to sell any specified portion of the bankrupt’s late at private sale; in which case he shall keep an accurate account each article sold, and the price received therefor, and to whom sold; lich account he shall file with his report at the first meeting of credit- 3 after the sale. In making sale of the franchise of a corporation, it 1y be offered in fractional parts, or in certain numbers of shares cor- sponding to the numbers of shares in the bankrupt corporation. XXII. PERISHABLE PROPERTY. In all cases where goods or other articles come into possession of the sssenger or assignee which are perishable, or liable to deterioration in 884 GENERAL ORDERS IN BANKRUPTCY. value, the court may, upon application, in its discretion, order the same: to be sold and the proceeds deposited in court. XXIII SERVICE OF NOTICE. The notice provided by the eighteenth section* of the act shall be served by the marshal or his deputy, and notices to the creditors of the time and place of meeting provided by the sectiont shall be given through the mail by letter, signed by the clerk of the court. Every envelope containing a notice sent by the clerk or messenger shall have printed on it a direction to the postmaster at the place to which it is sent to return the same within ten days unless called for. XXIV, OPPOSITION TO DISCHARGE. A creditor opposing the application of a bankrupt for discharge shall enter his appearance in opposition thereto on the day when the creditors are required to show cause, and shall file his specifi- cation of the grounds of his opposition, in writing, within ten days thereafter, unless the time shall be enlarged by order of the dis- trict court in the case; and the court shall thereupon make an order as to the entry of said case for trial on the docket of the district court, and the time within which the same shall be heard and decided. : XXV. SECOND AND THIRD MEETINGS OF CREDITORS. Whenever any bankrupt shall apply for his discharge, within three months from the date of his being adjudged a bankrupt, under the pro- visions of the twenty-ninth section { of the act, the court may direct that the second and third meetings of creditors of said bankrupt, required by the twenty-seventh and twenty-eighth sections || of said act shall be had on the day which may be fixed in the order of notice for the creditors to appear and show cause why a discharge should not be granted such bankrupt; and the notices of such meeting shall be sufficient if it be added to the notice to show cause, that the second and third meetings of said creditors shall be had before the register upon the same day that cause may be shown against the discharge, or upon some previous. days or day. XXVI. APPHALS, Appeals in equity from the district to the circuit _A court, and from the circuit to the Supreme Court of the United States, shall be regulated by * § 6089, R. 8, + S$ 5039, 5041, B.S. t $5108, R. 8, | $$ 5092, 5093, R. 8, GENERAL ORDERS IN BANKRUPTCY. 885 the rules governing appeals in equity in the courts of the United States. Any supposed creditor who takes an appeal to the circuit court from the decision of the district court rejecting his claim, in whole or in part, according to the provisions of the eighth section of the act, shall give notice of his intention to enter the appeal within ten days from the entry of the final decision of the district court upon his claim; and he shall file his appeal in the clerk’s office of the circuit court within ten days there- after, setting forth a statement in writing of his claim in the manner prescribed by said section ; and the assignee shall plead or answer there- ‘to in like manner within ten days after the statement shall be filed. Every issue thereon shall be made up in the court, and the cause placed upon the docket thereof, and shall be heard and decided in the same manner as other actions at law. XXXVI. 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 register, for the purpose of testifying in any matter relat- ing to his bankruptcy; and if committed after the filing of his petition upon process in any civil action founded upon a claim provable in bank- Tuptcy, the court may, upon like application, discharge him from such -imprisonment. If the petitioner, during the pendency of the proceed- ings in bankruptcy, 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 custody in which he may lawfully be. Before granting the order for discharge, 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. : XXVIII. DEPOSIT AND PAYMENT OF MONEYS, The district court in each district shall designate certain national banks, if there are any within the judicial district, or if there are none, then some other safe depository, in which all moneys received by assignees or paid into court in the course of any proceedings in bank- ruptcy shall be deposited; and every assignee and the clerk of said court shall deposit all sums received by them, severally, on account of any bankrupt’s estate, in one designated depository, and every clerk shall make a report to the court of the funds received by him, and of deposits made by him, on the first Monday of every month. On the first day of each month, the assignee shall file a report with the register, stat- ing whether any collections, deposits, or payments have been made by -him during the preceding month, and if any, he shall state the gross 886 GENERAL ORDERS IN BANKRUPTCY. amount of each. The register shall enter such reports upon a book to be kept by him for that purpose, in which a separate account shall be kept with each estate; and he shall also enter therein the amount, the date, and the expressed purpose of each check countersigned by him. No moneys so deposited shall be drawn from such depository unless upon a check, or warrant, signed by the clerk of the court, or by an assignee, and countersigned by the judge of the court, or one of the reg. isters designated for that purpose, stating the date, the sum, and the account for which it is drawn; and an entry of the substance of such check or 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 purpose by the assignee or the 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 case of each estate. A copy of this rule shall be furnished to the depository so designated, and also the name of any register authorized to countersign said checks. 4 XXIX. PREPAYMENT OR SECURITY OF FEES. The fees of the register, marshal, and clerk shall be paid or secured: in all eases before they shall be compelled to perform the duties required of them, by the parties requiring such service; and in the case of wit-. nesses their fees shall be tendered or paid at the time of the service of: the summons or subpeena, and shall include their traveling expenses to and from the place at which they may be summoned to attend. The court may order the whole or such portion of the fees and costs in each case to be paid out of the fund in court in such case as shall seem just. The funds deposited with the register, marshal, and clerk shall, in all cases where they come out of the bankrupt’s estate, be considered as a. part of such estate, and the assignee shall be charged therewith, and shall not be allowed for any disbursements therefrom, except upon the production of proper vouchers from such officers, respectively, given after the due allowance of their respective bills. XXX. FEES AND COSTS. Clerks. The fees of the clerk shall be the same as now allowed by law for similar services in the general fee-bill, section 828 Revised Statutes, except as herein provided; but no charge shall be made for filing any paper previously filed with the register. Also, For entering memoranda or minutes of register, each folio...... $0 10. For sending notice to creditors by mail, each.......... cea ae 15 For inserting notice in newspaper..... SSW We asia eek: ena organs isl eee Ste 50. (The necessary cost of advertising to be paid as an expense of the estate.) For taxing the costs in each case.......... (iirbtwessa cates 1 O00 —and for each folio of taxed bill GENERAL ORDERS IN BANKRUPTCY. Registers. The following and no other fees shall be allowed to the register : For filing and entry of the general order of reference, and for office-rent, stationery, and other incidental expenses of proceed- ings, conducted in the usual office of the register, to be allowed once only in any cause........... dp aead uae See are Sresareieae re When the proceedings are not conducted in the usual office of the register, but in some other city or town, he shall be allowed for each: day employed in going, attending, and returning....... j Also, in such case, traveling and incidental expenses of himself and of any clerk or other officer attending him, which expenses and fees shall be appropriated among the cases, as provided in section 5 of the act, or section 5125 of the Revised Statutes, For each day’s service while actually employed under a special order of the court, a sum to be allowed by the court, not ex- ceeding.........5. bas Bd or ss Meare Rote a ials aia tote eramsiatiedsnncs But only one per diem allowance to be made for a single day, and no duplication of such allowances to be made for different cases on the same day; and no other allowance shall be made for clerk hire except as above stated. For every affidavit to any petition, schedule, or other proceeding in bankruptcy, except proof of debt by a creditor or his agent, for each oath and certifying the same.... cc. .eeeeee eee eee For examining petition and schedules, and certifying to their cor- TECINESS oc eee ee cee ere eee eee rece ree renee ecenee ese eeae For every warrant in bankruptcy, or other process, issued and directed to the marshal (not including warrants for payment of money or anything other than process).......++...eeeecees For each day in which a general meeting of creditors is held, and attending same... cee cece cee cece tee eee ener anaes sagan For notification to assignee of his appointment.............-- For assignment of bankrupt’s effvcts........... gaheagl aoa a For every bond with suretics........... css ee eeee cece eneees For every application for a general meeting of creditors........ For every summons or subpeena requiring the attendance of a bankrupt, a bankrupt’s wife, or a witness for examination, for each person summoned...... ae cece see eee sipovelakes For taking depositions, including proofs of debts, and examination of bankrupt or his wife, for each folio......secececeee eee For certifying proof of debt as satisfactory....... tree eee ee For copies of depositions and other papers, each folio.......... For each notice which the register may be required to send to or serve on any creditor (which shall include for postage and Stationery)......ceeeeeeeeeee edie a area Caaamnkeae toa vee Ss For mileage in making personal service when necessary, the same as allowed by law to the marshal. For inserting notice in newspaper when required.........+-+++ (Costs of advertising to be allowed as part of the expenses of the estate.) For each order for a general dividend..........++++-> veaniee eS For computation of dividends......... ded fbiscaa eiea bth Sas ae oe ne In addition thereto, for each creditor..........-2 ++ seer e eens 887 5 00 20 3 00 2 00 3 00 50 1 00 1 00 10 20 25 10 888 GENERAL ORDERS IN BANKRUPTCY. For every judicial order made by a register, necessary or proper to be made by him, and not herein otherwise specially pro- vided for, and not including matters merely ministerial ...... $1 00 For every discharge where there is no opposition ........... +. 200 For auditing the accounts of assignees....... Sach is Se Laine ts Satta 1 00 —and for each additional hour necessarily employed therein, after the first hour ..........- fede R bee e pra we MAR w eS 1 00 For every certificate of question to the district court or judge, under sections four and six of the act, or sections 5009 and 5010 of the Revised Statutes ............ 0. ce ce eee ee oeee 100 For preparing such certificate, each folio.............. 506 sats 20 For each folio of memorandum sent to the clerk.............. 10 For countersigning each check of assignee...........2200eees 10 For filing every paper not previously filed by the clerk, and marking and identifying every exhibit.................0006 10 (Fees paid by creditors for establishing their debts shall be en- titled to rank with other fees and costs in the case under sec- tion 5101, Revised Statutes.) 2. The deposit of $50 required to be made as security for the fees of the register, shall be delivered by the clerk to the register to whom the case is referred, and be by him accounted for at the termination of the case. Marshals. The fees of the marshal shall be same as are allowed for similar services by the general fee-bill in section 829 of the Revised Statutes, as modified by section 5126, including additional fees allowed by the latter section for distinct services; but no allowances shall be made under the last clause of section 5126, commencing with the words “ For cause shown.” The marshal shall, be allowed for each hour necessarily employed in making inventory of bankrupt’s property ...... aS ua Sauevohe $1 00 —and.for each folio of inventory. ..........c cece cece eee 20 For each hour actually and_necessarily employed in personal at- tention in taking care of bankrupt’s property............... 1 00 (No other allowance to be made for custody of property, except for actual disbursements, which shall in all cases be passed upon by the court.) Assignees. The fees and allowances of assignees shall be as prescribed and pro- vided for in sections 5099 and 5100 of the Revised Statutes ; provided that, in addition to disbursements made, no allowance shall be made other than the commissions provided for in section 5100, except as here- inafter specified ; and said commissions shall be calculated but once upon the amount of moneys received and paid, and not upon both the receipt and payment thereof. Besides which, there shall be allowed to the as- signee as follows: For serving or sending notices to creditors, or publishing the same, when required to be done by the assignee, the same amount allowed to the register for like services, For each hour necessarily employed in making inventory or sup- plemental inventory of bankrupt’s property, or verifying mar- shal’s inventory : GENERAL ORDERS IN BANKRUPTCY. 889 For each folio of inventory or supplemental inventory made by ASSIONCE sv awk ios Awad ae seed wesw ecu eK OR bias we sae - $0 20 For all services in designating the exempt property of a bank- rupt, and filing report thereon ...........0505 sae sania ace «-- 5 00 For attending a general meeting of creditors............0-.005 3 00 For every deed for real estate sold ........... 6 ob ie A SRD ww ENS 2 00 For drawing and filing each monthly report................0- 1 00 For drawing and filing each quarterly report, not exceeding four, unless specially allowed............e cece eee ettneeeeass 8 OO For each general account submitted to a creditors’ meeting, not exceeding two, unless specially allowed........seeeeeeeuee - 10 00 For all services in paying a géneral dividend, or executing an order of final distribution, and making report thereon, includ- ing all disbursements..... are glaigs bieie wha trels Savddeewdececns 900 In addition, for each creditor to whom a dividend is paid....... 25 Witnesses and Jurors. The fees of witnesses and jurors shall be the same as prescribed in the general fee-bill, in sections 848 and 852 of the Revised Statutes. Altorneys. No allowance shall be made against the estate of a bankrupt for fees of attorneys, solicitors, or counsel, except when necessarily em- ployed by the assignee, when the same may be allowed as a disburse- ment; and no allowance shall be made to the assignee for custody of the bankrupt’s property, except necessary disbursements in relation thereto. The necessity and reasonableness of disbursements shall in all cases be passed upon by the court. Any money received by either of the officers mentioned, in excess of lawful fees or compensation, shall be ordered by the judge to be paid into court, and such order may be enforced, if necessary, by attachment as for contempt. No bankrupt’s discharge shall be refused or delayed by reason of the non-payment of any fees except the fee for his certificate of dis- charge. Taxation of Costs. Ten days before the day fixed for the consideration of the assignee’s final account, or at any other time fixed by the court on its own motion, or on the application of any person interested, the clerk, marshal, and register shall file with the clerk a statement of fees, including prospective fees for final distribution, which shall exhibit, by items, each service and the fee charged for it, and the amount received. Said clerk shall tax each fee-bill, allowing none but such as are provided for by these rules, which taxation shall be conclusive, reserving to any party interested ex- ceptions to the bills as taxed, which shall be decided by the court. The office of auditor is hereby discontinued. 890 GENERAL ORDERS IN BANKRUPTCY. AmenpMenr To GeneraL Orpsr XXX. Assignees. It being found that in certain special cases, requiring great care and exertion on the part of assignees in bankruptcy, the fees and allowances now provided are insufficient ; it is, therefore, hereby Ordered, That in such cases as are above mentioned, the district judge be, and is hereby, authorized, by and with the advice and concur- rence of the circuit justice or judge, to make such additional allowance to the assignee or trustee, or to both, or either of them if there be more than one, as in his judgment shall be a fair and just compensation for his or their services, having regard to the amount of assets, the amount of labor required, and the special circumstances of the case; and that so much of General Order XXX as conflicts herewith be repealed. XXXI. COSTS IN CONTESTED ADJUDICATIONS. In cases of involuntary bankruptcy, where the debtor resists an adju- dication, and the court, after hearing, shall adjudge the debtor a bank- rupt, the petitioning creditor shall recover, to be paid out of the fund, the same costs that are allowed by law to a party recovering in a suit in equity ; and in case the petition shall be dismissed, the debtor may re- cover like costs from the petitioner. When a debtor shall be adjudged a bankrupt on the application of a creditor, and shall'be required under the provisions of the act to furnish a schedule of his creditors, and an inventory and valuation of his estate, the court, if the estate is large and the required schedule and inventory are likely to be voluminous or complicated, or other good reason exist, may, on the application of such debtor, allow him the services of a clerk or accountant to aid him therein, at such rate of compensation, not to exceed five dollars per day, as the court may deem reasonable. XXXII. AS TO FORMS AND SCHEDULES. The several forms.specified in the schedules annexed to the former general orders for the several purposes therein stated shall be observed and used, with such alterations as may be necessary to suit the circum- stances of any particular case. The tabular forms hereto annexed shall be used respectively by the several officers named in section nineteen of the amendatory act of June 22, 1874, in making the returns required by said section. In all cases where, by the provisions of the act, a special order is required to be made in any proceeding, or in any case instituted under the act in a district court of the United States, such order shall be framed by the court to suit the circumstances of the particular case ; and the forms hereby prescribed shall be followed as nearly as mfay be, and so far as the same are applicable to the circumstances requiring such special order. 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 GENERAL ORDERS IN BANKRUPTOY. 891 ie. In proceedings at law, instituted for the same purpose, the rules of he circuit court regulating the practice and procedure in cases at law hall be followed as nearly as may be. But the court, as the judge there- if, may, by special rule in any case, vary the time allowed for return of rrocess, for appearance and pleading, and for taking testimony and pub- ication, and may otherwise modify the rules for the preparation of any articular case so as to facilitate a speedy hearing. XXXII OMISSIONS AND AMENDMENTS. Whenever a debtor shall omit to state in the schedules annexed to iis petition any of the facts required to be stated concerning’his debts or iis property, he shall state, either in its appropriate place in the sched- les or ih a separate affidavit to be filed with the petition, the reason for ihe omission, with such particularity as will enable the court to deter- nine whether to admit the schedules as sufficient, or to require the debtor io make further efforts to complete the same according to the require-~ nents of the law; and in making any application for amendment to the ichedules, the debtor shall state under oath the substance of the matters oroposed to be included in the amendment, and the reasons why the same iad not been incorporated in his schedules as originally filed, or as pre- riously amended. In like manner, he may correct any statement made luring the course of his examination. XXXIV. PROOF OF DEBTS. : Depositions to prove claims against a bankrupt’s estate shall be cor- ‘ectly entitled in the court and in the cause. When made to prove a lebt due to a copartnership, it must appear on oath that the deponent s a member of the creditor firm; when made by an agent, the reason hhe deposition is not made by the claimant in person must be stated ; ind when made to prove a debt due to a corporation, and the corporation 1as no such officer as cashier or treasurer, the deposition may be made oy the officer whose duties most nearly correspond to those of cashier or reasurer. Depositions to prove debts existing in open account shall itate when the debt became or will become due; and if it consists of tems maturing at different dates, the average due date shall be stated ; n 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 ‘eceived for such account nor any judgment rendered thereon. Proofs of lebt received by any assignee shall be delivered to the register to whom he cause is referred. The register may decline to file any deposition intil the fee for filing the same is paid. When a proof of debt is sent by nail to the register, and it shall be accompanied by the fee for filing it, ind the fee for sending a notice to a creditor, the register shall acknowl- ‘dge the receipt of it, and state the amount at which he has entered it, ud if it shall be insufficient or unsatisfactory to the register he shall tate the reason. Any creditor may file with the register a request that all notices to- thich he may be entitled shall be addressed to him at any. place, to be 892 GENERAL ORDERS IN BANKRUPTCY. 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 cases notices shall be addressed as specified in the proof of debt. 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, such deposition shall set forth the security, as is required in proving secured claims. Upon filing with the register satisfactory proof of the assignment of a claim proved and entered on the register’s docket, the register shall im- mediately 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, he shall make an order subrogating the assignee to the original claimant. If objection be made within the time specified, or within such further time as may be granted for that purpose, the register shall certfy the ‘objection into court for determination. The claims of persons contin- gently liable for the bankrupt, may be proved in the name of the cred- itor, when known by the party contingently liable. ‘When the name of the creditor is unknown, such claims 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 tanio, the original debt. The execution of any letter of attorney to represent a creditor, or of an assignment of claim after proof, or of the consent of a creditor to a bankrupt’s discharge, may be proved or acknowledged before a register in bankruptcy, or a United States circuit court commissioner. When executed on behalf of a copartner- ship, or of a corporation, the person executing the instrument shall make oath that he is a member of the firm, or duly authorized officer of the corporation, on whose behalf he acts. When the party executing is not personally known to the officer taking the proof or acknowledgment, his identity shall be established by satisfactory proof. When the assignee or any creditor shall desire the re-examination of any claim filed against the bankrupt’s estate, he may apply by peti- tion to the register to whom the cause is referred, for an order for such re-examination ; and thereupon the register shall make an order fixing a time for hearing the petition, of which due notice shall be given by mail, addressed to the creditor. At the time appointed, the register shall take the examination 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 ex- punged or diminished, the register, if no objection be made, may order accordingly. If objection be made, the register shall require the parties then, or within a time to be fixed for that purpose, to form an issue to be certified into court for determination. If the petitioner is in default in making up said issue, the petition shall be dismissed ; if the creditor whose claim is re-examined is in de- fault in making said issue, the claim may be diminished or expunged by the register. All orders thus made by the register may be reviewed by the court on special petition, and upon showing satisfactory cause for such review. GENERAL ORDERS IN BANKRUPTCY. 893. XXXV. TRIAL BEFORE MARSHAL. If the debtor, under the provisions of section fourteen of the amend- atory act relating to proceedings in bankruptcy, approved June 22, 1874 shall elect to have a trial of the facts before the marshal, he shall make such election in writing, and file the same with the clerk of the court: and thereupon the court, on application of the debtor, may award the venire facias in said section prescribed, upon and by virtue of which the marshal shall summon twenty-four good and lawful men, inhabitants of the vicinity of the place of trial, and indifferent between the parties from whom to select a jury to try the said facts; and the names of the persons so summoned shall be drawn by lot to make the said jury, and each party shall be entitled to challenge four persons peremptorily ; and if a sufficient number of jurors unchallenged and free from exception shall not appear to make the full panel of twelve men (or such less number as the parties may agree upon) to try the said cause, the marshal shall complete the number by forthwith summoning other proper persons for the purpose. And any person summoned by the marshal to sit on said jury, and failing to appear without sufficient ex- cuse, shall be returned by the marshal and subject to be fined by the court. The petitioning creditor shall be deemed the actor, give due notice of trial, and have the opening and close before the jury. Subpoenas may be issued to witnesses, and objections to evidence shall be decided by the marshal presiding at the trial, subject to review by the court. The trial shall be had upon the petition to have the debtor declared a bank- rupt, and no other pleadings shall be necessary, The debtor may, on his part, prove any fact or state of facts which will entitle him to have the case dismissed. The jury, if desired, shall find a special verdict upon any point or question of fact stated for that purpose in writing by either party before the case shall have been submitted to them. The verdict shall be signed by the foreman of the jury and countersigned by the marshal, who shall immediately return the same to the court with the venire, and any points or questions raised and decided by him at the trial. The court, for good and legal cause shown, may set aside the ver- dict, and award a new venire as often as occasion shall require. “XXXVI. COMPOSITION UNDER SECTION 17 OF AMENDATORY ACT. If at any time after the filing of a petition for an adjudication in bankruptcy, a petition duly verified be filed by the debtor or bankrupt, or by any creditor of such debtor or bankrupt, setting forth that a com- position has been proposed by such debtor or bankrupt, and that he verily believes that such proposed composition would be accepted by a two-thirds in number, and one-half in value of the creditors of such debtor or bankrupt, in satisfaction of the debts due from such debtor or bankrupt, the court shall forthwith order a meeting of the creditors to be called to consider of the said proposition as provided in the 17th section of the said amendatory act, whereupon such proceedings shall be had as are therein directed. The register acting in the case, or, if no ‘ue RA sea ee Ven na eee eee OS register has been assigned, a register to be designated by the court, shall, at the time and place specified in the notice for holding such meeting, hold and preside at the same, and report to the court the pro- ceedings thereof, with his opinion thereon; upon the filing of which, the clerk shall give the notices to creditors required by said section, and the court shall, at the time therein fixed, proceed to hear and determine the matter as in said section is prescribed. In like manner, additional meetings in relation to such proposed com- position, or any modification thereof, may, upon like application, be called and held, and the proceedings returned in like manner. XXXVI. REFERENCE TO SECTIONS OF ACT, ETC. All orders referring specifically to any section or sections of the original bankrupt act, shall be deemed and construed to refer to the corresponding sections respectively, in the Revised Statutes of the United States ; for example, Order IX, in referring to sections 12 and 13 of the act, shall be construed to refer to sections 5033 and 5034, respectively, of the Revised Statutes; and so of the rest. And all forms Eee prescrined shall be adapted to any modification of the law, or of these orders. REPORT OF MARSHAL, Annual report of ,marshal of the district of j for the year ending June 30,18 , required by the 19th section of the amendatory act of Congress, relating to matters of bankruptcy, ap- proved June 22, 1874. Number of cases in bankruptcy in which warrants were re. CEIVED Sa cise de oe) Sk seni ons wus wid eleeereeucane ana 9 brie Ba ane an eee . Number of warrants returned during year............. ae Fees for service of warrants so returned....... Sn ae besa ates For serving creditors with notice.......0.....ccceeeecaeee Mileage thereon ........ Belg SRL Saeed cee cietamec age ie Expenses of publication thereon..... Expenses of postage thereon.......esseeevees ie Other expenses thereon, such as for..........0.ccceceeaeee Other fees, costs, expenses, and emoluments, namely : For service-fees for serving writs and process ..........es..5 For mileage thereon........ 0. es ccee ec ce ee ce ees For serving notices .......... . For mileage thereon....... < Expenses of publication thereon........ 0.00. cecueeeeceeee Expenses of postage thereon...... i For making inventories of property..............000 eisie es For taking eare of property. . ys sus a4 wa eens 6x ne ke ma oayn as Expenses and disbursements thereon........ All other fees and emoluments, such as for: All other expenses and disbursements, such as for: GHNERKAL ORDERS LN BANKRUPTCY. 595 SUMMARY OF FEES, COSTS, AND EMOLUMENTS, EXCLUSIVE OF ACTUAL DISBURSEMENTS. Service fees........... Dina ie inn sarcayoeaons Guain wiateeaucalanesiee MCR OG: ccctarsie: sus the tus on Garauarwarcuacara enter dia ken ers wale bare: wid - Making inventories ...... Guphyoeans sO ovaGrde oa vmeare- eet eset Care if, PrOPerty® acca actin nw ae oid, clo cand ere Bish ceeeeue wa bee a Other fees and emoluments in bankruptcy SUMMARY OF ACTUAL DISBURSEMENTS. For publications.,........... Vestiiiedwurananieneeer + For postage .....ececeeeeeee ce aisle gvecie er aveeiss erouaelatiay ns For custody of property ...... 2... cece eee ee seesceaaane4 For traveling expenses................005 es Ne aighsrah See arate alas For other expenses, such as ....... Scicone vali har Bahuion telat saad REPORT OF REGISTER. Annual report of , register in bankruptcy in and for the district of the State and district of F for the year ending June 30,18 , in pursuance of section 19 of the amendatory act relating to proceedings in bankruptcy, approved June 22, 1874. Number of cases‘of voluntary bankruptcy referred....... aPiecas Amount of assets of the bankrupts 'therein.........eeeseeeees Amount of liabilities of the bankrupts therein........... Sosiouers Amount of dividends declared therein............seeeeeeeres Average rate per cent. of dividends declared therein..... Somten Number of cases in which discharge granted........ ...++ ees Number in which discharge not granted ............05 carne Number of compulsory cases referred........... iva aro Amount of assets of the bankrupts therein............+. dle win Amount of liabilities of the bankrupts therein............ diseases Amount of dividends declared therein. ......es.ceeeeeeeeeees Average rate per cent. of dividends declared therein........... Number of cases in which discharge granted..........seeeeeee Number in which discharge not granted........seeeeseeevees Amount of fees, costs, &c., received or earned in cases of volun- tary bankruptcy............ Seam e ee teen seer eeneeeeaas Amount of fees, costs, éc., received or earned in cases of invol- untary bankruptey....... eee io SG! jie Se Sie Vals eau ee ease te 896 GENERAL ORDERS IN BANKRUPTCY. REPORT OF ASSIGNEE. Annual report of ,of the ° _, in the State of $ assignee in bankruptcy, for the year ending June 30,18, in pursuance of section 19 of the amendatory act relating to proceedings in bank- ruptcy, approved June 22, 1874. | 2 & i 8 = cat a.|3 & | sa | o 3 " efis3| 4 ‘ aS | £2 ‘2 I 9 eS 4 ' sEilga/ = Name and number of bankrupts. - 85 | #3 g a 2 wep | & a 3 2 Se | 5a} & . ‘= a me eg 3 w g a ° ma ei > 2 a Py 3 s3|3 bo -|s 2 2 =I o ae 3 a a} a 2 a ° a 3 + m = = eo ~ o a o 2 2 a2 = v a ‘° cy eT ° a > = o a mn 3 3 2 =z a 3 K 2 at , of the value Of .....cseeenereeees Swaqeaislng he's cldoalse wns daa sela'ra Ccanconcascnecnensaesoneoenaees L—Household Goods and Furniture, Houschold Stores, Wearing Apparel, and Ornaments of the Person.......sccceessesecnseseeseneescnswesaeeoeees eee eas .— Books, Prints, and Pictures .........cccccscescseesensseesseeeseneseeaaneneseneoeeeees £—Horses, Cows, Sheep, and other Amimals.............ssscesssereeseeeeeseneesaes 1.—Carriages, sed Other VGHICIES.......00.scevenceonssacanessoncseaaevavesasimene careers t,.—Farming Stock, and Implements of Husband ry.......csssseeseeseneeeeeereenee i— Shipping, and Shares in Vessels.............cccccccensseeeeneeeseneeteneedenseneeses k,--Machinery, Fixtures, and Apparatus used in Business; with the place where €ach: is Situated .oscssssessivssrmecerevarenverniceaaesorseneonsee i cbegueaiie Z—Goods or Personal Property of any other Description, with the place where each is Situated ....... aicladisile se sigesieGe bet nt se aUSGANDA paakiysols eapyetucdieaese Petitioner. FORMS IN BANKRUPTCY. 907 'etition by Debtor.] SCHEDULE B. (3.) Choses in Action. Dollars. | Cts. —Debts due Petitioner on open Account .,...... was eeaanens iauinoikcuaaseeatetuaee i —Stocks in Incorporated Companies, and Interest in Joint-stock Com- PANIES... ..ceseeeseeceeteeceenereeneeeesnneeesaaereetecaanenenaeueesssenaneeenne eet aes —Policies of Insurance...........csccsseeeeneeeeeereeeee sobiyasviceeapwnes aioeteseesaeees: —Unliquidated Claims of every nature, with their Estimated Value......... [ era eacranl { I as wee, Petitioner. 908 [Petition of Debtor.] FORMS IN BANKRUPTCY. SCHEDULE B. (4.) Property in Reversion, Remainder, or Expectancy, including Property hek in Trust for the Petitioner, or subject to any Power or Kight to Dispos of, or to Charge. (N. B.—A Particular Description of each Interest must be Entered. Ifall or any of the debtor's Pr, : has been Conveyed by Deed of Assi ment, or otherwise, for the benefit of Creditors, the date of such Dee hould be stated, the Name and Address of the Person to whom the Property was Conveyed, the Amoun venlleed from the Proceeds thereof, and the Disposal of the Same, as far as known to the Petitioner.) General Interest. Particular Description. Supposed Valn of my Interes:, Interest in Land Personal Property ......... Property in Money, Stock, Shares, Bonds, Annuities, etc., etc. Rights and Powers.......... Property heretofore conveyed for benetit of Creditors. What portion of Debtor's Property has been Con- veyed by Deed of Assign- ment, or otherwise, for Benefit of Creditors; Date of such Deed, Name and Address of Party to whom Conveyed; Amount real- ized therefrom and Disposal of same, so far as known to Petitioner. Real Estate and Leasehold Cee Poa: re and Descriptions of Parties now njoying the Same, an the Value thereof; also the Nature of my Interest there- in, and from Whom, and in what Manner it is derived. . Personal Property, with Locality, Names, and Descriptions of Persons now Enjoying the Same; also the Nature of my Interest therein, and from Whom, and in what Man- ner it is derived........ ce lf ote u eye Waals Stace\W aieiraiwiaiaiviara'e ate Annuities, Money in Public or other Funds, Shares in Rail- road and other Companies, showing in whose names the same are standing, with Names and Descriptions of persons now Enjoying the Same; also the Nature of my Interest therein, and from Whom, and in what Man- MEL IL IS CErived pas cieeiatiie 2 ais sieccidssinssie ciaigre annioresice’e git ewwieimaie Rights and Powers wherein I, or any other Person or ersons in Trust for me or for my benefit, have any power to Dispose of, Charge, or Exercise............... Description of Property of Debtor heretofore conveyed for benefit of Creditor by deed of assignment, or other- wise; date of such deed or instrument of conveyance, with uame and address of party to whom made 3 amount realized from same, and the disposal of such property, so far ay known to Petitioner. Dolls. Cts, Am’nt realized from proceeds of property conveyei Dolls. = Cta. FORMS IN BANKRUPTCY. 909 ‘etition by Debtor.] SCHEDULE 8. ; (5.) | Particular Statement of the property claimed as Eacepted from the Opera- tion of said Act, by the provisions of the 14th Section thereof, giving Each Item of Property and its Valuation ; and, if any portion of it is Neal Ks- tate, its Location, Description, and Present Use. (N. B.—The property claimed to be Exempt under the Laws of any State is to be described separately om the rest, and reference given to the Statute of said State creating the Exception.] Valuation. Dolls. | Cts. ‘roperty claimed to be Ex- cepted from the opera- tions of said Act, and which may be set apart by the assignee under the 14th Section ......... ‘roperty claimed to be Ex- empt by State laws; its Valuation ; whether Real or Personal Estate; its Description and Present Use; and under what State Law Exemp- tion-is claimed .........+. ee es Petitioner. 10 HFUKMS LN DANKNUrLUL. >etition of Debtor.] . SCHEDULE 3B. (6.) he following is a True List of all Books, Papers, Deeds, and Writings ve. lating to my Trade, Business, Dealings, Estate, and Lifects, 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 Use, Benefit, or Advantage 3 and also of All others which have been heretofore, at any time, in my Posses- sion, 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 :— "APERS, ETC. 10.0 veeeseeeee a % pe ke ey Pelitioner: (N.B - Here fo] ows oath to Schedule B, as hereinafter prescribed. } FORMS IN BANKRUPTCY. 911 OATHS TO SCHEDULES A AND B. {N. B.—The following forms of oaths to Schedules A and B of the Petition by Debtor are prescribed, and ey are to be annexed to the same, respectively.] ' Oath to Schedule A, Unirep States oF AMERICA. District of , 882 Onthis day of ,A.D.18 , before me personally came ; he person mentioned in and who subscribed to the foregoing Petition and chedule, Marked A, respectively, and who being by me first duly sworn or, affirmed], did declare the said Schedule to be a statement of all his ebts, &c., in accordance with the Act of Congress entitled “An Act to istablish a Uniform System of Bankruptcy throughout the United States,” pproved March 2, 1867. a ee District Judge, [or, Register ; or, U. S. Commissioner.] Oath to Schedule B. , : Unitep States or AMERICA. Distriét of 58s! On this day of ,A.D.18 _, before me personally came ; he person mentioned in and who subscribed to the foregoing Petition and ichedule, Marked B, respectively, and who being by me first duly sworn or, affirmed], did declare the said Schedule to be a statement of all his state, both real and persoual, in accordance with the Act of Congress en- itled “An Act to Establish a Uniform System of Bankruptcy throughout he United States,” approved March 2, 1867. > District. Judge, (or, Register, or, U. 8S. Commissioner. | Form No. 2. COPARTNERSHIP PETITION. [In case of a Copartnership, the form will be as follows :] ‘o the Honorable Judge of the District Court of the United States for the District of . Tue Perrrion of “and - of , 1 the County of , and State of , and District afore- ud, respectfully represents: That the said » an ‘ opartners transacting business at , in the County of ‘ nd State of , and in said District, have _ for the 1onths, , Or, Tuart the said and members of a copartnership omposed of themselves, and one of ,1n the County of 4 ad State of , have for the months :— ext immediately preceding the filing of this Petition at within tid Judicial District : that the memhers of said conartnershin owe debts ex- 12 FORMS IN BANKKUFPIUY. eeding the amount of three hundred dollars, and are unable to vay all their debts in full; that they are willing to surrender all their es. ate and effects for the benefit of their creditors, and desire to obtain the venefit of the Act entitled “An Act to Establish a Uniform System of 3ankruptcy throughout the United States,” approved March 2, 1867. That the Schedule hereto annexed, marked A, and verified by their oaths, ontains a Full and True Statement of all the debts of said Copartnership, nd, as far as possible, the Names and Places of Residence of their Credit. irs, and the further statements concerning such debts required by the pro- ‘isions of said Act. That the Schedule hereto annexed, Marked B, verified by their oaths, ontains an accurate Inventory of all the estate of said Copartnership as re- juired by the provisions of said Act. And said further states, that the Schedule hereto annexed. Marked C, verified by his oath, contains a Full and True Statement of all is Individual debts; and, as far as possible, the Names and Places of Res- jence of his Creditors; and the further Statements concerning such debts equired by the provisions of said Act; and that the Schedule hereto an- exed, marked D), verified by his oath, contains an accurate Inventory of ll his Individual Estate as required by the provisions of said Act. And said further states, that the Schedule hereto annexed, Tarked FE}, verified by his oath, contains a Full and True Statement of all is Individual debts, and, as far as possible, the Names and Places of Resi- ence of his Creditors, and the further Statements concerning such debts equired by the provisions of said Act; and that the Schedule hereto an- exed, Marked F’, verified by his oath, contains an accurate Inventory of ll his Individual Estate as required by the provisions of said Act. UN. B.—Similar clauses to be added for Individual Schedules of each Ccpartner joining in the Petition.] WHEREFORE, YOUR PETITIONERS PRAY, that after due proceedings had, hey may be adjudged by a Decree of the Court to be Bankrupts within he purview of said Act; and upon their compliance with all the require- ients of the said Act, and all the orders and directions of the Court made 1 pursuance thereof, they may be severally decreed to have a CERTIFICATE F DiscHARGE FROM ALL THEIR Dzxzts provable under said Act, and other- rise entitled to all the benefits thereof. > 9 Petitioners. [N. B.—The Form of the Oath to the Petition is to be modified by employing the plural for 1e singular number, and by the addition of clauses to cover the Schedules of each Copartner.] Form No. 3. CORPORATION PETITION. [N. B.—If a Petition in Bankruptcy is filed by a Corporation, an authenticated copy of a ote or other action of the Stockholders, (or, party or parties entitled to act in behalf of such orporation, ) authorizing such proceedings should be filed with the Petition, and which, in ibstance, should be-as follows :] Statement to accompany Petition of Corporation, (In Bankruptcy.) AT A MEETING OF THE SrockHorpERs, [or, of the Board of Directors, 07, rustees, as the Case may be.] of the Comnany Tar Acanaiatinn am FORMS IN BANKRUPTCY. 913 sank, o7, Society,] a Corporation created by , of the State f , held at ,in the county of , and State of ; nthis day of ,A.D.18 ,the Condition of the Affairs of said Cor- oration having been inquired into, and it being ascertained to the Satisfaction f said meeting that the said Corporation was Insolvent, and that its Affairs ught to be wound up, it was Voted [or Resolved] by a Majority of the Cor- orators [or, Stockholders, or, Directors, or, Trustees] present at such Meeting, which was duly called and notified for the purpose of taking action upon the ubject aforesaid ;) that be, and thereby—Authorized, Impowered, and Required to file a Petition in the District Court of the United tates for the — District of , Within which said Corporation has carried n its business, for the purpose of having the same adjudged Bankrupt; and hat such proceedings be had thereon as are provided by the Act of Congress ntitled “An Act to Establish a Uniform System of Bankruptcy throughout he United States,” approved March 2, 1867, IN WITNESS WHEREOF, I have hereunto subscribed my name as President suai [or, other officer or agent] of said Corporation, and affixed {or Goren the Seal of the same this day of A.D. 18 @ te, President [or, other officer of said Corporation. [N.B.—In case of a Corporation, the following changes are to be made in the form of Peti- ion already prescribed, viz. : The substitution of the Name of the Corporation for that of the ndividual Petitioner, and the omission of the Prayer for a Discharge and the following pas- age substituted: ‘‘ And that like proceedings may be had in the premises as in said act are pro- ided in respect to natural persons.” The language of the Oath to the Corporation Petition may e changed to correspond with the form of the Petition. ] Form No. 4. ORDER OF REFERENCE TO REGISTER. n the District Court of the United States, "or the District of i In the Matter of In BanKRUPTCY. . Petitioner for Adjudication in Bank- ruptcy of himself. . District of 188 Wuereas , of the County of , State of nd District aforesaid, has, on this day of . ,AD.18 ,at ‘clock m., filed in the office of the Clerk of said Court a Petition for Ad- udication in Bankruptcy against himself, according to the provisions of the ct of Congress entitled “ An Act to Establish a Uniform System of Bank- iptcy throughout the United States,” approved March 2, 1867, It is thereupon Ordered, That said Petition be referred to ee 1e of the Registers in Bankruptcy of this Court, to make Adjudication iereon and take such other nroceedines therein as are reauired bv said Act: JI4 PURMS LN BANKKUPLIULY, ind further, That the said shall, on or before the day of ; it o'clock ma, file with said Register a duplicate copy of said Petition ind the Schedules thereto annexed, and that he attend before said Regis. er on said day, and thenceforth as said Register may direct, to submit to uch orders as may be made by said Register, or by this Court relating to us said Bankruptcy. : And further, that until otherwise ordered by the Court, the said Register hall act upon the matters arising in this case at his office, at it such times as he shall fix for that purpose. : Witness the Honorable , Judge of the said Court, and eat thereof, at ,in said District, on the day of ‘ \.D. 18 Seal of Wea {une Court. i Piers neler a > Clerk of District Court, for said District, Form No. 5. ADJUDICATION OF BANKRUPTCY UPON DEBTOR’S PETITION. n the District Court of the United States, "or the ’ District of : In the Matter of 2 In Bangrvprcy, sy whom a Petition for Adjudication of Bankruptcy was filed on the day of ,A.D.18 ,in said Court. At , in said District, on the day of ,A.D.18 Before , one of the Registers, of said Court in Bankruptcy. I, raz UnDERSIGNED, a Register of said Court in Bankruptcy, upon good roof before me , taken, do find, that the said has ecome a Bankrupt within the true intent and meaning of the Act of Con- ress entitled “An Act to Establish a Uniform System of Bankruptcy iroughout the United States,” approved March 2, 1867; and I do hereby eclare and adjudge him a Bankrupt accordingly. ea) piles ee Register in Bankruptey. [N.B.—When a Debtor is declared a Bankrupt upon a Creditor’s Petition, the Order should » made by the Court and entered as an Order of the Court in substantially the form above ‘escribed. FORMS IN BANKRUPTCY. 915 _ Form No. 6. WARRANT TO MESSENGER. (Voluntary Bankruptcy.) 1 the District Court of the United States, or the District of In the Matter of . In BankRvptcy. ty whom a Petition for Adjudication of Bankruptcy was filed on the = day of ,»A.D.18 , in said Court. District of , 8s. ‘o the Marshal of the District of — Greetine :— Whereas, a Petition for Adjudication of Bankruptcy and for relief, under the Act of Congress entitled “ An Act to Establish a Uniform ystem of Bankruptcy throughout the United States,” approved March 2, 867, was, on the day of ,18 , filed by , of ,in said District, upon which he hath been found and adjudged Bankrupt, there being no opposing party thereto :—You AR, THEREFORE, (EREBY DIRECTED, AS MessENGER, to publish times in the—{ Here ame the newspapers in which the notice is to be published,] (the first publi- ation to.be made forthwith,) the following notice, to wit :— Tuis 1s TO Give Notice: That on the day of ,AD.18 ,a@ Varrant in Bankruptcy was issued against the Estate of > of , in ie county of , and State of ; who has been adjudged a Bankrupt, on is own Petition; that the Payment of any Debts and Delivery of any Property belonging to ach Bankrupt, to him, or for his use, and the Transfer of any Property by him are forbidden y Law; that a Meeting of the Creditors of the said Bankrupt, to Prove their Debts, and to ‘hoose one or more assignees of his Estate, will be held at a Court of Bankruptcy, to be holden Here designate the Place, and Building, Room, or Office where the Court is to be held,] before , Register, on the day of ,A.D. 18 , at o'clock M. AND YOU ARE FURTHER DIRECTED to Serve Written or Printed Notice, forthwith, either y Mail or Personally, [Those upon whom personal Service is to be made should be designated by te Court, or Register,] on all Creditors upon the Schedule filed with said Bankrupt’s Petition, or, where names may be given you in addition thereto by the Debtor, ]} at least ten days before ae appointed meeting of said Court, in the following form, to wit :— 'o Mr. , of , County of , and State of » Creditor of A Bankrupt. You are hereby notified that a Warrant in Bankruptcy has been issued out of the District ‘ourt of the United States, for the * District of » against the estate of ? djudged a Bankrupt, upon his own Petition: —That the Payment of any Debts, and the De- very of any Property belonging to said Bankrupt, to him, or for his use, and the transfer of ny Property by him are Forbidden by Law:—That a Meeting of the Creditors of said Bank- upt, to wit: [Here insert names of the Several Creditors of Bankrupt, with their places of esidence and amount of their debts, respectively, in the following form, e.g. :— A.B. | Boston, Mass. ..........ccccccesseeneseeeee | $500] ) Prove their Debts and Choose one or more Assignees of his Estate, will be held at & Court f Bankruptcy, to be holden on the day of »A.D.18 , at o'clock, 1, at [Here insert the Place, Building, Room, or Office where the Court will be held,) before , Register. And have you then there this Warrant, with your doings thereon. Witness the Honorable , Judge of the said Court, and { Sealof y_ the seal thereof, at ,in said District, on the the Court. S day of ;A.D.18 . _——— Clerk of District Court, for said District. L6 EPUNMS LIN DANK NULAVEs Form No. 4. RETURN OF MESSENGER TO ACCOMPANY WARRANT. (N. B.—This Return may be Endorsed on the Warrant, or follow the signature of the Clerk.] District of 188s : At , on the day of ,A.D.18 .—By virtue of the within ‘arrant, I have caused the notice therein ordered to be published, by ad- rtisement, times, in the Newspapers within mentioned; the first iblication of which was on the day of ,A.D.18 ,in [ere men- om Newspaper in which first publication was had|:—And I also, on the vy of ,A.D,.18 ,sent by mail or served personally upon the credit- 's and others named in said Warrant a copy of the notice required thereby be sent to, or served on them :—And all of the said notices were accord- g to the directions set out in said Warrant. Frees. Por SrVvice: OF Wallan boveanestaasecidulinedis sine nenadndsieeaddcincad dad dsemeacvintgldades €2 | 00 For necessary travel miles, at 5 cents per mile, each way............00+ For each written note to Creditor named in the Schedule, 10 cents......... For actual and necessary expenses in publication of notices...............+6 ‘N.B.—If there are any other necessary expenses, the same may be inserted in specific terms, numbering the same consecutively] U.S. Marshal, as Messenger, District of District of 58s ,A.D.18 . Then personally appeared 1e , and made oath that the above Expenses returned by im, in addition to his fees, were actually and necessarily incurred and paid y him, and that the same are just and reasonable. Before me, ‘i District Judge, [or, Register in Bankruptey. | form No. 8. REGISTER’S OATH OF OFFICE. Unirep States oF AMERICA, District of > sss L , having been duly nominated and recommended by the Chief Jus- ce of the Supreme Court of the United States, and appointed by the District udge of the United States for the district of , as a Register . Bankruptcy under the act entitled “ An Act to Establish a Uniform System f Bankruptcy throughout the United States,” approved March 2, 1867, do olemnly swear that Ihave never voluntarily borne arms against the United tates since I have been a citizen thereof; that I have voluntarily given no id, countenance, counsel, or encouragement to persons engaged in armed hos- lity thereto; that [have neither sought nor accepted, nor attempted to exer- ise the functions of any office whatever under any authority or pretended au- rority in hostility to the United States; that Ihave not yielded a voluntary apport to any pretended government, authority, power, or constitution within FORMS IN BANKRUPTCY. 017 1e United States hostile or inimical thereto. And I do further swear, that ) the best of my knowledge and ability, I will support and defend the Con- tution of the United States against all enemies, foreign and domestic; iat I will bear true faith and allegiance to the same; that I take this obli- ation freely, without any mental reservation or purpose of evasion; and aat I will well and faithfully discharge the duties of the office on which I m about to enter; and also, that I will not, during my continuance in of: ce, be directly or indirectly interested in, or benefited by, the fees or emol- ments arising from any suit or matter pending in bankruptcy in either the district or Circuit Court in this District. So help me God. ‘Subscribed and to, before me this day of , AD. 18 District Judge. Form No. 9. OFFICIAL BOND OF REGISTER. un the District Court of the United States, ‘or the District of ‘ In Bankruptcy. Kyow aLL MEN BY THESE Presents: That we [Znsert names and rest- ences in full of Bondsmen] are held and firmly bound to the United States f America in the sum of dollars, lawful money of the United tates, to be paid to the said United States, for the payment of which, well nd truly to be made, we bind ourselves and each of us, our and each of our eirs, executors, and administrators, jointly and severally, firmly by these resents. ‘ Sealed with our seals, and dated this day of. , Anno Jomini one thousand eight hundred and : Whereas the said , having been on the day of 5 .D.18 , appointed by the Honorable , Judge of the Dis- rict Court of the United States for the District of 3 Register in Bankuptcy, in and for said District, this Bond is executed pur- uant to the Third Section of the Act of Congress entitled “An Act to Es- ablish a Uniform System of Bankruptcy throughout the United States,” ap- roved March 2, 1867, and is conditioned for the faithful discharge of the uties pertaining to said office of Register in Bankruptcy. In witness whereof we have hereunto set our hands and seals this ay of , A.D. one thousand eight hundred and aS ees L. 8. he Signed, sealed, and filed in office of the Clerk of said District Court. Attest: Clerks’ District of : [N. B.—The above Bond to be endorsed with the approval of the Judge of the District ourt thus; ‘*I HEREBY APPROVE THE WITHIN BonD, AND DECLARE THE SURETIES THEREON ) BE SATISFACTORY ;” and the usual certificate of the Clerk of the District, as to the exact LS FORMs IN BANKRUPTCY. Form No. 10. COMMON ORDER. 1 the District Court of the United States, ‘or the District of ‘ In the Matter of In Banxkrurrcy. Bankrupt . At , in said District, on the day of , A.D. 18 Before Mr. , one of the Registers of said District Court, in Bankruptcy. District of , 88s Upon the application of , of , in the County of , and tate of , there being no opposing interest, [or, the party, or parties, opearing assenting thereto,| Ir 1s OrpErED: [Mere insert the order. | Witness the Honorable , Judge of the said Court, and the seal thereof, at , in said District, on the {ins tomtt day of” , A.D. 18 ge Clerk of District Court, for said District. Form No. 11. CERTIFIED MEMORANDUM OF FIRST MEETING OF CREDITORS. 1 the District Court of the United States, For the District of In the Matter of In Banxrvptcy. Bankrupt . At in said District, on the day of , A.D. 18 Before Mr. ? Register in Bankruptcy. District of 588s . ie _Memoranpum.—This being the day appointed by the Court for the First eeting of Creditors under the said Bankruptcy, whereof the notice re ured in that behalf has been duly given, I, the undersigned, Register of the id Court in Bankruptcy, sat at the time and place above mentioned, pur- iant to such notice, to take the proof of debts and for the choice of as- gnee under the said Bankruptey ; and T do hereby certify that the greater wt in number and in value of the creditors who hare proved their debts ere present, or duly represented, and made choice of , of i ; : 1e County of , and State of , as the Assignee of the said ankrupt’s estate. Dr, Failed to make choice of an Assignee of said Bankrupt’s estate, and there "Ing no opposing interest, I appointed , of in the County and Stata af mes Meiticnmens intl . 2 FORMS IN BANKRUPTCY. 919 ry Failed to make choice of an Assignee of said Bankrupt’s estate, and there eing no opposing interest, I further certify to the Court the failure to make ach choice of Assignee, in order that the Court may take action in the remises. . - 2. Register in Bankruptey. (N. B.—When the matter of appointment is referred to the Court, the Register may, if re- aested, certify the names of the persons proposed at the Creditor’s meeting and the votes ven for each. } : Form No. 12. BSTRACTS OF PROCEEDINGS UNDER SECTION FOUR— FORM OF MEMO- RANDUM TO BE RETURNED TO CLERK BY REGISTER, OF HIS ACTION IN EACH CASE. , a the District Court of the United States ‘or the District of 9! In the Matter of In BangRvptcy. Bankrupt . At , in said District, on the day of » A.D. 18 Before Mr. ; Register in Bankruptcy. District of 5 88s Memoranpum.—This day attended the first meeting of Creditors of ; 1e Bankrupt aforesaid, at said , where Choice was made of: ssignee as appears by the papers herewith returned. [Here insert particu- w statement of all that was done before the Register. | Sten) eas ee Register in Bankruptcy. (N. B.—A memorandum of what is done in each case respectively must be returned on sepr ate sheets of paper.] Porm No. 13. CREDITORS WHO HAVE PROVED THEIR DEBTS AT FIRST MEETING. the District Court of the United States, or the District of In the Matter of ° In BankRUPTCY. Bankrupt . At ,in said District, on” the _— day of ,AD.18 . Before Mr. ’ Ronistor in. Rankomteu 0 FORMS IN BANKRUPTCY. District of 536 The following is a list of Creditors who have this day proved their debts :~ Names of Creditors. Residence. Debts Proved, Dolls. Cts, pe Register in Bankruptcy. Form No. 14. FORM OF SPECIAL LETTER OF ATTORNEY. In the Matter of In BANKRUPTCY. Bankrupt . To Sir: [or, Messrs., or, Gentlemen, ] I, [or, we,] reby authorize you, or any one of you, to attend the meeting of Creditors this matter, advertised or directed to be holden at , on the Ly of , before ,or on the day advertised in the [Mame the ewspapers,| or any adjournment thereof, and then and there’ for ; id in name to vote for or against any proposal or resolution that ay be lawfully made or passed at such meeting or adjourned meeting ; and the choice of Assignee, or Assignees of the Estate of the said Bankrupt, and r , or , to accept such appointment of Assignee. Dated this . day of ,AD.18 . Wijness to the signature of ? Exhibited to me this day of , A.D, 18 ee Register in Bankruptcy. FORMS IN BANKRUPTCY. 92) Form No. 15. CHOICE OF ASSIGNEES, (First Meeting of Creditors.) the District Court of the United States, or the District of : In the Matter of In Banxrurtcy. Bankrupt . At , in said District, on the day of , A.D. 18 Before Mr. ; Register in Bankruptcy. District of ' 3882 Memoranpum.—tThis being the day appointed by the Court for the First eeting of Creditors in the above Bankruptcy, and of which due notice has 2en given in the [ Here insert the names of the Newspapers in which notice was ublished,| and by special notice served personally, or through the mail. We, hose names are hereunder written, being the greater part in number and in ilue, of the Creditors of the said , Bankrupt aforesaid, pres- it at this Meeting, and who have proved our Debts, have chosen, and do xreby nominate and choose [Here insert the name, or names of" assignees, ith their places of residence, respectively] to be the assignee of the said ankrupt’s Estate and Effects, and we do desire that he [or, they] may be ypointed such assignee , accordingly: ames of Creditors above men- Residences of the Same. Am't of Debt. tioned, Dolls. Cts. I [or, we] do hereby accept the said Trust, [or, Appointment. ] ? es oe Assignee . I, , a Register of the said Court in Bankruptcy, do hereby prove of, and confirm the said choice of Assignee . —_—_—_- , Register in Bankruptcy. hereby appoint Mr. , of , to act 3 Solicitor, and Attornéy in the above Bankruptcy. | SEs Register [or, Assignee] , District Judge. *N.B.—If no attorney be appointed, strike the latter form out, and when the appoint- ant is made file an appointment as above, signed by the Assignee. The District Judge will endorse hereon, in case of approval of the above, thus: ‘‘ Ap-, 322 FORMS IN BANKRUPICY. Form No, 16. NOTIFICATION OF APPOINTMENT OF ASSIGNEE. fn the District Court of the United States, 5 for the District of ; : In the Matter of In BANKRUPTCY. Bankrupt . District of » os. . To , of , in the County of ‘ and State of — I po HEREBY CERTIFY to you, that you were duly, chosen [or, appointed] issignee [or, one of the assignees] of the Estate and Effects of the above iamed Bankrupt, at the first meeting of the Creditors, on the day of ,A.D.18 ,and Ido hereby approve and confirm said election or appointment ;] and I do further certity, that the greater part in value and n number of the Creditors of said Bankrupt who had proved their claims vere present, or were duly represented at said meeting. Dated at , the day of , A.D. 18 Judge of said District, [or, Reyister in Bankruptcy] [N. B.—If the appointment is made by the Judge, the last clause should be omitted. ] Acceptance of' Assignee. {N. B.—To be endorsed on notification, or to follow it.J To wHom tr may Concurn: Be it. known, that I hereby signify my ac- eptance of the Trust of Assignee of the Estate of the above [or, within] med Bankrupt this day of . ,AD.18 . Form No. 17. BOND OF ASSIGNEE. 1 the District Court of the United States, ‘or the District of : In the Matter of In Bayxrurtcy, Bankrupt . District of » 882 Kyow ALL MEN BY THESE PRESENTS: That we, 5 of 2 ; and of 5 % > ‘e held and firmly bound unto the United States af Amavina In tha tuat and FORMS IN BANKRUPTCY. 923 Hsumof dollars, to the payment whereof, well and truly to be ade, we do bind ourselves, our and each of our heirs, executors, and admin- trators. Signed, Sealed, and Delivered at , this day of 3 .D.18 . : The said , having been, on the day of ,AD.18 , y order of the District Court of the United States for the District f ; Iv Bankruptcy, appointed assignee of the estate of ; Bankrupt, this Bond is executed pursuant to the thirteenth Section of the Act f Congress entitled “ An Act to Establish a Uniform System of Bankruptcy iroughout the United States,” approved March 2, 1867; and is conditioned wr the due and faithful discharge of all duties by the said ¥ 3 such assignee, and in compliance with the Orders and Directions of the lourt in the matter of Bankruptcy of the said Signed, Sealed, and Delivered in presence of— iy s,s, [N. B.—To be Endorsed on the above ‘On the day of ,A.D.18 .”] Approved: ——_—_—_——_ ———; District Judge, [or, Register in Bankruptcy.] Form No. 18. ASSIGNMENT: OF BANKRUPT’S EFFECTS. a the District Court of the United States, ‘or the District of ; In the Matter of In Bankruptcy. Bankrupt :° District of 5 88 Know ALL MEN BY THESE PRESENTS, that , of the of 5 1 the County of , and State of ,in said District ha ween uly appointed assignee [Jf more than one assignee is appointed, insert ac- ordingly] in said matter. Now, THEREFORE, I, , Judge of said istrict Court, [or, Register in Bankruptcy of said District,] by virtue of he authority vested in me by the 14th Section of an Act of Congress enti- led “ An Act to Establish a Uniform System of Bankruptcy throughout the Jnited States,” approved March 2, 1867, do hereby convey and assign to the aid © , assignee, as aforesaid, all the Estate, Real and Personal, of he said , Bankrupt, aforesaid, including all the property, of rhatever kind, of which he is possessed, or in which he was interested, or untitled to have on the day of , AD. 18, with all is Deeds, Books, and Papers relating thereto, excepting such property as 1s ixempted from the operation of this Assignment by the provisions of said ‘ourteenth Section of said Act. To HAVE AND TO HOLD all the foregoing premises to the said ? nd his heirs forever, Lv TRUST, NEVERTHELESS, for the use and purposes, with 1 3 Pe a an Abt Awn and limitatiana cat farth in said Act. FORMS IN BANKRUPTCY. * { WITNESS WHEREOF, I, the said Judge [or, the said Register] have here- is unto set my hand, and caused the seal of said Court to be affixed, he Chast f this day of , A.D. 18 fs District Judge, [or, Register in Bankruptcy.] Form No. 19. NOTICE OF ASSIGNEE OF HIS APPOINTMENT. (In Bankruptcy.) District of > 88s t , the day of , A.D. 18 . ‘he undersigned hereby gives notice of his appointment asassignee of —, , in the County of , and State of , Within said trict, who has been adjudged a Bankrupt upon his own Petition, [or, on ditor’s Petition; or, as the case may be] by the District Court of said Dis- t. _. ____, Assignee, &e. l oo ———_—__ —______-, Form No. 20. EXEMPTED PROPERTY. he District Court of the United States, the District of - In the Matter of In Banxkrvuprcy. Bankrupt . At ,onthe dayof ,18 . District of soo. ‘he following is a Schedule of property designated and set apart to be re- ied by the Bankrupt aforesaid, as his own property, under the provisions he 14th Section of the Act of Congress entitled “An Act to establish a form System of Bankruptcy throughout the United States,” approved sch 2, 1867: General Head. Particular Description. Value. sssary household and kitchen Dolls. | Cts. TILUTC..see ee necee tee eenrecenstee wr articles and necessaries...... ring apparel of Bankrupt and 3 faMily ......cccceseccessesseesr eee pments, if any, as a Soldier... x Property Exempted by the ws of the United States........ erty Exempted by State Laws. Diettat NTidaolay Raniotan 1 FORMS IN BANKRUPTCY. 925 Form No. 21. PROOF OF DEBT, WITH SECURITY. n the District Court of the United States, ‘or the District of ; In the Matter of Iy Bankruptcy, Bankrupt . District of 8S On this day of ,A.D.18 , before me , a Reg- ster in Bankruptcy [or, United States Commissioner, or other proper officer] f said District, personally appeared , of , In the County f , and State of , and who, after being duly sworn [o7, ffirmed] and examined, at the time and place aforesaid, upon h’ oath, says hat , the person by [or, against] whom a Petition for Adjudica- ion of Bankruptcy is filed, w at and before the filing of the said Pe- ition and still , justly and truly indebted to this Deponent, [or, the rm of , composed of this deponent and , transacting usiness at ,| in the sum of dollars and cents, for which aid sum of dollars and cents, or any part thereof, this Depo- ent has not nor any person by order, or to this Deponent’s nowledge or belief, for use, received any security or satisfaction rhatsoever, save and except the , hereinafter mentioned; that the laim was not procured for the purpose of influencing the proceedings under he Act of Congress entitled “An Act to Establish a Uniform System of tankruptcy throughout the United States,” approved March 2, 1867; that o bargain or avreement, expressed or implied, has been made or entered ito by or on behalf of this Deponent to sell, transfer, or dispose of said laim, or any part thereof, against said Bankrupt, or to take or receive, di- setly or indirectly, any money, property, or consideration whatever, where- y the vote of this Deponent [or, the firm of which this Deponent is a mem- er] for Assignee, or any action on the part of this Deponent, or any other erson, in the proceedings under said act, has been, is, or shall be in any ‘ay affected, influenced, or controlled; [Here insert a particular description * the debt, and also of the property held as security, and the estimated value P such property. | > Deponent. Subscribed and sworn [or, affirmed] to, at , on the Ly of ,AD.18 . Before me District Judge, [or, Register in Bankruptey, Or, U. &. Commissioner. | Received by me, at this day of ,A.D. 18 ’ Assignee. 26 FORMS IN BANKRUPICY. Form No, 22. DEPOSITION FOR PROOF OF DEBT WITHOUT SECURITY. n the District Court of the United States, ‘or the District of : In the Matter of In BankKRUPTCY. Bankrupt . | District of 7s At , in the County of ,and State of , n the day of ,A.D.18 , before me came ; f , in the County of , and State of and iade oath, [or, affirmation,] and says, that the said , the per- on whom a Petition for adjudication of Bankruptcy has been filed, t and before the filing of the said Petition, and still- ‘ ustly and truly indebted to this Deponent in the sum of, [Here state the mount, and describe the consideration of the Debt, and whether any, and shat, payments have been made thereon,| for which said sum of ollars and cents, or any part thereof, this Deponent says that he has not, nor has any person by h order, or to this De- onent’s knowledge or belief, for use, had, or received any ianner of satisfaction or security whatsoever. And this Deponent further says that the said claim was not procured for he purpose of influencing the proceedings under the Act of Congress en- itled “ An Act to Establish a Uniform System of Bankruptcy throughout he United States,” approved March 2,1867; that uo bargain or agreement, xpress or implied, has been made or entered into by or on behalf of this Jeponent, to sell, transfer, or dispose of said claim, or any part thereof, gainst said Bankrupt, or to take or receive, directly or indirectly, any ioney, property, or consideration whatever, whereby the vote of this De- nent for Assignee, or any action on the part of this Deponent, or any ther person in the proceedings under said Act, has been, is, or shall be in ny way affected, influenced, or controlled. 2 Deposing Creditor. Subscribed and sworn [or, affirmed] to, before me, De eee) Reqister in Bankruptcy. FORMS IN BANKRUPTCY. 927 form No. 23. DECLARATION FOR PROOF OF DEBT BY OFFICER OF CORPORATION. ithe District Court of the United States, or the District of ; In the Matter_of In Banxrvptcy. Bankrupt . District of , Sse I, , of , in the County of , and State f , President [or, Cashier, or, Treasurer, or,as the case may be] f ; , being a Corporation incorporated by and under the laws f the State of , and carrying on business at , in the State , being duly sworn, do solemnly declare that Iam such officer, and uly authorized to make this proof, and that the statement of the 5 etween the said Corporation and the said Bankrupt, hereunto annexed, is a ill, true, and complete statement of account between the said Corporation nd the said Bankrupt; and that it is within my own knowledge that the ebt thereby appearing to be due from the estate of said Bankrupt to the aid Corporation was incurred on, or before the day of , and or the consideration therein stated; and that to the best of my knowledge nd belief the said debt still remains unpaid and unsatisfied. And I do fur- her declare that said claim was not procured for the purpose of influencing he proceedings under said Act, and that no bargain or agreement, express r implied, has been made or entered into by or on behalf of said Corpora- ion to sell, transfer, or dispose of the said claim or any part thereof, against uch Bankrupt, or to take or receive, directly or indirectly, any money, prop- rty, or consideration whatever, whereby the vote of such Corporation, or f any person in the proceedings under said Act was, is, or shall be, in any vay, affected, influenced, or controlled. a President [or, as the case may be] of the Company, [or, Association.] Declared under oath at , this day of ,AD.18 . Before me, Register in Bankruptey. FORMS IN BANKKUriuL. Form No. 24. AFFIDAVIT FOR PROOF OF DEBT BY AGENT OR ATTORNEY. the District Court of the United States, > the District of ; In the Matter of ‘In BankRUPTCY. Bankrupt . | District of 18s. Jn this day of , A.D. 18 , before me, , Register. Bankruptcy, [or, U. 8, Commissioner, or other proper officer,] of said Dis- :t, personally appeared , of , in the County of bate | State of , Attorney, [or, Authorized Agent,] of , in the aunty of , and State of , and after being by me duly sworn, , aftirmed,] says that the said , the person by [or, against] whom ‘etition for Adjudication of Bankruptcy has been filed, ,at | before the filing of the said Petition, and still justly and truly in- rted to the said , in the sum of dollars and cents, ere particularly describe the consideration of the debt, and whether any, .,] for which said sum of dollars and cents , OF any part reof, this Deponent says that he has not, nor has any person by Order, or to this Deponent’s knowledge or belief, for use had or eived any manner of satisfaction or security whatsoever. And this De- ient further says, that the claim was not procured for the purpose of influ- ing the proceedings under the Act of Congress entitled “An Act to Es- lish a Uniform System of Bankruptcy throughout the United States,” oroved March 2,1867; that no bargain or agreement, express or implied, s been made, or entered into, by, or on behalf of such creditor to sell, trans- , or dispose of said claim, or any part thereof, against said Bankrupt, or take or receive, directly or indirectly, any money, property, or consider- on whatever, whereby the vote of such Creditor for assignee, or any ac- n on the part of such Creditor, or any other person in the proceedings un- : said Act, has been, is, or shall be, in any way affected, influenced, or con- Iled. And this Deponent further says, that he is duly authorized by his neipal to make this Affidavit, and that it is within his knowledge that : aforesaid debt was incurred, as and for the consideration above stated, 1 that such debt, to the best of his knowledge and belief, still remains un- d and unsatisfied. Subscribed and sworn [o7, affirmed] to, this day of ,AD.18 , ‘ore me— SS District Judge, [or, Register in Bankruptcy ; Or, U. S. Commissioner. | Received by me, this ‘day of , A.D. 18 > Assignee. FORMS IN BANKRUPTCY. 929 Form No. 25. PROOF OF DEBT WITH SECURITY BY AGENT In the District Court of the United States, For the District of 7 In the Matter of In Banxrvprtcy. Bankrupt . At , in said District, onthe day of ,A.D.18 . Before Mr. z > Register in Bankruptcy. District of 5832 On the day above mentioned, personally came , attorney [or, au- thorized agent] of , who being duly and examined at the time and place aforesaid, upon h oath, says that , the per- son whom a Petition for Adjudication of Bankruptcy is filed, w at and before the filing of the said Petition, and still justly and truly indebted to the said in the sum of dollars‘and cents, for which said sum of dollars and cents, or any part thereof, this Deponent has not, nor any person by order, to this De- ponent’s knowledge or belief, for the use of said »Te- ceived any security or satisfaction whatsoever, save and except the hereinafter mentioned. And this Deponent further says that he is duly au- thorized 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; and that such debt, to the best of his knowledge and belief, still remains unpaid and unsatisfied; that the claim was not procured for the purpose of influencing the proceedings under the Act of Congress en- titled “An Act to Establish a Uniform System of Bankruptcy throughout the United States,” approved March 2,1867; that no bargain or agreement, expressed or implied, has been made, or entered into, by or on behalf of such Creditor to sell, transfer, or dispose of said claim, or any part thereof, against said Bankrupt, or to take or receive, directly or indirectly, any money, property, or consideration whatever, whereby the vote of such Cred- itor for Assignee, or any action on the part of such Creditor, or any other person in the proceedings under said Act, has been, is, or shall be in any way affected, influenced, or controlled. . Here insert a description of the debt, and also of the property held as se- curity, and the estimated value of such property. ] Subscribed and to, this day of ,AD.18 . Before me, ich ale Register in Bankruptcy. « Received by me, this day of ,AD.18 . — , Assignee. 59 930 FORMS IN BANKRUPTCY. Form No. 26. LETTER OF ATTORNEY TO REPRESENT CREDITOR. In the District Court of the United States For the District of : In the Matter of In BANKRUPTCY. Bankrupt . | To ——_———_ ———_—_, Sir, [Messrs., or Gentlemen :]— ‘ , of the of , in the County of ‘ and State of , do hereby authorize you [or, either of you] to attend the meeting, or meetings of Creditors of the Bankrupt aforesaid, advertised, or directed to be held at a Court of Bankruptcy at , on the day of ,A.D.18 , the day notified in the Warrant issued to the Messenger by said Court in said matter, or at such other place and time as may be appointed by the Court for holding such meeting or meetings, or at which such meeting or meetings, or any adjournment or ad- journments thereof, may be held, and then and there, from time to time, and as often as there may be occasion, for ,and in name to vote for or against any proposal or resolution that may be then submitted under the 12th, 13th, 14th, 18th, 19th, 21st, 22d, 23d, 27th, 28th, 33d, 36th, 37th, 42d, and 43d Sections of the Act entitled “An Act to Es- tablish a Uniform System of Bankruptcy throughout the United States,” approved March 2, 1867; and-in the choice of assignee, or assignees, of the Estate of the said Bankrupt, and for , Lov, either of us] to accept such appointment of assignee ; 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, or the Declaration of Dividend, or for any other purpose in interest whatsoever. In witness whereof, have hereunto signed name , and affixed seal the day of ,AD.18 . Signed, Sealed, and Delivered in ————————_ ——, [i 5] presence of— ——_——_—___ ———__,, [1.8] SS {Nore.—The party executing the above letter of attorney may acknowledge the same be- fore a Judge, Register, Clerk, or Commissioner of the Court, or any officer authorized to take the acknowledgment of Deeds or other Instruments in Writing. ] *_[N. B.—Upon the above letter of attorney should be endorsed the following Certificate of the Register, to wit: ‘‘ Exhibited to me, this day of »A.D. 18 , at , a a re ee Register in Bankruptcy. FORMS IN BANKRUPTCY. 931 Form No. 27. AFFIDAVIT OF LOST BILL OR NOTE. In the District Court of the United States, For the District of : In the Matter of In Banxkruptoy. Bankrupt . District of ss On this day of ,A.D.18 , at » comes before me , of , in the County of , and State of , and makes and says that he has made a careful search for the Bill of Exchange, [or, note,] the particulars whereof are under writ- ten, and which ha _ been proved under this estate-by , but that he, this Deponent, has not been able to find the same, and verily believes that the same has been lost or mislaid; and 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 ben- eficial interest therein, or any part thereof; and that he, this Deponent, is the person now legally and beneficially interested in the same, and entitled to receive for his own use all dividends in respect thereof: Bill or note above referred to.. Date. Drawer or Maker. Acceptor. Sum. | \ Subscribed and to, before me, ,onthis day of . A.D. 18 3 Register, or U. S. Commissioner [or, other proper officer. | Upon the above-named Deponent signing the annexed letter of mdemni- ty, and giving security to the satisfaction of the official assignee, I direct the dividend to be paid to him. ? Poaister in. Rankruntea. 932 FORMS IN BANKRUPTCY. q ° Form of notice of Indemnification to Register. Tn the matter of , of , Bankrupt . Srr: The Bill [or, Note] mentioned below, proved by | , under this estate, having been lost or mislaid, and the foliowing dividend having been declared thereon, but not yet paid, viz :— _ ,. in consideration of your paying to or to order the dividend above men. tioned , hereby undertake to indemnify you against all claims of any other person to the said dividend, or any part thereof; and from all loss, damage, and expense, which you or your Executors or Administrators may sustain by reason of your making such payment to me; and if it should hereafter appear that the said sum of $ , or any part thereof, with the dividend already received or declared up to this day, exceed the amount of the Bill [or, Note] hereby engage to repay the same to you, or to the as- signee, or assignees, of the above estate, with interest at the rate of per cent. per annum from this day. Dated at " , this , A.D. 18 Bill or Note above referred to. Date. Drawer or Maker. Acceptor. Sum. 2 ? Sureties of Creditor receiving Dividend. To Mr, Cs Register in. Bankruptcy. Form No. 28. NOTICE AND REQUEST OF ASSIGNEE, (2d meeting of Creditors.) In the District Court of the United States, For the District of ° In the Matter of In Banxrovptcy, Bankrupt . To the Hon, —___ —_——, Judge of the District Court, [or, Register in Bankruptcy] in the above District. . Sir: 1, [or, we,]the Assignee of the estate of said Bankrupt, respectfully FORMS IN BANKRUPTCY. 933 that the period of three months has elapsed since the date of the Adjudica- tion of Bankruptcy in said case, and request that the Court will order a Gen- eral Meeting of the Creditors of said Bankrupt , to which may make report of proceedings in _ trust, according to the provisions of the Twenty- seventh Section of the Bankrupt Act of March 2, 1867. ———— , Assignee. Order Thereon—By the Court, or Register. Upon the foregoing application of , Assignee of the estate of ‘ Bankrupt , it is Ordered that a second General Meeting of the Creditors of said Bankrupt be held at ,in said District,on the dayof ,A.D. 18 ,at o'clock m.,at the office of , one of the Registers in Bankruptcy in said District, for the purposes named in the T'wenty-seventh Section of the Bankrupt Act of March 2, 1867. And it is further Ordered, That the Assignee give notice of said meeting by sending written or printed notices by mail, post-paid, of the time and place of said meeting to all known Creditors of said Bankrupt; and that — also notify the Bankrupt to be present thereat; and shall also publish notice of the time and place of said meeting on two different days in the newspaper called the ) printed at , at least days prior to said meeting. Witness the Honorable , Judge of the said Court, and { Sealof ) the seal thereof, at , in said District, on the the Court.s day of , A.D. 18 as a ey Clerk of District Court, for said District. Form No. 29. FORM OF RETURN OF ASSIGNEE TO BE SUBMITTED TO.THE REGISTER IN RANKRUPTCY PRESIDING AT SAID MEETING. In the Matter of In BanKRUPTCY. Bankrupt . J ; District of 88 I, [or, we,] Assignee of the estate of , a Bankrupt, do certify that have caused the notices required by the foregoing order to be published in the newspaper called the , printed at _,on the — day of ,A.D.18 ; and that have caused written or printed notices of the time and place of said meeting to be sent by mail, post-paid, to all known Creditors of said Bankrupt. Said notices were mailed at the post- office in , on the day of ,A.D.18 , at days prior to the date appointed for the said meeting. —_______ ——___—_—__, Assignee. Subscribed and to, at ,this day of , A.D. 18 Before me, Sea ae Register in Bankruptcy. (N.B.—Li e forms may be used for the third meeting of Creditors, and for subsequent meetings, if such are amdamact Tar 4h 934 FORMS IN BANKRUPTCY. Form No. 30. DIVIDEND MEETING. In the District Court of the United States, For the District of i | In the Matter of In Bankrvrrcy. Bankrupt . At. , in said District, on the day of ,AD.18 . District of 8s. Menoranpum.—That at a meeting of the Bankrupt’s Creditors duly called and held this day for the purposes set forth in the 27th Section of the Act entitled “ An Act to Establish a Uniform System of Bankruptcy throughout the United States,” approved March 2, 1867, we, the undersigned, being the majority in value of the.Creditors of the said Bankrupt present, or represent- ed at this meeting, seeing that it appears by the accounts of the Assignee , now filed, that there is a balance of dollars, standing to the credit of this estate, in the Bank of , and a balance of dollars in the hands of the , do Resolve that after payment of * all proper costs, charges, and expenses, and after deducting and retaining a sum sufficient for all undetermined claims, which, by reason of the distant residence of the Creditors, or for other reason satisfactory to us, have not been proved, and for other expenses and contingencies, the sum of dollars remains for distribution among the Creditors of the above-named Bankrupt, who have proved their debts against the said Bankrupt’s estate. And it was further Resolved by the undersigned Creditors that the said sum be divided among the Creditors who have proved their claims against said estate, and that such proceedings be had for declaring and paying said dividend as are required by the 27th Section of said Act. + 2 Creditors. Thereby certify to the above. es ee eons Register in Bankruptcy. [N. B.—In case one half in value of the Creditors shall not be represented at such meeting, the fact shall be so stated in the Memorandum, and the amount to be divided, and the order for a dividend, shall be made and signed by the Assignee in accordance with the provisions of the 27th Section of said Act.] [N. B.—Like forms may be used for the further proceedings provided for in the 28th Section of said Act. ] FORMS IN BANKRUPTCY. 935 Form No. 31. NOTICE OF DIVIDEND. In the District Court of the United States, For the District of In the Matter of In Banrruptcy. Bankrupt . At , on the day of ,AD.18 . Sir: I hereby inform you that you may, on application ‘of my office, , on the day of , or on any day ther eafter, between the hours of y receive a Warrant for the Divi- dend due to you out of the above estate. If you cannot personally attend, the Warrant will de delivered to your order on your filling up and signing the subjoined letter. The bills and securities, if any, exhibited at the time of the proof of your debt must be produced to me before the Warrant of Dividend can be received. Iam, sir, your obedient servant, , Assignee. To ' Subjoined letter authorizing Assis gnee to give Warrant to party other than Creditor. ’ , 18 To Mr. ; Assignee in Ravkeunioy of the estate of , Bankrupt. Sir: [or, Messrs.] Please to deliver to the Dividend Warrant payable to me out of the above estate. a Yours, &c., » Creditor. Form No. 32. LIST OF PROOFS AND CLAIMS FOR DIVIDEND. In the District Court of the United States, For the District of In the Matter of Ix BANKRUPTCY. Bankrupt . At , in said District, on the dayof ,AD.18 . 936 FORMS IN BANKRUPTCY. A list of debts proved and claimed under the Bankruptcy of ; aforesaid, with Dividend at the rate of per cent. this day declared thereon by Mr. , one of the Registers in Bankruptcy of said District Court. Sum proved. Creditors. oe ‘ 2 e claims to be se sus No.! 1 be placed alphabetically, and the names of all the par-| forth in the same man- Dividend, ties to the proof to be carefuily set forth. ner at the end of the whole of the profits. Dollars. Cents. | Dolls. | Cts, > Register in Bankruptey. 937 FORMS IN BANKRUPTCY. pur ‘raistfoy ous fq poudis ‘sSurpossord oy} moss poyo.yxa Ape1109 aq 0} parmmbes dAOJOLOY] ST IT £4] sty wos pred aq TTA ‘Hoydrigung wa saysibay § [-souStssy on) og P2TOATIE spuepiaid ey4L— "ad ‘N] "S19, toa ‘19 | ‘stlod | ‘s1D “stlog “ajON ‘sJoorg aq} “Woy yas ATTMJaIv9 ‘ung *1as10pul *10yda00~ “JOY 10 IaMvI, | 10 [[1q@ Jo ayvq JO afoym ayy tae ‘aondiaae aq 0} JooIg oy} 0} saseg “payqryxe salyunoag pure sy “pusplaid AAUUBUL aUIeS aq} UL YMOF Jas oq 0} SuUTLID “pauuleyo io paaoid suang -2eq@ puv souapiseyy 9q7 [18 Jo soueu 9q}] pus ‘Awonequydry paoeyd aq og, *s10} [Pog "24n09 prs fo findnayung up suageroy ay fo uo * aur yaa * “4H fig woatayy paxoqoap Mop sry} “quae sod fo ans oy wD puaprag * 181° jo ep “SGNHCIAIC AVd OL AHNDISSV HOA SWIVIO ANY 9q} UO orysIg pres uy "SS OAT WOT fo fgdnayuog ay] wapun pawn pup poaosd sqqaq fo 782) iss ‘ W Jo pRysI * qdniqureg *AOLIDUINV NT JO J9}{VY oq} UT ‘so7UIg PO}TTD ay} Jo MOD JOIST oT} SLZIG AO STIOOUd AO LSIT JO JOLTSTC, omy Rc FORMS IN BANKRUPTCY. 9 qo a Form No. 34. PETITION OF ASSIGNEE FOR POWER TO RELIEVE PROPERTY FROM LIEN. In the District Court of the United States, For the District of . In the Matter of Iy BANKRUPTCY. Bankrupt . To: —$_$. —__—-,; , Assignee of the estate of said Bankrupt, respectfully rep- resents 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, [De- scribe the mortgage, | or to a conditional contract, [ Describing 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, [De- seribe the nature of the lien,| and that according to the best judgment of your Petitioner it would be for the interest of the Creditors of said estate that said property should be redeemed and discharged from the lien there- on. Wherefore pray that may be empowered to pay out of the assets of said estate in hands the sum of , being the amount of said lien, in order to redeem said property therefrom. Dated this day of ,AD.18 . , Assignee. [N. B.—TIf the prayer is for a sale of the property, strike out all after the words ‘judgment ef your Petitioner,” and insert ‘it would be for the interest of the creditors of said estate that said property should be sold, subject to said mortgage, lien, or other encumbrance. Where- fore he prays that he may be authorized to make sale of said property, subject to the encum- brance thereon, in the manner prescribed by the general order for the sale of property not encumbered.” Form No. 35. ASSIGNEE’S RETURN WHERE TITERE ARE NO ASSETS, In the District Court of the United States, For the District of . ele In the Matter of In Bangrvuptcy. Bankrupt . At , in said District, on the day of ,A.D.18 District of , ose On the day aforesaid, before me comes , of , in the County of ,and State of ,and makes . and savs that he. this FORMS IN BANKRUPTCY. 939 Deponent, as Assignee [o7, one of the Assignees] of the estate and effects of the above-named Bankrupt , neither received nor paid any moneys on ac- count of the estate. Subscribed and to, at , this day of ,AD.18 . Before me,: + Register in Bankruptcy. Form Vo. 36. ASSIGNEE’S NOTICE FOR SETTLEMENT OF HIS ACCOUNTS PREPARATORY TO FINAL DIVIDEND. In the District Court of the United States, For the District of ‘ In the Matter of In BankKRUPTCY. Bankrupt . At ,onthe = day of , A.D, 18 To ‘ Sir: This is to give you notice that I have filed my final accounts as assignee of the estate of , Bankrupt , in said Court, and that on the day of next, I shall apply to said Court for the settlement of my said accounts, and for a discharge from all liability as Assignee of said estate in accordance with the provisions of the twenty-eighth section of the Bank- rupt Act of March 2, 1867. Yours, &¢., ____ _______, Assignee. Form No. 87. AFFIDAVIT TO BE MADE BY ASSIGNEE. In the District Court of the United States, For the. District of 5 X In the Matter of In BANKRUPTCY. Bankrupt . District of 188s On this day of ,A.D.18 , before me comes 5 of , in the county of , and State of , and makes , and says that he, this Deponent, was, on the day of 5 A.D.18 , appointed Assignee of the estate and effects of the above-named ‘Bankrunt. and that as such he has conducted the settlement of the 940 ; FORMS IN BANKRUPTCY. 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 by Deponent] is true, and such account contains entries of every sum of money received by Deponent, 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 Deponent have been so made by him. And he asks to be allowed for said payments and for charges of settlement as set forth in said accounts. , Assignee, Sworn to and subseribed at in said District of , this day of ,AD.18 . Before me, Se se Kegister in Bankruptcy, 941 FORMS IN BANKRUPTCY. °840)"SII9d S19 “st[od *89D) S119) ‘89 “SO. “19 ‘aoubiss py * ynm gunooson ur * adnayung ‘ * fo aqnysa ayy, [-eousissy jo yaepyye 0} poxouus oq of] ‘AUNDISSV FO LNNOOOV "BE "OAT UOT * aq 942 FORMS IN BANKRUPTCY. Form No. 39. ORDER OF SETTLEMENT AND DISCHARGE OF ASSIGNEE, In the District Court of the United States, For the District of : | In the Matter of In BANKRUPTCY. Bankrupt . District of 5 S82 The foregoing account having been presented for allowance, and having been examined and found correct, it is Ordered, That the same be allowed, and that the said Assignee be discharged according to the provisions of the 28th Section of the Bankrupt Act of March 2, 1867. District Judge, {or, Kegister.] Form No. 40. ‘ PETITION FOR REMOVAL OF ASSIGNEE. In the District Court of the United States, For the District of ‘ In the Matter of In Bankruptcy. Bankrupt . To the Hon. ; : Judge of the District Court, for the District of : District of 18s: The petition of , one of the parties interested in the settlement of said Bankrupt’s estate, petitioning, respectfully represents, that ; heretofore appointed Assignee of said Bankrupt’s estate, [Here set Sorth the particular cause or causes for which such removal ts requested. | Wherefore pray that notice may be served upon said ’ Assignee as aforesaid, to show cause, at such time as may be fixed by the Court, why an order should not be made removing him from said trust. Subscribed and sworn [or, affirmed] to, this day of ,AD.18 , at in said District. Before me, —_ Paatatan fox WocPeccannt nnn FORMS IN BANKRUPTCY. 943 Form No. 41. NOTICE OF MOTION FOR REMOVAL. In the District Court of the United States For the District of ? . \ In the Matter of In Bangrurtcy. Bankrupt . At ,onthe dayof ,A:D.18 .. To ean: Assignee of the estute of , Bankrupt. You are hereby notified to appear before this Court, at , on the day of ,A.D.18 ,at o'clock ~—m., to show cause (if any you have) why you should not be removed from your trust as Assignee as afore- said, according to the prayer of the Petition of , one of the parties in- terested in said estate, filed in this Court on the day of , AD. 18 in which it is alleged, | Here insert the allegation of the Petition. Hereof fail not. ae es Se, Clerk, WC: (N. B.—To be served by the Marshal, and return to be made in usual form. ] a Form No. 42. ORDER FOR MEETING OF CREDITORS TO CONSIDER QUESTION OF REMO- VAL OF ASSIGNEE AND APPOINTMENT OF HIS SUCCESSOR. In the District Court of the United States, For the District of : In the Matter of In BANKRUPTCY. Bankrupt . At ,onthe dayof ,A.D.18 . District of 73s Wuereas , of , has filed his petition in this Court for the removal of , heretofore appointed Assignee of the estate of said , Bankrupt , setting forth, [Here insert the allegutions of the Petition.] : ; It is Ordered, That the Clerk of this Court give notice to the Creditors of , by letter to be mailed to each within days after the date of this order, that a meeting of said Creditors will be held at ,on the day of ,A.D.18 ,at o'clock m.,at which Mr. , one of the Registers of this Court, will preside, for the purpose of considering the question of recommending such removal, and appointing a successor In said trust. ___, District Judge. (N. B.—If the meeting is called upon an application of a majority in number and value of the Creditors of the Bankrupt, the Form may be varied accordingly. . (The vote for removal is substantially the same Form as that for the appointment of As- signee in Form No. 15, substituting ‘“‘ removal” for ‘appointment ;” and the Form of vote for 944 FORMS IN BANKRUPTCY. Porm No. 438. ORDER FOR REMOVAL OF ASSIGNEE. In the District Court of the United States, For the District of ; In the Matter of In BANKRUPTCY. Bankrupt . J At , on the day of ,AD.18 . District of 892 Whereas , of , did, on the day of A.D.18 , present his Petition to this Court, stating as ier ts set forth, and praying that ; , the Assignee 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 what was alleged by Mr. , of counsel on behalf of said Petitioner, and by Mr. of counsel for , Assignee as aforesaid, and upon the evidence sub- mitted on behalf of said Assignee, It is Ordered, That the said be removed from the trust of As. signee of the estate of said Bankrupt, and that the costs of the said Petition er incidental to said Petition be paid by said , Assignee, [o7, out of the estate of the said , Subject to prior charges. ] Witness the Honorable , Judge of the said Court, and Seal of y the seal thereof, at . "in said District, on the the Court.S day of , A.D. 18 Clerk of District Court for said District, Form No. 44. FURTHER ORDER. In the District Court of the United States, For the District of In the Matter of In Banxrvrtcy, Bankrupt . At ,onthe day of , A.D. 18 District of 3886 WHEREAS , heretofore appointed Assignee of the estate of said Bankrupt , has, upon the Petition of on, been removed fr om said trust, It is Ordered, That a meeting of the Creditors of said beheld at, in , in said District, on the day of ,A.D.18 , at wich Mr. , one of the Registers of this Court, shall preside, for the choice of a new Assignee of said estate. , and after hearing there- FORMS IN BANKRUPTCY. 945 And it is further Ordered, That the Clerk of this Court give notice to said Creditors of the time, place, and purpose of said mecting, by letter to each, to be deposited in the mail within days from the date of this order, Witness the Honorable , Judge of the said Court, and { Sealof y the seal thereof, at , in said District, on the the Cot. day of ,AD.18 . Clerk of District Court, for said District, Form No. 45. ORDER FOR BANKRUPT’S EXAMINATION, In the District Court of the United States, For the District of 3 : In the Matter of In Banxrvprcy. - Bankrupt . At ,onthe day of , A.D. 18 District of 83s On the application of , Assignee of said Bankrupt, [or, Creditor of said Bankrupt, as the case may be,] it is Ordered, That said Bankrupt at- tend before , one of the Registers in Bankruptcy of this Count, at his office, [Describing the place] on the day of sat o’clock m.,to submit to the examination required by the 26th Section of the Bankrupt Act of March 2, 1867, and that a copy of this order be delivered to him, the said , forthwith. : Witness the Honorable , Judge of the said Court, and { Sealof y the seal thereof, at , in said District, on the the Court§ day of , A.D. 18 eee ag ey Clerk of District Court, for said District. {N. B.—Where the wife of the Bankrupt is to be examined the like form may be used, adding after the description of the application the words ‘‘ and for good cause shown to this Court, she be required to attend before said court, [or, before ; , @ Register in Bankruptcy.’’] Form No. 46. EXAMINATION OF BANKRUPT OR ANY WITNESS EXAMINED RELATIVE TO THE BANKRUPTCY. In the District Court of the United States For the District of ' s In the Matter of ° In BANKRUPTCY. Bankrupt . At ,in said District, on the day of , A.D. 18 Before Mr. ’ Dinan nh tha PBandatana dar RoenTauainrtaar vf arc] Maarat FORMS IN BANKRUPTCY. 946 District of » 882 , of ,in the "County of , and State of being duly and examined at the time and place above mentioned, uponh “oath says [Here insert substance of examination of party.] pve iion i Form No. 47. DECLARATION TO BE MADE BY BANKRUPT OR HIS WIFE. In the District Court of the United nee For the District of In the Matter of In Bankruptcy. Bankrupt . At , in said District, on the day of ,A.D.18 , District of 3886 The person declared a Bankrupt under a Petition for Adjudication of Bank- ruptcy, filed on the day of ,in the year of our Lord one thousand eight hundred and , do solemnly that I will make true answer to all such questions as may be proposed to me respecting all the property of the said , and all dealings and transactions relating thereto, and will make a full and true disclosure of all that has been done with the said property, to the best of my knowledge, information, and belief. Bankrupt, [ Or, , the wife of the said 3 Bankrupt] Subscribed and to, this day of , A.D. 18 Before me, SSS ee Register in Bankruptcy. Form No. 48 SUMMONS OF WITNESS AFTER ADJUDICATION, * In the District Court of the United States, For the District of In the Matter of ‘ In Bankruptcy. Bankrupt . District of 3 882 Whereas, ,of in the County of and State of , has been duly declared and adjudged Bankrupt, within the trna intant and mannine af tha Ane anatali dice A FORMS IN BANKRUPTCY. 947 System of Bankruptcy throughout the United States,” approved March 2, 1867, and such Bankruptcy is in due course of prosecution in the District Court of the United States for the District of » at in said District, These are to require you, to whom this summons is directed, personally to be and appear before , Esquire, one of the Registers in Bank- ruptey of the said Court, acting in the matter of the said Bankruptcy, on the day of ,at o'clock m.,, precisely, at [Here insert place of examination | , then and there to be examined in relation to said Bankruptcy according to the provisions of said Act. And hereof fail not. ? Witness the Honorable , Judge of the said Court, and Ssealof . the seal thereof, at , in said District, on the day {ene Court. of : A.D. 18 9 Clerk of District Court, for said District. Form No. 49. RETURN OF THE ABOVE SUMMONS. Tn the District Court of the United States, For the District of : In the Matter of In BankKRUPTCY. Bankrupt . District of , Sse On this day of ,A.D. 18 , before me came ; of , in the county of , and State of , and makes , and says that he, this Deponent, did, on , the day of , one thousand eight hundred and , personally serve . of , in the County of , and State of , with a true copy of the Summons hereto annexed, by delivering the same to : and he, this Deponent, further makes , and says that he is not inter- ested in the proceedings in Bankruptcy named in said Summons. Subscribed and to, this day of ,AD18 . Before me, Sone ey Register in Bankruptcy. [N. B.—In case the witness is to be summoned before adjudication, the form may be altered by substituting for the recital the following words:—‘‘ By virtue of the Petition for Adjudica- tion tn Bankruptcy filed in said Court by 3 against yin the District Court 948 FORMS IN BANKRUPTCY. Form No. 50. FORM OF CERTIFICATE UNDER SECTION SIX, In the District Court of the United States, For the District of ‘ In the Matter of In BankKRUPTCY. Bankrupt . District of 3 882 ; , one of the Registers 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, and was stated and agreed to by the counsel for the opposing parties, to wit: Mr. , who appeared for the Bankrupt, and Mr. » Who appeared for , one of the Creditors of said Bankrupt, [Add other names if others are interested,| and [Here follows a summary of the evidence upon the point or matter to be submitted to the Court, and the question of law arising thereon as agreed to by the counsel. | And the said parties requested that the same should be certified to the Judge for his opinion thereon. Dated at , the day of ,AD.18 . Te ape eee Register in Bankruptcy. Form No. 51. — . PETITION OF BANKRUPT FOR HIS DISCHARGE. In the Matter of In Bankruptcy, Bankrupt . To the Hon, —————~- ———-—_.,, Judge of the District Court of the United States, for the District of A. B., of , in the County of _) and State of ; in said District, respectfully represents, that on the day of 5 last past, he was duly declared a Bankrupt under the Act of Congress in that case made and provided; that he hath duly surrendered all his prop- erty and rights of property, and fully complied with and obeyed all the or- ders and directions of the Court touching his Bankruptcy, and is ready to submit himself to any other and further examinations, orders, and directions which the Court may require. [N. B.—If this Petition is filed within less than six months after the filing of the original Petition, it should state that no debts have been proved against the Bankrupt, or that no assets Thawn anma ta tha Landa af alan Aantanann 1 FORMS IN BANKRUPTCY. 949 WHEREFORE HE Prays that he may be decreed by the Court to have a full discharge from all his debts provable under said Bankrupt Act, and a certificate thereof granted according to the said Act of Congress. Dated. this day of , A.D. 18 = , Bankrupt. Order of Court thereon. District of , sss On this day of ,A.D.18 , 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.18 , before said Court, at ; in said District, at o’clock + m.; and that notice thereof be published in newspapers printed in said District for times once a week; and that all Creditors who have proved their debts, and other persons in ‘inter- est, may appear at the said time and place, and show cause, if any they have, why the prayer of the suid Petition should not be granted. And tt is further ordered by the Court, That all such Creditors whose places of residence are known shall be entitled to a service of notice of the said Petition and order, either personally or by letter addressed to them at their known usual place of residence, attested by the Clerk of the Court, or served at their usual place of abode by the Marshal or his deputy, or sent by mail, whereof due notice shall be given. Witness the Honorable , Judge of the said Court, and { Seal of the seal thereof, at ,in said District, on the the Court, day of , A.D. 18 Clerk of District Court, for said District. Form No. 52. NOTICE BY LETTER TO CREDITOR THAT BANKRUPT HAS PETITIONED FOR DISCHARGE. 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. 18 District of 88 Str: Take notice that a Petition has been filed in said court by R of , in said District, duly declared a Bankrupt under the Act of Congress of March 2, 1867, for a discharge, and certificate thereof, from all his debts, and other claims provable under said Act, and that the day of next, at o'clock —_m., is assigned for the hear- ing of the same, when and where you may attend and show cause, if any you have, why the prayer of the said Petition should not be granted. 2 Clerk of the District Court. 950 FORMS IN BANKRUPTCY. [N. B.—The certificate of the Clerk that these letters were duly mailed to each Creditor, and that the proper postage stamps were placed thereon, will be evidence of the fact of notice, If any are delivered to the Creditors or left at their usual place of residence, the persons so delivering or leaving them should make affidavit as follows: Affidavit of Service of Notice. District of 5882 I, Marshal, [or, Deputy Marshal, as the case may be,| make oath, that I delivered letters of which a copy is hereto annexed to the following named persons, at the times and places stated in connection with the name of each, and that I left at the last and usual place of abode in said District copies of the same letter, with the following named persons, on the day and hour mentioned in connection with the name of each. [Here insert names and other required particulars. | Served personally day of ,AD.18 . Marshal, [or, Deputy. ] [ Or, left at last usual place of abode — day of , A.D. 18 Marshal, [or, Deputy.}: This day of ,A.D.18 , subscribed and to, be- fore me. One of the Registers in Bankruptcy of said Court. Form No. 53. CREDITOR’S SPECIFICATION OF THE GROUNDS OF HIS OPPOSITION TO THE BANKRUPT’S DISCHARGE. In the District Court of the United States, For the District of ‘ In the Matter of In Bangruptcy. Bankrupt . ; , of ,in the County of , and State of ; Creditor, having proved ; debt against the estate of said , Bankrupt, and having received netice of his Petition for a discharge from his debts, do hereby oppose the granting of said discharge, and for the grounds of such opposition do file the following specification : [Here insert one or more of the causes which should prevent the granting of the Bankrupt’s discharge according to the provisions of Section Twenty-nine of said Act.] —_——,, Creditor, &e. To ———_—_— ———_, District Judge, for. Register in Bankrrntea of eat Diotudat FORMS IN BANKRUPTCY. 951 Form No, 54, CREDITOR’S PETITION. To the Honorable , Judge of the District Court of the United States for the District of : Tur Petrrion of , of the ,of . in the County of , and State of : Respectfully shows :—That he is a Creditor of , who for a period - of months next preceding the date of the filing of this Petition, has re- sided at , in County of , and State of ; and District aforesaid ;—That Your Petitioner’s demand is provable against the said , in accordance with the provisions of the Act of Con- gress entitled “An Act to Establish a Umform System of Bankruptcy through- “out the United States,” approved March 2, 1867; That he believes that said. owes debts to an amount exceeding the sum of Three Hundred Dollars; That Your Petitioner’s demand exceeds the amount of Two Hundred and Fifty Dollars; and that the nature of Your Petitioner’s demand against the said is as follows :— A certain promissory note signed by said +, payable to the order of Your Petitioner, [or, naming the party to whose order the said note is made payable, ] of which the following is a Copy, to wit: [or, set forth evidence of indebtedness in any other form to a liquidated amount, exceeding Two Hundred and Fifty Dollars, to meet the case. ] And Your Petitioner further represents, that within the Six calendar Months next preceding the date of this Petition, the said did com- mit an act of Bankruptcy within the meaning of said Act, to wit: In that the sald did heretofore, to wit: on the day of : A.D.18 ,depart out of, and from the State of of which he is an inhabitant as aforesaid, with intent to defraud his creditors, [or, being ‘absent during said period, he has, with intent to defraud his creditors, re- mained absent from said State :]— [ Or, That the said , within the period aforesaid, to wit: On the day of ,A.D.18 , within said District, did conceal himself, [or, did disguise himself,] to avoid the service of Legal Process in an action for the recovery of a debt or demand, provable under said Act, to wit: ‘fo avoid the service of Legal Process in a suit brought by , in the ’ Court, of the State of ‘ [or, any other Court] in which such process had been issued, to be served upon the said , by , Marshal for said District, {or, Sheriff, Constable, or other Officer, or party, as the case may be,] at which time the said did conceal himself, and remain secreted, to avoid the service of said Process, so that the said officer or party having the same to serve upon said Debtor was unable to find him, in order to make proper service of the same :— Or That the said , within the period aforesaid, to wit: t , in said District, on the day of , A.D. 18 , being possessed of certain Property, to wit: [Zere describe the Proper- ty,] and he, being aware that Legal process had been issued, Lor, was about to be issued,] to be levied thereon at the Suit of some one or more of his Creditors, did conceal [or, remove; or, destroy the identity] of said Proper- ty to avoid its being Attached, Taken, or Sequestered on such Process :— 952 FORMS IN BANKRUPTCY. Or That the said , Within the period aforesaid, to wit :—At ; in said District, on the day of ,A.D.18 , being possessed of certain Estate, Property, Rights or Creilits, to wit: [Here describe the Prop- erty and where situated,| did make an Assignment [or, Gift, Sale, Convey- * ance, or Transfer, as the case may be] of the same [o7, of any part thereof— * mentioning the part] to , of ,in the County of " and State of , with intent to delay [or, hinder; or, defraud] the Creditors of him, the said i— [ Or, a That the said , Within the period aforesaid, and within said Dis- trict, to wit: At , has been arrested and held in custody under and by virtue of mesne process, [or Execution; or, as the case may be,] issued out of the Court of the United States for the District of ’ [or, of any Court of any State, District, or Territory,] within which such debtor resides or has property, founded upon a demand, in its nature, prov- able against the Bankrupt’s Estate under said Act, and for a sum exceeding One Hundred Dollars; and that such Process is remaining in force, and not discharged by payment, or in any other manner provided by the Laws of such State applicable thereto, for a period of Seven days:— — Lor, That the said , within the period aforesaid, and within said Dis- trict, to wit :—On the day of ,A.D.18 , being Bank- rupt, [or, insolvent ; o7,in Contemplation of Bankruptcy, or Insolvency, ] did make to 2 , of ,in the County of , and State of ° , a payment [or, Gift, Grant, Sale, Conveyance, or Transfer} of money [or, of any other Property, Estate, Rights or Credits,] [or, did give to ,0 ,in the County of , and State of ,2 Warrant to Confess Judgment, or, did procure, or Suffer his Property to be taken on Legal Process,] in favor of , of ,in the County of , and State of ; the said judgment to be confessed, issuing out of the Court of : with the intent to give a preference to , of , in the County of , and State of ; [or, to one or more of his Creditors ; 07, with the intent, thereby, to give preference to , of ,in the County of , and State of , being a person, [or, persons,] who were liable for him as Endorser, Bail, Sureties, or otherwise, [describing the particular relation,] or, with the intent by such disposition of his Property to Defeat, or Delay the operation of said Act.] [ Or, ‘That the said , Within the period aforesaid, and within said Dis- trict, to wit: On the day of ,A.D.18 , being a Banker, [or, Merchant ; or, Trader ; or, as the case may be,] has fraudulently stopped, or, suspended (and has not resumed) payment of his Commercial Paper within a period of fourteen days. tty nee of the acts is relied upon as the act of Bankruptcy of Debtor, the same must be particu- WHEREFORE your PETITIONER prays that he, the said , may be déclared a Bankrupt, and that a Warrant may be issued to take possession of his Estate; that the same may be distributed according to law; and that such further proceedings may be had thereon as the law in such case prescribes. oe -—— Solicitor [or Attorney. ] Petitioner, FORMS IN BANKRUPTCY. 953 Oath to Foregoing Petition. Untrep States or America, District of 19s I, , the Petitioner above named, do hereby make solemn oath that the statements contained in the foregoing Petition subscribed by me are true, so far as the same are stated of my own knowledge, and that those matters which are stated therein on information and belief, are true accord- ing to the best of my knowledge, information, and belief. 7 Petitioner. Subscribed and sworn [o7, affirmed] to, before me, this day of ; A.D. 18 ; a ee ? District Judge, [or, Register in Bankruptcy, or, U. 8S. Commissioner. ] (N. B.—In case the parties proceeded against are a Copartnership, or a Corporation, the above forms may be varied accordingly. ] Porm No. 55. DEPOSITION AS TO PETITIONING CREDITOR'S CLAIM. [To be filed with Creditor’s Petition. ] In the District Court of the United States, For the District of ‘ In the Matter of Against whom a Petition for Adjudi- iy Bawxrorrcr. cation of Bankruptcy was filed on the day of , A.D. 18 At , in said District, on the day of , A.D. 18 Before , one of the Registers of said Court, in Bankruptcy. District of 5 ose , of ,im the County of , and State of 5 being duly Sworn [or, affirmed] and Examined, at the Time and Place above mentioned, upon his Oath, [o7, affirmation,] says that the said was, [or, were,] on and before the day of _ _, AD. 18, and still justly and truly indebted unto this Deponent, in the sum of,—[ Here give a particulur description of the Debt.] ——— , Petitioning Creditor. On the day of , before me personally appeared , the above-named Petitioning Creditor, and was duly sworn to the truth of the foregoing statement. Te we ————___ ——____—. Register in Bankruptcy. 954 FORMS IN BANKRUPTCY. Form No. 56. DEPOSITION OF WITNESS TO ACT OF BANKRUPTCY. [To be filed with Creditor’s Petition. ] In the District Court of the United States, For the District of P In the Matter of : i . 5. ¢ in Bangrvurtcy. Against whom a Petition for Adjudi- cation of Bankruptcy was filed on the day of , A.D. 18 At , in said District, on the day of , A.D. 18 Before , one of the Registers of said Court m Bankruptcy :— District of » 88: being duly Sworn, [or, Affirmed,] and Examined, upon his Oath, (or, Affirma- ont says that, [| Here set forth particularly the Witness’s knowledge of the Act of Bankruptcy alleged to have been committed by the party proceeded against. | On the day of » appeared personally , the above-named Witness, and was duly sworn to the truth of the foregoing statement. , Register in Bankruptcy. Dorm No. 57. ORDER TO SHOW CAUSE, UPON CREDITOR'S PETITION. In the District Court of the United States, For the District of s In the Matter of 5 mea : a 6 883 To , one of the Creditors of said » Bankrupt. This is to give you notice: 1st. That a Warrant in Bankruptcy has been issued against the estate of , Bankrupt aforesaid, 2d. That the payment of any debts, and the delivery of any pro me belonging to said Bankrupt, to him or to his use, and the transfer of any property by him, are forbidden by law. 3d. That a meeting of the Creditors of the debtor to prove their debts and choose one or more Assignees of the estate will be held at a Court of Bankruptcy to be holden et , in said District, on the ay o » at o'clock m., at the office of , (giving the street and number,] one of the Registers in Bankruptcy of said Court. And the following are the names of the creditors of said Bankrupt and the amount of their debts as given to me by him. [E. g.—A. B., (of Boston,) dollars. | —____—_,, Messenger. And have you there this warrant, with your doings thereon. Ix restr1ony wHEReor, I have hereunto set my hand and caused the seal of this Court to be affixed at , this day of , in the year of our Lord 18 . ana era) [. s.] District Judge. Clerk of the Court. Return by Marshal thereon. District of 3 853 By virtue of the within warrant, I have taken possession of the estate of the within named , Bankrupt, except such as is by law ex- cepted from the operation of said warrant by the act of Congress, and of all his deeds, books of account, and papers which have come to my knowledge, and I have published notice by advertisement on two different days in the newspapers within mentioned, the first publication of which was on the day of ,A.D.18 . Talso within days after the date of the within warrant sent written or printed notice, as within directed, to the within named , Bankrupt, and to the creditors named on the schedule delivered to me by him, and herewith returned. The notices sent by mail weresdeposited in the post-office at , on the day of ,A.D.18 ,with the proper postage stamp affixed thereto, and those delivered personally by me to said creditors were delivered at the times and the places set opposite to the name of each, and all of said no- tices were according to the directions set out in this warrant, > Mamohal Tax Noniutiat Marshal. Messencaer. 958 FORMS IN BANKRUPTCY. Frees AND ExrENSEs. « SGrvice: Of Watrantt ssecccsernwnse desweagestnceamsasmaner tessenceanaaedesseaeteveeasngwe’s $2 00 . Necessary travel at the rate of 5 cents a mile cach.way . Notice to creditors, 10 cents Cach..........c.cseseeeeeenereee ae eee . Actual expenses in publishing notices as fOllOWS .........+200 seeeeeseeene enters Wo bo ou . Actual expenses in custody of property and other services as follows..... Sinton ee RS [ Here render the particulars. ] > Marshal, [or, Deputy Marshal,| Messenger. Affidavit as to Expenses. District of , A.D, 18 Personally appeared the said , Messenger, and made oath that the above expenses returned by him under numbers four and five have been actually incurred and paid by him, and are just and reasonable. ? One of the Registers in Bankruptcy in said District, Form No. 60. ADJUDICATION WHERE DEBTOR IS FOUND NOT BANKRUPT. In the District Court of the United States, For the District of ‘ In the Matter of In Banervrtcy, Bankrupt . At , in said Districth on day of ',AD18 . Before Honorable _____. ____, Judge of the District of ‘ District of , 88s This cause came on to be heard at ,in said Court, and [Here state the proceedings, whether there was no opposition, or, if opposed, state what proceedings were had, and when and where, and what counsel appeared for the several narties. | 2S FORMS IN BANKRUPTCY. 959 And thereupon, and upon consideration of the proofs in said cause (and the arguments of counsel thereon, if any,) it was FouND that the facts set forth in said Petition were not proved ; and it is therefore Ordered, That said Petition be dismissed, and that all proceedings under the same be vacated and annulled. Witness the Honorable _, Judge of the said Court, and Beni oF the seal thereof, at , in said District, on the day {uns Court, of ,AD.18 . irate, sca net S. > Clerk of District Court, for said District. [N. B. 1. If default be made by the Debtor to appear pursuant to the order upon a Creditor's Petition, the subsequent order may be made by a Register in Bankruptcy. (N. B. 2. If no Schedule of Creditors shall be delivered to the Messenger by the Bankrupt, the Messenger shall prepare such Schedule from the best information he can obtain, and send notices accordingly. } Form No. 61. DENIAL OF BANKRUPTCY, AND DEMAND FOR JURY BY DEBTOR. In the District Court of the United States, For the District of 7 In the Matter of the Petition of , Creditor, oe In Banxrvurptcy. » Debtor. At ,in said District, on the day of , A.D. 18 District of 58s. And now on this return day [or, adjourned return day] for the hearing of said Petition, the said appears and denies that he has committed the act of Bankruptcy set forth in said Petition, 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 in- quired of by a Jury.] Witness the Honorable , Judge of the said Court, and Seal of the seal thereof, at ; in said District, on the day the Court. of - A.D.18 . 3 Clerk of District Court, for said District. * 960 FORMS IN BANKRUPTCY. Form No. 62. ORDER OF COURT UPON DENIAL OF BANKRUPTCY AND DEMAND FoR JURY TRIAL. (Involuntary Bankruptcy.) In the District Court of the United States, For the District of : y In the Matter of the Petition of , Creditor, In Banxrvptcy. p vs. , Debtor. At , in the said District, on the day of . 18 District of 8 Se Upon the demand in writing filed by the Respondent to said Petition, that the fact of the commission of an act of Bankruptcy may be inquired of by a Jury, it is Ordered, That said issue be submitted to a Jury at the present term of this Court, (if a Jury be in attendance,) or, if in vacation, at the next term of this Court. ‘Witness the Honorable , , Judge of the said Court, and f Sealof y the seal thereof, at ,in said District, on the the Court.S day of , A.D. 18 eet Clerk of District Court, for said District. form No. 63. APPOINTMENT OF TRUSTEES UNDER SECTION 43, In the District Court of the United States, For the District of ‘ In the Matter of iy Banervrrcy. Bankrupt . At this meeting of the Creditors of said Bankrupt, called s eciall by order of said Court for the purpose of determining in a ‘iannee the extate of said Bankrupt shall be settled, it was resolved by three fourths in value of the Creditors whose claims have been proved, as follows: 1st. That it is for the interest of the general body of the Creditor: i that the estate of said ao sa oe LL. ae eamiars ofsaid | FORMS IN BANKRUPTCY, 961 and distribution made among the Creditors by trustees under the inspec- tion and direction of a Committee of Creditors. 2d. That this resolution be certified and reported to the Court. 3d. That be nominated as trustee to take, hold, and distribute said estate. 4th. That , of , of , be the Committee of the Creditors under whose direction the said Trustees shall act. Creditors. | Amount of Debts. Dolls. Cts. Affidavit of Bankrupt. A. B., the said Bankrupt, being duly sworn, [or, affirmed,] says that the names of the persons affixed to the foregoing resolution represent three fourths in value of all his creditors whose claims have been proven against his estate. Subscribed and to, before me, this day of ,AD.18 . en Register, [or, U. 8S. Commissioner. | Certificate of Register thereon. In the District Court of the United States, For the District of (In Bankruptcy.) At , the day of ,A.D.18 ,I hereby certify that at a meeting of the Creditors of said , held this day in pursuance of a notice regularly given according to the provisions of the Act of Con- gress entitled, &c., approved March 2, 1867, [or, according to the order of the Court, as the case may be,] the above resolutions were adopted and signed by three fourths in value of the Creditors of said Bankrupt, who were present or were represented at said meeting. pop ane ee Register in Bankruptcy. at 962. FORMS IN BANKRUPTCY. Order of the Court on above Proceedings. {n the District Court of the United States, For the District of ‘ ——— In the Matter of i \ In Bawkrvertcy. Bankrupt . | The foregoing certificate having been filed and read, it is Ordered, That the said shall convey, transfer, and deliver all his property or estate to , a8 trustee by deed, in the following form: District of 7 88s In the District Court of the United States for said District. This indenture made this day of , A.D. 18 , between , (the Dedtor,) of , in the County of ; and State of , and , on behalf and with the eonsent of , Creditors of the said ) WITNESS- xru, that the said (the Debtor,) hereby conveys, transfers, and delivers all his estate and effects to , absolutely, to have and to hold the same in the same manner and with the same rights in all respects as the said would have had or held the same if no pro- seedings in bankruptcy had been taken against him, to be applied and ad- ministered for the benefit of the Creditors of said , in like man- ner as. if said had been at the date hereof duly adjudged Bank- rupt, and the said (trustees) had been appointed assignee in bankruptcy un- der said act. In testimony whereof, the said (dedtor,) and the said F (trustees,) in acceptance of said trust, have hereunto set their hands and seals, this day of , A.D. 18 Executed in presence of— ———-,, [Ls] fhe} ———__, [1. s.] This day appeared before me, a Register in Bankruptcy, the above-named pe 8 , (Bankrupt,) and acknowledged the foregoing instrument by him signed to be his free act and deed. Register in Bankruptcy. FORMS IN BANKRUPTCY. 963 We hereby give our assent to the execution of the above deed: Names of Creditors. Residence. Amount. Dolls. Cts. é pe i Oath of Bankrupt. In the District Court of the United States, For the District of : In the Matter of In BANKRUPTCY. Bankrupt . , the said Bankrupt, being duly sworn, doth. depose and say that he has conveyed, transferred, and delivered all his prop- erty to the trustees in the above indenture named, and that the persons sign- ing their consent to the above conveyance represent three fourths in value of all his Creditors whose claims have been proved against his estate. —_—_——_., Bankrupt. Subscribed and sworn [or, affirmed] this day of , A.D. 18 Before me, — —, Register in Bankruptcy. Witness the Honorable , Judge of the said Court, and the seal thereof, at , in said District, on the day of ,AD.18 . eee! { an Cont, Clerk of District Court, for said District. Advertisement of Trustee. In the District Court of the United States, For the District of : (In Bankruptcy.) This is to give notice, that by an indenture bearing date the day of ,AD.18 , of , has conveyed and assigned all his estate and effects whatsoever to ’ as trustee, upon trust for the benefit of all the Creditors of . and that said conveyance was duly executed according to the provisions of the 43d Section of the Bankrupt Act of March 2, 1867. Dated this day of , A.D. 18 964 FORMS IN BANKRUPTCY. Order of Court. The foregoing proceedings under the 43d Section of the Bankrupt Act of March 2, 1867, having been placed on file and read, it is Ordered, That all proceedings upon said Petition in Bankruptcy be stayed until the further order of the Court. Witness the Honorable , Judge of the said Court, and the seal thereof, at ,in said District, on the day of , A.D. 18 Seal of ee {ime Court Clerk of District Court, for said District. * form No. 64. ORDER CONCERNING SALE OF PROPERTY BY ASSIGNEE. 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. 18 District of 5 ose Upon the representation of , a Creditor of said , and upon the proofs filed therewith, it is Ordered, That the real estate of said Bankrupt, when offered for sale by his Assignee, shall be sold in lots or par- cels as follows, [Here follows the direction by reference to plat or any other specific description or order in which the property shall be sold.] Witness the Honorable , Judge of the said Court, and Sealof t the seal thereof, at , in said District, on the day the Court.f of 5 A.D. 18 2 Clerk of District Court, for said District. Form No. 65. ORDER CONCERNING SALE OF PROPERTY OF CORPORATION. In the District Court of the United States, For the District of : In the Matter of the Bankruptcy of : Ix Banxrvrtcy. A corporation formed under the laws of the State of At , in said District, on the day of ,A.D.18 . FORMS IN BANKRUPTCY. 965 District of oss Upon the representation of 4 Creditor, [or, the party in interest,] and upon the proofs filed therewith, it is Ordered, That the fran- chise of said corporation be sold in fractional parts according to the number of shares therein, as follows, [Z/ there be one thousand shares of’ the cor- poration, the order may require that the franchise be sold in fructions of , or, tr any other proportion. | Witness the Honorable , Judge of said Court, and Seal of . the seal thereof, at , in said District, on the day the Court. of : A.D. 18 ’ Clerk of District Court, for said District. Form No. 66. ORDER OF DIMINUTION OF CLAIM. In the District Court of the United States, For the District of : In the Matter of In BankRUpPrTcy. Bankrupt . At , in said District, on the day of , A.D. 18 District of , 8s Upon the evidence submitted to this Court upon the claim of 5 against said estate, (and, if the fact be so, wpon hearing counsel thereon,) it is Ordered, That the amount of said claim 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 Assignee as the true sum upon which a dividend shall be computed, [if with interest, insert, “with interest there- on from the day of ,A.D.18 . Witness the Honorable , Judge of the said United States District Court. : Olerk cf District Court, for said District, 966 FORMS IN BANKRUPTCY. Form No. 67. EXPUNGING OR ALLOWANCE OF 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 -AD.18 , District of , 882 Upon the evidence submitted to the Court upon the claim of against said estate, (and, if the fact be so, wpon hearing counsel thereon,) it is Ordered, That said claim be disallowed and expunged from the list of claims upon the Assignee’s record in said case. Witness the Honorable , Judge of said United States District Court. fee a ee Clerk of District Court, for said District. {N. B.—If the claim is found to be good, say, ‘‘ Jt is Ordered, That said claim be established to the full amount thereof.”’} Form No. 68. IN CASE OF DISALLOWANCE THE CREDITOR MAY FILE THE FOLLOWING NOTICE OE APPEAL. Tn the District Court of the United States, For the District of é In the Matter of In Banerruptcy. . Bankrupt . At , on the day of ,AD.18 . To ——_———_ Assignee of said estate : You are hereby notified that I claim an appeal from the decision of the Judge of said Court made on the day of , A.D, 18 _, refusing to allow my claim when presented against the estate of , Bankrupt, to the Circuit Court of the United States next to be holden at _,in said District, on the day of ,AD.18 . [If the appeal is from a disallowance of part of the claim, instead of ree Susing to allow my claim,” say, “reducing my claim.” | , Creditor. GENERAL INDEX, GENERAL INDEX, ABATEMENT not caused by death of debtor, 662. death or removal of assignee, 146, 551. ACCOUNTS, assignee to keep, 141, 568. to allow inspection of, 140, 568. to exhibit, 235, 568. to verify, 285, 568. to apply for settlement of, 240, 668. of, to be audited, 74; 255, 379. separate, of joint and separate property, 140, 776. of sums drawn, 141, 878. of register, 75, 872. \ of marshal, 872. ACTIONS, bankrupt’s rights of, vest in assignee, 148, 542. by or against assignee limited to two years, 927, 558. on assignee’s bond, 482. none against assignee without notice, 227, 557. assignee may maintain, in his own name, 143, 542. not to abate by death or removal of assignee, 146, 551. assignee may prosecute and defend pending, 143, 542. when creditors may continue pending, 145, 546. surrendered by proof of debt, 112, 698. when stayed, 181, 700. when allowed to be commenced, 184, 701. district court can not withdraw pending, from State courts, 218, 546. may proceed when amount is in dispute, 183, 700. to set aside fraudulent conveyances, 532. by summary petition, 220, 832. by action at law, 224, 343. by bill in equity, 225, 844. when, must be by bill in equity, 222, 332. ACTS OF BANKRUPICY, filing voluntary petition, 389. what are, in involuntary bankruptcy, 82, 402. departing from the State, 82, 402. remaining absent from the State, 32, 402. avoiding service of civil process, 82, 402. removal of goods, 32, 402. fraudulent conveyances, 82, 402. arrest on mesne process, 32, 402. 970 GENERAL INDEX. ACTS OF BANKRUPTCY—continued. imprisonment, 32, 402. preferences, 33, 403. suspension of commercial paper, 33, 403. fraudulent suspension of payment, 33, 403. failure to pay depositor, 33, 403. : assignment for benefit of creditors, 403, 421. ADDENDA (notes of the latest decisions), 867. ADJOURNMENT in discretion of register, 381. party desiring must pay costs, 874, when service of warrant is defective, 120, 473. of meetings of creditors, 122, 475. of examination, 196, 655. of proceedings on order to show cause, 276, 731. of proceedings in involuntary bankruptcy, 461. ADJUDICATION OF BANKRUPTCY, character of, 20, 395. what found by, 20, 395. how set aside, 8, 392. when register may make, 20, 379. in voluntary bankruptcy, 20, 395. on petition of creditor, 61, 470. when debtor.is absent, 61, 470. - copy to be served on debtor, 63, 471. ADVERTISEMENT in voluntary bankruptcy, 24, 399. of assignee’s appointment, 187, 555. of sales, 168, 568. of application for discharge, 269, 710. of second meeting of creditors, 236, 663. of third meeting of creditors, 239, 665. in case of dissolved corporations, 42, 453. in case debtor is absent, 42, 453. ALIENS may become bankrupt, 1, 389. debts of, barred by discharge, 759. AMENDMENTS, when allowed in a voluntary petition, 21, 400. how made, 22. do not affect the time of filing, 390. of proof of claim, 104, 636. of examination, 205, 887. of specifications, 282, 733. of involuntary petition, 54, 443. APPEALS from district to circuit courts, 288, 356. when may be taken, 288, 356. what notice given, 290, 360. bond in, 290, 860. in what cases lie, 289, 357. when entered in circuit court, 290, 361. from rejection or allowance of claim, 110, 336. statement made in circuit court, 111, 862. GENERAL INDEX. 971 APPEALS—continued. defense of assignee, 111, 362, 881. may be waived, 292, 862. from circuit to supreme court, 301, 871. how proceedings in bankruptcy may be reviewed, 2/2, 363. APPEARANCE, when to be in person, 223, 887. when by attorney, 667, 872. in involuntary proceedings, 47, 455. ARBITRATION, assignee may submit to, 142, 563. manner or mode of submitting, 142, 880. ARREST, when bankrupt not liable to, 185, 706. bankrupt exempt from, attending for examination, 655. when marshal to make, in involuntary cases, 45, 446. ASSENT TO DISCHARGE, when procuring, bars discharge, 279, 712. in case of second bankruptcy, when necessary, 284, 741. contract for, void, 853. penalty for procuring, 853. when necessary, 282, 736. ASSETS, what are, 13, 485. what amount necessary to a discharge, 282, 736. jurisdiction extends to collection of, 207, 324. how distributed when partnership is bankrupt, 244, 776. assignees return when no, 268, 710. ASSIGNEE, who may be, 132, 479. choice of, 123, 475. who may vote, 123, 475. in case of partnership, 124, 776. when appointment may be made, 130, 474. who may appoint, 180, 474. approval of, 131, 479. to accept in five days, 136, 474. additional appointed, 185, 481. bond of, 136, 482. approval of bond, 136, 482. when new choice ordered, 135, 481. give notice of appointment, 137, 555. what property vests in, 137, 485. . to record assignment, 139, 555. rights against bankrupt, 487. third parties, 489. what property passes to, 490. rights under contracts, 493. purchaser with notice of equities, 500. rights under statutes, 501. against bankrupt’s wife, 501. children, 501, represents creditors, 503. unrecorded conveyances, 505. 972 i GENERAL INDEX. ASSIGNEE—continued. may reject property, 506. property conveyed in fraud, 532. liable in State court for tort, 571, 867. bankrupt’s books not withheld from, 552. to report exemptions within twenty days, 152, 879. to prosecute and defend suits, 148, 542. must be admitted to pending suits, 143, 542. copy of assignment evidence of right to sue, 146, 551. how admitted, 146, 552. may institute suits, 542. limitation of suits by and against, 227, 558. in what court suits must be brought, 222, 332. not to be sued without notice, 227, 557. may sell unencumbered property, 167, 563. to deposit money, 140, 562. to keep goods separate, 140, 562. to make temporary investment, 141, 562. to compound claims, 142, 563. to submit to arbitration, 142, 563. to redeem mortgaged property, 170, 572. to sell property subject to mortgage, 173, 601. to sell free from encumbrances, 174, 618. to receive all proofs of debt, 142, 639. removal of, 147, 483. vacancies how filled, 150, 485. no suit to abate by death or removal of, 146, £51. to call meetings of creditors, 666. resignation of, 150, 483. to contest proofs, 106, 641. to examine bankrupt, 191, 650. to call second meeting, 285, 663, © to call third meeting, 259, 665. settlement of account, 240, 668. to distribute estate, 240, 668. ° expenses of, 252, 669. commissions of, 252, 673. discharge of, 240, 668, penalties against, 387. auditing accounts of, 255, 879. not liable to examinatior, 658. employment of clerks by, 254, 669. ASSIGNMENT, when to be made, 137, 485. need not be acknowledged, 158, 486. where to be recorded, 139, 555. certified copy evidence of, 189, 556. what passes by, 138, 486, subject to all equities, 500. property vested under, 490, GENERAL INDEX. 973 ASSIGNMENT—continued., not property held in trust, 554, in trust by debtor, 421, 729, 846. an act of bankruptcy, 403, 421. bars discharge, 712, 729. when set aside, 846. ATTACHMENT, when dissolved, 486, 508. lien for costs, £11. return in, conclusive, 515, when valid, 514. how valid lien enforced, 514. effect of discharge on bond for dissolution, 518. on final process, 515. on rent, 514. no retroactive effect of failure to dissolve, 720. funds in hands of assignee subject to, 681. what is mesne process, 508. is a lien, 508. lien may be divested, 508. not dissolved after judgment, 509. when surplusage, 509. assignee may appear, 510. ‘stay of, 510, 703. when one partner is bankrupt, 509. liability of receiptor, 512. when bond may be filed to dissolve, 513. ATTORNEYS, creditors may act by, 667. how constituted, 115, 667. petitioning creditor may act by, 872. may conduct case for bankrupt, 872. name indorsed on papers, 872. what notices served on, 878. appearance for debtor in involuntary cases, 47, 455. who may be, for assignee, 185, 482. effect of voluntary appearance by, 208, 332, 336. appearance, how withdrawn, 336. when $20 allowed to, 251, 675. may be assignee, 133, 481. fees of, for assignee, 255, 671. for debtor proceeded against, 249, 677. for petitioning creditor, 249, 676. for voluntary bankrupt, 249, 675. lien on papers, 606. authority conferred by form, 116, 865. BAIL, demands against, provable, 588. when may prove, 590. when debtor may give, 45, 446. when may share in estate, 241, 663. 974 GENERAL INDEX. BANKRUPT, who may become, 1, 389. who may be involuntary, 31, 402. subject to orders of court, 697. to execute instruments, 553. fraudulent conveyances by, 532. property held in trust by, 554. may have actions stayed, 181, 700. ‘hold property acquired after petition, 487. BONDS, BOOKS, may be attached for contempt, 380, 697, 719. may obtain injunction, 229, 331. to protect estate, 487. transfer after petition void, 487. can not purchase estate before appointment of assignee, 570. may purchase estate, 564. payment to, after petition, void, 488. examination of, 191, 650. on what may be examined, 200, 650. liable for contempt, 194, 697. may consult counsel, 200, 655. questions that would criminate himself, 208, 656. not entitled to witness fees, 195, 654. examination of wife of, 191, 661. wife of, entitled to witness fees, 195, 66!. discharge refused if she does not attend, 661. may amend examination, 205, 887. may amend schedules, 22, 400. not liable to arrest, 185, 706. when to apply for discharge, 267, 709. to take final oath, 279, 789. grounds fur opposing discharge of, 278, 711. obtaining false credit, penalty for, 854. to furnish schedules, 63, 471. penalties against, 854. selling goods fraudulently, 854. of register, 72, 878. on appeal or writ of error, 290, 860. of assignee, 136, 482. claim under, provable, 588. no stay of action on joint, 702. kept by clerk, 74, 382. by register, 74, 882. bankrupt’s, pass to assignee, 188, 485. no right to withhold bankrupt’s, 552. production of, 74, 882. witness must produce copies of, 659. mutilation of, 279, 712. penalty for mutilation, 854, omission to keep, 712, 725. GENERAL INDEX. 975 BOOKS—continued. what are proper books, 726. assignee to keep, 141, 568. penalty for destroying, 854. CERTIFIED COPIES of assignment, 551. of records, 556. not by register, 376. CERTIFYING QUESTIONS, issues of law, 75, 385. who may take certificate, 76, 885. what may be certified, 76, 886, effect of decision on, 78, 886. CLERKS to keep minute books, 74, 382. duties on filing papers, 17, 872. process tested by, 872. to furnish blanks to register, 872. to deposit funds, 882. to keep account of moneys received, 882. notice to, of appeals, 290, 360. duties of, 872. offenses by, 387. fees of, 260, 800. to mail notices of meeting, 149. manner of sending, 149. to send notice of application for discharge, 269, 710. COMMENCEMENT OF PROCEEDINGS, what is, 376. assignment relates to, 485. COMMISSIONERS may take testimony, 383. may take proofs, 86, 628, 630. proofs by, subject to revision, 86, 628. COMPOSITION, meeting to consider, 686. acceptance of, 686. number requisite, 686. recording resolution, 687. varying composition, 687. statement of debt, 687. correcting mistake, 688, pro rata payment, 688. how enforced, 688. how set aside, 688. computation of time, 688. meeting may be called, though petition defective, 688. schedules used as statements, 689. examination of debtor, 689. adjournment of meeting, 689. production of books, 689. wo may vote, 690. mode of computation, 691. 976 GENERAL INDEX. COMPOSITION—continued. confirmation of resolution, 691. rejection of composition, 692. purchase of votes, 63. how defects in composition cured, 694. when property surrendered to bankrupt, 695. payment in cash, 694, injunction from district court, 695. conclusive in collateral actions, 695. no discharge necessary, 695. joint debtor not released, 696. error in stating amount, 695. COMPOUNDING CLAIMS, assignee may, 142, 563. mode of proceeding, 142, 880. CONCEALMENT of books bars discharge, 279, 712. when an act of bankruptcy, 32, 402. of property an act of bankrnptcy, 32, 402. bars discharge, 279, 712. CONFESSION OF JUDGMENT, when an act of bankruptcy, 32, 402. when a preference, 810. when set aside, 826. CONSTITUTION, extent of power, 305, meaning of bankruptcy, 305. not limited to English laws, 306. particular class of persons, 306, voluntary bankruptcy, 306. obligation of contracts, 806. selecting tribunals, 306. suspension of State insolvent laws, 307. exemption clause, 162, 524. liens not invalidated, 162, 524. CONTEMPLATION OF INSOLVENCY, what is, 37. : acts done in, are acts of bankruptcy, 33, 402. CONTEMPLATION OF BANKRUPTCY, what is, 87, 412. acts done in, acts of bankruptcy, 32, 402. bar discharge, 279, 712. CONTEMPT, district court may punish for, 206, 340. parties and witnesses liable, 383. register can not commit for, 882. bankrupt punishable for, 697, assignee liable to, 151, 483. with notice of injunction, 450, proceedings for, 207. when order to show cause, 661. proceeding for, can not be enjoined, 280, 330. CONTRACTS, assignee entitled to benefit of, 493. for not opposing discharge vuid, 853. penalty for, 853. for withdrawing involuntary petition, 854. GENERAL INDEX. 977 CONVEYANCES, unrecorded, 505. fraudulent, 532. by way of preference, void, 810. in fraud of the act, void, 843. what, acts of bankruptcy, 32, 402. fraudulent by corporations, 791. chattel mortgages, 553. CORPORATIONS may become bankrupt, 1, 791. voluntary petition by, 2, 793. who may authorize, 3, 793. officers to furnish schedules, 791. execute papers, 791. submit to examination, 791. penalties for concealing property, 791. no discharge to be granted, 791. how assets to be distributed, 791. service on, after dissolution, 453, effect of proceedings to forfeit charter, 809, 798. State insolvent laws relating to suspended, 309, 798. proof of debt, 84, 637. service on, 453. when release of stockholders void, 504. assignee may impeach transactions by, 504. conventional payment of stock void, 504. attorney may admit acts of bankruptcy, 794. assessment on stockholders, 795. not impeached collaterally, 795. liability of stockholders, 796. sued after proof of debt, 699. no stay of suit against, 704. bankruptcy is dissolution of, 794. COSTS in attachment are not a lien, 511. when not provable, 511. against assignee, allowed out of estate, 362. on disputed claim, 362. in pending actions, 550. on trial of specifications, 735. bankrupt’s, for discharge, payable out of estate, 735. what allowed between parties in involuntary bankruptcy, 466. what allowed between parties in involuntary bankruptcy out of es- tate, 249, 676. ‘ party adjourning must pay, 874. of petitioning creditor, 676. ; of attorney for voluntary bankrupt, 250, 675. of attorney for involuntary bankrupt, 249, 676. of attorney for petitioning creditor, 243, 676. of register, 262, 800. of clerk, 260, 800. 62 978 GENERAL INDEX. COSTS—continued, of marshal, 257, 804. appearance fee, 675. entitled to priority, 266, 674. CREDITORS, notice to, of first meeting, 26, 399. first meeting of, 119, 473. who may vote, 123, 475. how many, necessary to choice of assignee, 128, 474. may require bond, 136, 482. may remove assignee, 147, 483. to be notified of meetings, 666. what claims are provable, 81, 572. surrender pending suit by proof, 112, 698. when, may prosecute pending actions, 145, 542. when suits of stayed, 181, 700. when allowed to commence suit, 184, 701. proof of debt by, 83, 630. secured, 100, 601. how proof by, made, 83, 630. may notify register not to allow claim, 642. when proof by, postponed, 93, 645. when to surrender preference, 95, 646. appeal from rejection of claim, 110, 356. how appeal prosecuted, 111, 861. may appear by attorney, 667. notice to, of application for discharge, 269, 710. may oppose discharge, 278, 730. when to file specifications, 275, 780. when assent to discharge necessary, 282, 736. assent in case of second bankruptcy, 284, 741. may vacate discharge, 285, 773. notice to, of second meeting, 236, 663. may order first dividend, 237, 663. notice to, of third meeting, 239, 665. who entitled to dividend, 241, 663, in partnership estates, 244, 776. priority, 242, 674. may examine bankrupt, 191, 650. who may file involuntary petition, 28, 402. no notice to, for dismissal, 48, 467. may take place of petitioning creditor, 48, 468. may file petition for sale of securities, 176, 623. DAMAGES, proof of unliquidated, 92, 572. assessment of, 92, 555. creditor must ask for assessment of, 92, 585. when may be set off, 91, 5119. DATES AND DEPOSITIONS, filing of petition, 376. GENERAL INDPX. 979 DATES AND DEPOSITIONS—continued. time of filing to be noted, 872. mode of computing time, 887. all proceedings matters of record, 376. how kept, 376. open to public inspection, 876. DEATH of bankrupt no abatement, 662. no discharge after, 662. of assignee, 146, 551. DEBTS, what are provable, 81, 572. mutual and set-off, 89, 596. interest on, 82, 5738. secured, should be proved, 100, 688. proof of, 88, 630. proof of secured, 101, 683. proof of, to be handed to assignee, 639. list of, to be certified, 650. postponement of proof of, 93, 645. disputing proof of, 106, 641. mode of disputing, 106, 641. diminution of, 109, 643. expunging, 109, 643. suits for collection of, 148, 542. suits for, in district court, 224, 326. suits for, in circuit court, 227, 343. sale of uncollectible, 168, 571. of petitioning creditor, 28, 439. what to have priority, 242, 674. ' compounding, 142, 563. arbitration, 142, 563. what not discharged, 741. need not exist at time of the act of bankruptcy, 28, 439. matters examined into, 657. act urged against discharge, 734. DEPOSITIONS, register may take, 383. when reduced to writing, 383. examination is, 654. fees for, 263. DEPOSITS, assignee to make, 140, 562. where made, 141, 882. how drawn on, 141, 882. to secure fees, 800, 883. by clerks, 141, 882. reports of, 141, 882. DISCHARGE ot assignee on final account, 240, 668. stay of action to await, 181, 700. application for, 267, 709. when may be made, 267, 709. 980 CENERAL INDEX. DISCHARGE—continued. of involuntary bankrupt, 268, 710. notice of application, 269, 710. grounds for withholding, 278, 711. oath before final, 270, 739. return on order to show cause, 269, 711. certificate of conformity, 270, 739. specifications against, 277, 730. must be definite, 278, 733. trial of, 281, 733. none for misconduct of wife, 191, 661. willful false swearing, 278, 711. concealment of estate, books, &c, 278, 712. fraud or negligence in custody of property, 279, 712. causing or permitting loss, 279, 712. procuring attachment, 279, 712. destroying or mutilating books, 279, 712. making false entries, 279, 712. removing property from district, 279, 712. giving fraudulent preference, 279, 712. loss by gaming, 279, 712. admitting false or fictitious debts, 279, 712. not keeping proper books of account, 279, 712. procuring assent of creditors, 279, 712. making preferences, 279, 712. transfers in contemplation of bankruptcy, 279, 712. conviction of misdemeanor, 281, 718. in case of partnerships, 776, 790. of one partner alone, 776, 790. on appointment of trustee, 683. none in case of composition, 695. when granted, 282, 736. in case of second bankruptcy, 285, 741. when assets must equal 30 per cent., 282, 736. when no assets required, 282, 786. form of, 741. effect of, 741. impeaching in collateral action, 7 £9. to what claims a bar, 748, 751. debts to United States, 751. to State, 751. fine, 751. warranty of title, 752. contingent liabilities, 752 debts of wife dum sola, 753. rent, 753. suit in equity, 753. sureties, 754, GENERAL INDEX. DISCHARGE—continued. judgments, 755. in torts, 755. remedies against judgments, 757. stay of execution, 758. no relief in equity from judgment, 758. debts due to aliens, 759. claim to property, 760. lien, 760. estoppel in mortgage, 762. new promise, 762. plea of, 766. demurrer to plea, 769. replication, 769. proof of, 770. appellate tribunals, 771. debts not released by, 741. created by fraud, 742. by embezzlement, 742. by defalcation, 742, 743. by fiduciary, 742, 743. not affect parties jointly liable, 746. how pleaded, 748, 766. how annulled, 285, 773. contracts for assent to, void, 853. notes or securities given therefor void, 853. penalty for fraudulent agreement, 853. DISPUTED PROPERTY, sale of, 179, 569. proceeds measure of value, 180, 569. recovered from assignee, 179, 569. proper action for, 179, 569. when bankrupt can not purchase, 570. DISTRAINT void after filing petition, 172, 819. when enjoined, 319. : gives valid lien, 593. DISTRIBUTION, registers may make, 78, 379. at second meeting, 237, 663. at third meeting, 239, 665. register to make computation for, 239, 680. who entitled to priority, 242, 674. who may share on separate petition, 243, 785. who may share on partnership petition, 244, 776. when bail, surety, &c., may share in, 241, 663. 981 DISTRICT of Columbia and Territories, power of supreme courts in, 341, 342. when exercised by judg’, 841, 342. DISTRICT COURTS, courts of bankruptcy, 206, 312. jurisdiction of, 206, 312. exclusive, 210, 316. 982 GENERAL INDEX. DISTRICT COURTS—continued. to what extends, 207, 324. to be always open, 206, 340. power of judges in vacation, 206, 340. punish for contempt, 206, 340. sit anywhere in district, 207, 341. suits at law, 224, 343. suits in equity, 225, 343. how invoked, 223, 336. by summary petition, 223, 335. by action at law, 224, 345. bill in equity, 225, 347. may issue injunction, 227, 327. [ revising decisions of, 288, 356. appeal from, 287, 356. writ of error, 287, 356. certificate to, 76, 385. opinion of judge on, 76, 385. entertain voluntary petition, 4, 389. issue warrant, 24, 399. _ designate place of deposit, 140, 562. fix time, place and manner of sales, 168, 568. remove assignee, 147, 483. may stay suits, 181, 700. expunge proofs, 106, 641. postpone claims, 938, 645. examine bankrupt, 191, 650. release bankrupt from arrest, 185, 706. produce imprisoned debtor, 194, 662. hear application for discharge, 267, 709. to grant discharge, 285, 739. vacate discharge, 285, 773. may entertain involuntary petition, 28, 402. issue provisional warrant, 45, 446. grant temporary injunction, 44, 446. DISTRICT JUDGE, powers of, in chambers, 206, 340. to appoint registers, 72, 378. may remove registers, 72, 379. to decide issues raised before registers, 75, 385. to give opinion on certificate, 76, 385. may compel attendance of witness, 383. to designate register to take charge of case, 382. to approve assignee, 181, 474. when to appoint assignee, 130, 474. may require bond, 136, 482. to direct temporary investment, 141, 562. when to exercise powers of circnit courts, 371. who to act in case of disability, 341. GENERAL INDEX. 983 DIVIDENDS, registers may compute, 73, 879. when to be made, 235, 663. creditors to determine, 237, 663, registers to give notice, 239, 680, after third meeting, 240, 666. not disturbed by subsequent proofs, 240, 669. on separate petition, 248, 785. partnership petition, 244, 776. priority, 242, 674. final, 240, 668. assignee must file account before, 240, 668. who may receive, 241, 663. register to make computation for, 239, 680. DOWER, when allowed, 603. ELECTION of assignee, 122, 474. how conducted, 122, 475. who may vote for, 128, 475. what votes necessary to a choice, 128, 474. approval of, 131, 474. acceptance of, within five days, 136, 474. notice of appointment, 187, 555. in case of partnership, 124, 776. in case of corporation, 791. on removal of assignee, 147, 483. EQUITY, PROCEEDINGS IN, in district court, 225, 343. in circuit court, 227, 343. for what purposes used, 225, 347. when action must be by, 222, 332. appointment of receiver in, 354. effect of bankruptcy on pending, 144, 542. to vacate fraudulent conveyances, 533. when creditor may continue, 535. rules of practice in, 226, 836. parties, 350. pleadings, 351. practice, 353. evidence, 355. EVIDENCE, how taken, 383. marshal’s returns are prima facie, 120, 473. what, of assignment, 551, 556. of right to sue, 146, 551. certificate of discharge conclusive, 748, 770. copies of records prima facie, 376. / sale, etc., out of the usual course of business, prima facie, 852. on trial of specification, 734. in equity, 855. involuntary bankruptcy, 461. 984 GENERAL INDEX. EVIDENCE—continuced. of discharge, 779. bankrupt’s wife can not testify, 775. oral in equity, 355. EXAMINATION, who may apply for, 191, 650. how application must be made, 191, 651. when application must be made, 192, 651. who may order, 193, 653. when bankrupt is present, 198, 654. before whom made, 195, 654. creditor to appoint time, 196, 654. how conducted, 197, 654. to be in writing and signed, 198, 655. on what topics, 200, 650. of witness, 191, 658. of bankrupt’ wife, 191, 661. by trustee, 683. after appointment of trustee, 683. register to pass final, 74, 379. when final is made, 381. how attendance compelled, 194, 383. when bankrupt is imprisoned, 194, 662. absent, 194, 662. may consult with counsel, 200, 655. privileged communication, 202, 659. fees for, by whom paid, 204, 384. bankrupt may amend, 205, 886. when witness must answer, 201, 658. witness can not refuse to be sworn, 202, 659. commission, to take in another district, 383. summons within 100 miles, 659. of receiver, 658, of assignee, 658. EXECUTION, when valid, 217, 320. lien of, 612. may be stayed, 217, 327. set aside as a preference, 219, 327. sheriff may sell under, 217, 320. none after filing of petition, 211, 319, against assignee for creditor’s debt, 111, 862. EXEMPTION, title to, does not pass to assignee, 152, 517. what property is exempt, 152, 517. absolutely, 153, 521. in discretion of assignee, 153, 521, under State laws, 155, 528. furniture, 153, 517, money, 158, 523. provisions, 158, 523. GENERAL INDEX. 985 EXEMPTION—continued. land, 158, 523, , apparel, 153, 521. arms and equipments, 152, 517. constitutionality of, under State laws, 155, 524. as to pre-existing debts, 524. when subject to liens, 160, 524. assignee to report within twenty days, 152, 631. effect of failure to report, 164, 532. creditors to file exceptions, 164, 532. effect of failure to file exceptions, 165, 532. act of assignment not conclusive, 161, 520. divesting of liens unconstitutional, 161, 524. mode of enforcing lien, 163, 520, EXTORTION, punishment, of, 387. FEES, justices of the supreme court to regulate, ‘375. reduction of, 807. registers not interested in certain, 72, 378. by whom to be paid, 384. what allowed in referred cases, 249, 800. when to be secured, 800. of clerk, 260, 800. marshal, 257, 804. assignee, 252, 669. in uncontested cases, 251. counsel for assignee, 254, 669. petitioning creditors, 249, 676. voluntary bankrupt, 248, 675. involuntary bankrupt, 248, 677. what to have priority, 242, 674. deposit of $50 for, 800, petitioner may be compelled to pay, 800. when paid out of fund, 672, 676. FEME COVERT may become voluntary bankrupt, 1, 390. plead coverture to involuntary bankruptcy, 57, 459. what property may be retained by, 501. may employ her husband, 539. what debts provable against, 578. when may prove claim against estate of husband, 578. when affected by husband’s knowledge, 578. ' property of bankrupt’s, 601. FICTITIOUS DEBTS, allowance bars discharge, 279, 712. penalty for allowing, 854. FIDUCIARY DEBTS, not barred by discharge, 741. what are, 743. no ground for withholding discharge, 713. 986 GENERAL INDEX. FORMS. ApsupicaTion on debtor’s petition, 914. on creditor’s petition, 965. where the debtor is not found bankrupt, 958. AFFIDAVITs, register’s oath of office, 916. proof of debt with security, 923. without security, 926. by agent with security, 929. by agent without security, 928. by corporation, 927. to lost bill or note, 931. to be made by assignee, 939. examination of bankrupt, 945. declaration to be made by bankrupt or his wife, 946. to petitioning creditor’s claim, 953. to act of bankruptcy, 954. APPOINTMENT of trustees, 960. AssIGNEES, memorandum of proceedings to choose, 918. choice of, 921. notification of appointment, 922. * notice by, of appointment, 922. notice of second meeting of creditors, 932. petition to relieve property from lien, 938. bond of, 922. return of, at second meeting of creditors, 933. return of no-assets, 938. affidavit to be made by, 939. account of, 941. order of settlement and discharge of, 942. petition for removal of, 942. notice of motion for removal, 945. order of removal, 944. Assicnment of bankrupt’s effects, 923. ATTORNEY, Special letter, 920. general letter, 920. Bonn of register, 927. of assignee, 922. CERTIFICATE, 948. Dentat of bankruptcy, and demand for jury trial, 929. Discuarce, 745. Examination of bankrupt or witness, 945. Exemption, 924. List of creditors at first meeting, 919. of proofs for dividend, 936. 9 36 of proofs to pay dividends, 937. Memoranpow of first meeting, 918. of second meeting, 934. of proceedings, 914. Notice to assignee of his appointment, 924. of assignee of his appointment, $24. for second meeting of creditors, 932. of dividend, 935. of settlement of account before final dividend, 939. of motion for removal of assignee, 948. that bankrupt has applied for his discharge, 949. of appeal, 966, ‘Orpver of reference, 913. common, 918. of settlement and discharge of assignee, 942. GENERAL INDEX. 987 FORMS—continued. Orver for meeting of creditors to consider question of removal of’ assignee, 943, + for removal! of assignee, 944. further order, 944. for examination of bankrupt, 945. to show cause on petition of creditors, 954. on denial of bankruptcy, 960. for sale of property by assignee, 964. for sale of property of corporation, 964. for diminution of claim, 965. expunging or allowing claim, 966. Perition by debtor, 899. by partnership, 911. by corporation, 912. to relieve property from lien, 938. for removal of assignee, 942. for discharge, 948. of creditors, 951. Proor or Dest, with security, 925, without security, 926. by agent with security, 929. by agent without security, 926. by corporation, 927. Report of marshal, 894. of register, 895. of assignee, 896. of clerk, 897, 898. Return on Warrant, 916. of assignee at a second meeting of creditors, 933. of no assets, 958. on summons, 947. Specirications against discharge, 950. Summons, 946. Warrant on voluntary petition, 915. on petition by creditors, 956. . FRAUD, claims founded on, provable, 573, 584. discharge does not release from, 741. proof rejected for, 106, 641. evidence of, in contract inadmissible, 657. property conveyed in, may be recovered, 532. in creation of debt, no bar to discharge, 275, 713. discharge obtained by, may be set aside, 285, 773. conveyances in, of act, are void, 843. what prima facie evidence of, 852. FRAUDULENT CONVEYANCES void against assignee, 532. when creditor may vacate, 534, unrecorded deeds, 505. possession by vendor, 536. possession on sale under judgment, 5386. stipulation in mortgage, of right to sell, 535. judgment on defective statement, 540. effect of filing chattel mortgage, 541. . gift from husband to wife, 537. 988 GENERAL INDEX. FRAUDULENT CONVEYANCES—continued. fictitious judgment, 409. a mortgage with fraudulent intent, 409. sale for long notes, 409. assignment exacting releases, 539. retention of benefit, by grantor, 409. assignment authorizing sale on credit, 410. an act of bankruptcy, 408. bar discharge, 278, 712. in fraud of act void, 843. vacated within six months, 848, 853. against second vendee, 851. penalty for, 855. FURNITURE, what exempt, 153, 517. when deemed necessary, 153, 517. GAMING, loss by, bars discharge, 278, 712. although acquired by gaming, 724. penalty for, 854. ; GENERAL ORDERS IN BANKRUPTCY, 872. HABEAS CORPUS, application for, 185, 706. what debts release from, 187, 706. not from arrest before petition, 186, 706. how made after discharge, 189, 709. what facts inquired into, 188, 706, 870. when proceedings on arrest conclusive, 188, 707. HOMESTEAD, when application for, void, 526, 849. remainder in, sold, 530. not defeat vendor’s lien, 519. when allowed, 523. State law must be complied with, 525. when contrary to bankruptcy act, 849. HUSBAND AND WIEE, husband may work for wife, 537. wife bound by husband’s knowledge, 578. when transfers between, fraudulent, 537. bar discharge, 717. an act of bankruptcy, 408. IMPRISONED DEBTOR, when imprisonment an act of bankruptcy, 402, 410. may be produced on habeas corpus, 194, 662. when released, 185, 706. while attending for examination, 655. IMPRISONMENT for twenty days an act of bankruptcy, 402, 410. to what debts limited, 402, 410. INDICTMENT, when against bankrupt, 854. officers, 387. against assignee, 568. GENERAL INDEX. 989 INDIOTMENT—continued. for omitting report, 809. how drawn, 855. INJUNCTION, in involuntary bankruptcy, 48, 447. who may be enjoined, 43, 446. allegations of petition for, 48, 447. no notice of, 44, 448, when dissolved, 44, 449. violation, with notice of, is contempt, 449. power to issue, 227, 327. against State courts, 227, 327. practice in dissolving, 230, 331. to stay proceedings, 181, 700. all suits will be stayed, 180, 700. what is violation of stay, 184, 706. proceedings to punish contempt, 341. party cannot be enjoined from going into bankruptcy, 316. INSOLVENCY, meaning of, 411, 812. inability to pay debts, 411, 812. property worth less than debts, 412, 8138. not matter of definition, 812. non-payment of one debt not sufficient, 812. varies with localities, 813. INSOLVENT LAWS, suspended, 307. _ from what time, 310. proceedings under, void, 307. what proceedings may be continued, 308. effect of thirty per cent. clause, 308. in force as to debts not discharged, 311. poor debtor's act, 310. corporations, 309. bond to take, 809. distribution under, 811. right of trustee, 311. when no bankruptcy proceedings, 308, 867. INTENT, when presumed, 417, 817. judged by legal effect, 417, 817. not confounded with motive, 417, 817. when conclusively presumed, 417, 817. of agent is that of principal, 825. in case of pressure, 820. what facts show intent, 818. INTEREST, when provable, 82, 572. when rebate of, 82, 572. in case of tort, 82, 572. when there is surplus, 681. in case of partnership, 775, 790. INVENTORY, annexed to debtor's petition, 18, 396. 990 GENERAL INDEX. INVENTORY—continued. in involuntary proceedings, 63, 471. returned by marshal, 63, 471. made by assignee, 63, 471. submitted at creditors’ meeting, 237, 663. INVOLUNTARY BANKRUPTCY, who may file petition, 28, 402. debt of petitioning creditor, 28, 439. who may be proceeded against, 31, 402. what are acts of bankruptcy, 32, 402. petition must be filed within six months, 33, 403. what petition must state, 34, 402. pleading in petition, 34, 432. i how many must unite in, 28, 403. when assignment is ground for, 403, 421. receiver by State court, 422. suspension of commercial paper, 403, 423. fraudulent conveyances, 492, 408. deposition to creditor’s debt, 40, 436. deposition to act of bankruptcy, 39, 436. deposition not amendable, 437. verification, 83, 434. when amendments of petition allowed, 54, 4438. when order to show cause issued, 41, 446. service upon debtor, 42, 452. provisional warrant, 45, 446. temporary injunction, 43, 446. discontinuance, 47, 466. intervention by others, 48, 468. appearance of debtor, 47, 455. judgment by default, 50, 470. demand for jury trial, 58, 455. mode of taking defense, 58, 455. trial, 58, 455. new trial, 61, 464, costs, 466. proceedings under warrant, 62, 470. when first meeting adjourned, 474. debtor cannot file voluntary petition, 464, exemptions to, 518. may be discharged, 268, 710. when default bars discharge, 734. 80 per cent. clause does not apply to, 736. ISSUES, when adjourned, 75, 885. what must be adjourned, 76, 385. effect of adjournment, 80, 875. JUDGMENT, when proceedings on, enjoined, 228, 327, when lien of protected, 217, 820. how sale under, set aside, 218. GENERAL INDEX. 991 JUDGMENT—continued. may be enforced in bankruptcy, 172. when validity of, must be attacked in State court, 610. when void as a preference, 826. when set aside by district court, 219. whea confession of, an act of bankruptcy, 402. presumed to be regular, 416. power of district court to liquidate, 215. proof of, when rendered after adjudication, 82, 583. warrant to confess, effect of, 828. no presumption of insolvency, 4138. takes effect from entry, 828. when levy under, valid, 828. JURISDICTION of State courts not divested, 145, 542. : over debtor, 4. in voluntary bankruptcy, 4, 392. in involuntary bankruptcy, 40, 432. in cases of partnership, 68, 776. may be raised on petition, 8. shown as objection to discharge, 8, 749. of district court in bankruptcy, 206, 312. to enjoin State courts, 227, 327. to what extends, 207, 844. on summary petition, 221, 332. by suit at law, 224, 843. by suit in equity, 225, 343. when parties reside in same district, 224. extent territorially, 208, 314. conferred by appearance, 208, 332, 336. of the supreme court, 301, 371. supreme court of D. C., 206, 341. districts courts of territories, 206, 342. to revise decisions, 288, 356. of circuit courts, 227, 343. at law, 227, 843. in equity, 227, 343. to revise decisions, 292, 363. how invoked, 298; 368. to what extends, 293, 363. on appeal, 288, 356. on writ of error, 288, 356. when petitions filed in different districts, 59, 877- of State courts over suits by assignee, 231, 838, 867. JURY TRIAL, on summary petitions, 224, 337, on specifications, 282, 780. in involuntary proceedings, 58, 455. ’ JUSTICES OF SUPREME COURT, to frame rules, 374. can not extend operation of act, 875. 992 GENERAL INDEX. LAW, PROCEEDINGS AT, in district court, 224, 343. LIENS, in circuit court, 227, 343. when must be used, 222, 332. rules regulating, 224, 887. writ of error in, 288, 356. definition of, 173. preserved in bankruptcy, 173, 601. equitable, 603. mechanic’s, 608. of partners, 604. on vessel, 609. unrecorded, 609. judgment, 609. execution, 612. of vendor, 607. of attorney, 606. mortgage, 614, pledges, 606. on profits, 616. proof of, 100, 633. when forfeited, 101, 635. district court may liquidate, 174, 601. assignee sell free from, 174, 618. subject to, 173, 622. lienor may apply for sale, 176, 623. cost of liquidation, 176, 620. redemption of, 170, 572. by bills to set aside fraudulent conveyanccs, 534. by creditor’s bill, 604. by attachment, 508. how enforced after discharge, 514. when rent is, 598. on exempted property, 160, 519. LIMITATION, suits by and against assignee, 227, 558. not revived by appointment of assignee, 227, 558. debts barred by, to be scheduled, 11, 396. are provable, 581. are discharged, 752. proof necd not anticipate defense of, 632. of six months to act of bankruptcy, 408. of four months to preference, 810, 853. of six months to assignments, 843, 853. in involuntary bankruptcy, 853. MARRIED WOMEN, See Feme Covert. MARSHAL to serve warrants in voluntary cases, 25, 399. in involuntary cases, 62, 470. order to show cause, 42, 446. when to arrest debtor, 45, 446. GENERAL INDEX. 993 MARSH AL—continued. when to take debtor’s property, 45, 446. when seizure by, proper, 46, 450. ' may demand indemnity, 46, 451, liable for trespass, 451. return at creditor’s meeting, 119, 473. makes return of expenses, 119, 886. fees to be secured, 883, fees of, 257, 804. for custody of property, 257, 804. includes assistants, 3887. MEANING OF TERMS used in the acts, 387. party, 386. given, 474, time of adjudication of bankruptcy, 573. concealment, 715. fraudulent preference, 721. after, 725. trader, 423, 725. becoming bankrupt, 729. bankruptcy, 37, 411. insolvency, 37, 411. reasonable cause, 829. contemplation of bankruptcy, 37, 412. insolvency, 37, 411. manufacturer, 424. ° commercial paper, 426. meetings, 801. lien, 173. residence, 432. MEETINGS, the Ist, when to be called, 24, 399. register to fix time of, 25, 473. preside at, 73, 379. return of marshal at, 119, 473. when to be adjourned, 120, 473. election at, 122, 474. how long to be held, 122, 475. the 2d, when to be called, 235, 663. what to be done, 237, 663. the 8d, when to be called, 239, 665. what to be done, 240, 665. to remove assignee, 147, 483. to consider appointments of trustees, 682. to be called by assignee, 666. 2d and 3d, on discharge, 664. others, when called, 240, 666. MINUTE BOOK, clerk to keep, 382, 872. , memorandum, to be entered in, 882, 872. 63 994 GENERAL INDEX. MINUTE BOOK—continued. constitutes record, 376. what to be entered in, 872. MORTGAGES of chattels, 553. chattel when valid, 553. unrecorded, 505. ' on exempted property, 160. on vessels, 609. effect on vendor’s lien, 607. on property in two States, 614. by partner under seal, 615. by agent under seal, 615. for future advances, 615. effect of change of note, 616. change of mortgage, 616. future profits, 616. insurance, 617. district court may liquidate, 174, 601. assignee may sell free from, 174, 618. subject to, 174, 622. mortgagee may apply to district court to sell, 176, 628. when void as preference, 810. may be withheld from record, 815. in pursuance of previous agreement, 821. when fraudulent, 535. right of redemption, 170, 572. mortgagee may surrender, 601. proof of, 100, 633. MUTUAL DEBTS to be set off, 89, 596, 868. when on claim purchased, 90, 596. not on unliquidated claim, 91, 599. meaning of term, 90, 596. by stockholder, 91, 597. joint against separate, 91, 598. debt not due, 91, 599. insurance policy, 91, 597. not by nominal owner, 600. effect of proof without, 600. NOTICE of first meeting, 25, 478. how served, 25, 399, by publication, 24, 399. adjourned without proper, 120, 473, when new, given, 120, 473. to assignee before suit brought, 227, 557. of appointment of assignee, 187, 555. meetings ordered by court, 666. for removal of assignee, 147, 483. GENERAL INDEX. 995 NOTICE—continued. meetings—second meeting, 236, 663. third meeting, 239, 665. final account of assignee, 240, 668. dividend, 289, 680. application for discharge, 269, 710. involuntary petition, 42, 452. appeal, 290, 360. revisory proceedings, 296, 369. applications to sell incumbered property by assignee, 175, 619. creditor, 178, 624. petition for counsel fees, 677. j of summary petition, 224, 336. what served on attorney, 873. how served, 873. OATH of register, 72, 378. allegiance, 10, 398. register may administer, 398. to debtor’s petition, 16, 398. to proof of claim, 86, 628, 639. bankrupt examined on, 191, 650. of bankrupt before discharge, 270, 739. fees for deposition, 800. to creditor’s petition, 38, 434. debt, 40, 436, act of bankruptcy, 40, 436. schedules, 16, 398. what officers may take, 398. OFFICER, public, defalcation of, 741. of corporation to petition, 2,791. authority to file petition, 8, 798. not to be discharged, 791. ORDER of sale by court, 168, 568. for examination, 191, 650. for dividend, 237, 663. for Acbtor to appear, 41, 446. for creditors to show cause against discharge, 269, 710. of reference, 17. what to contain, 17. not special, 801. courts may compel obedience to, 207, 341. of discharge, 285, 741. PARTNERS, proceedings by,.65, 776. where petition of, filed, 68, 776. when may file jointly, 68, 776. how long partnership subsists, 66, 777. 996 GENERAL INDEX. PARTNERS—continued. who may vote on petition of, 124, 776. how property of, distributed, 244, 776. proofs against several estates of, 244, 781. when one may share in estate of another, 787. when transfer by one to another, void, 787. proceedings by one against another, 68, 777. what petition in should state, 68, 777. where petition may be filed, 68, 776. defenses in, 70, 780. when brought in by assignee, 780. al] must be parties, 68, 780. adjudication in, 70, 776. proceedings by one against another, return of property in, 71. when several petitions filed, 70, 878. petitions filed in different districts, 70, 878. conveyances, by, may be set aside, 784, 816. discharge of, 746, 790. on individual petition, 776, 790. from partnership debts, 66, 746. discharge of one, does not release another, 746. proceedings by creditors against, 433. petition must charge joint act, 433. act of one is act of all, 483. one may defend though others make default, 462. when creditors of, share in separate estate, 243, 786. when credifors of, share in individual estate, 244, 784. can not vote on individual petition, 124. rights of assignee of one partner, 782. PAYMENT of claims, 238, 669. fraudulent prevents discharge, 712. when a preference, 810. on contract not to oppose discharge, 853. what an act of bankruptcy, 402. suspension of, 403. when a misdemeanor, 854. of deposited moneys, 141, 882. of dividends, 141, 882. PENALTIES, offenses under the act, 854. concealment of property, 854. destruction or mutilation of books, 854. removing books out of district, 854. fraudulent payments, gifts, &c., 854. loss by gaming, 854. concealing property from assignee, 854. omitting property from schedule, 854. allowing fictitious debt, 854. alleging fictitious losses, 855. sree mee meres mbes Bs: eR Sh oe pa S a SK yee GENERAL INDEX. 997 PENALTIES—continued. obtaining credit fraudulently, 855. indictment for, 856. what officers subject to, 387. what acts of officers, punished, 887, PERISHABLE PROPERTY, or in dispute, may be sold, 179, 569. when to be sold, 179, 569. proceeds measure of value, 180, 569. ordered into possession of assignee, 179, 569. PETITION in voluntary bankruptcy. who may file, 1, 889. what to set forth, 8, 389. no interlineation or abbreviation, 9, 877. how signed, 16. to be verified, 16, 898. where to be filed, 4, 389. entries on filing, 17, 872. can not be dismissed, 19, 391. order of reference, 17, 873. adjudication upon, 18, 389. when warrant under, to issue, 24, 399. may be amended, 22, 400. register may order amendments, 22, 400. creditor may ask for amendments, 21, 400. bankrupt may amend, 22, 400. how amendments may be made, 22, 887. where amendments must be filed, 400. may be amended before discharge, 400. PETITION in involuntary bankruptey. who may file, 28, 402. who may be proceeded against, 31, 402. what acts necessary to, 82, 402. what must aver, 34, 432.. must allege proper number have joined, 34, 484. must be signed, 38, 434. must be verified, 38, 434. where may be filed, 40, 432. may be amended, 54, 443. order upon filing, 41, 446. when dismissed without notice, 47, 466. at what time dismissed, 47, 466. can not be dismissed after adjudication, 48, 467. must be accompanied by depositions, 40, 432. may be dismissed for want of proper deposition, 437. how objections to, may be taken, 53, 4565. PETITION, summary. when may be used, 220, 332. when the proper remedy, 222, 382. 998 GENERAL 1NDEX. PETITION summary—continued. when objections to, may be taken, 223, 333. what must aver, 223, 336. must be signed, 224, 337. verified, 224, 337. practice under, 224, PETITION against assignee. for removal of, 147, 483. what must aver, 147, 483. must be verified, 147. where may be filed, 147, 483. service under, 147. when court may remove, 148, 483. when meeting of creditors called, 149, 484. PETITION for discharge. when filed in 60 days, 267, 709. may be filed at any time, 267, 709. what must aver, 268, 709. order upon, 269, 710. service of notice under, 269, 710. PETITION, revisory. when filed in circuit court, 292, 363. proper mode of revising decrees, 292, 363. to what decree extends, 293, 363. jurisdiction of circuit court under, 293, 363. what must aver, 296, 368. practice under, 296, 368. PLEADINGS upon appeal on disputed claim, 111, 362. what must aver, 111, 362. to be filed with clerk, 111, 881. defense of assignee within ten days, 111, 881. PRACTICE, justices to regulate, 374. what adopted in equity, 226, 887. at law, 225, 887. when summary petition may be used, 222, 332. suits must be at law or in equity, 222, 332. decrees may be reviewed on petition, 292, 363 appeal lies, 288, 356. writ of error lies, 288, 356. suits in State courts continued, 181, 700. State courts enjoined, 227, 327. what proceedings are void, 211, 317. on appeal upon disputed claim, 110, 356. on habeas corpus, 185, 706. on petition for stay, 181, 700. PREFERENCE is an advantage, 417. when an act of bankruptcy, 402, 414. when void, 810, 817. GENERAL INDEX. . 999 PREFERENCE—continued, what may be set aside, 826. what must concur to constitute, 811. standing four months is valid, 814. when debtor is insolvent, 812. standing two months is valid, 853, what constitutes intent, 817. made under pressure, 820, what is reasonable cause, 829, to an indorser, 838, to surety, 838. to principal where there is surety, 839. bind receiver, 567. by warrant of attorney, 828, by judgment, 826. when district court may interfere with judgment, 218, 826. bars a discharge, 712, 721. when conclusively presumed, 417, 817. under prior agreement, 823, present consideration, 828. knowledge, 837. merely voidable, 839. bona fide purchaser, 840. PREFERRED CREDITOR can not vote for assignec, 124, 482. can not be assignee, 182, 482. must surrender preference before proof, 95, 646. can not surrender after judgment, 99, 647. may surrender in involuntary cases, 96, 445. what debts forfeited, 100, 646. PRIORITY of wages, 242, 674. what claims to have, 242, 674. of fees, 800. of liens, 601. what petition to have, 878. PROCEEDINGS IN BANKRUPTCY matter of record, 876. not recorded, 376, copies of, 376. how certified, 376. what is commencement of, 876. by whom may be conducted, 872. entry of attorney’s name, 872, how papers indorsed, 872. what papers may be served on, 878. PROCESS, how issued, 873. fees, 260. PRODUCTION of bankrupt to testify, 194, 662. of books and papers, 382. PROOF OF DEBTS, how made, 81, 630. 1000 GENERAL INDEX. PROOF OF DEBTS—continued. by whom may be made, 83, 637. what must contain, 87, €30. who may take, 86, 628, 639. postponement of, 93, 645. of preferred debts, 94, 645. register may postpone, 94, 645. not taken from file, 105, 636. may be amended, 104, 636. at what time amended, 104, 637. how far amended, 104, 637. with security, 100, 633. when security forfeited by, 101, 635. relinquishment of preference before, 99, 646. retained by creditor no proof, 104, 476. to be sent to assignee, 142, 639. to be filed with clerk, 874. court has control over, 106, 641. who may ask for rejection of, 106, 641. when rejected, 109, 642. appeal from rejection or allowance of, 110, 356. notice of appeal, 110, 360. pleadings on appeal, 111, 362. when appeal dismissed, 112, 360. when debtor member of two firms, 83, 601. actions surrendered by, 112, 698. how far surrendered, 118, 698. for unliquidated damages, 92, 572. for interest, 82, 572. of judgment, 82, 583. by bail, surety or guarantor, 93, 590. for rent, 592. contingent liabilities, 92, 585. PROPERTY not collectible to be sold, 168, 571. procuring, to be attached, 712. removing from district, 712. lost by gaming, 712. conveyed fraudulently, 712. conveyed as a preference, 712. conveyed to defeat act, 8438. concealment an act of bankruptcy, 402. assignment for benefit of creditors, 409, 421. marshal to take possession of, 44, 452. taken on provisional warrant, 44, 452. what passes to assignee, 485. acquired after petition, 487. when sale by bankrupt void, 488. PUBLICATIONS. See ADVERTISEMENTS. GENERAL INDEX. 1001 REASONABLE CAUSE, what is, 829. belief of intelligent man, 829. unusual conveyance, 882. suspicion, 833. transfer of all property, 834. by retail dealer, 835. knowledge of overdue debts, 836. warrant of attorney, 834. suspension, 885. RECEIVER, when district court may appoint, 354. when distribution made by, 665. appointment of, an act of bankruptcy, 422. when property in possession of, not disturbed, 214, 320. authorized to carry on business, 567. can not set aside a preference, 567. allowances to, 799. RECORDS, how kept, 376. copies to be evidence, 376. minutes of register to be entered, 382. of assignment, 139, 555. in district court, 486, REDEMPTION, assignees right of, 170, 572. before debt due, 170, 572. release of creditor, 172, 601. filing petition for, 170, 878. order of hearing thereon, 171, 878. REGISTERS, how appointed, 72, 378. who eligible, 72, 378. to give bond, 72, 378. to take oath of office, 72, 378. what disqualified for, 72, 378. removal of, 72, 379. vacancies, how filled, 72, 378. duties of, 73, 379. to make adjudication, 738, 379. to administer oaths, 78, 379. preside at meetings, 73, 379. : take proofs, 73, 379. to compute dividends, 73, 379. to make orders of distribution, 72, 379. audit accounts, 74, 379. grant protection, 74, 379. pass examination, 74, 379. direct advertisements, 74, 873. order payment of taxes, 74, 873. wages, 74, 873. to take evidence concerning expenses, 73, 873. to liquidate securities, 73, 878. 1002 GENERAL INDEX. REGISTERS—continued. to declare dividends, 73, 873. to tax costs, 78, 873. to summon and examine persons, 74, 882. require the production of books, etc., 74, 382. dispatch administrative business, 74, 379. not to commit for contempt, 74, 382. hear disputed adjudication, 74, 382. allow discharge, 74, 382. to make memoranda, 74, 382. to adjourn issues into court, 75, 385. may take opinion of judge, 76, 385. reference of cases to, 77, 387. take depositions of witnesses, 383. acts by, to be reduced to writing, 75, 383. parties summoned before, must attend, 74, 383. to issue a warrant, 24, 399. to be impartial, 128, 475. to preside at first meeting, 128, 474. duties judicial, 123. to make assignment, 137, 485. to hold meetings for distribution, 237, 663. to prepare list of creditors, 239, 680. what constitutes a day’s sitting, 874. to examine bankrupt’s petition, 21. to give certificate of correctness, 21. to notify assignee of his appointment, 136, 474. may order an examination, 191, 650. examination before, 195, 654. no power to decide objections, 198, 655. to note objections, 198, 655. to forward memoranda by next mail, 74, 382. to keep account, 75, 876. to make returns of, 75, 876. fees of, 262, 800. fees to be secured, 266, 800. what expenses allowed, 262. may order assignee to make return, 268, 710. when case taken from, 882. when may appoint assignee, 180, 474. offenses by, 887. evidence may be taken before, 883. can not certify to copies, 376. proof must be satisfactory, 94, 689. not to be counsel or attorney, 72, 378. REMOVAL of register, 72, 879. of assignee, 147, 483. who may file petition for, 147, 483. order on, 147, 488. GENERAL INDEX. REMOVAL.—continued. of property, bars discharge, 712. an act of bankruptcy, 402. how punished, 854. RENT, when apportioned, 592. a lien, 5938, to have priority, 593. part of expenses, 595. distress for, void, 211, 319. REPORTS, ANNUAL, by marshal, 807. by register, 808. clerk, 808. assignee, 808. penalty for omitting, 809. SALES, assignee may make, 166, 532. of unencumbered property, 168, 563. by public auction, 168, 568. by private sale, 168, 568. notice of, 168, 568. of franchise of corporation, 169, 791. of real estate, 169, 482. of uncollectable assets, 168, 571. > of property of corporation, 791. of encumbered property, 174, 601. free from encumbrances, 174, 618. of property subject to encumbrances, 173, 622. on petition of creditor, 176, 623. in dispute, 179, 569. of perishable property, 178, 571. when auctioneer may be employed, 252, 671. title of purchaser, 169, 482. title to encumbered property, 170. on execution, 172, 319. when district court can not set aside, 218, 329. of exempted property, 163, 520. ; when bankrupt may purchase, 564, 570. when by debtor void, 23. when by bankrupt void, 488. when a misdemeanor, 854. when void as preference, 810. when by debtor valid as preference, 815. SCHEDULES of debts, 10, 395. of assets, 13, 396. may be amended, 22, 400. to be furnished by involuntary bankrupt, 62, 471. partners, 71, made up by marshal, 63, 471. what must contain, 10, 395. 1004 GENERAL INDEX. SCHEDULES—continued. mode of stating property in, 13, 396. mode of stating debts, 12, 395. SECURITIES, proof of, 100, 633. when forfeited by proof, 101, 635. mode of liquidating, 172, 601. may be surrendered, 173, 601. no vote, 123. SERVICE of voluntary petition, 24, 399. of involuntary petition, 41, 446. when debtor can not be found, 42, 452. on dissolved corporation, 42, 453. of petition for discharge, 269, 710. for removal of assignee, 147, 483. for dividend meetings, 236, 663. how notices mailed, 866. of notice on parties, 873. of notice on attorney, 873. waived by appearance, 208, 336. SET-OFF. See Mutuat Desrs. SPECIFICATIONS, who may file, 273, 730. when to be filed, 275, 730. may be filed with register, 277, 731. must be definite, 278, 733. what must state, 278, 733, may be amended, 282, 733. mode of objecting to, 281, 733. trial of, 282, 733. evidence in support of, 282, 734, what creditors estopped from filing, 282, 734. STATE COURTS, jurisdiction of, 210, 316. suits in, may be continued, 213, 542. when suits in, surrendered, 112, 698. injunction against, 227, 827. interference with, by district court, 213. over suits by assignee, 231, 838, 867. can not enjoin party from going into bankruptcy, 316. STAY of what suits, 181, 700. till what time, 181, 700. by State court, 182, 701. by court of bankruptcy, 182, 704. when amount in dispute, 188, 700. by debtor proceeded against, 184, 702, when suits allowed, 184, 701. after discharge, 185, 700. SUPERSEDING BANKRUPT PROCEEDINGS by agreement of cre nomination of trustee, 682. court to confirm, 682. who are moving parties, 683. GENERAL INDEX. SUPERSEDING BANKRUPT PROCEEDINGS—continued. conveyance to, 683. jurisdiction over trustees, 685. power of trustees, 685. examination of bankrupt, 683, 685. proof of debts, 685. discharge, 683. when proceedings continue, 683. SURETY may prove, 93, 590. when may receive dividend,"241, 663. preference to, void, 810, 888. when not released, 746. released by assent to dischatge, 746. demands against, provable, 92, 588. on appeal bond, 360. on assignee’s bond, 482. on bond to dissolve attachment, 513. when released by discharge, 754. “ SUSPENSION of commercial paper, 403, 423, what is, 426. when continued 40 days, 403. fraudulent, 431. TAXES to have priority, 674. TESTIMONY, how taken, 383. register may take, 383. to be filed with clerk, 383. of bankrupt, 191, 650. of witnesses, 191, 658. of bankrupt’s wife, 191, 661. claim of privilege, 201, 659. TERRITORIAL COURTS, jurisdiction of, 206, 842. how held, 342. how proceedings are revised, 342, 371. THIRTY PER CENT., when assets must equal, 282, 736. liens deducted, 283, 737. no deductions for costs, 283, 737. when not required, 282, 736, 870. involuntary bankrupt, 282, 736. no certificate without, 282. TIME, computation, 388. attachment, 509. preference, 870. TRADER, who is, 423, 725. suspension of paper by, 423. ‘5 omission to keep books, 712, 725. TRANSFER, fraudulent, 532. to give preference, 810. after filing a petition, 488. 1006 GENERAL INDEX. TRANSFER—continued. when a misdemeanor, 854. what constitutes offenses, 854. TRUST, property held by bankrupt in, 554. when exists in specie, 554. claim for conversion of, 555. conveyances in, when valid, 846. conveyance in, when an act of bankruptcy, 409, 421. TRUSTEES to settle estate, 682. delivery of property to, 682. powers of, 683. UNITED STATES, debts due to, 675. collection of taxes, 675. not affected by discharge, 751. UNLIQUIDATED DAMAGES, claim for, 572, 584. can not be set off, 599. assessment of, 585. USURY, judgment not void for, 610. \ judgment can not be vacated for, 610, 643. by corporation, 850. assignee can not recover, 501. defense to claim, 582. forfeiture for, enforced in bankruptcy, 582. determined by lex loci contractus, 582. VOLUNTARY BANKRUPTCY, who may petition, 1, 389. what residence necessary, 4, 889. petition for, 8, 389. schedules in, 10, 389. in what courts commenced, 8, 889. commencement, an act of bankruptcy, 889. oath of allegiance, 10, 398. adjudication, 20. issuing of warrant, 24, 399. publication of notices, 24, 899. what proper service, 24, 399. adjournment for defects in service, 120, 473. VOTE, who may cast, 123, 475. solicitation of, 1384, 480. none by preferred creditor, 124, 482. what necessary to choice, 128, 474." on removal of assignee, 148, 488. to choose successor, 150. VOUCHERS, by register, 75, 876. by assigtlee, 876. by marshal, 260, 876. WAGES to have priority, 242, 674. GENERAL INDEX. WAIVER, of appeal, 362. of right of action by proof, 698. WARRANT on debtor’s petition, 24, 399. to be under seal, 24, 399. by whom issued, 24, 899. what to contain, 24, 399. mode of serving, 24, 399. to be served by marshal, 24, 399. what is proper service of, 24, 399. return of, 119, 478. when new service ordered, 120, 473. provisional, 44, 446. to take possession of property, 44, 446. to arrest debtor, 44, 446. on involuntary petition, 63, 471. when new, to be issued, 121, 473. death of debtor after issuing, 662. against partnerships, 71. to arrest witnesses, 383, 660. “ARRANT OF ATTORNEY, when an act of bankruptcy, 402. not evidence of insolvency, 413. when seizure under, void, 828. ' JIFE OF BANKRUPT may prove claim against husband, 578. b separate property of, 537. bound by husband’s knowledge, 578. may be examined, 191, 661. on what topics examined, 200, 661. effect of failure to attend examination, 66!. cannot be made a witness, 775. property of, 501. WITNESSES, who may be summoned, 191, 658. court may compel attendance, 194, 383. register may summon, 193, 382, attendance under arrangement, 683. parties may be, 660. fees of, 195, 660. bankrupt’s wife cannot be, 775. fees tendered, 195, 660. may be examined, 191, 658. on what topics examined, 200, 658. deposition of, to act of bankruptcy, 40, 436. not amendable, 40, 437. VRIT OF ERROR to district court, 288, 356. in what cases lies, 288, 358. notice of, 290, 860. bond on, 290, 360, when assignee may maintain, 356. to circuit court, 801, 371. KF 1524 BOL 1877a Author Vol. Bump, Orlando Franklin 1 Title Copy Law and practice in bankruptcy. Date Borrower's Name